From the SelectedWorks of Chang Liu July 2, 2008 The Analysis of the Compulsory Legislation on Employers Liability Insurance from the Practice in Dalian Chang Liu Available at: https://works.bepress.com/chang_liu/1/
DALIAN UNIVERSITY OF FOREIGN LANGUAGES Comment [u1]: 学校名称上面空一行 ; 本页各项居中, 全部单词大写, 不加粗, 小四号字 Comment [u2]: 空两行 AN ANALYSIS OF THE COMPULSORY LEGISLATION ON EMPLOYER S LIABILITY INSURANCE FROM THE PRACTICE IN DALIAN A THESIS SUBMITTED TO THE SCHOOL OF APPLIED ENGLISH Comment [u3]: 按各院系英文名称 填写, 字母全部大写, 小四号字 IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF BACHELOR OF ARTS Comment [u4]: 空两行 BY LIU CHANG CLASS: 4 GRADE: 2004 Comment [u5]: 空一行 ADVISER: ZHANG LI Comment [u6]: 空一行 MAY OF 2008
ABSTRACT Employers Liability Insurance is compulsory insurance with the legislative guarantee in most of the developed countries; however under China s present situation with frequent accidents in the high-risk profession such as those accidents in coal mine, the legislative status concerning Employers Liability Insurance fall behind. Compulsive legislative practice of the employers liability insurance is a significant measure to strengthen and improve the safety of manufacture, while the lacking and flaw concerning the relative law and other legal documents directly have negative influence on the compulsive legislative Comment [u7]: ABSTRACT 上面不空行, 居中 不加粗 每个字母大写, 字体 Times New Roman, 小四号字 摘要内容是对全篇论文的综述, 所以应避免出现引用 图表 数据统计等 摘要总结论文内容, 简明扼要陈述研究的问题, 描述研究的方法与设计思路, 研究的主要发现以及研究结果的意义 字数 300 字左右, 控制在一页 两倍行间距, 使用陈述句, 避免疑问句 行文采用第三人称, 避免第一人称出现, 保持论文内容的客观性 practice. First, this paper analyzes the serious backward status quo in comparison with other countries legislative situation of compulsory liability insurance. The technique for comparison research is used in this part of the essay. Second, The Employers Liability Insurance already carried out in the scope of Dalian for crew and Labor Insurance within the category of Social Security are chosen to have comparison research with, in the analysis from overall to specific. Regarding the situation of Employers Liability Insurance in China, it must be forced to carry out with reference to the models of international compulsory legislative history. In short, analysis and synthesis as well as from concrete to abstract, then back to concrete are the two mainly used in the scientific research process for this part of the paper as the method for logical thinking. Finally, as the enrichment and realization of the social and practical function of this essay, suggestions are proposed on the improvement and implementation of the compulsory legislation on Employers Liability Insurance, in three aspects of legislative suggestions, steps and scopes ii
for implementation as well as ensuring measures. Considered realistically, the compulsion of Employers Liability Insurance can be practiced from local regulations to national compulsory act. And its inter relationship and direct correlation with enterprise s registration as well as legal managing scope should be built up, which serves as the basic guarantee for implementary condition. Based on the backward status quo of China s Liability Insurance legislation and the consequent lack of practice, suggestions have been made on the step-by-step routine of compelling Employer s Liability Insurance, that is, from local legislation to unified legislation. To state the suggestions generally, coastal areas with typical significance should be chosen first to practice local legislative compulsion, and practical measures from individual experimental unit to ordinary stratification should also be used. Relative guarantee suggestions for the compulsive legislative implement include economic and administrative method through limiting business entity s running scope, taxing, and so on. Key Words: Employers Liability Insurance on safety in production, Risk, Local laws and regulations, Legislative comparison research iii
摘要 从大连推行安全生产雇主责任险探究该险的立法强制 Comment [u8]: 上面不空行, 汉语 一律宋体小四号字, 英汉摘要内容 保持严格一致,1.5 倍行间距 刘畅雇主责任险在世界许多国家都是由立法保证的强制险种, 然而在我国诸如煤矿等高危行业事故频发的现状下, 安全生产雇主责任险的立法强制与相关法律保障相对滞后 立法强制推行安全生产雇主责任险是加强企业安全生产的重要举措, 而相关法律文件的缺失以及条款的有待完善直接对安全生产雇主责任险的强制推行产生负面影响 首先, 本论文在同各国安全生产雇主责任险的强制立法状况比较研究中分析得出我国雇主责任险的强制立法严重滞后的状况 ; 本论文的此部分采用了比较研究方法 其次, 本论文选取大连范围内已现实推行的船员雇主责任险立法状况以及具有相似性隶属社会保险范畴的工伤保险作为对象分别与安全生产雇主责任险进行对称比较研究, 从总体概括到具体展开对安全生产雇主责任险的强制立法进行可行性分析 ; 对于所处地位属非强制难执行的安全生产雇主责任险, 借鉴国际经验立法强制推广是可行与必行之路 ; 简言之, 在逻辑思维方法上, 论文此部分的科学研究过程中主要使用分析和综合的方法以及从具体到抽象和从抽象上升到具体的方法 最后, 作为对于本论文之现实性与社会性功能与要求的丰富与实现, 本文对为改进与实行安全生产雇主责任险的强制立法提出了现实的建议, 具体将从立法建议 步骤范围以及保障措施三方面展开 ; 从现实角度考虑, 可通过从地方法规到国家法律强制推行安全生产雇主责任险, 并使之与企业注册 法定经营范围等权限直接相关, 执行状况得到根本保障 本文在揭示了我国雇主责任险的立法上较他国相比总体发展落后以及具体规定方面因缺少实践所造成的必然缺陷的基础上, 对于已进行可行性分析的通过地方立法到统一立法分步骤分阶段强制推行安全生产雇主责任险提出了建议, 即选择具有典型意义的沿海地区等首先进行地方性立法强制, 通过个别行业试点到普通层面的立法强制的现实手段, 并由限制企业法人经营范围 税收等经济与行政手段对强制立法的实行予以保障 关键词 : 安全生产雇主责任险 ; 风险 ; 地方性法规 ; 立法比较研究 iv
ACKNOWLEDGEMENTS I would like to thank many people for helping me to get this thesis finished. Comment [u9]: 上面不空行, 英文致谢, 居中, 不加粗, 小四, 每个字母都大写 字体 Times New Roman, 小四号字 First, I owe particular thanks to my advisor, Professor Zhang Li who has been so responsible and patient in supervising me in writing up the thesis. With her help, I understand the significance of courage and persistence when facing difficulties, especially when I have decided the aim and destination for all the efforts. Without her consistent instructions, there would have been no way for the thesis to reach its present form. Next I would like to thank my fellow classmates and friends. I offer my enduring gratitude for their true friendship and kind help. Since my thesis is based on the results of collecting, mastering and comparing many crude documents and materials, they ve really done me a lot of favor in offering me various documents. Special thanks go to my parents, who have supported me throughout my years of education, both morally and financially. They taught me how to be a good daughter, a diligent student and an upstanding person. Without their support, I could never have got such confidence in finishing such a study and the consequent essay. Comment [u10]: 该部分内容两倍 行间距, 字体 Times New Roman, 小四号字 v
CONTENTS ABSTRACT... ii 摘要... iv ACKNOWLEDGEMENT..... v CONTENTS... vi Ⅰ. Introduction...1 A. Definitions on compulsory legislation of Employers Liability Insurance...1 B. Inadequateness and urgency in the research of compulsory legislation.2 C. THESIS.......3 Ⅱ.The status quo of Employer s Liability Insurance Law..... 5 A. Introduction of new policies on Employers Liability Insurance in Dalian... 5 B. Domestic legislation on Employers Liability Insurance at present.. 6 C. Legislation on Employers Liability Insurance worldwide...8 Ⅲ. Feasibility study on compulsory legislation on Employers Liability Insurance.11 A. Problems in compulsory legislation of Employers Liability Insurance...11 B. Feasibility study on Dalian local compulsory legislation...13 Ⅳ. Suggestions and strategies for improving the legislation condition...16 A. On the regional scope of local legislation.........16 B. On the steps of compulsory legislative process...17 C. On measures to ensure the enforcement.... 19 Ⅴ. Conclusion........ 21 Works Cited...24 vi
The Analysis of the Compulsory Legislation on Employers Liability Insurance from I. Introduction the Practice in Dalian A. Definitions on compulsory legislation of Employer s Liability Insurance Comment [u11]: 论文导言, 其中包括 : 作家 作品简介 文献综述 本论文讨论范围 分析方法简介以及想要论证的观点 1. Definitions of Employers Liability and the corresponding Employers Liability Insurance a. Definition of Employers Liability Employers Liability is the basic object or core concept for all the branches of the essay, which is closely concerned with the major aim of the essay: to solve the problem of ensuring employees safety and right forcefully. To classify liability, Employers Liability is sorted as vicarious liability, the precise definition of which is attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution (Gerald and Kathleen 127). b. Definition of Employers Liability Insurance The definition and scope of Employers Liability Insurance is explained plainly in HSE s Guide as follows. The Employers Liability (Compulsory Insurance) Act 1969 ensures that you have at least a minimum level of insurance cover against any such claims. Employers liability insurance will enable you to meet the cost of compensation for your employees injuries or illness whether they are caused on or off site(hse 1). To explain it specifically, under EL Act the Employers Liability Insurance is - 1 -
identified as the compulsory oblige for employers. Thus it ensures the employees basic fees for industrial injury while helping share the risk of the employers on the other hand. According to my observation and analysis, the following definition of Employers Liability Insurance given in Swiss Re s formal documents could be acceptable for its clarity and simplicity. As an annotation, Swiss Re is one of the world s leading and most diversified reinsurers. The definition is the widely used one in the practical cases about Employers Liability Insurance- Insurance taken out by employers covering employees against injuries arising out of their employment. B. Inadequateness and urgency in the research of compulsory legislation Employers Liability Insurance is compulsory insurance with the legislative guarantee in most of the developed countries; however under China s present situation with frequent accidents in the high-risk profession such as those accidents in coal mine, the legislative status concerning Employers Liability Insurance fall behind. Compulsive legislative practice of the employers liability insurance is a significant measure to strengthen and improve the safety of manufacture, while the lacking and flaw concerning the relative law and other legal documents directly have negative influence on the compulsive legislative practice. Consequently in this essay special attention is given to the aspect of the backward and insufficient legislative situation of Employers Liability Insurance and the feasible way to improve such situation. The present studies in this field can be - 2 -
seen into differently, divided as the research in China and abroad. The researchers in EU and US have gained enough experiences in promoting and extending Employers Liability Insurance, since the situation is that the comparatively fully developed and guaranteed running system for Employers Liability Insurance has been set up. The major problems for researchers in EU and US are to maintain the smooth running of the present system and some peripheral problem met in practice, e.g. the insurance certificate given for citizens of EU members moving among the EU s boundary (MPS 3). The aim and necessity of this essay lies in its function of filling the vacancy in domestic research. Within the scope of China s research fruits, there s already summarizing reports on the problems of Liability Insurance Development, e.g. The Problem of Liability Insurance Development in China written by Tian Jianxiang. However the inadequateness lies in that the analysis is a general one on all liability insurances, but there is indeed the need for a specified one typically for the Employers Liability Insurance. Another inadequateness is the lack of practical and feasible solutions and suggestions for the problems. The two inadequatenesses listed above explain the value and function of the chosen thesis without ambiguity. The advantage of this essay in the aspect of thesis is its chosen jurisprudential angle for the specific analysis on the Employers Liability Insurance and its relevant suggestions. C. THESIS The compulsory legislation on Employers Liability Insurance of - 3 -
Manufacturing Safety is studied; when the necessity and feasibility (if the national legislation doesn t work, the solution may be to discuss on local compulsory regulations) of local compulsory legislation on Employers Liability Insurance is testified, the ultimate aim of the essay is to give practical suggestions on the legislation and implementation of Employers Liability Insurance. - 4 -
II.The Status Quo of Employer s Liability Insurance Law A. Introduction of new policies on Employer s Liability Insurance in Dalian Comment [u12]: 左对齐 For the situation after gradual commitments of the accepted clauses of WTO, there s some special limitation with Employers Liability Insurance- Motor vehicle insurance, credit insurance, employer liability insurance, statutory insurance, and other insurance business not included by the China Insurance Regulatory Commission may not be undertaken or reinsured by any other insurance company not located in the locality of the insurance subject matter, or be covered by any master policy ( China 2006-12-11). To explain this clause, it is shown here that special limitations has been set up on the government s side for the specific practice of several insurances which are not included by the China Insurance Regulatory Commission, including Employers Liability Insurance. This is apparently not the only disadvantage, inconvenience and limitations created by the situation of Employers Liability Insurance. However, the present situation is improving in Dalian, for the Insurance Regulatory Commission takes the all-round promotion of Employers Liability Insurance as an important task this year. Although the policy s emphasis lies in the Employers Liability Insurance for highly dangerous vocations ( Dalian 2006-11-27). The new policy on Employers Liability Insurance is due to a governmental action through executive medium, and the administrative departments enrolled include Dalian Insurance Regulatory Commission and Dalian Administration Bureau - 5 -
of Safety Working. Guidance in the aspect of policy making is admittedly of significance, but legislative efforts and jurisdictional practices are the expectations of main stream in a country that is governed according to law. Mentioning the relationship between the two, the latter can be promoted under the catalyzer like the former. Mentioning the specific executive measures practiced in the new round, six practical provisions have been enrolled, e.g. Total Security Office, particular person in charge, Accident Prevention Funds and the Confirmation of Insurance Case ( Dalian 2007-7-31). However, these executives provisions are established by functional department in the form of internal Announcements, which consequently limits the effective scope and strength of these provisions. In contrast with laws and regulations, these announcements haven t got the entire construction of juristic action and legal responsibility. B. Domestic legislation on Employers Liability Insurance at present The ideal present form of Employers Liability Insurance is over the well-set occupational injury protection mechanisms. However, the domestic situation about Employers Liability Insurance is immature (Xu 11). Xu Feiqiong pays special attention to the parallel run of both Employer liability insurance and industrial injury insurance. There s no ground for blame since Coordination Development of Employer Liability Insurance and Industrial Injury Insurance can be looked upon as a predictive and long-sighted analysis. However, it would be more appropriate to suggest feasible form of developing the mechanism of Employers Liability Insurance - 6 -
under the situation of the imbalance developed mechanism of Industrial Injury Insurance. After all, there s some similarity between the domestic situations of these two sorts, for that they are both going on the way. The main difference simply lies in the degree, while the nature remains under two immature, developing and reforming mechanisms. Despite the existence of compulsory social welfare plans, Employers Liability which is elective is an exposure requiring consideration (Willis 19). This statement is the confirmation of Willis Brain Trust as their prediction for China s Insurance market. It indirectly confirms the present legislative situation of Employers Liability Insurance, neither as the compulsory parts in the social welfare plans, nor facing a dim prospect for the governmental action and spirit between the lines of internal announcements. The Regulatory Framework concerning Work Injury and Employers Liability Insurance is not fully set up till now, with the first law in 1951. The Current laws include 1953 (directive), 1978 (permanent employees directive), 1986 (contract workers directive), 1996 (directive), 2003 (employment injury directive), and 2004 (rural migrants directive). The special address is needed here as the corresponding type of program for nonparticipating enterprises for Local government-administered social insurance system should go under Employer-liability scheme (The U.S. Social Security Administration 7). The analysis of the U.S. Social Security Administration shows their right acknowledgement the insurances such like the Employers Liability Insurance as a cushion and diversion of Employers Liability and possible economic danger. - 7 -
China s highest legislative mechanism and highest executive mechanism is identical. This leaves out space to think about the reason for which executive medium are chosen under the central government s will to promote and carry out Employers Liability Insurance in a wide range. On analyzing the listed laws above, the situation can be clarified easily that China is in a state in which the primary task is to get the responsibility clear. Questions on how to take the responsibility are the second step to be worked out. The second reason is for our imbalanced situation of Employers Liability as a result of reform, continuous fast development and regional diversity. Of the 3 factors listed, the regional diversity is apparently as a result of multiple influences, including gap between town and country, between coastal areas and inland, etc. C. Legislation on Employers Liability Insurance worldwide As a comparative study of legislation on Employers Liability Insurance, the worldwide legislative mechanism and distribution with distinctive degrees should be seen into. The legislative situation of developed countries, including countries from Northern America such as Canada and U.S., developed countries from Western Europe such as U.K. and France, the countries from Northern Europe especially outstanding in social security systems such as Finland and Norway, adding to Japan and Australia. These developed countries legislations on Employers Liability Insurance vary in degree, but they are basically in the same stage as they have already set up a compulsive mechanism of Employers Liability Insurance nationwide. They are now in a second round of legislation concerning the all-round development and - 8 -
adaptation of the old security system. The Employers' Liability (Compulsory Insurance) Regulations 1998 was the compulsory legislation in U.K. coming into force at 1st January 1999 (The Employers' Liability (Compulsory Insurance) Regulations 1998 6). It was made on the base of the Employers' Liability (Compulsory Insurance) Act 1969, which means good practicing condition of Employers Liability mechanism after 30 years of practice. The principal changes made by the Regulations are: -- that the sum to be insured is raised from not less than two million pounds to not less than five million pounds; -the prescribed wording on the certificates gives more information about the cover provided (The Employers' Liability (Compulsory Insurance) Regulations 1998 6) This passage taken from the Regulations proves the conclusion of the major mission of the 1998 Act. Even the principal changes serves as the provisions and supplements for the mechanism all ready existing, which also indicates the common reality of the countries above. The countries analyzed above are those with mature systems which offer China things to learn from. There are actually quite a lot of countries of similar legislative condition with China or even worse, such as African countries and some others from Latin America and part of Asia. - 9 -
While the situations of two big countries of Russia and India are worth analyzing, for the similarity of being large country. In addition, the country in developing process or the country with a large amount of labor and population should have a special way of distinctive legislative system of Employers Liability System from those countries such like U.K. - 10 -
III. Feasibility Study on Compulsory Legislation of Employers Liability Insurance A. Problems in compulsory legislation of Employers Liability Insurance 1.Weak legal consciousness on Employers Liability Insurance Employers are bent solely on profit, while their legal consciousness and safe consciousness are fairy weak (Zhang 24). It is universally true and at the same time leaves nothing to be said against it that employers are always chasing after the largest interest. But when the employers of Capitalism are accepting the rules concerning Employers Liability Insurance, the performances of employers in China resulting from their unwillingness and passiveness in participating Employers Liability Insurance can only be explained as the backward and inadequate legal and safe consciousness. Since most of them haven t realized the win-win situation of the system of Employers Liability Insurance for that it is the guarantee for both employees and employers. Peter Karsten speaks of the "new phenomenon of employer liability suits" (Friedman 253-79). The new phenomenon was emerging in America in the 19 th Century, while now in China the employer liability suits haven t formed a normality of main stream. So the weak legal consciousness of employers has been under the influence of several factors, e.g. the employees weak legal consciousness of self-protection and the practical economic condition. In this triangle relation, employers stay in an advantageous position; so the way through which employers can be made to improve their legal consciousness should be compulsive way ensured by governmental violence and obligation. - 11 -
2.Deficiency of compulsory legislation in our legal system The Employers Liability Insurance has been developing quite slowly in China, one fact that we should admit is that various reasons result in the final dilemma of development. And one of the major causes is the imperfection of the legal regime (Zhang 12). In China, there is still no compulsive act like the 1969 Act in U.K. which is an act on Employers Liability Insurance with nationwide effect. With the present situation of the existence of local Employers Liability regulations in a few coastal areas and experimental zones, the condition and development of Employers Liability Insurance cannot be guaranteed in most of the regions. Moreover, even in those experimental areas with such regulations, the employers are able to escape or flee from their liability taking advantage of the distinction between regulations of different regions. All they need is some skills in registration or signing contracts. Liability insurance covers the legal risk of the insured. As long as being defined someone should be responsible for certain action to take economical indemnity by law, it occurs that transferring the risk through insurance and joining the liability insurance by consciousness. A sound legal system is the objective base of liability insurance development. In modern world the countries or regions in which liability insurance is the most developed must be the place where the legal system is the most completed and sound, especially civil law and every kind of special civil and economic legal system (Tian 11). The relationship between the legislation and the practice of Employers Liability Insurance has been analyzed prudently and distinctly above. Identical with the view already stated in the II. C., the present situation in China determines the primary task for legislative office. The liability must be clarified before the methods dealing with the consequent solutions being accepted by the possible insurer who is legal responsible employer. - 12 -
B. Feasibility study on Dalian local compulsory legislation 1. Feasibility study through the comparative research with Employers Liability Insurance for Crew within the scope of Dalian As a coastal city, Dalian has already been exposed to insurance similar with Employers Liability Insurance, especially in those maritime fields. As is stated above, the mechanism of Employers Liability Insurance of developed countries is much more mature than China. So the maritime professions under the limitations of comparatively unified international laws and regulations have got the protection of Employers Liability Insurance as usual. This shows the advantage of Dalian as the experimental areas in promoting and practicing of local legislation of Employers Liability Insurance. However, this doesn t mean that there s no disadvantage relevant to the maritime professions. The case of Ship Jialingdun has aroused quite big social influence for the contradiction of choosing laws and regulations and the special background concerning foreign affairs. (Qiudebeng 41) As the feasible study of compulsory legislation of Employers Liability Insurance, it would be feasible as long as the datum tariff is set appropriately. The function of Employers Liability Insurance is a substitution for the Insurance of Accidents, which has comparatively few problems concerning the basic level. While the jurisdictions of several cases concerning Liability Insurance serve as the precious experiences for the future cases concerning compulsory Liability Insurance. 2. Feasibility Study through the comparative research with Labor Insurance within the - 13 -
scope of Dalian With the similar function of well-established in the industrialized countries as the protection mechanisms for occupational injury, Employers Liability Insurance and Work Injury Insurance differ in nature. Especially in China, under the acceleration of the process of industrialization the risks of work injury are in continuous expansion. However, the mechanism of Employers Liability Insurance isn t mature, and the insurance system of work injury has just been implemented (Xu 138). As comparative study is done in this part of the essay, the insurance of work injury isn t taken as a mature example for the development of Employers Liability Insurance. Since both of them are not mature and in a process of adapting the rapidly changing, developing and reforming China, the feasibility and position of Employers Liability Insurance can be analyzed with the parallel insurance of Work Injury. Within the scope of Dalian, the Dalian Legal Office of Government is making efforts t o help enterprises build up a coordinated system of Work Injury Insurance and Commercial Liability Insurance ( Dalian 2008-05-03). The Legal Office has done more detailed research and offered the analyzed data for determining lowest insurance datum tariff. Under the Socialistic Market Economy, China offers the ground for the long existence of Work Injury Insurance and Labor Insurance, but also gives spaces and good opportunities for commercial Liability Insurance s development. The Employers Liability Insurance and Work Injury Insurance can be worked out harmoniously under the government's function of macro coordination. - 14 -
IV. Suggestions and Strategies for Improving the Legislation Condition A. On the regional scope of local legislation The documents accessed through Iowa State University Extension show the legislation of Liability Protection mainly in the Section 6.B. The legislative system includes State Tort Claims, Section 669.24 STATE VOLUNTEERS, the Volunteer Protection Act, etc. ( Insurance 23:09 2008-03-12). This sort comparatively mature legislative construction is formed partly from the separation and equalization of power in the U.S. since they have the fairly independent legislative initiative of an ordinary state such as Iowa. Despite the distinction in the political system, the legislative construction and status of the Iowa State has got something of value for the local and regional compulsory legislation of Employers Liability Insurance in China. This suggestion serves as buffers facing the problem of weak legal and safe consciousness concerning the Employers Liability Insurance. As the practice turns out in the federal system, the practical indication is the proving of the possibility and feasibility of the process from local legislation to the national uniform legislation for China. Since the distinction between different regions can be solves even as a common practice, this problem will be solvable for country with centralized power as a temporary one within the transforming process. Coastal areas are the wise choice as the experimental zone for practicing Employers Liability Insurance concerning the main aim of choosing the way from local legislation to the national uniform legislation. There s less resistance and obstructions according to the analysis of the factors such as the degree of the carrying - 15 -
out of open policy and the economic status of the specific region. For the city of Dalian which is the main coastal city and port in North China, the function and significance of the compulsive Employers Liability System will have significant effects both practical and symbolic. With the maritime Insurance system for accidents and mechanism for Labor Insurance in the same level as most of China s big cities, the local regulation for compulsory Employers System is expected to work out after a short time for adaptation and cushioning. B. On the steps of compulsory legislative process Within the scope of Dalian, the policy and principle of compulsive Employers Liability is the primary step in the legislative process. China s Central Committee has already acknowledged the necessity and urgency in the practice of compulsive Employers Liability Insurance; the questions will lie in the specific practices. On the other hand, concerning the premier system of Labor Insurance and Safe Insurance for Crew, the determination of lowest datum tariff can be prolonged. The determination is a necessary step of compulsive legislation in no doubt. However, in addition to the reason above, the problem caused by the distinction between local regulations is another expected factor. With the appropriate delayed period, the unnecessary efforts made during the transforming process can be limited. As it is stated above, the final aim for the whole issue is to set up a nationwide compulsory system of Employers Liability Insurance, so the fixed limit for datum tariff that could arouse huge social instability for employers and entrepreneurs can be finally settled after a period of coordination between other Social Security systems and regional - 16 -
regulations. The nature of Employers Liability Insurance as a commercial insurance serves as the third reason for the prolonging of the tariff settlement. To explain it plainly, its commercial nature gives it a possibility of being taken advantage of as a way to bypass the requirement set by the rules of Labor Insurance, etc. The settling of the lowest datum tariff is the core segment, while the appropriate datum tariff can only be obtained through practices and true cases. This explains for the necessity and correctness lying in the choice of the beginning of the whole issue with some elaborately-chosen experimental areas. The legislative process of Jersey is a case that can be looked into and used for reference. In the Endnotes of the Employers Liability (Compulsory Insurance) (Jersey) Law 1973, the legislation history is listed, including Employers Liability (Compulsory Insurance) (Jersey) Law 1973, ELL 1984, ELL 1985, ELL 1993, ELL 2003 and ELL 2005. ( States 2007-01-26) And in the original edition of the Employers Liability (Compulsory Insurance) (Jersey) Law 1973 no specific data despite the limitation concerning fine is included. This serves as a feasible time table and steps for local legislation upon compulsory Employers Liability Insurance. There s neither the need nor the feasibility to hit the core settlement of the insurance datum tariff in the first Act. At least 3 laws or provisions should be established before finishing the mission of the experimental zone. C. On measures to ensure the enforcement on the legislation - 17 -
Penalty for failure to insure. An employer who on any day is not insured in accordance with the provisions of this Law when required so to be shall be guilty of an offence and shall be liable to a fine not exceeding 5,000 ( States 2007-01-26). The first compulsory legislation of Jersey suggests the most common and effective way dealing with economic issues. Fining is effective since employers are those chasing after largest interests. This should also be the primary penalty for failure to insure in Dalian s legislation as well, for this would give the employers a clear signal and make them realize their status of choosing between negative fines and commercial insurance beneficial for themselves. 6.47 The Act requires public authorities to act compatibly with the Convention rights. Public authorities are not defined exhaustively but in a UK context it is likely to include: Government departments, local authorities, the NHS, police, prison immigration officers, public prosecutors Courts and tribunals, nondepartmental public bodies, any person exercising a public function ( WORKING 2000-10-28). In the areas concerning common sense and convention, the method despite executive penalty and jurisdictional penalty has special effect. In U.K. s attempt in this field, Public Authorities has been suggested in the 2000 Act of Employer s Liability Insurance in 2000. This is the third sort of method ensuring the compulsive practice, while there seems to be some paradox within the compulsory nature and the subjects of Public Authorities. Indeed, the members despite national violent - 18 -
mechanism are written into formal documents as a supplementary functional department. This suggests the new angle and direction in practicing the compulsory legislation through some comparatively softer and milder means with legal protection and authorization. \ - 19 -
V. Conclusion A. The statement on the status and expectation Comment [u13]: 该部分在对全文 进行总结的基础上, 得出结论, 也 要包括至少 A,B 两个层次 The elaborately chosen definition given for Employers Liability Insurance is the insurance taken out by employers covering employees against injuries arising out of their employment. Concerning this sort of insurance our present domestic legislation are in vacancy compared to the mature mechanism of Employers Liability Insurance in developed countries with provisions and revisions in 20 years on average. Although Dalian has got advantages being chosen as the experimental zone for the compulsory insurance, the legislative action is in need with the executive methods serving as the accessory and foil. B. Judgment on the correctness of the final aim of setting up nationwide compulsory legislative protection for Employers Liability Insurance The legislative mechanism with nationwide effect is expected to be set up within 30 years, based on the accurate analysis of the present status and problems for compulsory legislation. Problems concerning weak legal and safe consciousness and lack of relevant legislative experiences and datum can be solved with the suggested means. C. Summary of suggestions First, the local legislation can use the legislative experiences of federal legislative system for references. The comparatively independent regulations made by the state s legislative organ can be used as the parallel examples. Second, four major steps should be taken out gradually on compulsory - 20 -
legislation with two procedures from local legislation to national legislation. Firstly, principle legislation should be established to determine its fixed position as a compulsory obligation. Secondly, local provisions should be established every 3 years on average to formulate the system for particular profession or specific disease. Thirdly, fixed insurance datum tariffs should be set and the determined frame should help the standardization of local mechanism for Employers Liability Insurance. Fourthly, local legislation should be coordinated with the national uniform one with a integration through the National People s Congress (NPC). Concerning the special actual conditions of China, the third step and the fourth step can be enrolled and harmonized. The changes in the time table for this two steps are acceptable if necessary. Third, Measures to ensure the enforcement of the legislation is made up of effective penalties for failure to insure. The primary means is through economic means such as appropriate fines that can be written into fixed regulations from the first Act. The second means is through executive means with the guarantee of national violence. The third means is through softer Public Authorities formally authorized by the local laws which is expected to have special effects under the common value of honorary and reputation. In conclusion, based on the backward status quo of China s Liability Insurance legislation and the consequent lack of practice, suggestions have been made on the step-by-step routine of compelling Employer s Liability Insurance, that is, from local legislation to unification legislation. To state the suggestions generally, coastal areas - 21 -
with typical significance should be chosen first to practice local legislative compulsion, and practical measures from individual experimental unit to ordinary stratification should also be used. Relative guarantee suggestions for the compulsive legislative implement include economic and administrative method through limiting business entity s running scope, taxing, and so on. - 22 -
Works Cited Dalian Insurance Regulatory Commission. Announcement about Distributing Comment [u14]: 上面不空行, 位于页面顶端, 按字母顺序先列英文参考文献, 后列中文参考文献 该部分也是两倍行间距 Tentative Methods for the implementation of Employers Liability Insurance of enterprise s safe production. Controlsafety of the [2007]. 27 Nov 2006 <http://www.dlzh.gov.cn/zhasjgj/upload/file/1 大连市雇主责任保险暂行办法 _1.doc>. Dalian Legal Office of Government. The Instructions about Liability Insurance for High-risk Enterprise in Liaoning Province. Dalian, 2007. 3 May 2008 <http://fzb.dl.gov.cn/>. Dalian Multiple Production Safety Authority. On production safety in enterprises employer liability insurance notice. Dalian Municipal Production Safety Supervision and Management documents. Controlsafety of the [2007] No. 175. 31 July 2007 <http://www.dlzh.gov.cn/zhasjgj/upload/file/1 大连市安监局 _1.doc>. Friedman, Lawrence M. Losing One's Head: Judges and the Law in Nineteenth-Century American Legal History. Law and Social Inquiry. American Bar Foundation,Vol. 24, No. 1 (Winter, 1999). Hill, Gerald N. and Kathleen T. Hill. The People's Law Dictionary, 1981 <www.hillguidebooks.com>. HSE. Liability Insurance(Compulsory Insurance)Act 1969. London: The Adelphi, revised01/06. Insurance Coverage. Iowa: Iowa State University Extension, October 2003. 23:09 Comment [u15]: 第一作者姓在前, 名在后中间用, 间隔, 以, 结束, 两个作家之间用 and 连接, 第二个作家名在前, 姓在后中间无逗号, 以. 结尾 - 23 -
12 March 2008 <http://www.swissre.com/internet/pwswpspr.nsf/alldocbyidkeylu/abod-5ucl EM?OpenDocument>. Max-Planck-Society (MPS) PhD. Health Insurance (Krankenversicherung). Heidelberg: Methuen, 17:59, 28 September 2007. Qiu, Debeng. Maritime personal injury damages scope of the problem. Collected Comment [u16]: 第一作者姓在前, 名在后中间用, 间隔, 以, 结束, 两个作家之间用 and 连接, 第二个作家名在前, 姓在后中间无逗号, 以. 结尾 Works of North Sea Marine Court Qiudebeng. The China Insurance Regulatory Commission. Contents Related to insurance industry in the Legal Documents of China's Accession to the WTO. Announcement of the China Insurance Regulatory Commission on Permitting the Establishment of Solely Foreign-funded Insurance Brokerage Companies by Foreign Insurance Brokerage Companies. Beijing. 2006-12-11 <http://tradeinservices.mofcom.gov.cn/en/b/2006-12-11/8817.shtml>. The Employers' Liability (Compulsory Insurance) Regulations 1998. The Stationery Office Limited, ISBN 0 11 079725 6. The States of Jersey. Employers' Liability (Compulsory Insurance) (Jersey) Law 1973. the States of Jersey (Amendments and Construction Provisions No. 8) (Jersey) Regulations 2005. Revised Edition05.225. 2005. 26 Jan 2007 <http://www.jerseylaw.je/publications/jerseylawreview/oct05/jlr0510_legislat ion.aspx>. The U.S. Social Security Administration. China. Social Security Programs Throughout the World: Asia and the Pacific, 2004. Washington D.C. 2004. - 24 -
Tian, Jianxiang. The Problem of Liability Insurance Development in China. Economic Group Research Semimonthly. 2006.8 (No. 204 overall). Willis. Top Takeaways A Summary Checklist. Overview of the Chinese Insurance Market. January 2005: 19. WORKING PARTY. EMPLOYERS LIABILITY INSURANCE. London, 2000: P396. 28 Oct 2000 <www.actuaries.org.uk/ data/assets/pdf_file/0010/26767/0353-0413.pdf>. Xu, Feiqiong. Coordination Development of Employer Liability Insurance and Industrial Injury Insurance. Journal of Jiangxi University of Finance and Economics. 2005 01. 张勇 (Zhang Yong). 雇主责任保险的发展困境及对策 [J]. 石家庄经济学院学报,2006(01). - 25 -