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工伤事故损害赔偿具有工伤保险和侵权责任的双重属性,因此,受害人遭受工伤后同时存在多种救济方式,从而产生工伤损害赔偿和民事侵权赔偿的交叉。第三人侵权造成的工伤损害赔偿案件该如何处理,我国立法对这一问题未予明确,致使司法实践存在诸多困惑。笔者从工伤事故赔偿概念入手,阐述了我国工伤损害赔偿与民事侵权赔偿交叉的现状及交叉产生原因,结合司法实践,提出审理此类案件应适用“取代+不完全兼得”模式的观点,同时就该模式在司法实践中的具体应用作了阐述。
The injury compensation of work-related accidents has the dual attribute of work-related injury insurance and tort liability. Therefore, there are many kinds of relief methods at the same time after being injured by work-related injuries, resulting in the cross of injury compensation and civil tort compensation. How to deal with the cases of compensation for work injury caused by infringement of the third party, our country's legislation is not clear on this issue, which leads to many puzzles in judicial practice. Starting with the concept of compensation for work-related accidents, the author expounds the status of cross-over between compensation for compensation for work-related injuries and civil compensation and the causes of cross-cutting, and puts forward the viewpoint of applying the mode of “replacing + incompletely” in the trial of such cases , At the same time elaborated the concrete application of this mode in judicial practice.