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多数学者都认为,在当前的法律体系下,工伤认定的性质为行政确认,行政权专属于行政机关以及法律授权的组织,法院、仲裁机构没有工伤认定权,故无论是否参加工伤保险,发生了工伤或职业病都应当由行政部门进行工伤认定。法院、仲裁机构同样认为在民事诉讼中法院无工伤认定权,仲裁机构在劳动仲裁程序中无工伤认定权。本文依据现有的法律体系,确定了对行政权与司法权主管范围的划分标准,即实质性标准和形式性标准,并运用这两个划分标准对工伤认定的概念重新进行界定与分类,确认司法机构在仲裁、民事诉讼中有工伤认定权。依据这个划分标准,对工伤行政认定与工伤司法认定的概念、特点、主管范围进行了界定,为工伤赔偿案件的程序简化提供了依据。
Most scholars believe that in the current legal system, the nature of work-related injury is administrative confirmation. The executive power is exclusively vested in the administrative organs and the organizations authorized by law. Courts and arbitration institutions have no right to work injury, so whether or not they participate in work injury insurance, Injury or occupational diseases should be determined by the administrative department of work-related injuries. Courts and arbitration bodies also consider that in civil proceedings courts have no right to work injury, and arbitration institutions have no right to work injury in labor arbitration proceedings. Based on the existing legal system, this article determines the standard of division between the executive power and the competent jurisdiction, that is, substantive standards and formal standards, and redefines and classifies the concept of work-related injury determination using these two division criteria The judiciary has the right to work-related injury in arbitration and civil litigation. According to this division standard, this paper defines the concept, characteristics and scope of the administrative authorization of work injury and the definition of work injury justice, which provides the basis for the procedure simplification of work injury compensation.