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我国现在处于社会转型期,越来越多的出现达到退休年龄并领取退休金的人员再次就业的情形,在用人单位使用这些劳动力的时候,由于这些劳动力已经没有参加社会保险的资格,所以用人单位并不给这些劳动力缴纳工伤保险费,但是一旦这些劳动力在工作中发生工伤事故则用人单位就会出现是否按工伤保险标准还是按照人身侵权损害赔偿标准的赔偿的难题。因为我国在上述二个标准的法律规定均不同且比较笼统,加上法院在处理类似案件时法官自由裁量度很大,使得类似案件的处理难度加大。在国际上的处理方法有四种分别是替代模式、选择模式、兼得模式、补充模式。而我国却在这方面的规定很笼统,操作性较差。笔者认为遇到类似案件应当按照自愿原则处理。
At present, China is in a period of social transition. More and more people who have reached the retirement age and receive pensions are re-employed. When these employers use these labor forces, they have no qualifications to participate in social insurance. Therefore, employers Labor insurance premiums are not paid to these laborers. However, once these laborers have a work injury accident at work, employers will encounter the problem of whether they will pay compensation according to the standard of industrial injury insurance or personal injury. Because our country has different and more general legal provisions in the above two standards, together with the great discretion of judges when handling similar cases, the handling of similar cases is more difficult. In the international approach to dealing with four different models are alternative, selection mode, both mode, complementary mode. However, our country has very general provisions in this respect and has poor operability. I think similar cases should be handled in accordance with the principle of voluntariness.