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我国现行的因病解除制度有着较为明显的缺陷。首先,医疗期与劳动者实际需要的治疗时间无关,而是取决于劳动者的工龄和在用人单位的工作年限。这种统一标准的制度设计无疑有利于法律的安定性,但是容易导致个案的不公。应当借鉴德国“预测原则”的思想,保留对医疗期的规定。但是劳动者“耗尽了”医疗期的,不能再作为因病解除的绝对前提,而是应该理解为在这种情况下自动产生劳动者将来健康状况堪忧的假设,同时给予劳动者通过相反的证据推翻这种假设的机会。其次,劳动者无法从事原工作的情况下用人单位应该另行安排一份怎样的工作?我国学界和实务界对此没有明确的答案,就此也可以借鉴德国经验。最后,我国的国情决定了目前应该强调法律确定性的价值,在解除理由成立的情况下暂时不应该引入利益衡量的环节,但是为工作原因患病受伤的雇员不能享受工伤待遇的,应当适当延长医疗期。
The current system of relieving sickness in our country has obvious defects. First, the medical period is independent of the actual treatment time required by the worker, but depends on the length of service and the length of service at the employer. This unified standard system design undoubtedly favors the stability of the law, but easily lead to unfair cases. We should learn from the German “predictive principle” thinking, to retain the provisions of the medical period. However, laborers can not be used as an absolute prerequisite for their illness, but should be understood as the assumption that workers will be in a poor state of health in this situation automatically, and workers will be allowed to pass the medical period The opposite evidence overthrows this hypothetical chance. Second, workers should not be engaged in the original work of the employer should be arranged separately what kind of work? Our academic and practical circles do not have a clear answer to this, you can learn from German experience. Lastly, the national conditions of our country determine the value of legal certainty that should be emphasized at present. When the justification is lifted, we should not introduce a measure of interests for the time being. However, employees who are sick and injured for work reasons should not be treated with injury, and should be appropriately extended Medical period.