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| Reply of the Administrative Tribunal of the Supreme People's Court on the Request for Instructions on the Determination of Work-related Injury for an Employee Who Is Injured or Dies in Any Vehicle Accident When Driving a Motor Vehicle without a Plate or Driving without a License on the Way to Work | | 最高人民法院行政审判庭关于职工无照驾驶无证车辆在上班途中受到机动车伤害死亡能否认定工伤请示的答复 |
(No. 50 [2011] of the Administrative Tribunal of the Supreme People's Court) | |
（【2011】行他字第50号） |
The Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: | |
新疆维吾尔族自治区高级人民法院生产建设兵团分院： |
Your request for instructions on the determination of work-related injury to an employee who is injured or dies in any vehicle accident when driving a motor vehicle without a plate or driving without a license on the way to work has been received. After consideration, a reply is given as follows: | |
你院《关于职工无照驾驶无证车辆在上班途中受到机动车伤害死亡能否认定工伤的请示》收悉。经研究，答复如下： |
Where, before the Regulation on Work-related Injury Insurance (Amendment) came into force (i.e. before January 1, 2011), for an employee who was injured or died in any vehicle accident when driving a motor vehicle without a plate or driving without a license on the way to work, the work-related injury insurance department did not determine him or her to have suffered from a work-related injury, the application of laws and regulations should not be considered to be in error. | |
在《工伤保险条例（修订）》施行前（即2011年1月1日前），工伤保险部门对职工无照或者无证驾驶车辆在上班途中受到机动车伤害死亡，不认定为工伤的，不宜认为适用法律、法规错误。 |
May 19, 2011 | |
此复。 |
Annex: | |
二〇一一年五月十九日 |
Request of the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region for Instructions on the Determination of Work-related Injury to an Employee Who Is Injured or Dies in Any Vehicle Accident When Driving a Motor Vehicle without a Plate or Driving without a License on the Way to Work | |
附： |
(No. 00001 [2011] of the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region) | |
新疆维吾尔自治区高级人民法院生产建设兵团分院 |
Supreme People's Court: | |
关于职工无照驾驶无证车辆在上班途中受到 |
In the trial of the case of Li Caishanhua v. the Labor and Social Security Bureau of 13th Agricultural Division (case of administrative confirmation), the Intermediate People's Court of 13th Agricultural Division of Xinjiang Production and Construction Corps requested instructions from this Court in respect of the issues concerning the determination of work-related injury for an employee who was injured or died in any vehicle accident when driving a motor vehicle without a plate and driving without a license on the way to work. After discussion, this Court request instructions as follows: | |
机动车伤害死亡能否认定工伤的请示 |
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（【2011】新高兵法行他字第00001号） |
| I. Basic information on the parties | |
最高人民法院： |
Plaintiff: Li Caishanhua, female, born on December 12, 1982, ID number 632122198212121568, Tibetan, farmer of the Bagou Community at Jianzishan Village of Xiamen Town in Minhe Hui-Tu Autonomous County, Qinghai Province, the widow of Zhao Shuangcun, domiciled in No. 180 of the Community, temporarily residing at the families' residential areas of Hongxing Chemical Plant in No. 1 Hongxing Farm of 13th Agricultural Division (hereinafter referred to as “No. 1 Hongxing Farm”). | |
新疆生产建设兵团农十三师中级人民法院在审理李采山花因劳动和社会保障行政确认一案时，涉及职工无照驾驶无证车辆在上班途中受到机动车伤害死亡能否认定工伤的问题，逐级向我院请示，我院经过讨论，请示如下： |
Defendant: the Labor and Social Security Bureau of 13th Agricultural Division of Xinjiang Production and Construction Corps (hereinafter referred to as the Labor and Social Security Bureau of 13th Division), domiciled at No. 1 Baihua Road, Da Yingfang, Hami City. | |
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| | 一、当事人的基本情况 |
| II. Basic information on the case | |
原告李采山花，女，1982年12月12日出生，身份证号码632122198212121568，藏族，系青海省民和回族土族自治县硖门镇甲子山村巴沟社农民，赵双存遗孀，住该社180号，暂住农十三师红星一场（以下简称红星一场）红星化工厂家属院。 |
At 7:10 a.m. on July 26, 2008, Zhao Shuangcun (the planitff's husband), an employee of Jintai Smelting and Casting Co. Ltd. of Hami City, Xinjiang, drove a two-wheeled motorcycle without a plate and drove without a driving license on his way to work from the tractor team of No. 1 Hongxing Farm to Xingxin Ferro-nickel Alloy Construction Site, and when he drove the motorcycle from north to south, collided with a mini ordinary bus (Gansu No. AB-7527) driven by Wang Zhongsheng from south to north, causing the death of Zhao Shuangcun and passenger Li Jilin in this traffic accident. On April 8, 2009, Li Caishanhua submitted a written application for determination of work-related injury to the Labor and Social Security Bureau of 13th Division. On August 25, 2009, the Labor and Social Security Bureau of 13th Division made the Decision on the Determination of Work-related Injury (No. 4 [2009] of the Labor and Social Security Bureau of 13th Division), and in accordance with the provisions of Articles 8, 19 and 35 of the Road Traffic Safety Law and Item (1) of Paragraph 1 of Article 16 of the Regulation on Work-related Injury Insurance, confirmed that Zhao Shuangcun died in a traffic accident while driving a motorcycle without a plate and driving without a license and should not be determined to have suffered from a work-related injury, and made a decision on refusal to determine Zhao Shuangcun to die from work. Li Caishanhua refused to accept the above decision after receiving it, and on September 1, 2009, applied to the labor and social security bureau of the Corps for administrative reconsideration. On October 12, 2009, this bureau made the Administrative Reconsideration Decision (No. 16 [2009] of the Labor and Social Security Bureau of Xinjiang Production and Construction Corps), affirming the Decision on the Determination of Work-related Injury (No. 4 [2009] of the Labor and Social Security Bureau of 13th Division) made by the Labor and Social Security Bureau of 13th Division. Li Caishanhua refused to accept the administrative reconsideration decision and thus filed a lawsuit with the court. During the trial of this case, the People's Court of Hami Reclamation Area of Xinjiang Production and Construction Corps reported to this Court in respect of the issues concerning the determination of work-related injury for an employee who was injured or died in any vehicle accident when driving a motor vehicle without a plate or driving without a license on the way to work. | |
被告新疆生产建设兵团农十三师劳动和社会保障局（以下简称十三师劳动保障局）住所地哈密市大营房百花路1号。 |
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| III. Issues requiring instructions and opinions thereof | | 二、案件的基本情况 |
For the issue concerning the determination of work-related injury for an employee who was injured or died in any vehicle accident when driving a motor vehicle without a plate or driving without a license on the way to work, there are no clear provisions in existing laws, regulations, judicial interpretations, and this Court therefore formed two opinions in the discussion: | |
2008年7月26日7时10分，新疆哈密市晋太冶炼铸造有限责任公司员工赵双存（原告之夫）无驾驶证驾驶无牌照二轮摩托车从红星一场机耕队前往星鑫镍铁合金工地上班途中，当车由北向南行驶至红星一场园林三场路段时，与王中生驾驶的由南向北行驶的甘AB-7527号微型普通客车相撞，造成赵双存及乘车人李继林死亡的交通事故。李采山花于2009年4月8日向十三师劳动保障局提交认定工伤的书面申请，2009年8月25日，十三师劳动保障局作出师劳社工伤认〔2009〕4号工伤认定决定书，依据《道路交通安全法》第八条、第十九条、第三十五条和《工伤保险条例》第十六条第一款第（一）项的规定，确认赵双存属无证驾驶车辆发生交通事故造成死亡，不应认定为工伤，并作出不予认定赵双存为工亡的决定。李采山花收到上列决定书后不服，于同年9月1日向兵团劳动和社会保障局申请行政复议。同年10月12日，该局作出兵劳社复决字〔2009〕16号行政复议决定书，维持十三师劳动保障局作出师劳社工伤认〔2009〕4号工伤认定决定书。李采山花不服该行政复议决定，遂诉至法院。新疆生产建设兵团哈密垦区人民法院在审理该案过程中，就案件涉及职工无照驾驶无证车辆在上班途中受到机动车伤害死亡能否认定工伤的问题，逐级请示我院。
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