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| Reply of the Supreme People's Court on Whether It Should Be Determined as a Work-related Injury That an Employee Died From an Unknown Cause during His Business Trip | | 最高人民法院关于职工因公外出期间死因不明应否认定工伤的答复 |
| (No. 236 [2010] of the Supreme People's Court) | | （【2010】行他字第236号） |
| Higher People's Court of Shandong Province: | | 山东省高级人民法院： |
| Your request for instructions on the application of the provisions of subparagraph 5 of Article 14 of the Regulation on Work-related Injury Insurance to the case whereby Yu Baozhu brought an action against the Linqing Labor and Social Security Bureau for Labor Security Administrative Confirmation has been received. We reply you as follows upon deliberation: | | 你院《关于于保柱诉临清市劳动和社会保障局劳动保障行政确认一案如何适用〈工伤保险条例〉第十四条第（五）项的请示》收悉。经研究，答复如下： |
We generally agreed on the first kind of opinions of your court. That is, where an employee has died from any unknown cause during his business trip, and the evidence provided by the employer or the social security authority cannot rule out that the death is not due to work-related reasons, it shall be determined as a work-related injury in accordance with subparagraph 5 of Article 14 and paragraph 2 of Article 19 of the Regulation on Work-related Injury Insurance | | 原则同意你院的第一种意见。即职工因公外出期间死因不明，用人单位或者社会保障部门提供的证据不能排除非工作原因导致死亡的，应当依据《工伤保险条例》第十四条第（五）项和第十九条第二款的规定，认定为工伤。 |
| | 此复。 |
| July 6, 2011 | | 二〇一一年七月六日 |
| Annex: | | 附： |
| Request of the Higher People's Court of Shandong Province for Instructions on the Application of the Provisions of Subparagraph 5 of Article 14 of the Regulation on Work-related Injury Insurance to the Case Whereby Yu Baozhu Brought an Action against the Linqing Labor and Social Security Bureau for Labor Security Administrative Confirmation | | 山东省高级人民法院关于于保柱诉临清市劳动和社会保障局劳动保障行政确认一案如何适用《工伤保险条例》第十四条第（五）项的请示 |
| (No. 231 [2010] of the Higher People's Court of Shandong) | | （鲁高法〔2010〕231号） |
| The Supreme People's Court: | | 最高人民法院： |
| When handling the case whereby Yu Baozhu brought an action against the Linqing Labor and Social Security Bureau for labor security administrative confirmation, we have doubt about the understanding and application of the provisions of subparagraph 5 of Article 14 of the Regulation on Work-related Injury Insurance. The Judicial Committee of this court has different opinions on the application of the relevant provisions upon deliberation, so we hereby request instructions from you. | | 我院在办理于保柱诉临清市劳动和社会保障局劳动保障行政确认一案，对《工伤保险条例》第十四条第（五）项的规定理解与适用把握不准。经我院审判委员会研究后对如何适用相关规定存在不同意见，特向贵院请示。 |
| I. Basic information on the parties | | 一、当事人基本情况 |
| Petitioner (plaintiff in the first instance and appellant in the second instance): Yu Baozhu, male, born on February 20, 1961, Han nationality, villager of Shenjie East Village Weisengzhai Town, Guantao County, Hebei Province, and domiciled at such village. | | 申诉人（一审原告、二审上诉人）于保柱，男，1961年2月20日出生，汉族，河北省馆陶县魏僧寨镇申街东村村民，住该村。 |
| Respondent (defendant in the first instance and appellee in the second instance): Linqing Labor and Social Security Bureau, domiciled at 80 Guoyuan Road, Linqing City. | | 被申诉人（一审被告、二审被上诉人）临清市劳动和社会保障局，住所地临清市果园路80号。 |
| Respondent (third party in the first instance and appellee in the second instance): Linqing Longye Bearing Co., Ltd., domiciled at the Industrial Zone of Panzhuang Town, Linqing City. | | 被申诉人（一审第三人、二审被上诉人）临清市龙业轴承有限公司，住所地临清市潘庄镇工业区。 |
| II. Facts ascertained and the judgment rendered by the court of first instance | | 二、 |
The People's Court of Linqing held in the first instance that: on June 15, 2004, the defendant, Linqing Labor and Social Security Bureau (hereinafter referred to as “Linqing Labor Bureau”) made the Decision on Non-determination of Yu Jianqiang's Death as a Work-related Injury (No. 3 [2004] of the Linqing Labor Bureau), which decided not to determine the death of Yu Jianqiang as a work-related injury on the grounds that the circumstances of the death of Yu Jianqiang neither conformed to the circumstances under which an employee shall be determined to have suffered from a work-related injury as prescribed in Article 14 of the Regulation on Work-related Injury Insurance, nor did it conform to the circumstances under which an employee shall be regarded to have suffered from a work-related injury as prescribed in Article 15. The plaintiff, Yu Baozhu (father of Yu Jianqiang) refused to accept such decision, and applied to the Linqing People's Government for administrative reconsideration. On October 22, 2004, the Linqing People's Government made an administrative reconsideration decision (No. 022 [2004] of the Linqing People's Government), which affirmed the aforementioned decision regarding the determination of work-related injury made by the Linqing Labor Bureau. The plaintiff refused to accept such administrative reconsideration decision, and brought an action in the court. In accordance with the attendance sheet of the third party, the Linqing Longye Bearing Co., Ltd. (hereinafter referred to as the “Longye Company”) provided by the defendant, the transcripts of inquiry of the manager of the Longye Company, Wei Shiyu, the workshop supervisor, Chen Yanjun, the plaintiff, Yu Baozhu, and the witness, Lu Changsi, and the four written records on recruitment left by Yu Jianqiang, it can be proved that Yu Jianqiang had a de facto employment relationship with the third party, the Longye Company, before his death. According to the two certificates of the Criminal Police Team of the Linqing Public Security Bureau submitted by the defendant, it can be proved that the body of Yu Jianqiang was found in the Beiwei Canal, Dongyao Village, Qingnianbanshichu of Linqing on November 8, 2003, and murder was ruled out, but the specific time, place, cause, process and scene of the death of Yu Jianqiang can not be proved. Therefore, it can not be ascertained that there was causal relationship between the death of Yu Jianqiang and the work he engaged in before his death. Therefore, it cannot be ascertained that there were circumstances under which an employee cannot be determined or regarded to have suffered from a work-related injury as prescribed in the Regulation on Work-related Injury Insurance. The decision on non-determination of Yu Jianqiang's death as a work-related injury made by the defendant, the Linqing Labor Bureau, in accordance with the available evidence investigated was not contrary to law, and should be affirmed. In accordance with the provisions of paragraph 1 of Article 54 of the Administrative Procedure Law of the People's Republic of China, the Linqing People's Court rendered an administrative judgment (No. 169 [2004] of the Linqing People's Court) on January 11, 2005, which sustained the administrative act of the Linqing Labor Bureau of making the Decision on Non-determination of Yu Jianqiang's Death as a Work-related Injury (No. 3 [2004] of the Linqing Labor Bureau) on June 15, 2004.
．．．．．． | | 临清市人民法院一审认定：2004年6月15日，被告临清市劳动和社会保障局（以下简称临清市劳动局）作出临劳社工决〔2004〕3号《关于不予认定于建强死亡为工伤的决定》，以于建强死亡的情形不符合《工伤保险条例》第十四条认定工伤的情形，也不符合第十五条视同工伤的情形为由，决定对于建强的死亡不予认定为工伤。原告于保柱（于建强之父）不服，向临清市人民政府申请行政复议。2004年10月22日，临清市人民政府作出临政复决字〔2004〕第022号行政复议决定，维持了被告临清市劳动局的上述工伤认定。原告于保柱不服，诉至法院。根据被告提供的第三人临清市龙业轴承有限公司（以下简称龙业公司）的考勤表，对龙业公司经理魏师玉、车间主管陈彦军、原告于保柱、证人路长思的询问笔录以及于建强遗留的四份招工书面记录，能够证明于建强生前与第三人龙业公司有过事实劳动关系。根据被告提交的临清市公安局刑警大队的两份证明，能证实发现于建强尸体的地点是临清市青年办事处东窑村北卫运河内，时间是2003年11月8日，且排除他杀，但不能证明于建强死亡的具体时间、地点、原因及死亡的经过和现场。因此，不能判明于建强的死亡与其生前从事的工作有必然的因果关系，故而不能排除有《工伤保险条例》中规定的不得认定为工伤或视同工伤的情形。被告临清市劳动局根据调查的现有证据作出不予认定于建强工伤的决定并不违背法律规定，应依法予以维持。依据《中华人民共和国行政诉讼法》第五十四条第（一）项之规定，临清市人民法院于2005年1月11日作出（2004）临行初字第169号行政判决，判决维持临清市劳动局2004年6月15日作出临劳社工决〔2004〕3号《关于不予认定于建强死亡为工伤的决定》的行政行为。
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