【线上云德】疫情期间律师说（一百二十）┃关于工伤认定的法律问题

工伤认定的前提是否一定要有劳动关系？通常情况下，社会保险行政部门认定职工工伤，应以职工与用人单位之间存在劳动关系为前提，但特殊情况下有例外。最高法院（2018）最高法行再151号行政判决认为，当存在违法转包、分包的情形时，用工单位承担职工的工伤保险责任不以是否存在劳动关系为前提。用工单位违反法律、法规规定将承包业务转包、分包给不具备用工主体资格的组织或者自然人，职工发生工伤事故时，应由违法转包、分包的用工单位承担工伤保险责任。

Is it necessary to have a labor relationship to determine the premise of an industrial injury? Normally, the social insurance administrative department determines that an employee’s work-related injury should be based on the existence of a labor relationship between the employee and the employer, but there are exceptions under special circumstances. The Supreme Court (2018) Supreme Administrative Branch No. 151 administrative judgment held that when there are illegal subcontracting and subcontracting cases, the employer shall not assume that there is a labor relationship in assuming the employee’s liability for work injury insurance. Employers violate the laws and regulations to subcontract and subcontract the contracted business to organizations or natural persons who do not have the qualifications of the main body of the employer. In the event of a work-related accident, the employer shall bear the responsibility for work-related injury insurance.

多长时间作出工伤认定？社会保险行政部门应当自受理工伤认定申请之日起60日内作出工伤认定决定，出具《认定工伤决定书》或者《不予认定工伤决定书》。社会保险行政部门对于事实清楚、权利义务明确的工伤认定申请，应当自受理工伤认定申请之日起15日内作出工伤认定决定。社会保险行政部门应当自工伤认定决定作出之日起20日内，将《认定工伤决定书》或者《不予认定工伤决定书》送达受伤害职工（或者其近亲属）和用人单位，并抄送社会保险经办机构。

不服工伤认定结论怎么办？职工或者其近亲属、用人单位对不予受理决定不服或者对工伤认定决定不服的，可以依法申请行政复议或者提起行政诉讼。

How long does it take to confirm the work injury? The social insurance administrative department shall, within 60 days from the date of receiving the application for the identification of a scientific and technological injury, make a decision on the determination of work-related injuries and issue a “Decision on the Determination of Work-related Injury” or a “Decision on the Determination of Work-related Injury. The social insurance administrative department shall, within 15 days from the date of receiving the application for the identification of a scientific and technological injury, apply for the determination of an industrial injury with clear facts and clear rights and obligations. The social insurance administrative department shall, within 20 days from the date of the decision on the determination of work-related injury, serve the “Decision on the Determination of Work-related Injury” or the “Decision on the Decision not to Recognize the Work-related Injury” to the injured employees (or their close relatives) and the employer, and send a copy Social insurance agency.

What should I do if I don't accept the work injury determination Workers or their close relatives and employing units who refuse to accept the decision to not accept or accept the decision on the determination of work-related injuries may apply for administrative reconsideration or file an administrative lawsuit according to law.