Legal Risk Prevention of Internship Training... Common legal disputes and handling during students' internship (personal injury)

Published:

2021-11-15

Foreword The Ministry of Education and the Ministry of Finance issued the "Administrative Measures for Student Internships in Secondary Vocational Schools" (hereinafter referred to as the "Measures"), which mainly refers to secondary vocational schools in accordance with the requirements of professional training objectives and the arrangement of teaching plans, and organize students to The teaching practice and internship conducted by employers such as enterprises are important contents of professional teaching in secondary vocational schools. For students, internship is the process of applying theoretical knowledge to practice, and it is an important part of learning during school and about to enter the workplace. Through internships, students can accumulate practical experience, increase social experience, adapt to social life early, increase opportunities for future employment, and facilitate the smooth connection between school study and employment. During the internship, students often encounter legal disputes. The common legal disputes mainly include work injury, personal injury, violation of discipline and property safety. The author mainly discusses the problem of personal injury in order to give readers some enlightenment. Text According to Article 384 of the the People's Republic of China Criminal Law, anyone who intentionally harms another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever causes serious injury to a person shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years; whoever causes death or serious injury to a person by particularly cruel means and causes serious disability shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death. On March 29, 1990, the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the Standards for the Identification of Serious Injury to the Human Body. Articles 3 and 4 of the Circular of the Ministry of Education and the Ministry of Finance on Printing and Distributing the Measures for the Administration of Student Internships in Secondary Vocational Schools stipulate that student internships shall be jointly organized and managed by schools and internship units. Schools and internship units shall safeguard students during their internships. The legitimate rights and interests of students ensure their personal safety and physical and mental health during the internship. This shows that although students go to the unit for internship, they are still not divorced from the school. The school and the internship unit have the obligation to jointly manage students. Types of personal injuries during 1. internships Personal injuries that occur between (I) intern students Internship students between the personal injury compensation events, first of all to determine the age of criminal responsibility of students. The responsibilities of minors and adults in such cases differ. Most of the responsibilities of minors are borne by their guardians, and the internship units are borne in a certain proportion. An adult (deemed to be a person with full civil capacity) is assumed by himself. With the development of the times, contemporary college students have more mature thoughts than before. From the perspective of psychological age, most of them have the ability to take responsibility. This is because with the invasion of social pluralism, contemporary college students are different from the past, and they are far more mature than their actual age in both thought and action. After all, school teachers cannot take care of every student at all times. No one has this ability. Therefore, when personal injury occurs, the proportion of responsibility of the school and the internship unit can only be analyzed on a case-by-case basis. The personal injury accidents between the students discussed here are discussed under the condition that the internship unit is regarded as no fault. The civil liability for personal injury accidents between students shall be borne by the student himself or the student's guardian in proportion according to the principle of fair liability and fault liability in accordance with the standard of general personal injury compensation. Article 8 of the measures for handling student injury accidents promulgated by the Ministry of Education stipulates: "for student injury accidents caused by the fault of schools, students or other relevant parties, the relevant parties shall bear corresponding responsibilities according to the proportion of the degree of fault of their acts and the causal relationship between them and the consequences of the damage. The behavior of the parties is the main cause of the damage and should bear the main responsibility; the behavior of the parties is the non-main cause of the damage and should bear the corresponding responsibility." Obviously, the principle of fault liability in civil law is adopted in the principle of liability attribution. Personal injury between (II) intern students and internship units Since students are actually under the control and management of the internship unit during the internship process, the school where the students are located can generally only discover and deal with the problems in the student internship in a timely manner through the regular internship inspection system and daily communication with the students., And strengthen the education and guidance of professional ethics and skills theory for students. In addition, it is difficult for schools to take other effective control measures to prevent life injury accidents that may occur during the internship. Therefore, it is unreasonable to require the school to bear the liability for personal injury caused by the internship in the enterprise. However, some scholars believe that "as the teacher, guardian and conductor of internship activities, the school should foresee the inevitable and possible risks of interns in the internship work, and should bear the corresponding legal responsibility. The employer, as the provider of labor conditions for interns, the director of the arrangement of labor work and the winner of a certain degree of labor results, shall provide the interns with safe and hygienic working conditions in accordance with the provisions of the state, and shall bear the corresponding legal responsibility when the interns are injured in their work. In the absence of clear legal provisions, schools and employers should bear joint and several liability for interns. According to this view, the school's responsibility for the personal injury of the intern student is close to no-fault liability, which actually transfers all the risk of personal injury to the student during the internship to the internship unit and the school. According to this idea, internship units will not accept students' internships, and schools will not arrange students to practice outside the school. In this way, it will cause the students in vocational schools and colleges in our country to be more divorced from social practice, and teaching and practice are out of touch. The original intention of the state to encourage students to participate in social practice and improve professional skills through internships or work-study methods will be completely defeated. On June 26, 2007, the Ministry of Education and the Ministry of Finance jointly issued two documents-"Administrative Measures for Work-Study in Higher Education Institutions" and "Administrative Measures for Internship of Secondary Vocational School Students", which provide for the work-study behavior of higher education students. Provisions are made separately for the internship activities of secondary vocational school students. The former requires that the student work-study management service organization must be authorized by the school to sign a legally effective agreement with the employer and the student on behalf of the school. The agreement must clarify the rights and obligations of the school, the employer and the student, and carry out The treatment of accidents for students who work-study activities. The latter stipulates that before vocational school students go to the internship unit for internship, the school, the internship unit and the students themselves or their parents shall sign a written agreement to clarify the responsibilities, rights and obligations of all parties; the school and the internship unit shall purchase accidental injury insurance for the internship students. Related insurance, the specific matters shall be negotiated by the school and the internship unit; during the internship, the compensation for personal injury accidents of students shall be handled according to the Measures for Handling Student Injury Accidents and relevant laws and regulations. The author discusses Whether the internship unit and the student's school should bear the responsibility for the personal injury accident during the internship? How to define the legal responsibility of the two? It has always been the focus of practical controversy. In practice, there are roughly the following treatment modes: (1) Determine the responsibility according to the terms of the internship agreement signed between the internship unit and the school regarding the handling of personal injury accidents suffered by students. However, this model often causes both parties to shirk each other's responsibilities due to unclear agreements and unclear responsibilities, or because one of them is unable to bear the responsibility, which damages the interests of interns. In fact, even if there is a so-called agreement, when the status of the intern student and the employer is not equal, the agreement on the personal injury accident that occurred during the internship may not be beneficial to the intern student. (2) Such risks are addressed through commercial insurance. In November 2009, the Ministry of Education, the Ministry of Finance, and the China Insurance Regulatory Commission jointly issued the ''Notice on the Implementation of Student Internship Liability Insurance in Secondary Vocational Schools'' after more than two years of research. It stipulates that the liability insurance can be charged from the tuition of vocational schools. If a vocational school reaches an agreement with an enterprise, it can also be charged from the cost (fee) of the enterprise, and no additional fees are allowed for students. (3) The risk of personal injury in the course of internship or part-time work is incorporated into the social security system to solve. For example, in 2009, Jiangsu Province stipulated that all full-time undergraduate, Junior College students and graduate students who received general higher education in all kinds of full-time colleges and universities and scientific research institutions in the administrative area of Jiangsu Province, taking the school as a unit, should register college students' insurance participation before October 15 of each year, and go through the formalities with the medical insurance agencies in the overall planning area, Enjoy basic medical insurance benefits from the date of going through the enrollment procedures and paying the insurance fees. The cost of participating in basic medical insurance shall be shared by the government finance and individuals. Yunnan, Sichuan, Chengdu, Shandong, Fujian and other places have also included college students in the local urban residents' medical insurance system. But somehow, the areas that currently implement this measure only include college students in the scope of application, ignoring the more than 2000 million students in secondary vocational schools in my country, which are almost equal to the number of students in colleges and universities. (4) According to the relevant provisions of the "Measures for Handling Student Injury Accidents" (hereinafter referred to as the "Measures") promulgated by the Ministry of Education in 2002. According to Article 2 of the "Measures", the provisions of the Measures shall apply to the handling of accidents that cause personal injury to students in school during off-campus activities organized by the school. Therefore, the internship activities organized by secondary vocational schools for students in enterprises and the activities of engineering students organized by colleges and universities to study in enterprises for one year to complete the graduation design, in the event of personal injury accidents, the relevant provisions of the measures should be applied. (5) Through the identification of school students in the enterprise internship when their status is a special worker, the internship in the process of personal injury accidents, such as constitute a work injury, according to law to enjoy the treatment of industrial injury insurance. (6) Article 61 of the "Trial Measures for Work Injury Insurance for Enterprise Employees" promulgated by the former Ministry of Labor in 1996 stipulates: "If a work injury accident occurs to a student of a college, technical school, or vocational Senior high school who has an internship in an enterprise participating in work injury insurance, the local work injury insurance agency may refer to the relevant treatment standards of these Measures. The work injury insurance agency does not charge insurance fees from the relevant schools and enterprises." Incorporating the personal injury risks that may arise from school students' internships or part-time jobs in enterprises into the country's uncompleted social security system at the time, reducing the burden on schools and internship units, and reflecting the country's emphasis on the training of reserve labor, and the importance of college students and vocational schools. Students' theory is linked with practice, and school learning and enterprises' labor demand are smoothly connected. However, this provision was repealed by the "Regulations on Industrial Injury Insurance" promulgated by the State Council in 2003, and there is no separate provision for this, nor is the reason for the repeal. Nevertheless, some local governments in our country still follow these regulations. For example, the regulations on work-study activities for students of ordinary colleges and universities in Beijing also stipulates that for students who have work-related injuries in the course of work-study work, the employer shall pay a one-time fee in accordance with the relevant provisions of work-related injury insurance.

Key words: