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第三人侵权造成工伤案件中误工费的赔偿问题是侵权法和社会保险法领域悬而未决的问题,立法的缺位致使司法实践中出现了截然相反的判决。第三人侵权造成工伤案件中误工费双重赔偿的做法与损益相抵原则相悖,且极易导致伦理风险的产生,亦不符合主流司法实践。处理该问题的思路是:工伤职工获得停工留薪期内原工资福利待遇后用人单位可就误工费向第三人追偿;工伤职工同时获得停工留薪期内原工资福利待遇和误工费赔偿时,误工费赔偿部分应偿还用人单位。
The third person infringement caused the work-related injuries in the case of workers’ compensation for compensation for labor costs in the field of tort law and social security issues outstanding, the lack of legislation led to judicial practice appeared in the opposite verdict. Third-person infringement caused the double compensation for work-related injuries in work-related injury cases contrary to the principle of offsetting gains and losses, and can easily lead to ethical risks and inconsistent with the mainstream judicial practice. The idea of dealing with the problem is: the injured workers receive stoppage paychecks after the original wage and benefits after the employer may be on the loss of working time to the third person recovery; workers injured at the same time get the payroll during the payroll benefits and loss of working time compensation for lost wages, Compensation part of the employer should be reimbursed.