Journal article Open Access

Theoretical and Practical Problems of Protecting an Employee's Rights Due to Industrial Accident

S.Kh. Barehamian, V.D. Dresviannikova, R.P. Shamara

In the article, the authors state that the basis of any social state is the principle of ensuring social stability and security as well as social rights. The legal nature of such a legal category as “industrial accident” is investigated. It is concluded that the specified category is characterized by the lack of conscious will of the person, in other words, specific actions aimed at deliberately harming the worker himself.

The national legislation of Ukraine in the sphere of the employee rights protection in case of industrial accident is investigated. The methods and peculiarities of employees' rights protection on the account of industrial accidents are analyzed. Ukrainian legislation is noted to provide presently a wide range of possibilities, ways of protecting the rights of the insured person against industrial accidents, among which, in particular, the authors distinguish the most effective ones: recognition of a transaction invalid, compulsory performance of duty, compensation for damages, other ways of compensation and moral harm. The comparative analysis of legal categories “insurance payment” and “insurance indemnity” is carried out.

Compensation for non-pecuniary damage caused by an industrial accident is a rather problematic issue, which may be related to the unequal application of substantive law by courts of various instances, as well as the existence of certain loopholes in the law. It is established that, from both practical and theoretical point of view, justification of compensation for non-pecuniary damage is contradictory, since the courts, although mainly based on the interests of the employee, but often reduce the amount of compensation, which in their opinion is clearly overestimated, it is necessary to approach this issue carefully in order to achieve fair satisfaction.

The jurisprudence of Ukraine and some foreign countries in this field, in particular Great Britain, America, Canada, is investigated. The authors conclude that the Anglo-Saxon legal family is more advanced in the area of non-pecuniary damage than the countries of the Romano-German legal system.

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