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【裁判要旨】用人单位与第三人共同过错致雇员人身损害的,需分别情形判定责任构成与责任承担方式。如果损害属于工伤保险范围,用人单位与第三人为过错相应责任的,第三人仅承担与其过错相应的民事责任,但不能判决用人单位承担与其过错相应的民事责任,而应告知受害人按工伤保险程序主张权利(职业病除外);用人单位与第三人为连带责任的,则第三人应当承担除受害人责任之外的全部责任。如果损害不属于工伤保险范围,则直接依据侵权责任法第十一条、第十二条确定的规则裁判。
[Purposes of the referee] If the employer and the third party jointly make personal damage to the employee who is in the wrongdoer, it is necessary to determine separately the composition of the liability and the way of assuming responsibility. If the damage belongs to the scope of industrial injury insurance, the employer and the third party are responsible for the fault, the third party only bear the civil liability corresponding to its fault, but can not be ruled that the employing unit should bear the civil liability corresponding to its fault, but should inform the victim according to the work injury Insurance procedures claim rights (except occupational diseases); employing units and third parties are jointly and severally liable, then the third party shall bear all responsibility except the victim's responsibility. If the injury does not belong to the scope of work-related injury insurance, it will be directly based on the rules of the referee determined in Article 11 and Article 12 of the Tort Liability Law.