El recargo de prestaciones económicas de Seguridad Socialhistoria, presente y futuro

Résumé

ABSTRACT This dissertation aims at shedding some light on the security surcharges procedure in those cases where there is an omission in the area of Labor Law, Health and Safety at the work place. Although, the Occupational Risks Prevention System plays a major role in Spain, its status has been somehow under scrutiny since it is believed that it might lack legal certainty. As far as this thesis is concerned, it is structured into two different parts having the first one two chapters and the second one five. The first part is devoted to analyzing the duty of protection on the part of the employer and the liabilities that may arise from their non-compliance, whereas the second one deepens into the main issue which gives shape to this thesis at stake. The first chapter introduces the arguments that lead the preventive regulation to identify the entrepreneur as the center of the target for purposes of responsibility. Article 14 establishes the workers' right to "effective protection in occupational safety and health matters", and it also sets out the duty of protection from the employer to the risks that may threaten the integrity of their operators. Chapter II sets out the responsibilities that the employer may incur if he or she violates the following regulations civil, criminal, administrative and service, with the aim of providing the reader with a realistic insight of the way it is carried out. Chapter III begins with the examination of the surcharge, by means of a historical approximation to the norms that have marked its evolution, ranging from its origin in the first Law of Work Accidents to its current status, rendered explicit in article 164 LGSS. Chapter IV studies thoroughly the essential requirements for its application, which, in the opinion of the majority doctrine and jurisprudence, can be synthesized in the occurrence of a professional contingency, the omission, on the part of the entrepreneur of a security measure, the existence of a causal link between the omission of measures and the damage suffered by the worker, and an attitude of fault or negligence from the employer. In the fifth chapter the emphasis is placed on the well-known debate about the legal nature of the surcharge. Its continuity in the system makes it necessary to choose whether there is a sanction or compensation, because it is truly urgent to end, once and for all, the scenario of general uncertainty that its unclear definition generates in all the sections of the social branch of the Law. Chapter VI is devoted to describing the peculiar procedure for its application, from the initiation ?most of the time motivated by a report? proposal made by the Labor Inspector acting - until the impugnation of the Social Jurisdiction, in case there was one. And it is in the final chapter where the final amount will be established, by examining the main criteria followed by the TTSSJJ as a clear attempt to determine the percentage of the relevant salary increase, paying special attention to the imprudence of the injured person. This is one of the crucial aims of the thesis at stake, since it does not only represent a substantial economic importance to the payer, but also to the receiver. In addition, the doctrinal attention that has raised the subject is considered to be scarce, as it contrasts with the overwhelming conflict generated by the wide discretion allowed by Art. 164 LGSS since it only establishes as a guideline "the gravity of the fault". At the end of this dissertation several conclusions that have been reached throughout the research will be rendered explicit. These conclusions are considered to be efficient since they comply with the perspectives generated at the beginning of this study.