On Employer's Liability

With the development of market economy, wage labor has became a very common social phenomenon. Employer's liability is a compensation liability based on employment relationship, which occupies an important role in the filed of the tort law. Although the employer's liability has been prescribed in the Tort Law of the People's Republic of China, there is still much space to improve. This paper attempts to discuss the issues relating to the liability's nature, the imputation principle, the constituent elements and the methods of bearing liability of the employer, and then the suggestions to improve the systems of employer's liability have been brought forth on the basis of analysis of current situation of the legislation on it in our country.This paper consists of the introduction, the body and the conclusion. The body includes four parts.Chapter one discusses the nature of employer's liability, and introduces its history as well as the theoretical basis, and points out that the employer's liability is the compromise thing that society policy considers, rather than legally logic speculate outcome.In the second chapter, the paper discusses the imputation principle of the employer's liability and its constituent elements, which is the key part of this article. Through the introduction and analysis of three different principles, the author concludes that as vicarious liability, the imputation principle of the employer's liability depend on the kind of the employee's tort. That is to say, the employer can undertake not only fault responsibility but also nothing fault responsibility. The constituent elements of the employer's liability contain employment relationship, the employee's professional behavior and the employee's tort. First, the paper indicates the criterion of employment relationship, by comparing with similar concept, according to the contract theory and control theory, and points out that the control theory should be the most important theory to judge the existence of the employment relationship. Second, based on the objective standards, the author discusses the standard to judge a professional behavior under special situations.Chapter three discusses the liability-undertaking of employer, namely liability to a third party by employer, restitution from employee, grounds for employer's immunity, the key part of which focuses on the employer's right for restitution. The author regards the employer as the only compensator in order to keep consistent with the theory of vicarious liability. Furthermore, the author discusses the basis and scope of the restitution.Chapter four is a summary of the legislative status quo of the employer's liability and its limitation in our country. And then some legislative suggestions on perfecting the system of the employer's liability in our country are put forward.