On Employer's Liability

Employer's liability is a kind of civil liability, which is subjected to employment relationship. As other legal systems regulates, employer's liability system is also based on the objective needs of real life, with the development and the formation of employment system. Since 19 century, with the development of modern industry, employment has become increasingly popular for wage-earners, with industrial development attendant risks of expanding, so that the employee in the course of the work of criminals against the rights of others, causing damage to the possibility of greatly enhanced. At this time, employer's responsibility to employee for violations is an important legal issue. As an important system of modern system, employer's liability for civil law countries generally acknowledged that the judiciary is also a long--term trial. A lot of practice with a typical case is said that the employer's liability has become an indisputable legal system. However, as China's special conditions, the employment relationship is not recognized for a long time, so our General Provisions of the Civil Law on the employer's liability does not stipulate clearly. Although the Supreme People's Court on the application of the People's Republic of the Code of Civil Procedure a number of issues, Article 45 stipulates: The individual industrial and commercial households, rural households to contract for the operation, the partner organizations of the employment contract of employment during the production and operation activities caused by Harm to others, the employer is a persons involved. Procedural law but this is only from the perspective of the employer's liability for the norms, but also show that only on the employee for the damage caused by the activities of employment, it should be by the employer as a tort action for damages for the defendant. And the substantive law of liability on the employer to bear, as well as whether the employee has the right to carry out recovery to deal with such issues, there is still no legal basis. With the economic system reform and the development of commodity economy, there have been a matter of fact the existence of a large number of employment, such as the relationship between workers, employees, injured workers, the virulence of the emerging situation, who will assume responsibility for damages, there is no clear legal basis. In China on May 1, 2004 the implementation of the Supreme People's Court on personal injury compensation case law applicable to a number of issues to explain the Article 9, the combination of our social life, employment has been the prevailing realities of the legislative reference to the foreign style On the employer's liability for the provision, for the first time established the employer's liability in this particular type of infringement, but the judiciary and theorists on the meaning of the legal system, based on the theory, the principle of attribution, and many other elements of the problem There are still more controversial, the employer's liability for the study of the system imminent. This article seeks to explore these issues and see their own ugly. In addition to the introductory and concluding part of the outside, this thesis is divided into four parts as the following:Part-1, employer's liability overview: it makes elaboration, based on the concept of employer's liability, their characteristics and its theory. First of all, define the concept on the employer's liability. Employer's liability is based on an employment relationship exists for premise of tort liability. The responsibilities include both broad and narrow, that is, employee victims of responsibility and employee tort liability, the discussion of this paper is the responsibility of infringement. In order to better understand the employer's liability, employer's liability characteristics are described. The employer's liability is a kind of vicarious liability, with properties from personal relations and economic interests of relevance. Finally, the employer's liability for the theoretical basis for the re--think the traditional view that the theoretical basis and can not be a separate employer's liability for the rationality of the existence of a convincing interpretation. Therefore, the employer's liability theory based on the study, the exception of reality must be recognized that the economic situation of its existence and development of the main factors. It should also be considered employer's liability and the actual value of the function of the foundation.Part-2, employer's liability of the elements: This is a judicial practice in the difficult, but also on the focus of this article. Employer's liability of the three main elements is employer and employee relationship between employments, employee's behavior to engage in employment activities of the acts of their duties, employee conduction to bear the responsibility for infringement. As a result of the employment relationship and scope of the duties of the acts, they are theoretical and practical difficulties and a point of contention in this paper on the employer's liability on the elements on from these two aspects. First of all, the concept of the employment relationship and an analysis of the characteristics in order to highlight the employment relationship are the real employer of the employee's control and supervision. On the basis of the employment relationship, it will be with the other two easily confused with the labor relations, contract relationship between the distinctions in order to better grasp the characteristics of the employment relationship. And then on the criteria of the employment relationship from the perspective of comparative law to carry out analysis of the pros and cons, and put forward China's judicial practice of the employment relationship criteria, the key is that we should pay attention live control standard. Positions on the conduct of that, in the theory of the existence of the community theory, the subjective and objective theory, the compromise theory, the three main comment on the theory based on China's positions on the conduct of the criteria. It is necessary to use the time and place standard, with the purpose and benefit standard, that is, in fact, adopt a compromise theory.Part-3, the principle attribution of employer's liability: The world's first on the employer's liability is taken by the three main principles of liability, that is the fault of the principle of responsibility, the presumption of fault with the responsibility of a combination of equity and the principle of no--fault liability .The principle of the contents of its analysis of the advantages and disadvantages, pointing out that the principle of fault liability and the presumption of fault and responsibility of combining the principle of equity can not only meet the needs of social justice and the actual name. And then combined with China's Judicial Interpretation on Personal Injuries the provisions of Article 9 that China's employer's liability should also adopt a strict no--fault liability principle, and discuss the use of the principle. It can fully protect the rights and interests of the victim, but also to maximize the maintenance of employee benefits at the same time to take interests of the employer into account. In line with international trends, China should learn from the Civil Code in the future.Part-4 mainly on the undertaking of the employer's liability: Employer's liability for the commitment is related to external accountability and internal accountability. For external accountability, the main dispute is the obligation of the main body of the principal obligation. That is whether only one employer is able to do, or the employer and employee obligations should be co--principal. Our country has Judicial Interpretation on Personal Injuries to determine the obligations of Article 9, only the main employer; victim is not a direct employee to claim damages. I believe that such a provision is not conducive to the protection of the interests of the victim; the victim should be allowed to choose their own responsibility of the principal obligation. For internal accountability, while recognizing that the enjoyment of employer's right of recovery based on the employee with gross negligence that has become the crux of the matter. In this regard, I made a few practices which can be found that there is gross negligence in the case for reference. In addition, the amount of recovery, Judicial Interpretation on Personal Injuries is not clear; I think based on the concept of fairness, justice and the weak the implementation's protection , it should be determined in light of the specific circumstances.