| China's Supreme People's Court "to hear about cases of personal injury compensation law applicable to the interpretation of a number of questions," Article IX (hereinafter referred to as "interpretation" of Article IX) on the employers and employees the provisions of tort liability, violates the principle of the basic principles of inappropriate to distinguish between ordinary negligence and gross negligence on the benefits of cutting between the parties, the transgression of the boundaries between legal theory. In legal practice, the first Article IX, "the employee engaged in employment activities, damage to people, by the employer" requirement to replace the provisions of the joint and several liability is limited to reduction of the victim requests that the scope of the loss,is not conducive to the victim compensation for damage received in a timely manner. In this paper, in order to "explain" Article IX for the entry points to the rights and obligations of the parties as the center, closely focusing on employers and employees of the distribution of tort liability questions, through the comparative method, conceptual analysis, logical analysis, deep analysis of the basic civil law theory, and logic as the foundation of law, the proper use of legal policy on the rights and obligations between the parties to adjust, re-established a duty of employers and employees infringing distribution patterns, strongly refute the current thinking and the Legislative Council values in order to get to the root of aim.Employees in carrying out their duties to harm people, different with the general sense of the tort is that exist between employers and employees the employment relationship, employees are in the performance of contractual obligations of employment-induced damage to people, this article from the employment contract is the law the relationship in an analysis of the employment relationship, on the basis of anatomy, has rejected the vicarious liability, liability without fault, such as Qualcomm said that in establishing the nature of the employment relationship is a contract, the employer's selection, supervision and instruction within the scope of the contract obligations of obligations, between employers and employees from the "community benefits" and is derived external employers and employees jointly and severally liable, employers and employees to establish a recovery of duty, so that the principle of re-fault back to the duty of employers and employees to distribution patterns.The full text altogether divides into seven parts, mentions specifically has: The first part mainly was ninth raises to "Explanation" had had problems puzzled, had pointed out this article needed to solve question; The second part mainly is to domestic and foreign infringes upon the right the responsibility pattern introduction about the employer and the employee; The third part mainly is "Explanation" the ninth stipulation employer and employee's responsibility pattern makes a simple introduction to our country present law; Starts from the fourth part, this article starts in view of the question to carry on the feasible proof, through the fourth 52th part, in is engaged in the duty behavior process to the employee to send the human to harm this abuse of authority constitution important document the analysis, as well as to the employer and the employee in the employment contract inside and outside right and the voluntary analysis, in this foundation, constructs the employer and employee's right infringement responsibility pattern in the sixth part; In the last part, namely the seventh part, the question which proposed to the first part 11 has carried on the response.Finally completes the scientific research task which decides. |
