A Study On Employer’s Responsibility System In China

Social division of labor under the market economy increasingly detailed, employers or individuals can complete its work by hiring others, thus expanding the scope of activity. However, employees who intentionally or negligently cause damage to the legitimate interests of others cases have occurred in the performance of their duties, namely the so-called employer liability assumed responsibility for the damage caused to others when the owner of the employee to perform their duties. Countries in the world have now been established employer’s liability system, and our system of employer’s liability established late, and there is a greater difference.“People’s Republic of China Tort Liability Act”(hereinafter referred to as “Tort Liability Act”) established a relatively complete system of employer liability. It changed the legislative model that legal persons, other organizations staff virulence are distinguish from narrow employer liability in “Supreme People’s Court on the trial of personal injury compensation case law applicable to a number of issues”(hereinafter referred to as “explain”). In addition, damage compensation from personal injury extended to the property damage compensation. It established a unified employer responsibility and its positive meaning is worth affirmation. But there are still some problems due to the legal provisions, which leads to some problems in the application of law.The Introduction, according to China’s current employees causing damage to the status quo and employer liability in judicial practice of relevance judgments, we study the problem from a legal point of view proposed in this paper: in terms of constitutive requirements in the employer’s liability, helper relation whether can apply by analogy to the employment relationship, special circumstances relating to the enforcement of judgement standard of duty and other employees or employers whether as victims. Employer liability, employers bear the external liability is joint and several liability or responsibility individually, labor dispatch of employer liability rationality, whether the employer has the right of recourse against the, if is the recourse to the limit and range. and established a unified system which is still insufficient.There are three deficiencies in the legislation. Firstly, the employer’s recovery right was not defined, resulting in the recovery right, resulting in the presence or absence of recourse, scope and limitations and other issues is not clear. Secondly, the responsibility of obligation helpers did not be required, resulting in different points about whether the employer’s liability including it. Thirdly, the responsibility model in the labor dispatch that employing units assume no fault liability in the first order, and the employment units shall assume the second sequential fault compensation is not reasonable. In addition, there are still problems in the application of law. Firstly, it is hard to distinguish the employment relationship and contract relationship. Secondly, it is difficult to judge whether the employee behavior belong to the post behavior, especially in special case above work way, crime. Thirdly, whether the word “others” in employees addressed to the “others”in harm contains other employees, employers or not is still question. We urgently need to solve the problem of applicable law and legislation on the issue, thereby improving the theory to solve practical confusion.To solve the above problems, the idea of this study is as follows: This study firstly describes the basic concepts and theoretical basis of employer’s liability. Then it based on the China’s current legislation, combined with the related legislation and prejudication of the comparative law, focusing on some key issues of employer’s liability in the employment relationship, the employer’s liability constitute elements, employer’s liability undertaking problems to do detailed study. Trying to explained from the point of view, ease the confusion in judicial practice due to the inperfect theory and the legislation, marking the law applicable more operational and have practical value.In addition to the introduction and conclusion, there are there chapters in this paper:Chapter one is an overview of the employer’s liability. Firstly it illustrates the concept of employee and employer in the employer’s liability, to define employer’s liability is the liability of the employer when the employee damage to others. Then it provides the theoretical basis for the research of employer’s liability, which is the legal basis of the employer’s liability, namely, the supervision control theory, the compensation theory, the theory of public policy, the risk theory and the ethics theory. Imputation principle has always been a controversial point in the academic field. The principle of imputation is adopted in the legislative cases based on different national conditions and policies, but no fault liability is the mainstream. Base on the no fault liability legislation traditions in China, this article only explore the principle of imputation of different countries from the perspective of comparative law, in order to provide a theoretical basis for the practical application of the law. At the end of this chapter, it explains the current situation of our country’s legislation, and puts forward the existing problems in the application of the employer’s liability system in China.Chapter two is analysis on the constitutive elements of employer’s liability, making a detailed description of the composition of the employer’s liability and some difficult problems in the employer’s liability. Employer liability has three elements, namely, the existence of the employment relationship, employee behavior being to perform their duties, the employee behavior being infringement. In the determination of the employment relationship, combining with the comparative law and Chinese cases, firstly determine whether is the employment relationship depending on the content of the contract. If it is difficult to determine the legal relationship through the contract, we can use comprehensive judgment standard which including supervision and control, price, delivery and other factors. For “Tort Liability Act" has no regulation of the responsibility of the helper, this paper argues that helper relationship should be included in the employment relationship based on the homogeneity of the helper relationship and employment relationship, so helper relationship liability shall apply to employer liability. The identification of duty behavior is a difficult point in practice. In this paper, through the comparative law study, citing a large number of cases of Anglo American law, combining with the practice of the trial in our country, considers that the identification of the executive functions should consider the space, purpose, name and other elements. In addition, it clearly on the scope of “others” in the damage caused by “others” includes other employees, but does not include employer. The employee will be required to pay compensation when there is an intentional or gross negligence if an employee is a victim. Full compensation for the employer when the employee is intentionally infringing. When an employee has a gross negligence, it is appropriate to limit the liability of the employee for compensation, considering the economic conditions and other factorsChapter three is employers bearing the responsibility, mainly elaborating from external accountability and internal responsibilities. “Tort Liability Act” merely provides for responsibility by employers, but considering legislation based on factors such as tradition and policy, external responsibility borne by employers and employees jointly and severally liable is more reasonable. Explain the rationality of provisions on employer’s liability in labor dispatch in the “Tort Liability Act”, considering that the employing unit and the employing unit shall bear joint and several liability. “ Tort liability act ” does not expressly provides the employer’s right of recourse, but in the “explanation” provides recourse. In practice, most employers must have the right to recover. But employer’s recovery right is limited, and the employers only have the recovery right because of the intentional or negligent in the employees. But the recovery is not necessarily a full recovery and should see if there is a contract, which is determined in accordance with the principle of autonomy means. If there is no contract, the scope of compensation is according to the principle of contributory negligence and economic ability.