Study On Employer Liability Of Chinese Tort Law

The meaning of employer liability is that when employees causing losing to other people during their work hours,the employers have to pay compensation lawfully.Comparing with employer liability of other countries,the development of employer liability in our country started late.The article 9 of <Interpretation of the Supreme People's Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury> implies the formal establishment of employer liability(It is hereinafter referred to as <Interpretation of Compensation for Personal Injury>),and the article 35 of <Tort Liability law> means employer liability is established on Chinese substantive law.The application scope of Chinese employer liability is very narrow,it can be only used when the employment relationship is formed between personal services.And when the employer is a unit,the liability of legal person should be applied.This split legislative model is influenced by our historical conditions,so we can't reference to the provisions of Comparative Law directly,for it may confuse the concept of employer liability in China,and regard both the article 34&35 of <Tort Liability law>as employer liability wrongly.On the basis of split legislative model,the employment relationship is different from labor relationship.In China,employment relationship only means the legal nexus of employer liability,labor relationship can be only used in the liability of legal person.Therefore,the employment relationship can be divided into broad sense and narrow sense.In the broad sense,the employment relationship including all the situation as long as the employer and employee to form an upper and lowermanagement nature,and it is the meaning of employment relations on the comparative law.So the content discussed in this article is only refers to the narrow sense.Besides the liability of legal person,there still has some special concept in Chinese law,for example,Obligation helper and Independent Contractor.For a long time,our country is an acquaintance society,people are willing to help their friends or relatives,the help itself is not subject to legal adjustment.However,if the obligation helper infringes the other people,he needs to be regulated by the tort law.Cause the provisions for obligation helper relation in <Tort Liability law> is not very clear,so some scholars hold the opinion that there is no need to separate the obligation helper responsibility and employer liability,they can both be adjusted by employer liability.However,the legal attributes of obligation helper relation are totally different from employment relationship,so the independence of obligation helper relation should be remained.In fact,the relationship of independent contractor is a concept from Anglo-American law.In our country,it refers to the contracts of hired work,or commission contract,and so on.In practice,there is a marked resemblance between independent contractor relationship and employment relationship,for both of them have the payment and acceptance of service.In essence,the former not only needs the payment of service,but also needs the work results which are consistent with prior agreement.But for the latter,the core of legal relations is labour service,no matter how the work results are.In a word,the purpose of legal relations is the key that should be used to distinguish the relationship of independent contractor and employment relationship.Other factors,such as the facility providers,or the specialization of labor,should also be considered.Considering the application of employer liability in Chinese judicial practice,the primary conflict is whether employees can be required to undertake joint liability,especially when the employees are deliberate or have culpable negligence.The essence of this problem is the relation between the article 9 of <Interpretation of Compensation for Personal Injury > and the article 35 of <Tort Liability law>.As the above provisions are not clearly unified,the final decision is still given to the judge for discretion.In my opinion,for the problem of external responsibility,the article 9of <Interpretation of Compensation for Personal Injury > and the article 35 of <Tort Liability law> is not contradicted,the court should be flexible,allow the employees tobear joint and several liability for compensation in the event of intentional or gross negligence.Secondly,if the object of injury is other employees,even the employer himself,at this time,the key of whether the employer liability can be applied is to determine whether the risk of employee behavior is a common operational risk.If the infringement is due to the execution of the usual duties,it means the risk of the position does not exceed the general operating risk,so the liability should be borne by the employer.Thirdly,to the definition of employee's job behavior,including two situations:act of authorization and unauthorized act.The key of the former is the identity and business subordination of employees and employers,and the core of latter is the motivation of employee behavior,and the objective attribute of behavior.