Research On The Employer's Right Of Recover

The civil code of the People’s Republic of China(hereinafter referred to as the civil code)came into effect on January 1,2021.On the basis of inheriting the employer’s responsibility system established by the former tort liability law,it has changed the avoidance attitude of the former law,and formally and clearly endowed the employer with the right to recover from the laborer who has intentional or gross negligence when the laborer infringes on a third person when performing work tasks,Namely,the employer’s right of recourse.However,the provisions on the right of recourse of the employer in the civil code are still principled and can not meet the needs of judicial practice.The judicial practice is still faced with the practical problems of how to operate,such as the conditions for exercising the right of recourse,the limiting factors,the determination of the amount of recourse,the way of recourse,etc;At present,the practical problems faced are not clearly guided in the legal level and relevant judicial interpretations.The theme of this paper will focus on the practice of the right of recourse of the employer and discuss it from five parts.The first part is the legal interpretation of the employer’s right of recourse.The second part is the empirical analysis of judicial adjudication.The third part discusses the Judicial Dilemma Faced by the employer’s right of recourse based on empirical research,and reveals the practical problems caused by the unclear legal provisions and the confusion of relevant judicial interpretation provisions.The fourth part mainly inspects the overseas employer’s recovery system,and draws experience and enlightenment.The fifth part mainly discusses the perfection of the employer’s right of recourse system based on the above description,and puts forward suggestions on the realization path of the employer’s right of recourse in combination with foreign experience;First of all,the employer’s demand for recovery should be affirmed when it meets the constitutive requirements of the employer’s right of recovery,but the recovery should be reasonably limited and the principle of limited recovery should be clearly defined.The determination of the amount of recovery should be considered in combination with the degree of fault,the balance of interests between the employer and workers,occupational risk and other factors;Secondly,it is to improve the realization of the employer’s right of recourse,and make clear the way of its exercise and the way of its responsibility;Finally,on the basis of judicial empirical analysis,it puts forward some suggestions on judicial practice.