Employer’s Right Of Recourse

This article focuses on the first paragraph of Article 1191 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code").This clause formally confirms the controversial issue of the employer’s right of recourse at the legal level,and puts an end to the debate in theoretical circles about the reasonableness of this right.On the one hand,the establishment of the employer’s right of recourse effectively protects the interests of the victims,and on the other hand,it is conducive to the reasonable distribution of employment risks and the maintenance of the principle of fairness.However,this provision only makes general provisions on the employer’s right of recourse,and its overly abstract and broad expression cannot provide reliable judicial guidance for practical issues that need to be operated in judicial practice.For example,it is unclear how to define "intentional" or "gross negligence" in the requirements for the exercise of the employer’s right of recourse,how the specific procedures for the exercise of the right are realized,whether the employer’s right to recover should be restricted,and the determination of the proportion of the restriction.In reality,judicial judgments mainly rely on the discretion of judges,which is very easy to produce the phenomenon of different standards of adjudication or even different judgments in the same case,which is not conducive to protecting judicial credibility.Therefore,it is urgent to establish unified and clear rules for the exercise of employers’ right of recourse,give full play to the effectiveness of the system of employers’ right of recourse,and achieve a balance between the interests of employers,employees and victims.At the same time,in the process of exercising the right of recourse,it is necessary to strictly restrict the employer to prevent the abuse of the right of recourse and infringement of the rights and interests of employees.Since each case has special characteristics,it is impossible to form a set of formulas for calculating the scope of recourse,and comprehensive consideration should be made in combination with various factors of the case,taking the principle of fairness and the principle of apportionment of fault as the basic principles,so as to reasonably determine the scope and amount of recourse.This article summarizes the legislative process of the employer’s right of recourse and discusses the legislative purpose behind it.Combined with theoretical research and judicial examples,the rules for the exercise of the employer’s right of recourse are clarified,and new ideas are proposed for the way to restrict the right of recourse of the employer.The first chapter introduces the research background,research significance and research methods of this paper,and summarizes the controversial views of the academic circles on the right of recourse of employers through the analysis of domestic and foreign literature.Chapter 2 examines in detail the legislative process of employers’ right of recourse and further explores the legislative purpose behind the legislative changes.Chapter 3,combined with a large number of judicial precedents,establishes a unified definition standard for the two constituent elements of the employer’s right to recover,"intentional or gross negligence" and "performance of work tasks".Chapter 4 discusses the restrictions on the exercise of the right of recourse by employers,discusses and supports the disputes between full recourse and limit recourse.Relying on the theory of labor liberation,the theory of compensation responsibility and the theory of social justice,the rationality of restricting the employer’s right to recover is discussed,and the way of exercising the right and the determination of the proportion and amount of recourse are provided.