The Legal Realization Of Employer’s Right Of Recourse

In order to clarify the ultimate responsibility for compensation for damages,reasonably allocate benefits and risks,and prevent and control the risks of employment behavior,the Civil Code has established a rule system to adjust the right of recourse of the employment subject through Articles 1191 and 1192.According to the existing consensus,this rule system basically clarifies the specific rules that restrict the exercise of the right of recourse,such as the scope of the subject and the specific exercise scope of the right of recourse,as well as the theory of self responsibility,business risk theory,and further developed social protection theory hidden behind the rules.Based on the theory of Raz’s rule system,an examination of this system reveals that there are shortcomings such as the lack of a unified standard for determining the degree of fault,and the lack of a unified legislative expression that reflects the differences in the subordinate attributes of different employment relationships.As a result,the legal implementation of the right of recourse of the employment subject faces difficulties such as the inability to quantify the proportion of recourse and the expected effect of restricting the exercise of the right of recourse.By introducing open type thinking,the research paradigm of labor law issues has been transformed,filling the gap between the accuracy of concepts and the diversity of facts that traditional closed concept thinking cannot eliminate.Based on type thinking,a type sequence of fault behavior and employment relationship was constructed,achieving accurate identification of the degree of fault of the employed person’s behavior and the degree of subordinate attribute of the employment relationship.This further clarified the proportion of recovery rights corresponding to different fault behaviors and the proportion of recovery rights that should be restricted by different employment relationships.Finally,a proportion spectrum was formed based on fault behavior and employment relationship to restrict the exercise of recovery rights by the employment subject.Guided by the theories of self responsibility,business risk,and social protection,and through the amendment of Article 1191 and the interpretation of Article 1192 of the Civil Code,the established proportion spectrum of the right of recourse has been implemented into the existing system of rules for the right of recourse of employment subjects,achieving the true qualitative and quantitative nature of the system of rules for the right of recourse of employment subjects,and completing the legal implementation process of the right of recourse of employment subjects at this stage.The system of compensation rights for employment subjects is not only based on the present,but should also be oriented towards the future.By introducing legal rules to adjust employment relations in labor law,introducing socialized civil legal rules in civil law,and using civil law and labor law as toolboxes to adjust the compensation rights of employment subjects,the future direction of the system and implementation methods of compensation rights for employment subjects has been clarified.This implementation path that spans civil law and labor law is not only in line with the current development trend of European solutions in this field,but also represents the development direction of future employment relationship responsibility allocation methods.