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Research On Employer Liability

Posted on:2005-05-27Degree:MasterType:Thesis
Country:ChinaCandidate:F NiuFull Text:PDF
GTID:2156360122999725Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
This article tries to discuss the problem of employer liability comprehensively and thoroughly which is discussed by academic circles. As far as the theoretical aspect, this article tries to solve the theoretical basis, principle of respondent and composite conditions of employer liability. As far as legislative aspect, considering the practical conditions of our country, the author discusses how to rule the employer liability in the future civil law. This article includes five parts: Part one is about the concept of employer liability. Here, the author thinks that employer liability is that employers should take on compensation liability when employees tort others and result in some damages in the course of performing their office. Legal characteristics of Employer liability is: subordination of clay relation, separation of liability subjects, linkage of economic good, particular result relation between employer and their employee's damages. Considering employer liability, we should distinct two kinds of different grounds of claim rights: that is what employer takes on is a kind of particular tort liability, but what employee takes on is general tort liability. Though the subject of employer liability should be employer, both employer and employee can be defendant when the subject of right does not claim who should compensate definitely. Of course, once one kind of claim right has already been satisfied, the other should disappear. All that can stand up for legal rights of victims.Part two discusses the problem of theoretical basis of employer liability. There are three kinds of theories: theory of control and supervision; theory of public policy; theory of notation liability. The author argues that this three kinds of theories are reasonable, but there are some shortcomings in some degree, some theory can hardly explain employer liability clearly. Here, the author point out the balance theory of good. As far as the theory, employer take on the tort liability for a kind of good balance. The employee should not take on all the victims' damage, and it is unfair, because his tort happens when he is performing his office. The victims should not take on the damage, too. In order to find out a kind of good balance between employer, employee, victim, it is reasonable that it is employer but not others to take on the liability. Of course, as already noted, only one theory can not explain the problem, the theory of good balance need also other theories' support. In a word, about the theoretical basis of employer liability, when considering legislative direction, we should regard the theory of good balance as the center, consider the contents of theory of control and supervision, public policy, notation liability at the same time. And compare the advantage and shortcoming of the theories, find out a reasonable ground for employer liability.Part three discusses the problem of principle of respondent of employer liability. Here, there are two kind of opinions: the principle of fault respondent and the principle of strict respondent. The author thinks the principle of fault respondent is not fit for employer liability. We should hold the principle of strict respondent, here. There are five reasons: first, there are full theoretical grounds; second, the reasons of denying strict respondent is wrong; third, from the legislation of our country now, prescribing strict respondent is accord with other rules; four, about this problem, though there are fault respondent and strict respondent, strict respondent is the current in the word; finally, there are many shortcomings if we adopt fault respondent.Part four discusses the problem of composite conditions of the employer liability. First ,there are hire relation between employer and employee. Here, there are two theories: theory of control and theory of hire contract. The author thinks that the existence of hire relation is a basic condition of settling employer liability, theory of control and theory of hire contract is valid. What most important is theory...
Keywords/Search Tags:Liability
PDF Full Text Request
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