On The Employer Liability

Employer Liability is a special tort liability that the employer shall be liable for the employee's conduct of infringement during the period of employment relationship, which is provided in both Anglo-American Law System and Continental Legal System. Although foreign country has made a deep investigation and study on this tort liability, the research of Employer Vicarious Liability in China is not mature in Theory. Before Employer Liability was promulgated, only in the judicial interpretation is provided the Employer Liability, so it is necessary to make a deep study on that.The Preface makes a brief introduction of the meaning, development and related provisions of Employer Liability.Chapter one introduces the basic concepts of Employer Liability. Employer Liability is a kind of liability that the employer bare the responsibility of the employee's conduct of infringement during the period of working. Many nations'statutes, including our nation's law, stipulates the provisions thereof. From the prospective of Tort Law of the People's Republic of China the employer liability covers the liability of employee's infringement conduct for the reason of performing his duty under the employment contract; the liability of employee's infringement conduct for the reason of performing his duty under the labor contract and work contract. On the issue of employer liability, the three kinds of contracts have no difference essentially. There are many theories of Employer Liability, but they are not enough for theory supporting individually. As a consequence, it shall synthesize them together to support the Employer Liability.Chapter two mainly focus on analyzing the elements of Employer Liability. In order to define the Employer Liability, first of all, it needs to analyze whether there exists employment relationship or not, which is based on the fact of supervisory control of the employer rather than the written contract. When there are enough power of supervisory control, it shall be reckoned that the employment relationship exits. However, the employment relationship is hard to be defined concerning the specific circumstance. This article differs the employment relationship from working relationship and further analyzes the Employ Liability during labor dispatch. Secondly, it needs to analyze whether the infringement happens at the period of performing his duty. From the outer of employee's conduct, if the employee's behavior is for the employer's benefit, it can be considered that the infringement happens at the period of performing his duty. At last, it needs to analyze the damage of the third party. Only when the employee's conduct is defined as infringement, shall the employer bare the responsibility.Chapter three discusses the responsibilities of Employer Liability. In China, judicial explanation stipulated that employer has the right of indemnity to employee, while there is no such regulation in tort law, the author think that this is the consequence of balancing the advantages and disadvantages of the right of indemnity.With the development of economic, infringements happened frequently in business activities. To make a better protection for victims and to separate the risks in business activates, it is necessary to deepen the research of Employer Liability. The author expects that this paper make some useful contribution about this question.