Research On Tort Liability Of The Employer

As far as tort liability of the employer is concerned, the Civil Law fails to make any provisions thereon, resulting in that in a long period of time, Article 9 under the Explanation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Personal Injury Compensation becomes the sole base of tort liability of the employer and establishes the special tort act of employer's liability by the tort law in China, whose contents are as follows: where the employee cause damages to others in the engagement of employment activities, the employer shall be liable for the compensation; where the employee cause damages to others owing to intention or gross negligence, the employee shall be severally and jointly liable for the compensation with the employee. The employer who assumes several and joint liability may recover such compensation from the employee. However, after all the Explanation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Personal Injury Compensation is judicial interpretation, insufficient to make up the vacancy of legal provision from the perspective of law ranking. And there are a lot of the cases of tort liability of the employer in trial practice, which has produced great influence on the society. In light of the aforesaid, the Tort Liability Law of the People's Republic of China that came into force on July 1, 2001 made provisions on tort liability of the employer in legal form. Article 34 under the Tort Liability Law provides that If an employee causes damage to others due to performance of a task, the organization employing the said employee shall assume tort liability. During the period of labor dispatch, if the employee dispatched causes damage to others due to performance of a task, the organization accepting the dispatched labor shall assume tort liability. If the dispatching organization is at fault, it shall assume the corresponding supplementary liability. Article 35 provides that for individuals with labor relations, if the party providing labor causes damage to others due to his or her labor provided, the party receiving such labor service shall assume tort liability. The aforesaid legal provisions constitute great importance to establish independent and sound legal system of tort liability of the employer. This paper begins with civil theories on tort liability of the employer, discusses the constituents of tort liability of the employer in combination of comparative law and subsequent to analysis of current provisions and the treatment in practice, puts forward suggestions for the legal system of tort liability of the employer.