The Study On The Vicarious Liability

The vicarious liability is that the person is liable to the reparation for injury by the tortfeasor holding the special relationship to him. It is the important part of the theory of the shapes of tortious liability, but it's not exact and complete in our civil law, so that the juristic theory and judicial practice are in disorder. Exercising the basic theory of civil law and deeply studying from angle of the positive law and comparative law, the author of the article explores the nature, the relationship between the cause and effect, the doctrine of liability fixation of the vicarious liability and the nexus between the vicarious liability and the direct liability. Basing on analysis, the author generalizes the types of the vicarious liability existing in our civil law and advances his own view to the legislation of the liability in our civil law.The paper includes four chapters, except for foreword and conclusion.The chapter 1 simply narrates the long history of the vicarious liability. Based on studying the jurisconsult's viewpoint and regulations, the article generalizes the defining, nature of the vicarious liability and explains it's principle of law.The chapter 2 demonstrates in detail the relationship between the cause and effect in the vicarious liability and concludes that the behavior of the person liable has nothing to do with the damage, so there's no use to consider his fault .Therefore, the author thinks there is no space for the applying of the principle of fault-liability, the principle of presumptive fault-liability and the equitable liability doctrine. The vicarious liability should adopt the principle of no fault-liability.The chapter 3 suggests that the vicarious liability and tortfeasor's direct liability compose the unreal joint and several liabilities, or can be prescribed as joint and several liabilities in certain circumstance. After assuming responsibility, the person liable can commonly be entitled recourse against the tortfeasor. But the recourse must be in pursuance of the regulations that adjust the relations between the person liable and the tortfeasor. According to our civil law and civil procedural law, the victim only can take lawsuit to the person liable, the author believes it's not reasonable and the victim should have right to institute a suit against either of person liable and tortfeasor or to both of them.The chapter 4 particularly reviews the two types of the vicarious liability in ourcivil law: the liability of guardian and that of employer which includes various sorts of specific forms. The author exercises the scientific means of legal interpretation to illuminate the relative regulations, and points out their deficiency.Lastly, the author puts forward advices on the legislation about the vicarious liability in our future civil code.