Employer's Liability For The Tort Of An Employee

With the development of market economy, wage labor has turned to be a very common social phenomenon. Thus, conflicts due to the physical injure caused by the employees implementing their jobs have been increased gradually. Meanwhile, foreign corporations swarm in, as a result, the identity of the employees become more complex and the relation between the employees and the employers turns more various. Consulting the foreign experience of legislation has been a trend as establishing the integrated system of employer's liability for the tort of an employee. Through the investigation and analysis of serious of theories based on employer's liability for the tort of an employee, the text considers modern employer's liability for the tort of an employee as not a legal production of logical reasoning, but a compromise considered by social policy.This article tries to discuss the problem of employer's liability for the tort of an employee 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's liability for the tort of an employee. As far as legislative aspect, considering the practical conditions of our country, the author discusses how to rule the employer's liability for the tort of an employee employer liability in the future civil law.This article includes four parts:Part I is about the concept of employer's liability and the theoretical basis. Employer's liability for the tort of an employee is such a system: in the scope of the employment, he hurts third person, then the employer will bear the responsibility. Considering employer's liability for the tort of an employee, 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. There are four kinds of theories: theory of control and supervision, repay theory, public policy and principle of loss-distribution. These four kinds of theories are reasonable, but there are some shortcomings in some degree, some theory can hardly explain employer's liability for the tort of an employee clearly. In order to find out a kind of good balance among employer, employees and 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.Part II discusses the principle of respondent of employer's liability for the tort of an employee. Here, there are three kinds of opinions: liability for negligence and No-fault principle. Vicarious liability of Angle-American law system is No-Fault principle which to award compensation without proof of fault. If the employees take tort action in the scope of the employment, the employer will take the compensating responsibility for the victim no matter whether he has fault. Compensation in a No-Fault principle system means compensation for actual losses, but not for intangible damage. Thus the injured person will be in a better position. It assigns liability regardless of fault as a matter of social policy. Employer's liability for the tort of an employee of the continental law system of is another condition. Some is No-fault principle, and the other is liability for negligence. But the principle of respondent of employer's liability for the tort of an employee of this legal system has the trend that developing from liability for negligence to No-fault principle. Having compared the legislative insurances of the two law system, liability for negligence is not fit for employer's liability, this article suggests that to build up China's employer's liability for the tort of an employee system should choose No-fault principle.Part III discusses the problem of composite conditions of the employer's liability for the tort of an employee. First, there are hire relation between employer and employee. The author thinks that the existence of hire relation is a basic condition of settling employer liability for the tort of an employee. Here, there are two theories: control test and the integration test. What most important is control test, which is rather valid, but the article indicates the feasibility of control test. Moreover the article indicates that it is not only a pure theoretical issue but a practical issue, so the value judgment must be integrated strategically with kinds of factors. The control test and the integration test is valid. Second, the action of an employee was within the course of employment. The key question is whether the act of the employee is a wrongful or unauthorised mode of doing some act authorized by employor. Third, damage caused to the victim as a result. The purpose of tort litigation is to require a tortfeasor to compensate a victim for the injury incurred.Part IV discusses the problem of legislative actuality and legislative perfection. With the analysis of many countries'legislation and up-to-date judiciary explanation of our country, the article thought victims could ask their employers and employees for rights orderly or simultaneously based on two separated relatively but the same content of claim, thinking that to ask for right of compensation should be limited within deliberately offense or serious faulty. After the employ taken the compensating responsibility, he has right to ask for compensation from those who should take objective blame for the tort action.Using comparing method, this article analyses legislative instances of different countries and studies the relative theoretical questions of employer's liability for the tort of an employee. And the author hopes to contribute to the compliment of the Civil Code of China.