Liability Of Employer

Liability of employer is a compensation liability based upon employment relationship, which comprises an important part of Torts. Due to the historical reasons, the legislation in China sets forth no clear and systematic rules regarding the definition of liability of employer mechanism and the constitutive elements. Starting with the evolution and jurisprudential foundation of liability of employer, this article analyses the issues of principle of imputation of liability, constitutive elements, and liability-undertaking of liability of employer.This article includes an introduction and four chapters.The introduction discusses the general and special definition of liability of employer and clarifies that the liability of employer in this article refers to the special definition, which means the compensation liability of employer for damages to a third party caused by occupational activity of employee.Chapter one explores the basic theory of liability of employer. Firstly various titles for"liability of employer"are analysed and the rationality of the title of"liability of employer"as a legal terminology is clarified. Secondly the origin and development of liability of employer are revealed. Thirdly the jurisprudential foundation of liability of employer is discussed and after sumarizing five theories of liability of employer, it concludes the theoretical foundation of liability of employer shall centre upon the interest-balancing theory while combine the ratinality of various theories. At last it analyses the difference between liability of employer and that of legal person.Chapter two mainly discusses the principle of imputation of liability,analyses the theoretical foundations of three principles of imputation of liability in legislation and their advantages and disadavantages respectively, and concludes with the rationality of strict liability principle in liability of employer.Chapter three analyses three constitutive elements of liability of employer, which is the key part of this article. First of all it discusses the criteria for defining and clarifying employment relationship, analyses in particular the parallel industrial relationship and employment relationship that are divided according to the ownership mechanism in China, and explores the differences between industrial relationship and employment relationship in China and the imputation of liability in certain special employment relationships. Secondly it summarizes the theories of ascertainment of employment activity and analyses how to ascertain an employment activity. Finally it analyses tort by employee.Chapter four analyses the liability-undertaking of employer, namely sharing liability to a third party by employer with employee, grounds for employer's immunity, and restitution from employee, the key part of which focuses on the employer's right for restitution and employee's counter-right for restitution.