On Employer's Liability

With the development of socialist market economy, the employ have become the common phenomenon of economy in our society. It becomes the legal demand to establish maturity and unification employer's liability of law.First, the paper defines the concept and character of employer's liability, then though the explaining the theory of jurisprudence and comparing the legislation of other states with each other, study the imputation principles, constitutive elements and remedy further in microscopy. The author writes the paper to give some advices to establish the employer's liability in law.In the first part, the paper introduces the concept, nature and character of employer's liability. The paper deflates the meaning of employer's liability, which the employer should take on when employee tort others in the course of performing work. Subsequently, the paper shows the origination and phylogeny of employer's liability.In the second part, the paper discusses the extension of employment relationship and gets the conclusion that the employer's liability occurs in the three cases at least. The liability rises when private employee or the personnel of legal person tort during carrying out the work which their employer arrange, and when national public servant tort during dealing with the matter, in the domain of private law, which the government order them to do.In the third part, the paper focuses on the theory of employer's liability, and point out the liability root from the idea of fair and justice, rather than logic.In the fourth part, the paper discusses the imputation principles of employer's liability both in the English-American law and Continental law. The author agrees with the application of liability without fault, and criticizes the demerit of liability for fault and principle of fairness.In the fifth part, the paper analyzes the constitutive elements of employer's liability. It contains employment relationship, the employee's duty activity and the employee's tort. The paper indicates the criterion of employment relationship, by comparing with similar concept, according to the subordination theory and contract theory. On the base of assent to compromise theory, the author talks about the scope of employment by analyzing the standard of judging—the behavior being alike to duty and the inward relations with duty.In last part, the paper explores the remedies of employer's liability. The author regards the employer as the only compensator in order to keep consistent with the theory of vicarious liability and protect the right of victim. The author illuminates the basis and scope of recourse.