Study On Employers' Liabilities In Dispatching Labor

Dispatching labor is a special form of employing labors, by which the dispatching unit sends the employees to the employing unit after the employees sign a labor contract with dispatching unit.Labor Contract Law of our country makes clear provision for this kind of employing form, including establishment of dispatching unit (employing unit), suitable post for the employees, respective rights and duty of dispatching unit, employing unit and employees, but, the law does not relate to employers' liabilities.This thesis, divided into four parts, deals with the issues of employers' liabilities in dispatching labor.Chapter One clarifies some basic issues. First, the concept of employers' liabilities is presented. From the angle of law transplanting, the paper analyses the concept "employers' liabilities" based on both "one's own liability" and "vicarious liability", and from the stability of theory and practice of law, employers' liabilities in this thesis refer to vicarious liabilities, that is to say, the employer should make a compensation for the damages caused by employee in employing activity. Next, applicability of employer liabilities is stated. There exist two different opinions in theory circle on whether "employers' liabilities" can apply to working relation or not. The author takes a historical look at the previous research and draws a conclusion: employer-employee relationship (broad sense) and the working relation are not paratactic legal relation, but the relation of "to contain" and "to be contained". Working relation is a concept in the concept of employer-employee relationship. Therefore, "employers' liabilities" in the Tort Law can apply to working relation certainly.Chapter Two provides some basic theories. Civil Code of France is the first to ascertain employers' liabilities. Later, the main countries in the world all affirm the rules of employers' liabilities. In our country, the article 9 of Explanation about Some Problems of Suitable Law to Trial Personal Injury Compensation Case of Supreme People's Court ascertain employers' liabilities on entity law for the first time. By comparison study, the paper claims: Firstly, the theoretical basis of employers' liabilities should be a synthetical system, including four aspects such as premise condition, logic starting point, the legal principle basis and value orientation. Secondly, employers' liabilities ought to adopt the imputation principle of no-fault liability of attribution, which is a relatively impartial choice considering the benefit of every part. Thirdly, the formation of employers' liabilities ought to consist of the following three important points: 1. Employee's behavior is a delict. 2. Employee's delict is a duty performance. 3. There exists employer-employee relationship between the employee and the employer. Fourthly, joint liability and recovering right are discussed. When the employee causes personal injury in employing activity deliberately or because of significant fault, the employee undertakes joint liability with the employer. The employer bearing the joint liability can recover losses from the employee. "Employee's restrictive joint liability and "employer's restrictive recovering right" are distinguished in the paper.Chapter Three is about employers' liabilities in dispatching labor. To start with, the basic legal relation in dispatching labor is analyzed. By comparing the relevant theories and decoding related legal principles of Labor Contract Law, the relationship between dispatched laborers and employing units is regarded as quasi-labor relations, even as factual labor relations. Next, relevant theories are reviewed comparatively. In the existing laws and civil code draft of our country, there is no clear provision about employers' liabilities in dispatching labor. The theories and judicial practices of foreign countries and Taiwan of China show that great majority countries have adopted command supervisory control relation as the standard judging an employer to ascertain employer's responsibilities. Finally, employers' liabilities in dispatching labor are suggested to use in our country. The thesis studies employers' liabilities system from the angle of external responsibility and internal responsibility, ascertains external joint liability and internal recovering right, puts forward corresponding suggestions on legislation.Chapter Four is a conclusion. Employers' liability in dispatching labor is a proposition stretching across Labor Law and Tort Law. Some scholars advocate setting the system of employers' liability in Tort Law considering the Civil Law. Following the angles of the Department Law system, legislation style, system design, and legislation process, the author of this paper argues to set the system of employers' liability in Labor Law (broad sense).The thesis clarifies some basic issues about employers' liabilities, reviews some literatures and theories, combining analysis of the basic legal relation and comparison of some relevant law articles, gives some ideas on employers' liabilities in our country, aiming at having benefit to the relevant legislation of our country.