Study On Employer's Liability

The torts law, which will be implemented in July 1st,2010, includes the liability of the employing unit and the liability of personal services providers, which are called employer's liability of the traditional civil law. However, this law does not explicitly define the post of behavior and the right of recovery, which will bring the uncertainty in the judicial application. Compared to the "about hearing person damages case applicable law the explanation of a certain number of problems" which is laid down by the Supreme Court, the torts law has different contents. In the legislative style, it is different from the style of traditional torts law and embodies the liability of the employing unit and personal services providers instead of the liability of the employer's. Therefore, this requires improvements in legal application for traditional theory of employer's liability.In this paper, the hermeneutic method and comparative research methods will be applied. On the basis of traditional theory of employer's liability and the legislative style from other countries(areas), combined with our national legislation, this paper mainly focuses on the elements of the employer's liability. Meanwhile, this paper will explore the reasons and legal measures of the formation of respective legislation form analyzing the related theories such as labor contracts, employment contracts. This paper advocates that the principle of no fault liability should be applied in the employer's liability, and the criteria to define the employment relationship (or labor relations) should be specific, considering the nature of the post of behavior, and puts forward that the legislation should not neglect the employment contract and define it clearly in the relevant laws. On the aspects of sharing the employer's liability, the paper makes use of the balance of interests'theory and takes some factors into account such as the relief of the Victim's rights and the freedom of employer action freedom and so on. The paper hold the idea that the Victim's right to claim damages to the employee should not be deprived, therefore, the victim may choose to sue the employee. Meanwhile the legislation should define the legal status and the conditions of use of the right of recovery, and the criteria for determining the amount of recovery. The above should be differed in the legislation according to the difference between the liability of the employing unit and liability of personal services providers. To build the harmonious labor relations and balance the rights of victim's and the freedom of employer action, the paper suggests that our nation should encourage the development of the employer's liability insurance (with third-party liability insurance).The whole paper focuses on traditional theory of employer's liability on purpose of offering some related applicable proposals for existing legislation and makes the regulations clearer to seek the effective operability in judicial practice.