Employee 's Liability For Damage To The Employer

In labor relations, employees owe the duty to work and ancillary duties toemployers. If employees fail to perform or improperly perform these duties and causeproperty damages to employers, they shall bear the liability for compensation.However, the doctrine of liability fixation and the range of compensation are notunified in the juridical practice. Although these aspects have sporadically involved inthe labor law provisions, there is still no corresponding legal basis directly foremployers to claim rights, lacking general terms and conditions. Because of theparticularities of the contents and the subjects of labor relations, it is likely to makethe labor relations back to the imbalanced and unequal situation, which will go againstwith the tilt protection of employees’ rights and interests if the civil law rules aboutthe damage compensation are applicable directly. Both parties involved usually agreeupon some liability clauses in order to fill the gaps in legislation, and the freedom ofsigning contracts has no special restrictions; due to the dominance of employers’,these clauses are often legitimate in form but essentially unfair. How to apply theseclauses depends on the judicial considerations. Based on the analysis of the basis andthe legal nature of the liability for damages, and the current situation both inlegislation and in practice, some comprehensive measures should be used. Perfectionof legislation and judicial balance are two points of these measures, which are notonly beneficial to fill the loss of employers, but also realize social fairness and justice.This dissertation is concluded of five chapters, its abstract is as follows:Chapter Ⅰ quotes three cases to illustrate the theoretical and practicalsignificance.Chapter Ⅱ defines the concept of “employee” and “damage”. Most of thecountries and regions have a common ground that the former has the characteristic ofsubordination in spite of the definitions are different. For the latter, the damage shouldbe limited to property damage which is caused by the employee who fails to performor improperly perform one’s duties. In addition, this chapter concludes the basis of theliability for damages is the duty to work and ancillary duties that employees owe to employers.Chapter Ⅲ will introduce the current situation of the employees’ damage liabilityincluding two aspects of legislation and practice which both require perfection. Forone thing, pointing out the legislative defects by analyzing the existing rules onemployees’ damage liability. For another, there are also issues in filling the gapsthrough concluding damage clauses.Chapter Ⅳ will introduce the theoretical analysis of the legal system ofemployees’ damage liability. Based on the analysis of “the basis of claim right”, thischapter concludes that employees may be liable for the liabilities for breach ofcontract, for fault in negotiating and for tort. The two parties can agree on the damageliability, but the agreement shall not violate the principle of fair and legal rights andinterests of employees’. Furthermore, this chapter concludes that the rules ofemployees’ damage liability need special design because of the specificities comparedwith the general civil damage liability.Chapter Ⅴwill put forward the measures for improving the legal system ofemployees’ damage liability bases on the analysis above. Firstly, the doctrine ofliability fixation should be regulated. Furthermore, there should be balance on therange of compensation in judicial process referring to the foreseeable principle andnegligence standard. What’s more, the remedial procedure for employers should beexplicit. In addition, this chapter will briefly analyze on “forfeit” and related matterson non-competition and dismissal.