Study Of Employment Responsibility System In China

Employment liability is called "employer's liability" or "user's liability "in Civil law, and called "vicarious liability" or "vicarious liability of employers in the Common law". The production and development of employment relationship in our country is not natural, but with the changes in our economic policies. Compared to "user' liability" and "employer's vicarious liability", this particularity makes "employment liability" more suitable for China's fundamental conditions. With the development of China's market economy, employment liability has become a very common and important type of tort liability, but laws that have ruled it are few and different for a long time, which already cannot meet the development need of the realities. Fortunately, our legislature has been aware of this problem.After several years'deliberation and three draftments, "Tort Liability Act" was finally introduced in 2009. Article 34and 35 of this Act provides for the employment liability, which recognizes the employment liability in law formally, makes up its gaps in law, and elevates its ranks from judicial interpretation to the law. However, employment liability of this Act still has many defects and omissions, which will bring troubles to judicial practices. Therefore, I believe that employment liability's further studies are still necessary, and I will give some advices to perfect it.This paper includes three parts. First, the basic theory of employment liability, followed by the specific system of employment liability, finally, the defects of employment liability in our country and the proposals to perfect it.The first part is the basic theory of employment liability. The First are employer-. employee and employment relationship's conceptions, through whose analysis we come to the particularities of the conceptions of employer, employee and employment relationship in our country. The Second are the conception of employment liability, including the legal basis, nature and characteristics of employment liability. By comparison study, I find that "employment liability" is more suitable for our country; whose nature is its liability. The second part is the specific systems of employment liability. The First is the principle of employment liability, by the comparative studies of principles of liability to Civil law and Common law, we find no-fault liability should be used in our country.The second is the criteria to judge the process of employment, including the investigations of Civil law, Common law and Chinese. The Third is the right of the employer to recourse. By the research of recourse's theories and comparative laws, we find the necessities to make the rule of the right of employers in tort Liability Act.The third part is the defects of employment liability and advices to perfect it. Defects and omissions, as uniformity in conceptions of employers,employees and employment relationship, inexplicit of the criteria of "performing tasks ", lack of employers'right to recourse, are existing in employment liability of our county. So, in judicial interpretations and practices of future, it is necessary to unify the conceptions and scopes of employers and employees, add the employers'right to recourse, establish and improve insurance of employment liability, coordinate the employment liability implement with other laws and other judicial interpretations.