Employers' Liability System Is A Comparative Study

Employer liability has two meanings in modern society: the first one is the liability which should be assumed by employer when employee is damaged in the course of employment; the second one is the liability which should be assumed by employer to the third party who is damaged by employee in the course of employment. The former one has been set store by in Labor Law; the latter one belongs to the cope of civil liability. The system of employer liability in this article is instituted for the compensatory liability of employer to the third party who is damaged by employee's tort behavior. Now, employment relationship is basic of economic activities, so the impossibility of employee's tort behavior enhances. The system of employer liability is erected under requirement of society. The employer assumes liability in different degree in countries all over the world from the consideration of employer's more powerful position and protection of the third party, but in china there is not a separate article to stipulate employer liability in civil law. Three parties,two legal relationships are involved in system of employer liability. This article is separated into two parts to expatiate two relationships. The first part is about the relationship between employer and the third party. At first, from the analysis of two modes of employer liability in world, it is confirmed that employer liability is vicarious liability, so employer assumes liability under the principle of strict liability. The employee's tort liability is the origin of the employer liability. In china, the strict liability chosen in article 9 of "explanation of some problems in law application in cases of compensation for body damage"conform to the requirement of society and trend of law. The second problem is the three preconditions of employer liability which are discussed separately in three sections: employee's behavior is guilt of tort, employment relationship, in course of employment. Experience is analyzed though the juridical practice of foreign countries and some principles that can be used to direct juridical practice are summarized. The second part is about the system of recourse to employee. At first, because of vicarious liability, employer can use compensation right of appeal requiring employee to compensate his damage caused by employer liability. But in order to protect employee, compensation right of appeal should be limited to use in case of gross negligence or intentional conduct. Secondly, recourse that only occur in the inner relationship between employer and employee should be resolved though agreement between employer and employee and dispute organ. At last, the scope of recourse is discussed from the angle of juridical practice. Under the background of establishment of civil code, employer liability should be put in civil code as an article. In the paper, some principles of juridical practice have been summarized, but some concrete conclusion should be drawn in concrete case because of individuation characteristic in tort. Otherwise, social insurance systems that can be play a role in the application of employer liability should be pay attention to.