Employer's Liability Study

The relationships between employer and employee have not been recognized as legal relationships for a long time due to the special situation in China. That is why China's General Principle of Civil Law did not provide for employer's tort liability. With the reform of economic mechanism, however, a wide variety of relationship between employer and employee has emerged in society accompanied by a lot of injuries suffered or caused by employee. Who will bear the compensation for damages? That still remains legally uncertain. Although there have been some relevant institutions and judicial interpretations they are inadequate to resolve the problems in practice. So the institution for employer's liability is a very important issue in judicial practice in China.There are two types of legislation concerning employer's liability in the world. The first is the legislation based on the principle of strict liability in English-American Law Legal Family. It provides that employer shall be liable for the injuries caused by empolyee's tort on duty and the employer shall not be immune from the liability due to due care such as selection and supervision. The second is the legislation based on the principle of fault presumption in Continental Law Legal Family. Article 831 in Germany's Civil Code, Article 715 in Japan's Civil Code as well as Article 188 in Taiwan region's Civil Code are the similar provisions concerning this issue. With the demand of society more and more relationships between employer and employee appear. The principle of liability for fault is not advantageous to protect the interest of victims. It brings about instable factors to society and so is not good for social development. By the 1960s to 1970s,the judicial decisions in the foredoing Continental Law jurisdictions had adopted the principle of strict liability and almost got rid of the restriction of the principle of liability for fault. In China, the People's Supreme Court did not mention that employer can be immune from liability by justifying due care in its judicial interpretations. Obviously it adopted the principle of strict liability and this is exactly the trend of civil law in the world. The purpose of this thesis is to further study employer's liability.In this thesis there are four chapters as follows:Chapter one: The basic understanding to employer's liability. This chapter sets forth thenecessity for employer's liability from the concept, nature, character, origin of employer's liability. Due to the past economic mechanism the General Principle of Civil Code and relevant judicial interpretations did not say a word in this area. A lot of victims' legitimate right can not be protected timely. So the enactment of the institution for employer's liability is very important.Chapter two: Imputation principle for employer's liability. Employer's liability in English-American Law is also called substitution liability. It is a kind of strict liability. Employer shall be liable for damages as long as employee commits tort on duty regardless whether the employer has fault. While in Continental Law jurisdiction some states adopt the principle of fault presumption, some strict liability. After comparison between the two types of legislation, the author think that the principle of strict liability is the trend of civil law and should be adopted by the future Civil Code in China.Chapter three: The constituent elements of employer's liability. The employer's liability is kind of liability for other person's tort, not for oneself s in it's nature. It's constituent elements are different from those of general tort. The relationship between infringer and liability bearer must be that between employee and employer. This is the fundamental element for employer's liability. The tort must be happened in the course of carrying out empolyer's business. This is the precondition for employer's liability. The infringement act must constitute tort. This is the legal element for employer's liability.Chapter four: Assumption for employer's liability. Employer shall be liable for the damages caused by employee on duty. Among employer, employee and victim the victim has the right to claim damages and the employer is liable for the damages. While the employee has intention or gross negligence the employer and emloyee should be liable for the damages jointly. After the compensation the employer has the right to recourse employee with intention or gross negligence. In order to reduce employer's economic burden the employer may seek social relief by taking the form of insurance.This thesis tries to explore and study the theories concerning employer's liability in different countries by using comparison and case method. The author's views maybe helpful to the undergoing discussion of Tort Law of Civil Code(Draft) in China.