On The Employers' Vicarious Liability

The business is prosperous in modern society, and the trade is frequent. Because of individual limitation, people often need to hire others to engaged in certain activity. With the fast development of market economy, the wage labor has already become a kind of general phenomenon, the incident of employee encroaching on the third person are emerging constantly, the consequential employer vicarious liability need legal norm urgently. Though our country has already had relevant judicial explanation to carry on the regulation to this, but there are a lot places not complete, cannot offer the overall settlement basis for this kind of dispute. Through defining the legal intension of employer vicarious liability and analyzing the theoretical foundation, drawing lessons from various countries (district) current legislation, the paper attempts to do a system framework from belonging to the responsibility principle, composing documents and legal consequence, and get the idea of how to stipulate employer vicarious liability among the future civil code, it expects to offer some beneficial reference for stipulate employer vicarious liability in an all-round way among law.The paper divides three parts, preface, text and conclusion. The main content of the test is as follows:Part one: summarizing the system of employer vicarious liability. It means the employer takes the place of and shoulders the responsibility to the tort of the third person for employees. A lot of countries have stipulate employer vicarious liability system. The system is different from other similar systems, there are its own legal characteristics, and a theoretical foundation formed for a long time even more. This part define the intension of employer vicarious liability, has distinguished with relevant systems. The important thing is analyzing its theoretical foundation, for in the back of expound the system.Part two: describing the substituted responsibility of employer vicarious liability. Mainly belonging to the responsibility principle has responsibility principle of fault, no responsibility principle of fault and fault, inferring fair responsibility principle. I make introduction, analysis and appraise to three principle these, think our country infringe law belong to principle system of fault and have no responsibility principle of fault. Icarry on comparative analysis legislate to great Britain American and French department, think our country should adopt fault responsibility principle.Part three, describing composing documents and legal consequence of employer vicarious liability. There are three important documents: the existence of the employer-employee relationship, employee's behavior is the tort in order to carry out post behavior and employee's behavior. I describe to first two important documents especially, carry out proposes of how judge existence of employer-employee relationship and post behavior;the legal consequence of employer vicarious liability includes external responsibility and internal responsibility. The obligation subject is only employer. The employer belongs to its internal responsibility for employee's responsibility investigation, the clause that employer and employee concluded in advance avoiding employers of third person's responsibility is invalid.Part four: analyzing legislation current situation about employer vicarious liability in our country and offer the suggestion of legislating. The current legal provisions about the employer vicarious liability in our country are only limited to judicial explanation, content have a lot of weak points too, which can't very easy to solve various problems, The civil code draft has not stipulated the employer vicarious liability, I propose code draft infringe caudle set up Independent chapter to stipulate the employer vicarious liability. Content should include define of employer vicarious liability, responsibility principle, composing documents and legal consequence.