The New Theory Of The Employers' Liability System

In recent years, with the reforms of our labor system, the kinds of labor subjects and labor relationship have taken on a tendency of variety. At the same time, employment relationship is becoming a common phenomenon, and employer liability problem arises. Employer liability, or called"damages compensation liability for the employer", means that the employer should bear the damages liability because the employee does damages to others and suffers damages from others when he carries out his employment job. Neither the substantive law nor the procedural law does not stipulate employer liability definitely. The Interpretation on the Law Application about the Personal Injury Damages issued and implemented by the Supreme People's Court definitely stipulates employer liability for the first time. Because the complexity between the employer and employee's legal relationship, and the uncertainty of the Interpretation itself, there are still some doubts and uncertainty about the law application during judging course.The thesis is made up of 6 parts:The preface discusses the status quo of the employer-employee relationship in China; the understandings about employer liability in traditional theories and the contradiction and deficiency about the employment relationship in our active laws. The question will pave the way for the following discussion.The text is divided into 5 parts:Chapter 1, the first part, mainly introduces the general conditions of employer liability system, which is called"damage compensation liability by the employer"or"the tort responsibility of the employer", too. It is based on the employment relationship and has two kinds of meanings. The meaning from the wide side includes the damages liability made by the employee and suffered by the employee, while the narrow meaning of employer liability only means the damages made by the employee. The application of the conception -employer liability has its reasonableness and reality. We should reserve the traditional conception in torts law in our law making and juridical courses, whereas we substitute it for other conceptions.Chapter 2,the second part, mainly introduces the foundation of employer liability, i.e. employment relationship. This part comprises the understanding about employment relationship, and the analysis of the characteristic, the comparison of the similar conceptions including labor relationship, the relationship about contract to a job, and entrust relationship. Besides, this part involves the standard to judge an employment relationship, whether it follows the standard of control and dominance theory or the contract of employment or other more objective standards.Chapter 3,the third part, mainly introduces the damages executed by the employee. It includes the general introduction, the imputation principle, the requisites of the liability (for example, whether employee's behavior should be a tort act, how to define authority act, whether there is employment relationship between the employer and the employee, and so on), the range of the third party, the right to recourse for the employer to the employee, and the special conditions-particular damage liability made by the employee in the dispatch labor relationship.Chapter 4,the fourth part, mainly introduces the damages liability suffered by the employee. It comprises the general introduction; the basis for the responsibility; the nature of the liability assumed by the employer when the third person injures the employee.Chapter 5,the six part, is conclusion. It is the summary for the whole thesis and introduces how to construct our employer liability system in the future torts law. In theory, we should amplify the understanding about employment relationship. In institution and practice, we should form the employer liability system on the basis of employers'liability insurance.The study methods of the thesis include the comparison methods, historical methods, positive methods, law-economic methods.