On The Behavior Of The Duties In The Employer's Liability

The employers' liability system is along with the employment system development which objective needs to produce based on the real life develops, like the other legal system. Since the 19th century, with the modern industry development, the employment work have been common day by day. Simultaneously, with the industry and commerce development accompanying mutual promotion of the five elements management risk also in the unceasing expansion, the employee in its work process, illegally violate other people rights and interests, causes other people to suffer the harm, this a series of act probability along with it expansion. When the employee has the abuse of authority, especially does not have in the compensation ability situation in the employee, how to effective safeguard victim's legitimate rights and interests, this question highlights day by day in the judicial practice. Thus, the employer undertakes the liability system to employee's inits duty activity abuse of authority, namely the employers' liability system, was taken an important legal regime has raised.Our country present "the General Principles of the civil law" by no means make the definite orders to employers' liability system the stipulation, "about Is suitable＜People's Republic of China Civil Procedure Act＞in the Supreme People's Court Certain Question Opinion" the 45th stipulation: The individual engaged in commerce, the countryside contract the personnel who the dealer, the partnership hires in to carry on the employment contract provision in production management to create other people harm, its employer is the litigant. This is in our country procedural law regarding the employers' liability system this question correlation stipulation. The Supreme People's Court promulgated "Person Damage compensate Judicial interpretation" in 2004 9th to stipulate the employers liability, as a result of the main body and behavior specific and the limitation, the correlation legal standard with difficulty was also suitable, moreover, along with our country socialist market economy unceasing development, the private sector and the individual economy unceasing prosperity, in the society will already have the massive family employment relations, the employee, the helper relations and the agricultural employment relations and so on, the employment relations can appear more and more generally middle people's daily life, the employee was employed in the execution in business process to implement the abuse of authority, caused other people person property harm. Already was emerges one after another incessantly. Who undertook the compensation liability still the not explicit legal basis. Although our country also has the correlation system legislation discussion and the judicial interpretation, but all is insufficient the question which solves in the reality to exist. Therefore, our country will have the necessity to establish the independent employers' liability legal regime in the future code civil.This article some questions which exists in view of at present employers' liability fundamental research in, has carried on the discussion to the employers' liability basic question. This article altogether is divided three parts, its content brief as follows:PartⅠ, to employers' liability foundational understanding.This part has made the outline to the employers liability system, first openly expresses from the employers liability historical origin and the development, gives the employers liability the definition, pointed out this article employers liability the meaning is in its two situations one kind, namely employer for employee to third human of abuse of authority generation of irresponsibility. The British and American legal system and the mainland legal system main country had all stipulated the employers liability system, the employers liability system is different with other similar legal regime, it has own legal characteristic, since has the rationale which long-time has formed, in the scientific theory the regarding this explanation has wide divided opinions, induces has the control and the surveillance theory, the compensation theory, the community policy theory approximately. This part also from the comparison test angle, elaborated the employers liability to turn over to the responsibility principle, because the mistake responsibility principle did not favor protects victim's benefit, therefore has brought the unstable factor to the society, simultaneously did not conform to the modern civil law to protect weak one's thought. This article turns over to the responsibility principle regarding the employers' liability to advocate uses the non-mistake responsibility to turn over to the responsibility principle. This part on the employers liability system basic question explanation, elaborated in the employers liability duty behavior for behind to play the upholstery role.PartⅡ, to delimit act of duty in employers' liability.It can be said that, to the employers' liability in the duty abuse of authority limits, relates the employers liability establishment or not key, so long as has been clear the duty behavior limits, in the employers' liability other questions were also easily solved. In which to the duty behavior disputed very big mainly includes the employment relations and the duty scope two aspects, this part first has carried on the explanation on the employment relations connotation and the theory, between the employer and the employee has the employment relations, not only is the premise which the employers' liability occurs, is limits the duty behavior the prerequisite. It can be said that, between the employer and employee's employment relations are the employer undertake a responsibility important prerequisite to employee's abuse of authority, however, actually how limits between the employer and employee's employment relations, what in the legal judgment standard also is? In this question, this article has pointed out two kind of theories: Control theory and employment contract theory. Afterwards the employee duty scope theory and its concrete limits standard has carried on the elaboration on the employers' liability. At the same time, based on to hires relational the generalized understanding, should expand is employed human's scope, but regarding carries out the duty judgment standard to be supposed to judge employee's abuse of authority by the many principle comprehensive standard whether belongs to the duty scope.PartⅢ, employer to in additional compensation system.This part had affirmed first in the employers' liability system, the employer to its employee's additional compensation system existence is necessary. If will be employed the human is because own independent personal behavior creates other people harm personally, the employer does not undertake the responsibility, will like this be able to give the employer to compensate the responsibility to limit in the scope which reasonable, employer's activity will be able to expand arrives, in order to avoid the employer will undertake the overweight unreasonable responsibility. But recognizes in the procedure regarding the employer additional compensation through when the employee abuse of authority occurs, the employee for intentionally or significant has missed the season or best time for only then has the additional compensation, thus has carried on the limit to employer's additional compensation power.