The Hiring Liability In Tort Law

Employer's liability, which is a very important system in the tort law, has a close connection with the real life. Although the employer's liability has been prescribed in China, there is still much space to improve. On the basis of defining and analyzing the meaning of employer's liability, this dissertation discusses the liability's nature as a core, puts forward my own opinion about the doctrine of liability fixation and the foundation of the liability, as well as talking about the liability's constitutive requirements and the assumption of liability. I hope all the discussion can do something of value for the legislation and juristic practice of our country.This dissertation consists of the introduction, the body and the conclusion. The body includes four parts.The first part is a ground discussion of the employer's liability. The discussion starts with the definition, and in order to clarify the meaning, the employer's liability is compared with the tort liability of legal person, the liability of the person assisting in debtor's performance of obligations and the liability of manufacturer on order. After introducing two different legislative models, the author analyzes related prescriptions in Chinese law, points out their deficiencies and makes suggestions on the master design of the liability's stipulations.The second part is the elaboration of the theoretical questions about the employer's liability. First, the author discusses the nature of the liability. There are two different legislative models about the employer's liability. In one of them, the employer has the exception and the nature of the liability is self-liability; in another one, there's no exception and the liability's nature is vicarious. Due to the tort law's function, the protection of the victim and the employee, the legislation of Germany and the development of tort law, the author makes a conclusion that the employer's liability should be defined as vicarious liability in Chinese civil law. Therefore, the doctrine of liability fixation should be liability without fault, and the theoretical foundation should be the contribution of risk and the deconcentration of damage.The third part focuses on the establishment requirements of the employer's liability. The author firstly analyzes the employment relationship which is the prerequisite of the liability, and clarifies the relationship's definition and its criterion. Then the employment activity and the employee's tortious act, which are constitutive requirements of the employer's liability, are discussed, as well as the criterion of employment activity. Also, the fault of the employer which is a related element is argued here.The fourth part draws on the assumption of the employer's liability. From the outside perspective, the author clarifies the subject of right and duty. From the inside perspective, the argument begins with the relationship between the employer's and employee's liability, and moves on to the claim relationship. In the last, the author makes a comment on the present prescriptions about the liability's assumption and sets forth the suggestions for the improvement.