Employer's Liability Elements

As a major system in Tort Law, Employer's responsibility plays an important role in maintaining the trade security and enhancing the trade efficiency. And its key issue is the constitutive requirements. This paper analyses two issues from the view of comparative study : one that the premise is the legal constitutive requirements of employer's responsibility and the other that the focus of this paper is how to define the requirements in dispute.The paper is divided into four parts.PartⅠ: Summary. This part discusses three issues that the imputation principle, the relationship of these elements and the argument existed in employer's responsibility. With regard to the first issue that the imputation principle of the employer's responsibility, this paper argues that no-fault liability principle should be adopted, which means whether the employer has fault or not and this matter of fact should not be considered as a constitutive requirement of employer's responsibility. As to the second issue, all the constitutive requirements of employer's responsibility and their relationships, it is generally acknowledged that it should have three elements at least: 1 .The existence of an employment; 2. Employee's behavior constitutes a tort; 3. employee was carrying out their duties. Among them, the first one is basic, the second one is a necessary element, and the last one is substantive. Meanwhile, as for the third issue, the argument existed in employer's responsibility, the first and the third element mentioned above are mainly in dispute.PartⅡ: Research on employment. This part discusses two issues. The first one is about the criteria of the employment relationship, and the other is the judgement on special circumstances. As for the first issue, the "the controlling theory" is more reasonable than others, which believes that the core of the judgement of employment relationship is "control". However, as to the interpretations of "control", there are different opinions. In civil law system, countries tend to adopt a general standard, while the other countries in common law system tend to identify it by some specific reference factors from typical cases. And this paper try to grasp the essentials of the definition of "controlling "theory by considering some specific factors. With regard to the second issue, there are three typical types that common employment, borrowed employees and the person who is elected by the employees. And we should find out who played a leading role when the damages occurred.PartⅢ: Study on official conduct. This part discusses three issues. The first one is general standards of official conduct, the second one is reference factors, and the last one is the relationship between them. As for the first issue, official conduct, the inherent connectivity should be considered. However, the method of judging the inherent connectivity is still in dispute. Someone believes that it depends on employer's foresight. The others argues that it depends on victims' trust. In fact, the "victims' trust" theory is more consistent with the legislative basis and the essence of the system. While referring to how to define the trust, the trading behavior and factual action should be distinguished. With regard to the second issue, the reference factors includes the time,place and the purpose of the act. Concerning the third issue, general standards play a decisive role.PartⅣ: Conclusion. Nowadays, the correlative legislation is not perfect yet. Thus, it is particularly important to improve the legislation. And the elements should be defined by the Law. Meanwhile, we need to insist "no-fault liability" theory, pay attention to the analysis of its types and attach importance to determination of "control" theory. As to the determination of the official conduct, "victims' trust" theory is the key.