On The Employer's Right Of Recourse In Vicarious Liability

With the development of economy and the prosperity of the commodity market, employing others in doing business has become a salient features of modern society. Employer's liability is made in this case. Employer's liability has two meanings in modern society:the first one is the liability which should be assumed by employer when employee is damaged in the course of employment; the second one is the liability which should be assumed by employer to the third party who is damaged by employee in the course of employment. The former one has been set store by in labor law; the latter one belongs to the cope of civil liability. The vicarious liability in this dissertation is the liability which should be assumed by employer to the third party who is damaged by employee in the course of employment."Tort Law of the People's Republic of China" pressly provides for vicarious liability. But there is no clear statement of the employer's right of recourse in this law. Few scholars discuss the employer's right of recourse. In real life, there are many cases of this issue. So the employer's right of recourse is worthy of our attention. This dissertation attempts to deepen the discussion by the comprehensive analysis on the foreign legislation and judicial practice of the employer's right of recourse as well as the combination of present legislative and judicial situation in our country.In addition to the introduction and epilogue, this dissertation is divided into three parts.The first part explores the situation of the employer's right of recourse in the foreign countries, mainly compares this issue in the common law, continental law, Japanease law and the Taiwan area law. Vicarious liability has been stipulated in the law of most countries. But the legislative pattern differs from each others. In this way, the system of the employer's right of recourse is different too. Some countries stipulate it in the civil code, the others countries where is not be stipulated in the civil code stipulate it in the corelative law. Although employer's right of recourse is made, it is restricted to the cases of employee's deliberate intention or gross negligence, and the scope of employer's right of recourse is limited.The second part tries to prove the legitimacy, legality and rationality of the employer's right of recourse. The employer's right of recourse has legitimacy from the theoretical basis of the vicarious liability. It also has the validity. The employer's right of recourse should have been stipulated in the law for the structure of the vicarious liability. The authoritative interpretation doesn't deny the employer's right of recourse. So the fuzziness about the employer's right of recourse in our law is a legal loophole. The promotion of employer liability insurance is not enough, So it is also reasonable to establish the recourse system for the employer.The last part "realization of the employer's right of recourse" attempts to find how to exercise the employer's right of recourse. At first, this part describes the constitutive elements of the employer's right of recourse, which include:the employer has bear the vicarious liability, the tort is a job behavior, the deliberate intention or gross negligence of the employee's tort. To determine the share of the liability between the employer and employee, comparative fault and financial capacity must be considered. At the same time, the way of paying compensation should be restricted for the employee's legal rights. The vicarious liability can be shared by the expansion of employer liability insurance. If the employer has received the compensation from the insurance company, he doesn't have recourse against the employee in this part.The whole dissertation focuses on employer's right of recourse on purpose of offering some related applicable proposals for existing legislation and makes the regulations clearer to seek the effective operability in judicial practice.