Employer Liability Under The Standard Employment Relationship

Employer’s vicarious liability is an important system of tort, and the existence of an employment relationship is the premise of the employer to replace an employee to assume the tort liability, so accurate determination of the employment relationship is crucial. China’s laws on this issue did not make specific provisions, academia for the problem is still relatively lacking, and failed to form a unified view, resulted in judicial practice, the situation of many similar cases in a different verdict, resulting in decreased judicial credibility, impaired the authority of law. Therefore, the construction of the employment relationship to determine the standard system is imminent. Based on the above considerations, target under the guidance of scientific and reasonable for the employer’s vicarious liability, how to construct the standards of the employment relationship to be studied in order to be benefit for future legislation, effective in reducing the large practice case but the verdict is not the same situation, effectively protect the legitimate rights and interests of the parties to maintain the authority of the law and judicial impartiality.Trace the origin from the context of the historical development of the employment relationship and labor relations shows that the two are essentially consistent, due to the impact of the industrial revolution, and ultimately labor relations separated from the employment relationship with an employment relationship exists slightly difference. We can conclude that the essential characteristics of the employment relationship subject to supervision, and the meaning of involuntary is the work of employees or workers. China’s existing legal provisions on the standards of the employment relationship is very imperfect, neither a clear overarching criteria, and does not fully consider the theoretical basis of the employer’s vicarious liability, resulting in the expansion of the scope of the employment relationship. At the same time, legislation contradiction exists between the different legal. As for the special employment relationship is no provision. In response to these problems, drawing on the practices of other countries or regions it is necessary, should the employment relationship, standard theories of Germany, Japan, Britain, and China’s Taiwan region, the introduction of theories, the enactment of legislation and jurisprudence, we can see to control and supervise as the primary criteria, but also can refer to other standards of the contract standards, organizational standards, and with more specific reference to the operational factors, such as employment contracts, compensation of employees, employees of labor control and supervision relationship. Clear type of employment relationship should profit employment relationship as the main types, excluding routine employment relationship by the employer vicarious liability. Can be enumerated legislative technique to China is currently the main type of employment relationship to be provided for-profit, such as labor relations, labor relations, contracting business households in rural areas of the employment relationship, individual businesses and the formation of the employment relationship, the employer rehired the employment relationship, no business license of enterprise employment relations, and other employment relations. At the same time, coordinate the handling of conflict of laws, and a special type of employment relationship and this type of infringement cases apply to employer vicarious liability legislation. Thus, based on the type of employment relationship and on the basis of full consideration of the theoretical basis of the employer’s vicarious liability, and ultimately construct an operability of the employment relationship to determine the standard system from macro to micro.