The Study On The Vicarious Liability

The term "vicarious liability" is used to indicate the tort liability that the responsibility holder for the tortfeasor’s infringement based on their special relationship. Vicarious liability is based on the relationship between the responsibility holder and the tortfeasor, rather than based on the responsibility of those individuals fault. There are three parties in the relationship of vicarious liability:the responsibility holder, the tortfeasor and the victim. Vicarious liability has three characteristics:1. responsibility holder and tortfeasor separation;2. there are fundamental relationship between responsibility holder and tortfeasor;3. the tortfeasor’s misconduct has a relationship with the "fundamental relationship". There are three theories basis of vicarious liability:the control theory, the agency theory, the guarantee theory, the enterprise risk theory and the public policy theory.In the comparative perspective, vicarious liability is strict liability in the British law and American law. There are three different types vicarious liability:the juridical person’s vicarious, the employer’s liability and the state’s vicarious liability. British law and American law recognize the tortfeasor’s personal liability and responsibility holder’s indemnity. Vicarious liability is a kind of fault presumed responsibility in German, otherwise a kind of non-fault liability in French. There are three main kinds of vicarious liability in the German Civil Code and the French Civil Code:the employer’s liability and the state’s vicarious liability and the parental vicarious liability. German law and French recognize the tortfeasor’s personal liability and responsibility holder’s indemnity. There is a general rule in the French Civil Code. Both strict liability principle and fault presumed principle can be applied for vicarious liability. The tortfeasor’s personal liability and responsibility holder’s indemnity should be recognized by law on the basis of balancing the protection of the interests of the three parties.According to the provisions of the General Principles of the Civil Law and Tort Liability Act and other laws and judicial interpretations, we know that there isn’t a general rule of vicarious liability in China law. There are several major types of vicarious liability:the employer’s vicarious liability, vicarious liability of the receiving labor party in personal labor relations, the state’s vicarious liability, the guardian’s vicarious liability. Vicarious liability is a kind of strict liability. In order to protecting victim, The Tort Liability Act denies tortfeasor’s personal and without an expressly provision on the responsibility holder’s indemnity. The tort law in the future should provide the general rule of vicarious liability and the tortfeasor’s personal responsibility. We should protect responsibility holder’s indemnity.