Research On Employer’s Vicarious Liability

With the rapid development of modern industrial and commercial society, theemployment relationship exists widely. The damage to others happens from time totime during employees’ employment activity. This situation inevitably involve to tortlaw on a special type of infringement: employer’s vicarious liability. Employer’svicarious liability system contains imputation principle, constitutive requirements, theresponsibility, the rule of law which affect the employer, the employee, the victim ofthe interests, but in China the law had yet to make clear its regulation, these issues inacademia is also controversial. This paper attempts to beneficially discuss imputationprinciple, constitutive requirements, the responsibility, suggestions for legislationmainly through the comparative study of the different countries’ legislation andanalyzing legislation practice. This paper is divided into five parts.The first part is explained the concept of employer’s vicarious liability. Itdiscusses five theories which are employer’s vicarious liability’s theory foundation:Control Theory, Agent Theory, Public Policy Theory, Danger Theory, Reward Theory.The second part firstly survey two imputation principles existing in the differentcountries’ laws: one is no-fault liability, the other is the presumption of fault liability.And then it examines the countries’ legislation trend of imputation principles andstates the drawbacks of fault liability. Finally it comes to a conclusion that our countryalso shall take no-fault liability principle.The third part discusses four constitutive requirements after taking no-faultliability principle：The existence of the employment relationship，Infringementoccurring in the course of the employment, Damage caused by employee’sinfringement, causing damage to the third person by employee’s infringement. Thereare three criterion to judge the existence of the employment relationship: ControlCriteria；Contract Criteria; Comprehensive Criteria. Under the special circumstancesof the employment is discussed in this paper. It distinguishes between employmentrelationship and contracting relationship. During the period of employment forgeneral judgment standard, specific judgment standard is discussed. It distinguishes between employee’s intentional infringement and negligent infringement. The scopeof the third person suffered damage is defined. Anyone may be the third personsuffered damage to ask the employer to assume responsibility expect the employerand the employee implementing infringement.The fourth part discusses the replacement of the responsibility about employer’svicarious liability including external responsibility, internal responsibility andemployer’s defenses. Employer is the external responsibility’s only undertaker.Employer doesn’t have the right of recovery even if employee has intention or grossnegligence. How to undertake internal responsibility can be agreed in the contract byemployer and employee.The fifth part scans present legislation situation of employer’s vicarious liabilityin China and analyses the relevant laws one by one. Finally it makes severalsuggestions to improve employer’s vicarious liability.