On The Vicarious Liability

The civil liability of tort is divided into two categories, one is the liability foroneself that is called as the “Ordinary Acts of Infringement”, and the other is thevicarious liability, which is called as the “Special Torts”. The specificity of thevicarious liability is it’s the way of undertaking the due obligations. When one personis hurt by someone, if it accords with the general constitutive requirement of vicariousliability, he can claim for compensation to the court asking the one who is morewealth.Currently, the research of vicarious liability theory has been concentrating on theconcrete types of vicarious liability. On the contrary, there is rare research of the basictheory of it. There are two weakness of this research approach. Firstly, there is nosystem in it. Every research on the specific form of vicarious liability proceeding onits own system of theory, and there is no general principles above them, which leadsto the argument and confusion on the scope of vicarious liability. Secondly, there isdisorder when applying it. For the lack of general principal of vicarious liability, theconstitutive requirements of specific forms of vicarious liability are myriad andcockamamie in the practice. In this paper, by comparing the research way of vicariousliability theory at home and abroad, we’ll make critical introspection on the path ofthe theory of vicarious liability in our country. Then, we’ll guide the research way ofvicarious liability in our country to a correct way，which is the way called “Fromgeneral rules to the specific forms”. This paper will focus on discussing the thinking logic of vicarious liability, fromwhich we’ll refining the general liability constitutive requirements of vicariousliability. And then, use the conclusion to redefine the scope and the forms of vicariousliability in “Tort law” and its relevant judicial explanations. The detailed train ofthought is stated as follows:First, Comparing the development paths of the two main legal systems on theoryof vicarious liability, and making introspection on the defects in the research in China.Having learned about the theory of vicarious liability from abroad, both theAnglo-American law system and the civil law system are following the theoreticalresearch path of “From the general rules to specific forms”. The benefits of this wayare more rigorous and clearer in the intension and extension. Conversely, theoreticalresearch path in our contrary is “Only special forms and no general rules”, which leadto the difficulty in defining the specific types of vicarious liability, and theembarrassing situation of confusion on the theory.Secondly, analyzing the thinking logic of the general constitutive requirement ofvicarious liability, and refining the general liability constitutive requirements ofvicarious liability. The logic of this thinking can be summed up as “screening, restrict,apply”.(1) Discussing the essential characteristics of vicarious liability, which is themeasure to distinguish it from the responsibility for oneself. This feature is: thecontrol relationship and strict liability.(2) Discussing the object which is replaced byvicarious liability. The view of this article is: vicarious liability can only replace an actthat has been legally established for the tort, rather than only an infringement event.(3)Studying the logic path of using vicarious liability in imputation, and refining thegeneral liability constitutive requirements of vicarious liability. This paper putsforward a new theory, which is called “From ‘the external relationship of the firstlevel’ to ‘the internal relationship of the second level’”. To constitute the externalrelationship of the first level requires “the behavior has constituted an infringement”,and to constitute the internal relationship of the second level requires “control” and“the infringement and control relationship are closely connected”. The externalrelationship is the premise. Finally, each of the general constitutive requirements of vicarious liability will bediscussed in detail, and will be used to redefine the scope of vicarious liability. One isto define the specific offender of infringement of others and the imputation principle.One is to make typed analysis to the control relationship. The other is to discuss thejudgment standard of closely connection test. At last, we’ll draw a conclusion on thespecific types of vicarious liability in “tort law” and its related regulations for thefollowing classification:(1) The types of vicarious liability which are directlyreflected in the provision.(2) The types of vicarious liability which can not be directlyreflected in the provision, but can be launched through the explanation.(3) The typesof vicarious liability which have been misread.(4) The types of vicarious liabilitywhich should be included in the specific type of it but actually are not included in.