Employer’s Vicarious Liability In Labor Dispatch In China

Article9of "Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury" was the first established employer’s vicarious liability regime in China. Because labor dispatch that is an atypical employment pattern involves three legal parties, employer’s vicarious liability in labor dispatch can not apply traditional employer vicarious liability system. Article34of "Tort Liability Act" which was established in2009has provides the vicarious liability of employers, and special provides the employer’s vicarious liability of dispatch, filled the legislation blank of the employer’s vicarious liability in dispatch. However, we can see there were significant disadvantages in the article34of "Tort Liability Act":1.Labor units and dispatch units used different imputation principle;2.complementary liability beard by dispatch units is not conducive to the protection of the interests of victims;3.the states is not related to the recovery right of the labor units and dispatch units. In this paper, based on the discussion of basic theory of vicarious liability on employers and labor dispatch, and fully learn the advanced options and legislative systems in aboard,then made recommendations to improve the article34of the "Tort Liability Act":Labor units and dispatch units should bear the employer vicarious liability:Employers and dispatching units shall bear the employer vicarious liability without fault, and the Specific responsibility allocation rules is the complete additional responsibility. The person who bears the additional responsibility has the right to recourse against. While in the special situation as illegal dispatch, labor units and dispatch units shall bear joint and several liability.