Research On Tort Liability For An Employer

With the productivity level being constantly improved and social division of labor becoming deeper, it has become a popular phenomenon to hire workers to do certain jobs. Under this circumstance, employer’s tort behavior has become a very serious problem that an explicit stipulation on employer’s liabilities becomes urgent. Most of the countries in the world have established a relatively perfect legal system to stipulate employer’s liability and legal person’s tort liability. “Tort Law of the People’s Republic of China” which though explicitly stipulated employer’s tort liability, there were still many points that were regarded as imperfect and under great disputes. In the academic circle, there are also great disputes on the theories of employer’s liability and related laws. In this paper, by employing such research methods investigation, the author tries to make a systematic exploration on employer’s liability. In the introduction part, the author first pointed out the problems existed in the employer’s liability system. Then through the introduction of literature review, research methods and research significance, the author proved that the present study on employer’s system is not only necessary but also feasible.The body part of the present paper can be further divided into three parts. In part one, the author introduced the historical evolution of employer’s tort liability in China with the legislative status being analyzed and the author made a particular reference to the problems contained in the Article 34 in “Tort Liability Law” and the Article 9 in “Judicial Interpretation about Compensation of Personal Injury”. The disputes mainly focused on the following aspects: whether it is reasonable for the same liability subject to shoulder both legal person tort liability and employer’s liability; and whether the victim could claim injury compensation from the employee who committed minor fault and how to define intentional offense and gross negligence. In part two, the author made a comparative analysis of legal person tort liability and employer’s liability. By making an analysis of the complicated situation of employer’s tort liability, it was found those there involved three parties and three types. By making a classification of the relationship between legal person and worker, the author further explored the differences between the tort liability existed in agency relationship and that in representative relationship. In terms of employer liability, the author examined the legislation on employer’s liability in Germany, Japan, France, America, Britain and Taiwan district and then based on liability principle, the legislation studied above can be divided into three major types: doctrine of presumption, principle of liability without fault, and doctrine of liability with presumed fault combining with principle of equitable liability. The author also made an analysis of the advantages and disadvantages of those three types. In part three, the author proposed some suggestions on how to improve employer’s liability with some reflections provided. Then suggestion were proposed on how to improve the following points in the “Tort Liability Law”: the adjustment of the incomplete legal person liability, whether the victim involved in the employer’s liability enjoys the right of choice, whether the employer enjoys the indemnity-recovering right and how to guarantee this indemnity-recovering right.