Study Of The Identification Of Users’s Relationship Under Vicarious Liability

Vicarious liability means that the user should be responsible for the liability when the person used by him for his business makes loss to a third person or suffers loss himself during his work. As the economic develops, user’s relationship exists everywhere in our lives, and vicarious liability has already turned to be one of the most important doctrines of modern tort law. In vicarious liability, the establishment of user’s relationship is the fundamental issue as it directly determines whether the vicarious liability can be applied. So the identification of user’s relationship is very important in the vicarious liability. During the judicial practice, the identification of user’s relationship is the first problem that the judge should solve. While upon this problem, there are lots of puzzles and different opinions. To solve such problem, appropriate identification test is needed to distinguish some similar but different legal relationships, and that’s what this article wants to solve. This article will use the research method of case analysis and study of comparative law. And when make the study, this article will first introduce the vicarious liability of China by introducing the relevant legislation in the history and contemporary, and conclude the types of user’s relationships in China. And then this article will use the method of case analysis to analyze the different user’s relationships in our judicial practice, and conclude appropriate test from the useful experience. And then this article will make study of comparative laws to find useful experience. At last, this article will make study of the legal basis of vicarious liability and suggest the idea and test that can be used in our judicial practice upon the identification user’s relationship based on the study and the experience of our judicial practice and comparative laws.The establishment of user’s relationship is the fundamental issue in the vicarious liability, and to make correct identification of user’s relationship, it should be studied under the whole system of vicarious liability. To understand the vicarious liability of China, introduce of its relevant legislation in the history and contemporary is needed, and then conclude the types of user’s relationships in China. So Chapter 1 will introduce the legislation in the history and contemporary of China, and make conclusion of the user’s relationships in the law and classified them.The conclusion and classification of the user’s relationships in the law is primarily based on the legislation and is static. While to get the real identification test, dynamic study of the different circumstances in the judicial practice is required and from which useful experience can be concluded and suggest appropriate test. So Chapter 2 will use the method of case analysis to analyze the different user’s relationships in our judicial practice, mainly including the distinguishment of employment relationship and contractor relationship, labor relationship and service relationship. And this Chapter will use one section to discuss the domestic workers problem which often arise in practice and then lead to the discussion of the different rules upon unit and individual of the Article 34 and Article 35 of our Tort Liability Law.Chapter 3 will make study of comparative laws about the identification of user’s relationship. Firstly, the control test will be introduced, including its meaning, reasons for its application and troubles it suffered. And then analyze the approaches used to solve the troubles. The civil law countries used the method of liberalizing interpretation and the common law countries used the totality of the relationship test. Nowadays, both civil law countries and common law countries tend to identify user’s relationship loosely, because the conception of user’s relationship is not vacuous, and it’s the prerequisite for the application of vicarious liability. So the identification of user’s relationship should consider the purpose and value of the vicarious liability.User’s relationship is not vacuous, and it’s the prerequisite for the application of vicarious liability. So the identification of user’s relationship should conform to the purpose of the legislation of vicarious liability. A good test for the identification of user’s relationship should conform to the purpose of the vicarious liability itself. So the study of the legal basis of vicarious liability is very important which can supply the supreme guiding principles in the identification of user’s relationship. So Article 4 will discuss the legal basis of vicarious liability, mainly including fault, risk and protecting victim and then conclude the principles we should conform to in the identification of user’s relationship.The last part is the finish of this article which concludes the main conclusion of this article. Nowadays, the vicarious liability has a tendency of expansion. On one hand, both the countries taking no-fault liability principle in vicarious liability and the countries taking fault-presuming principle in vicarious liability tend to take no-fault liability principle in judicial practice. On the other hand, both civil law countries and common law countries represent a generous attitude upon the identification of user’s relationship and use more flexible tests which lead to the expansion of the range of the user’s relationship and the expansion of the application of vicarious liability. And the reason for such change is the legislation value of the vicarious liability--spreading risk and making the victim compensated. Vicarious liability is not a result of logic reasoning, but a compromise result of social policy. The rules in our legislation of vicarious liability is not perfect, and under such circumstance, the judicial technical of identification of user’s relationship can be used to make up the legislation defect as the identification of user’s relationship is mainly a problem of judicial technical which cannot be stipulated very clear in the law which leaves space for using the identification of user’s relationship to lead the application of vicarious liability in the judicial practice. The value of vicarious liability affects the identification of user’s relationship, while the identification of user’s relationship determines the application of vicarious liability. So the user’s relationship plays a role of connection, it connects the legislation value of vicarious liability and the application of vicarious liability perfectly.