Comparative Analysis On The Employer’s Liability

Employer’s liability is a form of liability in which the employer bears thedamage for the torts of his employee in the course of employment. Most jurisdictionsadopt employer’s liability in law. And the focus of both theory and case law in thesejurisdictions lies on the nature of this liability, the elements to form this liability andhow these elements are understood and applied in judicial practice. In these respects,especially abundant materials and documents can be found in common law, Frenchlaw, German law and Taiwan District law theory and cases, which are quite valuablefor reference.As for the jurisdiction of Mainland China, the doctrine of employer’s liabilityshows problems both in legislative provisions and legal practice. As a result ofhistorical reasons, there is no clear concept of “employer” in Mainland China. TheTort Liability Law of the People ‘s Republic of China (“the Tort Law ofChina”)implemented in2010made great improvement in not distinguishing theemployer’s liability based on different ownership positions of the employers.However, the adoption of labour law terminology of “employing unit/worker” showsa blur concept of employer/employee relationship in tort law. Further, the Tort Lawof China distinguishes the labour relationship between individuals from theemploying unit/worker, which is hardly necessary. Besides, provisions on labourdispatch and hospital liability also proves to be undesirable. In legal practice, interpretation of the elements required to form employer’s liability, especially theelement of “in the course of employment”, reflects limited scope of application ofemployer’s liability and lacks reasonable test. This situation goes against the purposeof the employer’s liability to compensate the victim effectively.Therefore, by substantially studying and analyzing the theory and case of theemployer’s liability in both common law and civil law, this thesis discovers theproblems exist in the legislation and practice of Chinese law with respect to thisliability, and proposes corresponding solutions.The first part of this thesis introduces and analyzes the principles of employer’sliability in different jurisdictions. It shows a historical overview of this liability andpresents its modern rules in each jurisdiction. This part also compares those rules inboth common law and civil law systems, which lays the foundation for the followingdiscussion.The second part of this thesis explores the nature of the employer’s liability:whether the employer bears the liability for its own fault or undertakes strict liabilityfor the wrongful act of others. First, this part discusses about the theory on the natureof employer’s liability in both common law and civil law systems. Second, itspecifically analyzes the problem of large enterprises liability. Further, this partstudies the legislation of employer’s liability in Mainland China and discussed thenature of this liability based on previous comparative law analysis as well as theviews of Mainland scholars. In conclusion, it shows that the employer’s liability is aform of strict liability in which the employer bears the liability for damage for the actof others.The third part of this thesis studies the elements required to apply theemployer’s liability. By referring to wealthy case law and theory in both commonlaw and civil law, this part discusses the three basic elements: employer/employeerelationship, employee’s fault and the act in the course of employment. Besides, thispart also reviews related legislative provisions or rules of judicial practice inMainland China, and discovers problems from a comparative perspective. The last part of this thesis proposes suggestions for the legislation of employer’sliability and its application in judicial practice of Mainland China. First, itsummarizes the problems exist in both legislation and practice in Mainland China asdiscussed in previous parts. Then, with the help of the comparative analysisconducted in the previous parts as well as proposals of the Civil Code draft of Chinaraised by domestic scholars, this part finally gives some suggestions and solutions tothe problems discovered.