Remedies For Employees’ Damage In The Employment Relationship

With the constantly improvement and development of the market economy, theemployment relation has appeared in large numbers in different forms. It shares manysimilarities with the labor relation. Additionally, lack of laws and regulations on theemployment relation results in its confusion with the labor relation in judicial practice.Injury relief under the employment relation is also different with compensation forwork-related injury accident. However, due to the imperfection of the relevant legalprovisions and the deviation of theoretical understanding, how to deal with theemployee injury cases is always a difficult problem in judicial practice. This paperfocuses on employee’e injury relief under the employment relation and intended tospecify the liability through analyzing the definition of the employment relation, thecriterion and constitution of the employer’s liability as well as the liability of thirdparty infringement in order to be helpful to judicial practices.Chapter one analyses of the historical evolution of the employment relationshipand considers that the labor protection laws enacted after the rise of the industrialrevolution lead to the differentiation of the original employment relation: one part stillretains the nature of the employment relation,“autonomy of will”, and the other partbecomes employment relation of industrial field regulated by these labor protectionlaws, namely labor relation. Based on this, I believe that labor relation andemployment relation are two parallel social relations, the former adjusted by the labor laws, and the latter adjusted by the civil law. The specific distinction between the twois that the subject of labor relation mainly includes businesses, community groups andother organizations, but the subject of the employment relation can only be naturalpersons.Chapter two sets forth the employers’ and employees’ rights and obligations ofthe employment relation, which is the necessary foundation for researchingresponsibilities. The security guarantee obligation of the employers which is thetheoretical basis of the employer’s liability is the most important part. The nature andcontent of the obligation are discussed.Chapter three the legislative status of the employment relation is analyzed. Onthe problem of injury relief of the employee, only “Interpretation of Personal InjuryDamages” enacted by the Supreme Court and "Tort Liability Act" and other normativedocuments make some provisions, but not systematic and consistent. In addition,several types of employment relationships are specifically identified, including therelationship between the individual and housemaid, the relationship between theretirees rehired and employers, illegal employment, and individual contract ofemployment.Chapter four discusses a number of issues about employer’s liability. The firstissue is the criterion of employer’s liability, I think fault liability should be applied.But based on the special nature of the employment relation, fault-presuming principleis more reasonable. On the nature of liability, the security guarantee obligation of theemployers is not only the nature of the employment contract, but also the legalobligation of the employer, so the employer’s liability belongs tocooperation-competition of the claims of contracts’s breach and infringement. Afterthat, the paper analyzes constitution of infringement, highlighting the importance ofcausality, and then distinguishes employer’s liability and corporate responsibilityunder labor relation.The second issue, by analyzing of the current legislation, I thinkthat when a third person causes the employees’s damage during the work, the liabilityof the employer and the tortfeasor falls into the non--really-joint liability. On theselection of the action mode, I think we can learn the similar necessary joint action mode of German and Japanese civil procedure law. In addition, in order to limit thedrawbacks of joint optional rules, we can refer supplementary rules in the judgmentand execution part of the case of non--really-joint liability. The third issue discussesthe liability when the employee has fault. I think when the employer is also at fault,total fault principal should be applied to determine the scope of damage. And thenbased on this, the paper analyzes the different rule under the work-relatedcompensation liability when the worker also has fault.