Research On Employer’s Vicarious Liability

Our new promulgation of the "tort liability act" provisions of the various types of tortliability, the employer vicarious liability, the law does not clearly defined, is illustrated by thisLaw simple. Because the content is too simple and not comprehensive, the employer vicariousliability system has some problems in theory and judicial practice. This paper uses the conceptof employer and users and labor relations, mainly in accordance with China’s "tort liabilitylaw" concept. With the rapid development of modern society and market economy, people areselected by the user is engaged in the activities of expanding the scope of activities, in manyways, thus causing third damage happen frequently, there is an urgent need in theory andpractice of employer vicarious liability system to improve, to the extent possible, the victimsto obtain timely and full compensation and balance the interests of all parties. This paperstudies the legislation of different countries and regions and judicial practice from theperspective of comparative law, and combining with the actual situation of our country to putforward the proposal to perfect our employer vicarious liability.This paper is divided into four parts:The first part introduces the concept of employer vicarious liability, and analyses thetheoretical basis of employer vicarious liability and liability principles. Through the study ofalternative theoretical basis of responsibility for different countries and regions on theemployer, pointed out its theoretical foundation should be a comprehensive theory, should bereasonable comprehensive control supervision theory, risk theory, public policy theory andthe theory of compensation liability. By the analysis about the imputation principle of thedevelopment trend of different countries and regions is to use the principle of liability withoutfault, combined with China’s laws and regulations in China demonstrated the rationality of theprinciple of no fault liability.The second part mainly studied our country people are elements of vicarious liability,points out that the constitutive requirements of employer vicarious liability mainly includesbetween employer and worker relationship, users by the user shall bear tort liability and theuser’s behavior belongs carries out the duty behavior. The user shall bear tort liability in theconstitutions, but also includes the implementation of infringement, the user is the user hasfault, the victim damage and between the user’s behavior and the damage has a causalrelationship of these elements. Then it analyzes the various elements, discusses the judgment standard labor relation, the employment relation analysis criteria specific situations and carryout the job behavior. Also pointed out that in person instead of the existence of two differentimputation principles of liability, namely the employer bear vicarious liability apply theprinciple of no fault liability, tort liability by users shall apply the principle of fault liability,the liability of the difference between these two levels of.The third part mainly studies theemployer vicarious liability to bear, bear including external responsibility and internalresponsibility. Through the analysis and comparison of our country’s existing laws andregulations and other countries and regions on the employer vicarious liability assumed mode,put forward in the external liability shall take joint and several liability, in order to protect theinterests of victims. And in the internal responsibility, combined with the legal provisions andthe theory of the right to recourse.The fourth part analyzes the employer vicarious liability problems, points out theexisting problems including the concepts are not clear, the lack of unified regulations, subjectof liability provisions of legal liability mode is not reasonable etc.. In the perspective ofcomparative law and perfect our country’s legislation and judicial practice of vicariousliability system of our country, people are corresponding suggestions are put forward. Shallconduct unified regulation for employer vicarious liability content, the related concepts aredefined. On the basis of theories should adopt the principle of liability without fault, clear allelements content, the employer vicarious liability and the organ of legal person responsibilityto distinguish to resolve the conflict problems in the judicial interpretation of related conceptsare defined, and the responsibility of reasonable requirements, in order to achieve the balanceof interests and promote stability the development of the society.