Employers On The Right Of Recourse

Chinese "Tort Act" provides for the employer’s liability，But the law withoutmention of employercompensation right.The"personal injury compensationinterpretation" about recourse provisions on whether employers can still apply, thereis a dispute in practice. Traditional civil law countries or regions and common lawcountries confirmed the employer’s right of recourse, Just limited its exercise, Basedon the principle of fairness civil law, Contract Principles and prevention function TortLaw, China should establish the employer’s right of recourse; And Chinese "TortLiability Act" provisions of the employer’s liability legislation adopts distinctionpattern,Its realistic and reasonable to establish the employer’s right of recourse;"TortLiability Act" divides employer into unit and individual, Because there are manydifferences, The establishment of its right of recourse should be treated differently.Employer is in a strong position, the right of recourse should be strictly limited,While individual isn’t in a absolute dominant position, and labor relations is a civilcontractual relationship, Therefore, the right of recourse of individual should beslightly wider than the unit’s; Based on the "reward theory" and "danger theory", Theemployer’s recourse should be limited recovery; Considerations include determiningthe recoverable amount of the employer and the person’s degree of fault to be used,The benefit of both sides, The two sides of the economic conditions and occupationalrisks.Removing Introduction,this paper Consists of five parts.The first part start with the basic theory of employer’s liability, Mainlyintroducing the concept of the employer’s liability, legal basis, constituent elements.The second part is An Investigation of extraterritorial legislation. From therelevant legislation in other countries and regions, The employer’s recourse isgenerally recognized, Even if in the country whoes law don’t clearly defined. Rightof recovery can also be achieved by other rules,but in theory and practice, It’s trend tostrictly limit Right of recovery, Especially in common law countries, employers’s rightof recovery is Usually just in case.The third part demonstrates the reality and rationality of right of recovery:employer’s right of recovery has legal basis,it stems from Equitable principles of civil law, Contract Principles and prevention function Tort Law. Secondly, China hasspecial background for establishing right of recovery:on the one hand,liabilityinsurance is underdeveloped, on the other hand, the employer’s liability legislationadopts distinction pattern， Providing the conditions for the different settings fordifferent subjects’right of recovery.The fourth part analyzes the conditions of t recourse. First, the employer hasbeen actual compensation for the victim.Second, Employee has fault. Only Employeeis under conditions of intentional or gross negligence, the employer will be recourse.And personal service recipient recovery conditions are slightly wider than Employingunit, Employer enjoys recourse in case of employees in general negligence case.The fifth part is the vision for the concrete realization of recourse.Because theemployer’s liability part contains the inherent responsibility, Therefore, the employer’srecourse can only be limited recovery, The exact amount requires to combine theirdegree of fault, economic conditions and other factors to be considered.