A Study On Vicarious Liability Of Employers

With the development of social production, the division of social labor is increasingly more specialized which make businesses and individuals are not able to bear all the tasks. Employ organizations and individuals that have ability to complete tasks has become the norm of human society. Employment relationship has become an important force for economic and social development. Who will bear the tort liability arising from the implementation of the transaction process and how to allocate the tort liability lead to the emergence of employer vicarious liability. Countries of both civil law system and common-law system have established employer vicarious liability. Related academic research and legislation improved continuously are do good to maintain social order and divide the tort liability between employees and employers reasonably. People’s Republic of China established socialist public economy, so the legal system do not give enough emphasis on employer vicarious liability which lead to the important system lag behind in the legislative and academic research. The aforesaid problems make it difficult for judge to deal with the practices. This paper aims to introduce foreign employer vicarious liability about legislation and academic practices and discuss vicarious liability of employer in China.This paper is divided into five parts.The first part is the basic theory of employer vicarious liability. By defining the concept of employers and employees to clearly define the scope of employer vicarious liability and analyze the differences between employer vicarious liability and state liability, corporate tort liability.The second part is the theoretical basis of combing the vicarious liability of employers which include the supervisory control theory, risk theory and public policy theory, explains the origin of employer vicarious liability and interests balance.The third part discusses the nature of the employer vicarious liability and responsibility principle. Then this paper discuss the fault- presuming principle, doctrine of no- fault liability, fault and equitable principles of liability in the view of comparative law and arrive at conclusion that our country should take responsibility principle of no-fault liability.The fourth part is composed of employer vicarious liability, the three elements that employers and employees in the employment relationship, employee’s behavior belongs to perform transaction behavior, employee’s behavior constitute infringement to judge whether the employer undertakes employee’s tort liability.The fifth part discusses how to bear tort liability. In the external employer should undertaker employee’s tort liability. In the relationship between employer and employee should establish employers have the right the right of recourse which will urge the employees in the performance of their duties to do a reasonable duty of care. Though reducing the risk of infringement make the employer will not bear the overweight liability.