On The Responsibility Of Infringement Between Employees In The Individual Labor Relationship

With the sustained and rapid development of the economy and society of China,the individual labor relations whose content is providing labor services is becoming more and more popular in our daily life. Particularly, in some fields such as domestic service, employers hire more than two employees to work has been widespread as well. We can say that the individual labor relations emerges a complicated and multi-manned trend. In such a "one-to-many" individual labor relations, if one employee hurts other employees, the real and theoretic problems have to be faced in judicial judgments.Tort law of our country insists on the legislation model that the employer’s liability based on the employee’s hurt behavior and the counterpart based on the employee’s harmful consequences are ruled respectively with the form of special clause. However, due to the differences of perspective choice, the individual labor relations between employees infringement by other employees can be considered to be a special case of the employer’s liability based on the employee’s hurt behavior as well as a special case of the employer’s liability based on the employee’s harmful consequences. Because of the regulations of the two kinds of employer’s liabilities are not completely consistent, it will usually appear the difficulty of the application of law. In this case, as some reasons such as the related regulations are not very clear and the relevant academic theories are controversial, it is likely to appear the phenomenon that "the similar cases get different judicial judgment”,which is not conducive to maintain the unification of judicial judgment standard. Under the background that "building the socialism law system with Chinese characteristics and building a socialism country under the rule of law", which is decided by the 18 th session of fourth plenary session, how to deal with the cases of infringement of personal labor relations between employees scientifically and how to build a scientific and reasonable legislation system of employer liability have become an important subject which needs to be solved urgently.Firstly, this article analyses the specificity of the aspect of the basis of claims and the aspect of the influence on damages by employer and employee. On this basis, it discusses the conflict between many claims and its reason of this kind of case underthe current law system.Based on the conclusion of the academic achievements related with solving the liability problem in this kind of cases, it concludes the experience and problems of Germany, France, Japan in the field of legislation, practice and academy. Finally, it provides the basic suggestion to cope with the problem properly based on the whole consideration of the comprehensiveness of legal system, the protection of victim’s litigation rights, finding out the case fact, sharing insolvency risk reasonably and so on.