Research On The Employer’s Right Of Recourse

“Employer’s right of recourse” is a right under employment relationship, according which an employer may seek compensation to a wrongful employee after the employer bears the liabilities to sufferer for the damages caused by the employee during his/her carrying out an employment activity.Only after bearing liabilities(employer’s liability) for employee, employer may seek recourse to employee. Employer’s liability, also known as assistant liability or User’s liability etc. could be interpreted broadly or narrowly. The narrow interpretation only contains the liability for the damages to third-party caused by employee during carrying out an employment activity. The broad interpretation further contains, beyond the narrow meaning, the liability for the damages to employee himself/herself during carrying out an employment activity. The employer’s liability discussed in this thesis will be the narrow one, under which employer may seek recourse to employee.For the purpose of protecting the legal rights of sufferer and employee who are in weak position, the institution of employer’s liability is established by law. Rules concerning employer’s liability could be found in Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury(hereafter referred to as “Interpretation on Compensation for Personal Injury”) issued by the Supreme People’s Court in 2010, and also in Tort Law of the People’s Republic of China issued in 2010. However, the rules in the respective legal documents are inconsistent. Art 9of Interpretation on Compensation for Personal Injury explicitly provides that where an employee causes an injury to others when carrying out an employment activity, if the employee causes the injury due to his intent or major negligence, he shall bear joint compensation liabilities along with the employer. The employer may, when bearing the joint compensation liabilities, claim compensation from the employee. Under Tort Law of 2010 which has higher binding force than judicial interpretation, Art 34 and Art 35 respectively regulate the employer’s liability for “entity” and “individual labor”, even though without mentioning employer’s right of recourse. The uncertainty in legislation causes different understanding on whether China recognizes employer’s right of recourse and how such right is exercised, parties may dispute on the application of law. In practice, courts do not adopt consistent standard, it mainly depends on judges’ discretion. Since the difference of judges’ background and value, it could easily generate the phenomenon of “same case but different judgment”. In modern society, employment relationship is ubiquitous, in China, the tort dispute concerning professional tort, labor dispatch, paid helper, voluntary helper, nanny, hourly worker happen frequently, so it is necessary to allocate liability between employer and employee reasonably. Therefore, the problem regarding employer’s right of recourse is worthy of concerning.By comparative analysis of employer’s right of recourse under current China’s legislation and relevant institutions in foreign areas, this thesis will confirm that employer may seek recourse to employee under certain circumstances. And by proving the basis for the existence of employer’s right of recourse, this thesis will analyze the justification of such right. From comparative law’s point of view, notwithstanding admitted the employer’s right of recourse, most countries strictly confined the conditions and scope for the exercising such right. By analyzing cases, this thesis will discuss the prerequisite and scope of employer’s exercising of right of recourse, therefore restrict and normalize such right.The discussion and research on employer’s right of recourse will be constructive for supplementing the legislative defects and instructing judicial practice. Improving the institution of employer’s right of recourse is good for protecting sufferer’s right, standardizing employee’s activities, and balancing the right and obligation between employer and employee.