A Study On Employer's Vicarious Liability

With the development of market economy, employment activities have been happening in our life more and more frequently. As a consequence, cases about employees cause damage to others while performing theirs duties are increasing. Around the world, nation legislation stipulates that the employer shall be liable for compensation, when employees cause damage to others during the mission. It is called the employers' vicarious liability according to the Anglo-American Law. Servant of infringement, employer preferred alternative liability, can not only make the victims in a timely manner, can also reduce the employee's corresponding economic pressure, employer vicarious liability has its significance in protecting employees and victims, who are in disadvantaged economic status. But in today's society there are many employers are weak in economic strength, the employer vicarious liability ignores the employers' compensation capacity, while protecting the legal rights and interests of employees and victims. In reality, because of the employer vicarious liability, many employers carry a great risk, sometimes even the risk of bankrupt after paying compensation.On the basis of clarifying the relevant theories of the employer's liability for substitution, the author analyses the current deficiencies of the employer's liability for substitution from the view of the victim, employee and employer three party interests, and put forward the solutions. The'Tort Liability Law"only provides that the employer has responsibilities for employee's tort, but not provides whether the employer pursue the compensation. Though the judicial explanation of human injury tort stipulates that the employers have the rights to pursue the compensation, the range is not specified. In practice, our law still allows employers to recover in certain circumstances. The scope of compensation depends on the discretion of the judge, which gives the judge a lot of discretionary power. In order to prevent employers from abusing the right of recourse, This paper argues that some restrictions on the right of recourse is needed. The recovery range should refer to the relevant laws of Taiwan, It stipulates the range should not exceed 1/4 of the amount of compensation. If the range exceeds 1/4 of the compensation, the extra part should be rejected by the judge by claiming right abuse. In case of the employer has a weak economic power, because of which he can not pursue compensation, at this point the employer hardly can timely compensate for the loss of the victims, which does not seem to meet the original intention of the employer's liability for substitution. To solve this problem, this paper advocates the use of insurance system to disperse the risk of the employer's management. The variety of insurance for the employers can be reached by improving the employer's liability insurance. Then the the employers can be insured according to their economic situation and the professional risk. Employers can choose their own insurance category, which suites them. In this way, the business operation risk will be impute to insurance. This will not only enable the victims get a timely compensation, but also reduces the risk of employer's operation. What's more, it helps to balance the victims, employees, and the employer's legal interests, promote the harmonious development of the society.