The Study Of Employer's Responsibility For The Damage To The Third Person Caused By The Employee

With the development of the economy and the increasing level of people's living and consumption,the employment relationship is common,following by the employer liability disputes.In theory,the study of the employer's responsibility to the third-person damage caused by the employee is mainly the study of the principle of attribution,including fault presumed responsibility and the no-fault liability.Although the opinions of each person are different,most scholars support adopting the no-fault liability.In the legislation,the law of regulating the employment relationship for a long time in a vacant state until the Supreme People's Court on the trial of personal injury compensation cases applicable to the interpretation of a number of issues coming on,the concept of employment relationship has appeared in our legal provisions,but the provisions of Article 9 and Article 34,35 in Tort liability law which was promulgated later have changed in the aspect of concept and concrete content,resulting in a large dispute of effective relationship between the two and how to apply in practice.As the employment contract is not included in the "Contract Law",resulting in no contract of employment rules as the basis for the referee,results of judgments with subjective randomness caused the parties have appealed and wasting the judicial resources.In general,the employer responsible for the damage to the third person caused by the employee exist three problems,including no clear standard of judging the employment relationship,the scope of the employment activity is not clear,and no provision for employer's right of recourse.In view of the existing problems,this article based on the current situation of legislation in China,at the same time learn from other countries on the employer's responsibility of the relevant legislation,after researching the principle of liability for employers and other theoretical basis,Through proposing a feasibility proposal for the employment relationship legislation,we can treat Civil codification as an opportunity to improve the employer responsibility system.First of all,it is necessary for our country to name the employment contract.This legislative idea not only has theoretical basis of autonomy and civil behavior theory,but also has the realistic basis that is the large number of employment relations need to be adjusted.In the choice of legislative model,China can learn from the German legislation on the employment contract rules,in the "Contract Law"provides the general rules of employment contracts,the labor contract as a special rule to be provided.Secondly,in the choice of the principle of imputation,China's future legislation on employer responsibility should adopt the principle of no fault liability,not only can strengthen the protection of the victims,but also fit our social and economic aspects of the basic national conditions.Thirdly,the standard for the determination of the employment relationship can be judged first by the employment contract standard,and if unable to determine than use the control and supervision standards.The most fundamental difference between employment relationship and labor relationship is that the labor relationship has a stronger personal activity,but not all employment relationships are not subordinate,so we also need to distinguish the subject,the reward,the value pursuit and the normative content.The most fundamental difference between employment relationship and contractual relationship is that the payment of the content one is labor and another is work achievement,in addition,the terms of control relationship and the remuneration payment standard is also different.Fourthly,under the premise of determining the employment relationship,the scope of the employment activities can be determined by the employer's intention as the starting point,combined with the objective and internal relations in order to comprehensive grasp.Finally,after the employer assumes no fault liability,the employer is given the right of recourse,and the amount of the compensation is determined based on the employee's fault of the third party's infringement.While developing the employer liability insurance system,diepersing the risk of the employer's responsibility.