Research On Employer's Liability In Labor Services Dispatching

The employer's responsibility as an alternative no-fault liability has been widely used by most of the countries.Academic circles have carried out extensive research.Different national legislation tends to be similar,and most of the countries shape a more mature system.However,with the development of society,new forms of employment are endless,and the relationship between employers and employees is becoming more diversified and complicated.A new form of employment,called labor services dispatching,develops rapidly.Dispatched laborers causing damage to others when implement their duties is becoming more and more common,so most of the countries have introduced relevant laws and regulations to regulate this phenomenon.The Article 34(2)of the Tort Liability Law of the People's Republic of China has a made special provision about the liability of employers in the labor services dispatching: The labor-receiving unit should undertake the liability of the employer and the labor-dispatching unit should undertake the supplementary liability according to its fault.Although this provision provides a legal basis for the trial of cases that dispatched workers cause damage to others when implement their duties,there are several issues: Firstly,the nature of the liability that the labor-dispatching unit should undertake is self liability or vicarious liability;Secondly,when the labor-dispatching unit only undertakes the supplementary liability according to its fault,whether it is harmful to the realization of the victim's right,too favorable to the labor-dispatching unit,and increases the liability of the labor-receiving unit;Thirdly,when it comes to the idea that the labor-dispatching unit should undertake the employer's liability,whether there is a employment relationship and a theoretical basis for the labor-dispatching unit to undertake the employer's liability;Lastly,if we assume that the labor-dispatching unit and the labor-receiving unit both undertake the employer's liability,scholars don't have a same idea to distribute the employer's liability,and they mainly hold two views: the labor-dispatching unit should undertake joint liability or the labor-dispatching unit should undertake no-fault supplementary liability.Therefore,it is necessary to study employer's liability on the basis of employer's liability theories to divide employer's liability in labor services dispatching,and put forward some suggestions to improve the Tort Liability Law of the People's Republic of China.This paper mainly includes following three parts:The first section of the first chapter introduces the concept of labor services dispatching,analyzes its characteristics and the difference with the occupation introduction,in order to define the research scope of this paper and lay the foundation for the further analysis and discussion.In the second section,this paper introduces Chinese legislative evolution of the employer's liability in labor services dispatching,and interprets the provision of the employer's liability in labor services dispatching in the Tort Liability Law.In the third section,on the basis of the interpretation of the existing provision,this paper further analyzes academic disputes on the issue of employer's liability in the labor services dispatching,it mainly involves whether the labor-dispatching unit should undertake the employer's liability when dispatched workers cause damage to other when implement their duties,and how to distribute liability between the labor-dispatching unit and the labor-receiving unit.The second chapter mainly analyzes the employment relationship between the labor-dispatching unit and dispatched workers,and the theoretical basis for the labor-dispatching unit to undertake the employer's liability.The employment relationship is a prerequisite for the labor-receiving unit to undertake the employer's liability.In fact,the identification of an employment relationship in a particular case is a matter of fact.When it comes to the criteria for judging the employment relationship,most of the countries around the world tend to adopt the comprehensive judgment.Through analyzing the traditional criteria of judging employment relationship and definition of employment relationship,this paper reveals that there are employment relationships between the labor-dispatching unit and dispatched workers.The labor-dispatching unit is still the employer of dispatched workers during the dispatch.After analyzing,the theoretical basis of the labor-dispatching unit to undertake employer's liability should adopt the public-policy theory.According to the public-policy theory,the labor-dispatching unit has improved its economic advantages after revising the Labor Contract Law,so the labor-dispatching unit can fill losses of victims effectively,compared with dispatched workers.Secondly,the labor-dispatching unit can buy social insurance and raise the dispatch price to fill losses of undertaking employer's liability.Through these measures,the labor-dispatching unit can avoid bankruptcy because of undertaking employer's liability.Then,we can conclude during the dispatch,the labor-dispatching unit is still the employer of dispatched workers,and this conclusion also has the theoretical basis.In a specific case,if other constituents of undertaking liability are satisfied,the labor-dispatching unit should undertake the employer's liability when dispatched workers cause damage to others.The third chapter mainly studies the distribution of employer's liability between the labor-dispatching unit and the labor-receiving unit.Chinese scholars have agreed that the labor-receiving unit should undertake no-fault employer's liability.When it comes to what kind of liability that the labor-dispatching unit should undertake,academic circles have dispute,there are joint liability theory and no-fault supplementary liability theory.After analyzing,this paper conclude if the labor-dispatching unit undertake the joint liability,it is not only beneficial to curb the rapid development of the labor services dispatching industry,which is consistent with legislative tendency,but also beneficial to balance interests between the labor-dispatching unit and the labor-receiving unit,which can protect the interests of the victim.