| The "Law on Tort Liability of the People's Republic of China"(hereinafter referred to as the "Law on Tort Liability Act")has been implemented since July 1,2010,and its regulations have changed the stipulation of the employer's liability in?the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases?("judicial interpretation of personal injury compensation" for short)further classifies the "employer" into employers and individuals(often referred to as "employees"),but does not follow the employer's vicarious liability recourse.The stipulation of power not only caused heated discussion in academia,but also made it difficult for the court to apply the law in the process of practical judgment.On the one hand,although there is a discussion in the theoretical community about the use of vicarious liability system for employers,which is more about employment relationship,employment process and the principle of liability fixation,there is little research on the system of right of recourse for employers,let alone systematic and comprehensive research.On the other hand,some scholars have different opinions on the existing of the right of recourse for employers itself.Therefore,it will be significant to study the problem under the background of no same cognition and being different in practice in academia.In addition to the introduction and conclusions,this article will be divided into the following sections:The first part mainly sorts out and analyzes the relevant legal provisions on vicarious liability for employers and the current situation of judicial adjudication.On the one hand,the author finds that China's replacement of the right to use the right of recourse has experienced a legal development process from scratch to the end.On the other hand,the author analyzed some relevant cases and summarized the current situation of judicial adjudication,which concludes five parts.Firstly,some courts do not reach an agreement on that if the employers should be entitled to the right of vicarious liability.Secondly,different courts have different legal basis for the application.Thirdly,some courts have different standards of whether or not an employer has the right.Fourthly,even if some courts can confirm that the employer has the right to recover after taking over liability in accordance with the law.The proportions of exercising the recourse right also vary.Fifthly,in some cases,the victim's choice of subject of tort liability affects the determination of the right of recourse.Through an in-depth analysis ofthe final search results and a review of the existing problems,we will discuss whether there is a real conflict between China's Tort Liability Act and the Judicial Interpretation of Personal Injury Compensation and how to improve China's replacement liability for The recourse system indicates the basic direction.In the second part,it introduces the disputes over the abolition of the right to replace the responsibility of employing people,and lays a theoretical foundation for clarifying the follow-up views.In the theoretical community,the theory that affirms the right of the employing person to enjoy vicarious liability includes the contract breach theory,the agent liability theory,and the indirect responsibility theory.In the United Kingdom,France,Germany,and Japan,corresponding regulations have been made to confirm and guarantee the use of personnel.Enjoy this right.The negation theory mainly uses the theory of recourse control,agency theory,danger theory,and public policy theory to argue that the employing person should not enjoy the right of recourse.The author believes that whether it is affirmative or negative,it is impossible for a single theory to achieve the purpose of demonstrating whether the right to replace the responsibility of the employing person should exist,but in general the author tends to affirm the relevant theory.In the third part,it systematically discusses the existing related theories of academic circles,and at the same time demonstrates the legitimacy of this right from multiple perspectives.First of all,affirmatively related theories combined with the principle of social convenience and the principle of fairness are sufficient to lay a theoretical foundation for the employer to enjoy this right.Secondly,there are flaws in the negative theories related to the partiality of the relevant theory and the confusion of the use of persons instead of the nature of responsibility.Finally,starting from the perspective of legislating,legislators do not completely deny the enjoyment of the use of persons at the outset of the Tort Liability Act.The right of recourse after taking the vicarious responsibility,but based on a variety of factors to consider the specific determination of the right to the court,the court in the case to be a referee.From a practical point of view,the use of human rights instead of the right of recourse has the practical significance of balancing the interests of both parties,guarding against the risk of employing people,and urging the users to abide by their responsibilities,and is an integral part of the vicarious responsibility system for employing people.The fourth part mainly discusses the main content of the system of employing the right to replace the right of recourse.First,the scope of application of the right of recourse includesnot only the situation in which the third party has been harmed,but also the situation in which the individual has suffered damage.Non-reimbursed employers can also exercise the right of recourse,but the proportion of recourse is different.Secondly,the constitutional elements of the replacement of the right to use the right to recover the responsibility of the right to learn are more theoretically unified,which is mainly reflected in the behavior of the infringing act,the loss of the employed person,and the subjective intention or gross negligence of the user.The job conduct should be comprehensively determined from the subjective and objective perspectives,and subjective fault judgement should be considered on the basis of the illegality of the behavior,industry standards or professional skills,and general common sense as the standard.Third,the recognition of the proportion of exercise of the right of recourse should be determined from The judging of the degree of fault,the type of employment,the risk of the industry,the economic strength and other factors of both the employer and the user are used.Fourthly,the procedure for exercising the right of recourse should also be considered.The exercise of the option of the victim has an impact on the determination of the right of recourse and must be limited.The exercise of recourse rights should not be limited to litigation only.The internal agreement between the parties' principals or the provisions of the company's articles of association can serve as the basis for employers to exercise their recourse rights.However,this agreement must not obstruct the realization of the victim's right to choose..The fifth part,the author,combined with the analysis,puts forward suggestions for the improvement of the system of the right to use the vicarious liability in China.First,clarify the scope of application of the right to recourse;secondly,the unified use of the right to use the right to use the composition,to avoid the court in the referee,in addition to the conditions necessary to add conditions;Third,limit the scope of the right to exercise the proportion of The proportion is controlled within a reasonable range,and strives to balance the interests of the responsible parties.Fourth,improve the procedures for the exercise of the right to use the right of recourse,reduce the influence of the right to exercise the right to choose,and expand the ways in which the employing person exercises the right of recourse. |
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