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The Employer's Liability Theoretical Identification Of Article 11 Of The Interpretation On Compensation For Personal Injury

Posted on:2019-11-29Degree:MasterType:Thesis
Country:ChinaCandidate:Y CaoFull Text:PDF
GTID:2416330572951275Subject:Law
Abstract/Summary:PDF Full Text Request
Article 11 of the Interpretation of the Supreme People's Court on Several Questions of the Law Applicable to the Trial of Personal Damage Compensation Cases(hereinafter referred to as "the Interpretation of Personal Damage Compensation")stipulates that the employer shall be liable for compensation if the employee suffers personal injury as a result of the provision of labor services.Where an employee suffers personal injury as a result of an infringement by a third party other than the employment relationship,the person entitled to compensation may either request the third party to bear the liability for compensation or the employer to bear the liability for compensation.After undertaking the liability of compensation,the employer can recover the claim from the third party.After the Tort Liability Law came into force,because Article 35 adopted different provisions on the relevant concepts,imputation principles,scope of application and other provisions,the civil law theorists have long debated the application of the above provisions,legislative technology and other issues.In the actual judicial practice,neither judicial organs nor practitioners have formed a unified understanding of the prerequisite and relationship between Article 11 of the Interpretation of Personal Damage Compensation and Article 35 of the Tort Liability Law,which seriously affects the stability pursued by legislators and is not conducive to the protection of the legitimate rights of the parties concerned.Benefit.The main purpose of this paper is to explore the Supreme People's Court's understanding of the applicable relationship and conditions of the relevant provisions and to study the changes of its theoretical thinking through in-depth analysis of the differences in the relevant concepts,imputation principles and scope of application between Article 11 of the Interpretation of Personal Damage Compensation and Article 35 of the Tort Liability Law.At the same time,this paper combines the relevant scholar's exposition on the relevant issues,refers to other countries,regional legislation and civil law theory,analyzes the theoretical difficulties of applying Article 11 of the Interpretation of Personal Damage Compensation,and expresses the author's views on the relevant theories,in order to re-shape Article 11 of the Interpretation of Personal Damage Compensation.The theoretical basis is the ultimate goal.The research methods adopted in this paper are concept analysis method,text comparison method,historical exploration method and comparative method.Different from the Supreme People's Court's understanding of Article 11 of the Interpretation of Personal Damage Compensation and Article 35 of the Tort Liability Law,this paper argues that the concepts used in the above-mentioned different provisions are different in both connotation and denotation.Through comparative analysis of the provisions,Article 35 of the Tort Liability Law no longer uses the concepts of "employer" and "employee",but replaces the descriptive terms of "the party receiving the service" and "the party providing the service",which in fact limits the scope and premise of application of Article 11 of the Interpretation of Personal Damage Compensation.There are problems in accuracy,applicability and implementation effect.Different from the previous theories,this paper argues that the theoretical basis of employer's liability for damages is not the theory of substitution liability and user's liability,and the liability of employer should be contractual liability rather than tort liability.In addition,some scholars in the theoretical circles believe that the employer's view that the employer is responsible for the fault of the employee who suffers from the damage caused by the provision of labor service is incorrect.This paper holds that the employer is responsible for breach of contract,so the premise of the employer's responsibility is to violate the strict and objective obligations such as the duty of protection,the duty of care,and so on.The employer is allowed to exempt himself from his fault.As for the third party's infringement on the employee's personal rights and interests,this paper holds that the employer and the third party are not jointly and severally liable,the employer's right of recourse is only a legal right,and the employer's liability for compensation is based on contractual obligations.However,it is correct and advantageous to allow the employee to sue the employer and the third party at the same time.The protection of employees' legitimate rights and interests.The greatest feature of this article is that it disagrees with the opinions of the Supreme People's Court.It does not blindly follow the existing tort law theory of our country,refers to the legislation of other countries and regions,attaches importance to the traditional civil law theory,makes a qualitative analysis of the legal relationship between employer and employee in the employment relationship,and analyzes the employee suffering from labor service from the perspective of contractual liability.The theoretical foundation of employer liability is to reconstruct the theoretical problems of employer's liability for damages.The viewpoint adopted in this paper has been neglected by civil law theorists,which provides a new way for future legislators to re-enact relevant rules.The idea of this article is different from that of tort law in the field of civil law theory.
Keywords/Search Tags:Employee, Employer, Employment Contract, Personal Injury, Compensation Liability
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