Study On The Essential Factor Of Employer's Responsibility

In 2010,Tort Law of China was implemented.Article 34 and Article 35 of Tort Law of China provide uniform provisions on the employer's responsibility,no longer following General Principles of The Civil Law,Opinions on General Principles of The Civil Law and Interpretation of Personal Injury Compensation to make sporadic provisions on the employer's responsibility and to distinguish the employer's responsibility by the ownership.However,Article 34 and Article 35 of Tort Liability Act still fail to clearly define the essential factor of employer's responsibility.This led to controversy in the academia and judicial practice.In addition to the introduction and conclusion,this article is divided into five parts.The first part is an overview.First,the author briefly introduces the concept of employer's responsibility.Second,the author briefly introduces the essential factor involved in the employer's responsibility.Finally,the author puts forward the issues in the essential factor of employer's responsibility in our country.The employer's responsibility refers to the responsibility of the employer that the employee causes damage in performing his duties.The essential factor of employer's responsibility generally relates to whether the employer needs to be at fault,whether the employeeneeds to constitute infringement;the parties have an employment relationship;and the employee's behavior that causing harm to another person is the act of duty.The issues in the essential factor of the employer's responsibility in our country are as follows:The first issue is whether employers' faults are required in the essential factor of employer's responsibility in China.This is the issue of the imputation principle of employer's responsibility in our country.Some scholars believe that the imputation principle of employer's responsibility in China is the principle of no-fault liability.There are also scholars who believe that the imputation principle of employer's responsibility in China is the principle of fault presumption.The second issue is whether the essential factor of employer's responsibility in China requires employees to constitute infringement.Although most scholars in our country believe that the composition of employer's responsibility in our country requires employees to constitute infringement,some scholars still believe that the composition of employer's responsibility in our country does not require employees to constitute infringement.The third issue is how to determine the employment relationship in the essential factor of employer's responsibility.There is no stipulation in the Chinese law on this issue,and there is no uniform standard in judicial practice.Moreover,whether the unpaid helper relationship stipulated in Article 13 of Explanation on Personal Injury Compensation can be regarded as the labor relationship formed between individuals in Article 35 of Tort Law of China,there is also controversy among the Chinese academic circles.In addition,in the labor dispatching relationship stipulated in Article34(2)of Tort Law of China,whether the dispatched person has an employment relationship with the employing unit and the labor dispatching unit.The fourth issue is how to judge the employee's behavior that causes harm to another person is the act of duty.This is not stipulated in China Tort Liability Law.Although Article 9(2)of Interpretation of Personal Injury Compensation stipulates the issue,there are still some specific factors need to be used to determine whether an employee's behavior is the act of duty in face of complex cases.In the second part,the author mainly analyzes the issue whether employers' faults are required in the essential factor of employer's responsibility in China,whichrefers to what kind of imputation principle should be adopted by the employer's responsibility in our country.The essence of the question is about the interpretation of Article 34 and Article 35 of Tort Law of China.Most scholars in Chinese academic circles believe that the employer's liability that stipulated in Article 34 and Article 35 of Tort Law of China is no-fault liability.However,some scholars believe that the law in our country does not clearly specify the imputation principle of employer's responsibility.Therefore,they believe that the employer's responsibility in our country should apply the principle of fault presumption.However,the author explains Article 34 and Article 35 of Tort Law of China and finds that it can be concluded that the imputation principle of employer's responsibility in Article 34 and Article 35 of Tort Law of China is the principle of no-fault liability,rather than the principle of fault presumption,no matter whether it is based on system interpretation,historical interpretation or comparative interpretation.Therefore,the author believes that the principle of responsibility for the responsibility of employers in China is the principle of no-fault liability,that the employer's responsibility in our country does not require the fault of the employer as the essential factor.In the third part,the author mainly analyzes whether the composition of employer's responsibility in our country needs employees to constitute infringement.The core of the issue is whether employees need to have fault in the fault infringement.Regardless of whether the employee is considered infringed,the essential factor of the employer's responsibility requires the employee to have unlawful act,damage and causation.Employees should not be considered for fault when they constitute a no-fault infringement.It is necessary to consider whether the employee is at fault only in the case of fault infringement constituted by employees.Regarding this issue,countries adopting no-fault liability believe that employees need to constitute infringement.Moreover,domestic scholars who believe that the employer's responsibility in our country are no-fault liability also believe that the employer's responsibility in our country needs to constitute infringement by employees.Only those countries and regions where the employer's responsibility has adopted the principle of fault presumption,and those who believe that the employer'sresponsibility in our country adopts the principle of fault presumption,consider that the composition of the employer's liability does not require employees to constitute infringement.The author believes that whether the composition of the employer's liability requires the employee to constitute infringement is closely related to the imputation principle of employer's responsibility.When the employer's responsibility is based on the no-fault liability principle,the employee's infringement constitutes an essential factor for the employer's liability.As the principle of no-fault rule is adopted in the employer's responsibility,the employer is not required to be at fault.In this situation,if the employee is no longer required to be at fault,the responsibility of the employer becomes a complete no-fault liability.If the employee causes damage to others,the employer must take responsibility.This is obviously unreasonable.Therefore,under the premise of the no-fault principle of employer's responsibility in our country,there is no need for the employer to have fault,and the composition of the employer's responsibility requires the employee to constitute infringement.In the fourth part,the author mainly analyzes the criteria for judging the employment relationship in the employer's responsibility in China.There are different theories in the comparative law and the academia regarding the criteria for judging the employment relationship.There are three main types of these theories: the employment contract theory,the theory of control and the comprehensive theory.In today's two major legal systems,the judgment of the employment relationship is based on a comprehensive theory.In addition,both the academic circles and the judicial practice in China have adopted a comprehensive theory.Therefore,based on the foreign comparative law and the practice in the theoretical and practical circles in China,the author believes that the criteria for judging the employment relationship in China should also adopt a comprehensive theory.In judging an employment relationship,first,it is determined whether there is a clear employment contract between the parties.If there is a clear employment contract,there is an employment relationship between the two parties.Second,when there is no clear employment contract between the two parties,there must be a controlling relationship between the two parties and a party engaged in labor services for the other party's interests tojudge the existence of an employment relationship between the parties.Whether there is a controlling and supervisory relationship between the parties,a comprehensive judgment shall be made on who determines the method of work,the time and place of work,and who provides the work tools,and social insurance.Moreover,both the domestic academia and foreign academia believe that paid or unpaid is not an essential element in judging the existence of an employment relationship.Therefore,providing free labor can also establish an employment relationship.Therefore,the unpaid helper relationship as stipulated in Article 13 of the Interpretation of Personal Injury Compensation is an employment relationship.Therefore,after Tort Law of China has implemented,unpaid helper relationship should apply the provision of Article 35 of Tort Law of China,and the provision of Article 13 of Interpretation of Personal Injury Compensation shall no longer be applied.According to the theory of judging the employment relationship concluded by the author,there is a labor contract between the dispatched worker and the labor dispatch agency in the labor dispatching relationship in China.Therefore,there is an employment relationship between them.There is no labor contract between the dispatched worker and accepting entity,but there is a controlled relationship between them according to the provisions of Labor Contract Law.Moreover,the dispatched worker also provides labor service for the benefit of the accepting entity,so there is also an employment relationship between them.In the fifth part,the author mainly analyzes whether employee's behavior causing harm to others can be regarded as the act of duty.Article 34 and Article 35 of Tort Law of China do not stipulate this issue.Article 9(2)of Interpretation of Personal Injury Compensation stipulates whether employee's behavior causing harm to others can be regarded as the act of duty.The provision stipulates that the employee's behavior within the scope of the employer's authorization are the act of duty.It also stipulates the employee's behavior outside the employer's authorization can be regarded as the duty behavior if the external manifestation of the employee's behavior is the performance of the duties or the employee's behavior is intrinsically related to the performance of the duties.Obviously,the article draws on Japanese "externalstandard" and German "intrinsic connection theory" to judge whether employee's behavior is the act of duty.However,no matter in Japan or in Germany,the judgment theory lacks specific judgment elements.Therefore,combining some theories in our country's academic circles and some typical cases in judicial practice,the author believes that the time,place and infringement tools of employee infringement should be used to judge whether the employee's behavior has the appearance of performing a job;The author believes that whether employees' behavior is intrinsically related to their duties should be judged based on whether the employee's behavior is a risk that the employer can foresee and can take effective measures to avoid.