Research On The Rules Of Recognition Of Job Behavior In Employer Responsibility

For historical and political reasons,the employer liability system has been absent in China for a long time since the founding of New China.It was only in the General Principles of Civil Law promulgated and implemented in 1986 that the employer's responsibility first appeared.The traces of the Tort Liability Act,which was implemented in 2010,formally established the employer liability system,but there is no relevant supporting laws and regulations or judicial interpretation to improve this system.In the new century of rapid development of science and technology,global networking,and diversified social relations,the lack of such support has also exposed many issues worthy of study and discussion.In particular,in the question of determining whether an employee's infringement is a job,the practice community has not formed a uniform standard of recognition.This has also led to the fact that in some cases,different referees often make a very different determination of whether an employee's infringement is a duty in the face of the same basic case.This difference not only damages the credibility of the judiciary,but also increases the complaints of the parties.At the same time,from a macro perspective,in the face of the current complicated economic and employment environment,certain job behaviors have certain "hiddenness",and some individual behaviors have strong "deceptive",which also increases the judgment of job behavior.Difficulty.The content of the article is mainly divided into four parts.The first part found the problem.From the practice case,through the analysis of the case,we find that different referees have different conclusions on the determination of job behavior under the same basic case facts.In particular,in the face of deliberate infringement of the rights and interests of others during working hours,or the use of the formation of the convenience of the infringement of the rights and interests of others,sometimes even different judges in the same referee are often difficult to reach an agreement.The reason for this confusion is due to the lack of standards for the identification of job behavior.How to prevent overkills and protect employers from operating risks when protecting the interests of innocent victims,and how to protect the interests of all parties through uniform standardized means is the focus of the article.The second part traces the source of the problem.Starting from the historical evolution of the employer's liability system,we systematically sort out the relevant laws and regulations of employers' liability in China and find relevant basis for the identification of job behavior.We find that there is no specific definition of job behavior in the current laws and regulations.Then,by comparing the definitions of job behaviors in other departmental laws,the particularity of job behavior determination in employer responsibility is explained.Then through the study of the basic theory doctrine supporting the employer's responsibility,try to find and analyze the views on the identification of job behavior in different doctrines.Finally,by exploring the rules of France's negative enumeration,Japan's subjective and objective criteria,and other countries outside the domain,the rules applicable to the determination of job behaviors are enlightened.In the process of job identification,objective factors should occupy a dominant position,and at the same time,they should be combined with the beneficiary attribution.And the employer's predictability of behavior is a comprehensive analysis of the nature of the behavior.The third part further analyzes the problem.Firstly,the principle of imputation and exemption in the employer responsibility system are discussed.Under the strict liability system,the sole exemption of the employer is to prove that the employee's fault has “beyond the scope of employment” or “beyond the employee's duties”.Therefore,the job behavior is the key to connecting the employee's behavior with the employer's responsibility.To the decisive role.Then further analysis of various theoretical theories,it is concluded that both the employer's subjective theory and the employee's subjective theory have the conclusion that they rely too much on the abstract inner core of one party.At the same time,there is also the problem that the subjective and objective factors are mainly blurred,when faced with practice.There is no explanation as to which factor should be tilted.Finally,through the example analysis,the author believes that the external objective theory combined with the predictability theory is more scientific,that is,if the employee's objective performance is consistent with the requirements of the employer's instructions,it should be considered as the scope of the job activity,or the employee's behavior.Although it differs from the content of the job,the employer is also predictable of the job behavior if the employee may use the position to facilitate the exercise of a certain behavior.This is not only based on the consideration of the protection of the interests of the infringed,but also enables employers to optimize the management of the enterprise,improve the quality of employees,and further promote the development of society.The fourth part explores problem solutions and tries to find the criteria for determining job behavior.Firstly,it analyzes the types and behavioral subjects of job behaviors,especially how to judge whether the employment relationship exists,and compares the confusing contractual relationships in practice,and then breaks down the factors involved in judging the job behavior in detail.Including authorization,time,space,control,interest attribution,etc.,and analyze and discuss one by one.On this basis,try to find a relatively feasible judgment standard for each of these elements,and at the end,put forward the judgment method of “presumption of customary behavior” more innovatively.This approach draws in part from the trading habit system and the implied meaning of the content.The main purpose is to judge the nature of the behavior by observing the attitude of the employer to a certain habitual behavior of the employee,even if the behavior is manifested as having no connection with the employee's duties.The employer does not seem to profit from it on the surface,but if the employer has always defaulted to this behavior,it can be considered a job.The article hopes to provide a feasible and balanced solution for the determination of job behavior through the judgment of “presumption of customary behavior”.