The Application Of Law In Employer's Liability

This paper mainly takes the application of law in employer's liability as the research object,aiming to clarify the relationship between article 34 and article 35 of Tort Liability Law and relevant provisions of judicial interpretation in personal injury compensation,and on this basis,the applicable standards and judgment logic of the problems related to the employer's liability in judicial practice are summarized and analyzed.Based on the existing provisions of legislation and relevant judicial interpretation in China,drawing on the experience of foreign legislative and judicial theory,and combining with specific problems in judicial practice,this paper is divided into four parts to discuss the application of employer's liability law:The first part is the inspection of the current situation of employer responsibility regulation in China.The formation of China's employer responsibility system has experienced the development process from "single" to "split" and then to "unified",showing a complex state of responsibility.From the point of the content and distribution of the existing law,legislation and the related department to explain about the rules of the employers liability is more dispersed,the tort liability law and the judicial interpretation on compensation for personal injury for the using of the external responsibility of choose and employ persons is a right of recourse against the problems such as there are different provisions,and other legal norms for certain types of employers liability applicable conditions and scope of application is not form a unified regulation.Therefore,in the trial practice,the court has differentunderstandings of the application of the law,the judgment of "due to the execution of work tasks",and the determination of the user's own responsibility,thus resulting in the phenomenon of "different judgments for the same case".The second part is the analysis of the application of the employer's liability law.Since the relationship between article 34 and article 35 of tort liability law and relevant provisions of judicial interpretation of personal injury compensation is not one-to-one correspondence,there are also different views on the understanding and application of relevant provisions in the academic circle and the court.On the one hand,from the perspective of the basic principles of law application,when dealing with the cases related to the employer's liability,the court should,in principle,give priority to the provisions of article 34 and article 35 of the tort liability law.On the other hand,judicial interpretation has the function of closing legal loopholes.In the case that there is no clear provision in the tort liability law,the relevant provisions in the original judicial interpretation of personal injury compensation belong to "other provisions of the law" and should continue to be valid.Therefore,the key to the application of the law is to determine the scope of application of article 34 and article35 of the tort liability law and the legal effect of relevant provisions of the judicial interpretation of personal injury compensation.The third part is the combing of the judgment criteria of "because of the implementation of work tasks".The causality between the tort of the user and the duty is the premise for the employer to bear the tort liability.The tort liability law has no provisions on the judgment standard of "because of the performance of work tasks",but the provisions of article 9,paragraph 2 of the judicial interpretation of personal injury compensation on the judgment standard of "engaging in employment activities" are in effect,and can be applied by analogy.In view of the specific judgment problem of "due to the execution of work task" in the trial practice,priority should be given to whether the harm done by the user belongs to the scope authorized or instructed by the employer,if so,it belongs to the execution of work task;If not,it is necessary to comprehensively consider such factors as the appearance of behavior,the subjective purpose of the user,the possibility of the employer's prediction and control,and thereasonable trust of the infringed,and make a comprehensive judgment based on the specific situation of the case.The fourth part is the analysis of the responsibility of the user.Although the tort liability law does not clearly stipulate the liability of the person to be used,the fact that the employer assumes vicarious liability does not mean that the person to be used is exempted from his own liability.On the one hand,when the person being used intentionally infringes upon the rights or has gross negligence,he should bear joint and several liabilities with the employer.In the absence of the employer the victim should be allowed to Sue the user separately for general tort liability.,on the other hand,employers of foreign assume liability to pay compensation,or can be based on the two sides of recourse against the law to the user,recover the amount should be by the court according to the case of considering both the degree of fault,by the using of the actual solvency and related industry working characteristics and risk factors such as comprehensive judgement.