On The Tort Liability Of Dispatched Employee

Labor dispatch,also called “man power dispatch” or “labor force dispatch”,indicated the contract between employing company and dispatched workers.The dispatching workers' action should completely defer to employing company.The dispatch will be order to do some special work.At the same time,the employer company should regard labor dispatching employing as their formal employee.This is the employment contract which originated in Europe,The united states and Japan.Different from the traditional employment mode,Labor dispatch serves as a more flexible and economic one.Actually,more and more companies start to adopt labor dispatch system because of its excellent flexibility.Stepping after Europe and the united states,Labor dispatch appeared on the scene in 90 s and yielded unusually brilliant results.Unfortunately,China's labor dispatch system has many shortcoming because we start to adopt it not so long.Labor dispatch has the feather that can divide employing and the usage of employee.This is the reason why people definite labor dispatch as a double-edge sword.When people enjoyed the benefits from labor dispatch,they still confused about the complicated relationships among more over entity employing company,labor dispatch company and employee.Lacking of relevant laws promoted the issues of labor dispatch.Economic should not take the responsibility for the lack of law for labor dispatch company.Law of the People's Republic of China on Employment contracts makes the earliest explicit stipulations on labor dispatch,which includes the establishment terms and legal obligation of the entity employer dispatching the employee,legal rights and obligations of the employees to be dispatched and so on.However,the proclamation of Tort liability law make clear that entity employer company must take responsibility to their “dispatching employees”.Tort liability law Article 34,paragraph 2 stipulated that entity employer company has the responsibility for no-fault employees as a substitute for the dispatching company.That means dispatching employee have to be regarded as a formal one when he works in that company.However,three parties' relationship is such a complicated one that makes responsibility hard to be clear.This provision,though,to some extend,makes the Tort liability low is still faced up with plenty of problems.For the determination of the subject of liability for the damage causeddispatching employees.It can be divided into only one liable or multiple liable person.Employers assume employer's liability under the principle of no-fault employee which based on the working control of dispatching employee.Under the condition that employing unit is unable to take the responsibility by itself and the dispatching employee at fault.It is Labor dispatching company has to take supplementary liability.The entity employer company can't afford by itself.Although labor dispatching employee is direct actor for incident,the employee should not take the external liability for compensation.According to the Judicial Interpretation of personal damage compensation,Article 9,when the dispatching employee has gross negligence,employee can be affixed the responsibility inside of the company.That still means employee cannot represent whether the employer company or labor dispatch company.However,that policy is not a block for employer company or labor dispatch company to ask employee who has negligence to pay for what he has done.On the side of external responsibility,entity employer company should take the major responsibility as the employer.As the second position's liable person,the labor dispatching company should take the supplementary liability which part the entity employer company cannot assume alone.Here is one thing should be figured out,it is the order of the responsibility,the entity employer company must be the first position person to take the responsibility of compensation obligation.Out of the purpose of relieving for victims,the available of the supplementary liability should be stipulated as the part of which entity employer company cannot assume alone.It's the most effective method to reduce the loss of victims.Because this law figure out who should take the responsibility of compensation obligation.This takes precaution against the entity employer company,dispatching employee and labor dispatching company attempt to pass the buck.As a result,the compensation process is the first position liable person take the major responsibility,if the labor dispatching company has any fault,it should take the second position supplementary liability.On the side of internal responsibility,if there is an agreement between the three parties,it's should be privilege to the content of the agreement.This can protect entity employer company which was attacked by other labor dispatch company.In the condition without an agreement,the entity employer company assume all substitution liabilities.If the labor dispatching company has any fault,it's the entity employer company's right to ask the labor dispatching company to take the supplementary liability.From this we can figure out the order of compensation obligation is the key word on the damage that made by dispatching employee.According to the extraterritorial comparison law commonly admitted the right for employer company to ask dispatching employee take their responsibility.Whether it is entity employer company,victims or dispatching employees,the existence of employer's right of recourse serves as a important step for keeping the balance.After assuming the employer and labor dispatching company's liability obligations,the order should be on judicial interpretation of personal damage compensation Article 9,Paragraph 1,to recover the debt from the dispatching employee who has gross negligence.