On The Composition Of The Tort Liability Of The Ordering Party

The 10 th article of the “Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury” promulgated in 2003 established the tort liability of the ordering party in the relationship of the contract for work,which was the embryonic form of the tort liability system of the ordering party in our country.In the era of the subsequent “Tort Liability Law,” the tort liability of the ordering party was not included in the norm,resulting in the lack of legal regulation of the tort liability of the ordering party,which could only be resolved through the above-mentioned judicial interpretation,undoubtedly a great regret.In view of this,Article 1193 of the Civil Code of the People’s Republic of China inherited the old precedent of the above-mentioned judicial interpretation,and stipulated the fault liability of the ordering party in parallel with the employer’s liability,clarifying the fault liability of the ordering party,and making up for the shortcomings of the “Tort Liability Law.”Although Article 1193 of the Civil Code inherits the provisions of the judicial interpretation,because it is first included in the code,there is a great deal of room for interpretation regarding the determination of liability.From its positioning,the tort liability of the ordering party and the employer’s liability constitute a binary liability system.Under this binary parallel system,the attribution principle of the tort liability of the ordering party is the fault liability principle,and the ordering party assumes his own responsibility,while the attribution principle of the employer’s liability is the no-fault liability principle,and the employer assumes substitute responsibility.The tort liability of the ordering party is the specific rule of the fault liability principle stipulated in Article 1165(1)of the Civil Code.Correctly identifying the contracting relationship is a prerequisite for determining the tort liability of the ordering party.The abstract standard used to distinguish the contracting relationship from the employment relationship is the standard of the control test.When there is control,it constitutes an employment relationship and the employer’s liability applies;when there is no control,it constitutes a contracting relationship,and the tort liability of the ordering party applies.In practice,the path to distinguish the contracting relationship from the employment relationship should follow the following principles: comply with the agreement if there is one,and comprehensively distinguish based on specific factors if there is no agreement.The faults of the ordering party stipulated in Article 1193 of the Civil Code are the faults of contracting,instructing,and selecting.The prerequisite for applying the fault of the ordering party is that there is a dual causal relationship between the fault and the damage result,and it does not require the contractor to have subjective intent or negligence;by sorting out the cases in practice,this article discusses the specific forms of contracting,instructing,and selecting faults.When the ordering party violates the obligation of care,security,and other obligations that cannot be covered by the few types of faults limited by the Civil Code,the normative application path is to apply Article 1165(1)of the Civil Code.