雇主责任制度比较研究

【作者】 王辛芯；

【导师】 张驰；

【作者基本信息】 华东政法学院 ， 民商法学， 2005， 硕士

【摘要】 雇主责任在现代社会有两方面的含义:雇主对雇员在从事雇佣活动时所受损害应承担的责任以及雇主对雇员在从事雇佣活动中致第三人损害应承担的责任。雇主的前一种责任在劳动法上给予了充分重视,雇主被赋予较重的义务从各方面保护处于弱势地位的雇员的利益。而对于雇主的后一种责任应属于民事责任的范围。本文所指的雇主责任制度即是针对雇主应承担雇员对第三人致害的赔偿责任的制度。现今社会雇佣关系是各种经济关系的发生基础,雇员承担着大部分对外经济交往的任务从而对第三人致害的可能性增加。雇主责任制度即在社会需求下应运而生。各国均出于雇主的强势经济地位和对受害人利益保障的考虑使雇主在不同程度上承担雇员致害的责任。但我国民事法律中并没有单独规定。雇主责任制度涉及雇主、雇员、受害人三方,对内、对外两个方面的法律关系。本文即分为两个部分分别来阐述这两个方面的问题。第一部分是对雇主向第三人赔偿责任的研究。首先笔者通过考察世界上关于雇主责任制度构建的两种模式,确定雇主责任的性质是替代责任,从而采取无过错责任原则是必然要求。我国最高人民法院《关于审理人身损害赔偿案件适用法律若干问题的解释》第9 条明文规定“雇员在从事雇佣活动中致人损害的,雇主应当承担赔偿责任。”即是顺应社会需要和法律从个人本位向社会本位的发展趋势采取了无过错责任原则。第一部分的第二个问题即是在无过错责任原则和雇主责任为替代责任的性质为基础上确立雇主责任的构成要件为雇员成立侵权责任、雇佣关系的存在和侵权行为为职务行为。本文分三个小节对其逐一论述,从各国实践出发总结经验,提出了在司法实践上指导性的意见。更多还原

【Abstract】 Employer liability has two meanings in modern society: the first one is the liability which should be assumed by employer when employee is damaged in the course of employment; the second one is the liability which should be assumed by employer to the third party who is damaged by employee in the course of employment. The former one has been set store by in Labor Law; the latter one belongs to the cope of civil liability. The system of employer liability in this article is instituted for the compensatory liability of employer to the third party who is damaged by employee’s tort behavior. Now, employment relationship is basic of economic activities, so the impossibility of employee’s tort behavior enhances. The system of employer liability is erected under requirement of society. The employer assumes liability in different degree in countries all over the world from the consideration of employer’s more powerful position and protection of the third party, but in china there is not a separate article to stipulate employer liability in civil law. Three parties、two legal relationships are involved in system of employer liability. This article is separated into two parts to expatiate two relationships. The first part is about the relationship between employer and the third party. At first, from the analysis of two modes of employer liability in world, it is confirmed that employer liability is vicarious liability, so employer assumes liability under the principle of strict liability. The employee’s tort liability is the origin of the employer liability. In china, the strict liability chosen in article 9 of “explanation of some problems in law application in cases of compensation for body damage”conform to the requirement of society and trend of law. The second problem is the three preconditions of employer liability which are discussed separately in three sections: employee’s behavior is guilt of tort, employment relationship, in course of employment. Experience is analyzed though the juridical practice of foreign countries and some principles that can be used to direct juridical practice are summarized. The second part is about the system of recourse to employee. At first, because of vicarious liability, employer can use compensation right of appeal requiring employee to compensate his damage caused by employer liability. But in order to protect employee, compensation right of appeal should be limited to use in case of gross negligence or intentional conduct. Secondly, recourse that only occur in the inner relationship between employer and employee should be resolved though agreement between employer and employee and dispute organ. At last, the scope of recourse is discussed from the angle of juridical practice. Under the background of establishment of civil code, employer liability should be put in civil code as an article. In the paper, some principles of juridical practice have been summarized, but some concrete conclusion should be drawn in concrete case because of individuation characteristic in tort. Otherwise, social insurance systems that can be play a role in the application of employer liability should be pay attention to.更多还原