【作者】 黄平；

【导师】 傅鼎生；

【作者基本信息】 华东政法学院 ， 民商法， 2005， 硕士

【摘要】 雇用人责任属于侵权法领域的一个重要内容,在国外的法学理论、立法和司法实践中都由来已久。由于社会制度和意识形态的影响,我国的《民法通则》对此没有规定,法学理论界对此探讨的不是很多。但是,在我国经济发展以及建立社会主义市场经济的过程中,受雇人在执行职务过程中不法侵害第三人利益的问题也日渐增多。同时,随着我国经济成分多元化的趋势越来越强,以所有制形态作为企业法人的划分标准已逐渐退出历史舞台,建立我国的雇用人责任制度,改变该领域无法可依的局面,显得极为迫切。本文从雇用人责任的历史沿革以及法理基础出发,以雇佣关系为核心,用比较法的研究方法,系统地论述了雇用人责任的归责原则,责任构成,以及赔偿责任问题,重点论述了雇佣关系、雇佣活动的认定依据、特殊情形下的雇用人责任,以及赔偿责任的负担等问题。在比较国外相关法学理论、立法和司法实践的基础上,对最高人民法院《关于审理人身损害赔偿案件若干问题的解释》(法释[2003]20 号)相关条文关于雇用人责任的规定各部分进行了评析, 吸收关于雇用人责任研究的最新成果,对今后的雇用人责任立法提出相应的建议。本文在前言部分阐明了雇用人责任的内涵和外延,指出本文所称之雇佣关系不局限于雇用契约所生之雇佣关系,而是雇用人对受雇人选任监督的“使用关系”,认为关于“雇用人责任”、“雇主责任”应表述为“使用人责任”更具科学性。本文第一部分首先论述了雇用人责任历史沿革,揭示了在大陆法系、英美法系的起源和发展以及新中国的雇用人责任的确立,雇用人责任与“替代责任”的概念作了区分。其次,论述了关于雇用人责任的法理基础,归纳了当前六种主流更多还原

【Abstract】 Employer’s liability constitutes an import part in the tort law and is of long standing in foreign law theory, legislation and judicial practice. As a result of different social system and ideology, there is no provision in our General Principles of Civil Law and not much discussion in this respect in our law theory circle. In the course of our economic development and establishment of socialism market economy, infringement upon a third party’s interests is, however, rising gradually during the employer’s performing of its duties. With our increasingly diversified economic elements, classification of enterprise legal persons by different types of ownership no longer exists and it becomes an urgent need to establish our own employer’s liability system to fill the gaps in legislation. Based on the historical development and theory of law in respect of employer’s liability, it is discussed by using comparative law as a method of research in this article the doctrine of liability fixation, liability composition and indemnification liability in respect of the employer’s liability with the employment relationship at the core. Issues discussed mainly include employment relationship, basis of determination of employment activity, employer’s liability under special circumstance and assumption of indemnification liabilities. By comparing with relevant foreign theories of law, legislation and judicial practice, an analysis of relevant provisions on employer’s liability in the “Interpretation on Several Issues in Trial of Cases of Personal Injury Damages”of the Supreme People’s Court (Fa Shi [2003] No. 20) is made. By taking into account the most recent achievements in the research of employer’s liability, corresponding suggestions are made to the future legislation of employer’s liability. In the preface of this article, the connotation and denotation of employer’s liability are discussed. The employment relationship referred to in this article is a “relationship of using”the employer’s selection and appointment of and supervision over the employee rather than being restricted to an employment relationship arising from the employment contract. It is more scientific to express “employer’s liability”as “user’s liability”. The historical development of employer’s liability is illustrated in Part I of this article, outlining its origin and development in the continental law system and Anglo-American law system, as well as the establishment of employer’s liability in China and drawing the line between the employer’s liability and the “vicarious liability”. Moreover, the legal basis of employer’s liability is discussed and a summary of six prevailing mainstream theories is provided. Finally, the doctrine of liability fixation of employer’s liability is discussed and divided into three categories with their own features after a general overview of the statutory examples of some typical countries. By comparing with the practice and theory basis of relevant countries and regions, it is pointed out that the current doctrine of liability fixation of employer’s liability tends towards the doctrine of strict liability. Part II of this article is a comparison between employer’s liability and similar systems. From a comparative law perspective, the difference and similarity between employer’s liability and the liability of manufacturer on order, liability of legal person, liability of the person assisting in debtor’s performance of its obligations and liability of negotiorum gestor are discussed, especially the difference between the employment relationship and the undertaker’s relationship. A feasible standard is proposed to distinguish the foregoing. The provisions in our Fa Shi [2003] No. 20 document concerning the liability of legal person are also discussed by identifying defects in those provisions and recommending amendments thereto. In addition, the relationship between so-called “liability of laborer”in our Fa Shi [2003] No. 20 document and the employer’s liability is also mentioned in this part and the liability of laborer is by its nature included in the employer’s liability. Part III is the most essential part of this article discussing the composition of the employer’s liability. The standard of determining an employment relationship andemployment activity is elaborated. Based on an analysis of the legislation and theories of relevant countries and regions, it is concluded that an employment relationship shall be determined in China on the basis of substantial direction and supervision. As to the determination of employment activity, five comparatively special circumstances are enumerated by adopting a “comprehensive standard theory”based on an analysis of various theories and practice. Part IV of this article relates to the special circumstance in the employer’s liability, that is, how to determine the employer’s liability when majority employers, borrowed employee or employee are also in fault. This part is an extension of the standard of determining employment relationship described in Part III. Part V of this articles concerns the issue of indemnification liability, that is, how to realize the final indemnification of the employer’s liability. It consists of two issues, the relationship between the employer’s indemnification liability and the employee’s indemnification liability and limitation on employer’s right to recourse and employee’s right to recourse. Defects in this regard are identified and amendments thereto are suggested after comparing and analyzing statutory examples.更多还原