雇主责任的立法思考

发布时间：2018-05-17 10:10

本文选题：雇主责任 + 无过错责任　；参考：《山东大学》2007年硕士论文

【摘要】： 本文通过考察中外雇主责任制度,运用对比方法,结合我国当前经济和社会发展状况,阐述了雇主责任制度的发展方向,以期解决当前我国雇主责任制度的缺陷。在现代社会,雇主责任有两方面的含义:一是雇主对雇员在从事雇佣活动过程中致他人损害所应承担的责任,二是雇主对雇员在从事雇佣活动中自身损害所应承担的责任。第一种含义是侵权行为法研究的范畴,第二种含义往往是在劳动法中加以规制。本文研究的是第一种含义上的雇主责任。雇员在从事雇佣活动中侵害他人的权益,雇主作为承担责任的主体,来代替雇员承担责任,是特殊侵权行为中典型的替代责任。其归责原则被确定为无过错责任原则,是历史发展的必然趋势和要求,体现了时代的进步和人类思想观念的更新。在确定雇员是否从事雇佣活动时,应当从多角度去考察:只要存在雇佣劳动关系,雇员的行为表现为与执行职务活动有关联,一般均应认定是从事雇佣活动。在责任承担方面,笔者不赞成雇员与雇主承担连带责任,连带责任制度与替代责任制度是两种不相同的制度,若雇员与雇主承担连带责任,则弱化了替代责任制度的积极意义。当然,雇主在承担了责任后,可以根据雇员侵权行为的事实,向雇员进行追偿,但该追偿权的行使应限定在一个符合社会公平的范围之内。我国在制定侵权行为法时,雇主责任制度应该表述为:雇员在雇佣活动中致他人人身或财产损害的,雇主应当承担赔偿责任。损害是由雇员的故意或重大过失引起,雇主承担赔偿责任后,可以在合理范围向雇员追偿;受害人在无法向雇主索赔或索赔困难的情况下,可以在雇主追偿范围内,直接向雇员要求赔偿。
[Abstract]:Based on the investigation of the employer liability system at home and abroad and the comparative method and the current economic and social development of our country, this paper expounds the development direction of the employer liability system in order to solve the defects of the present employer liability system in our country. In modern society, the employer's liability has two meanings: the first is the employer's responsibility for the damage caused by the employee in the course of the employment activity, and the second is the employer's responsibility for the employee's own injury in the employment activity. The first kind of meaning is the category of tort law research, the second kind of meaning is often regulated in the labor law. This article studies the first meaning of employer liability. It is a typical substitute liability for employees to infringe on the rights and interests of others in the employment activities and to take the place of employees as the subject of liability. The principle of imputation is defined as the principle of no-fault liability, which is the inevitable trend and requirement of historical development, and embodies the progress of the times and the renewal of human ideology. In determining whether the employee is engaged in employment activities, we should examine from many angles: as long as there is a wage labor relationship, the employee's behavior is related to the performance of the job activities, generally should be recognized as engaged in employment activities. In terms of liability, the author does not agree that employees and employers bear joint and several liability, the joint and several liability system and substitute liability system are two different systems, if employees and employers bear joint and several liability, it weakens the positive significance of substitute liability system. Of course, the employer can claim compensation from the employee on the basis of the fact of the employee's tort, but the exercise of the right of recourse should be limited to a range that conforms to the social justice. When our country formulates the tort law, the employer liability system should be expressed as: if the employee causes personal or property damage to others in the employment activities, the employer shall bear the liability for compensation. The damage is caused by the wilful or gross negligence of the employee. After the employer has assumed the liability for compensation, he may recover compensation from the employee to a reasonable extent. If the victim is unable to claim compensation from the employer or if the claim is difficult, the victim may be within the scope of the employer's recovery. Claim compensation directly from the employee.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D913

【参考文献】