雇员受害赔偿法律问题研究

发布时间：2018-05-18 21:24

本文选题：雇员受害 + 赔偿责任　；参考：《湖南大学》2008年硕士论文

【摘要】： 雇员受害赔偿责任是指雇员在从事雇佣活动中遭受人身损害,雇主所应承担的赔偿责任。雇员受害赔偿责任是雇佣法律关系制度的一项重要内容。雇员受害赔偿,涉及侵权法、保险法、劳动法以及社会保障法等各方面的法律,我国法律对雇佣关系没有明文规定,而最高人民法院司法解释对雇员受害赔偿责任规定过于简略,给司法机关处理这类案件带来诸多困难。雇佣关系的界定,是确定雇主对雇员受害赔偿责任的前提。随着我国社会主义市场经济的完善和发展,雇佣关系以不同形式大量出现,其它法律关系如劳动关系、承揽关系等与之又有很多相似之处,在实务中对雇佣关系进行界定,存在诸多难点,确立一个可操作性强的界定标准,紧迫而必要。雇主对雇员受害赔偿责任的归责原则是确立雇主责任和免责事由的基础,在司法实践中,应适用无过错责任归责原则,雇主免责事由应仅限于不可抗力和受害人故意,同时要严格限制事先免责条款的效力,但是在雇雇员对自身的损害有重大过失时应适用过失相抵原则,以减轻雇主的赔偿责任。在第三人致雇员受害时,雇主赔偿责任性质是一种不真正连带责任,但有其内在的法律特征。雇主追偿权确立的基础是雇主的不真正连带责任,这种追偿权的取得是基于代位清偿,雇主取得的该追偿权的范围,应在认定侵权人和雇员的过错程度的基础上而进行确定,在法院判决雇主对雇员的赔偿责任后,只有在雇主完全履行了赔付义务后,才能行使代位追偿权。实践中,雇主在承担赔偿责任后由于种种原因而追偿不能,严重损害雇主的利益,为此,应对雇主责任进行合理定位,并通过雇主责任险的完善,使雇主的合法利益不受损害。
[Abstract]:The liability for compensation for injury of employees refers to the liability of the employer for personal injury suffered by the employee in the course of his employment activities. Employee's liability for injury is an important part of the system of employment legal relationship. The compensation for employees' victimization is related to the tort law, insurance law, labor law, social security law and so on. There is no explicit regulation on employment relations in our country's laws. However, the judicial interpretation of the Supreme people's Court is too brief, which brings many difficulties to the judicial organs in dealing with such cases. The definition of employment relationship is the premise of determining the employer's liability for employee's victimization. With the improvement and development of socialist market economy in China, employment relations appear in a large number of different forms, and other legal relations, such as labor relations, contract relations and so on, have many similarities with them, so the employment relationship is defined in practice. There are many difficulties. It is urgent and necessary to establish an operational definition standard. The principle of employer's imputation to employee's injured liability is the basis of establishing employer's liability and exemption. In judicial practice, the principle of no fault liability should be applied, and the employer's exemption should be limited to force majeure and victim's intention. At the same time, the validity of the prior exemption clause should be strictly restricted, but the principle of fault offset should be applied in the case of gross negligence of the employed employee to reduce the employer's liability. When the third party victimizes the employee, the nature of the employer's liability is not true joint and several liability, but has its inherent legal characteristics. The establishment of employer's right of recourse is based on the employer's untrue joint and several liability, and the acquisition of this right of recourse is based on subrogation. The scope of the right of recovery obtained by the employer should be determined on the basis of the degree of fault of the infringer and the employee. The right of subrogation can only be exercised when the employer has fully fulfilled his obligation to pay compensation after the court has decided the employer's liability to the employee. In practice, the employer is unable to recover compensation for various reasons, which seriously damages the interests of the employer. Therefore, the employer's liability should be reasonably positioned, and the employer's legal interests will not be damaged through the perfection of the employer's liability insurance.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D923

【引证文献】