雇主替代责任的内部追偿问题研究

发布时间：2018-06-25 09:39

本文选题：雇主替代责任 + 雇主追偿权　；参考：《西南财经大学》2011年硕士论文

【摘要】：在现代分工明细的社会及大规模的生产经营中,无论是企业还是个人都不可能事必躬亲,均需借助他人的力量从事一定的工作或者事业。因此,在法律允许的范围内,雇佣他人从事某项工作已经成为现代社会的显著特点。为规制雇主、雇员和第三人之间的关系,雇主责任制度应运而生。广义的雇主责任包含两个方面：一是雇主对雇员在执行职务中所受损害应承担的责任；二是雇主对雇员在执行职务过程中对第三人造成的损害应承担的责任。前者在劳动法上给予了充分重视,后者则属于民事责任的范围。本文的雇主替代责任所指的就是雇主应承担雇员对第三人致害的赔偿责任。出于雇主的强势经济地位和保护受害人利益的考虑,我国法律规定了雇主替代责任制度。新出台的《侵权责任法》将雇主替代责任从《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》所规定的分别立法模式(将法人、其他组织工作人员行为致害责任与狭义雇主责任区分)改变为统一的“替代责任”模式,但雇主对受害人承担了损害赔偿责任之后是否对雇员享有追偿权,《侵权责任法》没有明确规定。我国理论界对雇主替代责任的研究也多集中于雇佣关系、雇佣过程的判定、雇主替代责任的归责原则等方面,对雇主替代责任的内部追偿问题很少涉及且看法不一。而现实中又存在大量雇主承担替代责任的案件,雇主试图通过对雇员追偿来弥补自身的损失。立法上的不确定与理论研究上的分歧使得雇主的追偿权存在模糊性,法院在判案时没有可以统一适用的标准,导致出现同案异判的情况。因此雇主替代责任的内部追偿问题值得关注。本文试图通过对国外雇主替代责任的内部追偿制度进行比较考察,并结合我国立法和司法实践的现状,对我国雇主替代责任的内部追偿问题作详细探讨。除导论和结语以外,全文分为三章。第一章“雇主追偿权的域外考察”,主要对普通法、欧洲大陆法、日本与我国台湾地区的雇主替代责任的内部追偿问题进行考察。本章并不是单纯地介绍外国的法律,对雇主追偿权的域外考察是为了借鉴,为研究我国的相关问题提供比较法上的建议。从所考察地区的法律规定及判例的发展来看,各国普遍都确立了雇主替代责任制度。对雇主替代责任的规定有两种立法模式：一是德国式的过错责任模式,另一种是英美侵权法的替代责任模式。立法模式上的差异,导致各国在雇主追偿权的问题上有所区别。英美法系国家一般通过判例确立了雇主对雇员有追偿的权利。在大陆法系国家,雇主追偿权有两种立法例,一是在法典内部立法规定了雇主的追偿权,如日本民法典、法国民法典、台湾民法等；另一种是在民法典中没有直接体现,但通过相关制度设计承认了雇主的追偿权,比如德国。换句话说,民法典中没有规定雇主追偿权,并不代表不能追究雇员的责任。虽然雇主的追偿权被普遍承认,但是各国都趋向于对雇主追偿权进行限制。欧洲大陆法国家几乎都将雇主的追偿限制在故意或重大过失的范围内。日本通过立法论、解释论限制雇主追偿权的行使,解释论上主要有过失相抵说、不真正连带债务说、违反信义原则说等学说。台湾地区在理论和判例上都主要采用过失相抵的原则来限制雇主的追偿权。普通法国家在实践中更是对雇主追偿权的行使做了很强的限制,更倾向于通过责任保险制度来弥补雇主的损失和向社会分散风险。还有理论认为,雇主的追偿可能破坏雇员与雇主之间的和谐关系,所以雇主追偿权需要被限制。总的来看,世界各国对雇主追偿权均有所限制,但理论依据不统一。第二章“雇主追偿权的证成”,通过分析雇主追偿权的正当性、合法性与合理性,对雇主追偿权进行证成。首先,从雇主替代责任的理论基础来探讨挖掘雇主追偿权的正当性基础。各国理论界对于雇主替代责任理论基础的观点不统一。笔者选取了报偿理论、控制与监督理论和公共政策理论三种主流观点来探讨。通过分析,笔者认为雇主追偿权存在正当性基础。其次,探讨雇主追偿权的合法性问题。从雇主替代责任的构造来看,法律对雇主替代责任的外部责任与内部责任都需要作出相关规定；从法律解释的历史解释角度来看,立法者并不排斥雇主追偿权；从司法实践的方面来看,雇主追偿权已经得到司法实践的认可；从“类似情况类似处理”的法理来看,雇主追偿权的确立可以避免价值违反。因此,我国法律对雇主追偿权的沉默构成法律漏洞,雇主追偿权具备合法性。最后,追寻雇主追偿权的合理性。雇主对雇员的追偿具备法理上的合理性。雇主追偿制度不仅可以保护受害人的利益,也可以有效均衡雇主与雇员之间利益,具备建立的必要性。结合我国雇主责任保险的推广情况,雇主追偿权的存在更具有现实意义。第三章“雇主追偿权的实现”,本章在肯定雇主追偿权的前提下探讨雇主追偿权的行使问题。通过借鉴比较法上的做法和总结我国司法实践的现状,对雇主追偿权的成立要件、雇主追偿的范围等问题进行研究。这也是本文最具有实践意义的部分。首先,雇主追偿权的成立应当具备三个要件。一是雇主已经对受害人进行了赔偿。二是雇员执行职务不当。这个要件中涉及到对雇员职务行为的再次认定,再次认定的标准应当严格于雇主对外承担责任时职务行为的认定标准。三是雇员主观心态属于故意或者重大过失。将雇主追偿权限制在雇员故意或重大过失的范围内是世界各国的普遍做法。这种限制符合风险、利益的均衡原则与基本法律伦理,也具有现实的可操作性,不仅能激励雇主对雇员施行有效监督,也可以保持雇员工作的积极性与创造性。其次,探寻雇员与雇主内部责任如何分担。当雇佣合同没有约定时,双方的责任分担就属于法官行使自由裁量权的范围。在我国的司法实践中,主要考虑双方主观过错程度和经济负担能力这两个因素来确定雇主与雇员内部责任的分担,先分别对雇主和雇员的主观过错程度进行认定,再进行比较,最终确定责任分担。同时要兼顾雇主与雇员的经济负担能力,尤其要适当保护雇员的利益,保障其正常的生活。雇主追偿的范围与数额并没有固定的限制,应在基本原则下根据案件的具体情况灵活确定。最后,在雇主对雇员行使追偿权时,考虑到雇员的弱势地位,有必要对雇员的支付方式加以规制。采用一次性付清还是分期支付的方式以及分期付款额度的确定都要充分考虑雇员的经济情况,以保护雇员的合法权益。另一个问题是,如果雇主购买了相应保险,损害赔偿已转由保险人负担,对此损失不发生追偿问题,以体现民事责任的补偿功能。但是如果法律规定雇主应当为雇员购买保险而未购买,发生的损失本来应向保险公司转嫁,但这部分损失因雇主的过错只能由雇主自行承担,不能向雇员追偿。作为雇主替代责任的延续,雇主对雇员的追偿解决的是雇佣关系内部的责任承担问题。由于实践中的案件纷繁复杂,本文只能对雇主追偿权的行使提供原则性参考。对此问题的研究也尚处于起步阶段,有待进一步深入。
[Abstract]:In the social and large-scale production and management of the modern division of labor, it is impossible for both the enterprise and the individual to take the power of others to engage in a certain job or cause. Therefore, in the scope of the law, hiring others to engage in a certain job has become a prominent feature of the modern society. The employer's responsibility system arises at the historic moment of the relationship between the third and the employee. The general employer's responsibility includes two aspects: one is the employer's responsibility for the employee's damage in the execution of the job, and the two is the employer's responsibility for the damage to the third person during the execution of the job. The former is given in the labor law. We should pay enough attention to the latter, which belongs to the scope of civil liability. The employer's vicarious liability in this article refers to that the employer should bear the liability of the employee to compensate the third party.
In view of the strong economic status of the employer and the protection of the interests of the victims, the employer's replacement liability system is stipulated by the law of our country. There is no clear regulation on whether the employer has the right of recourse to the employee after the employer has taken the liability for damages to the victim, and the tort liability law is not clearly stipulated. The relationship, the determination of the process of employment, the principle of the replacement responsibility of the employer, and so on, there are few and different views on the internal recourse of the employer's replacement responsibility. In reality, there are a large number of cases in which employers undertake the replacement responsibility. The employer tries to compensate for their losses by the compensation of employees. The legislative uncertainty and theoretical study The differences between them make the employer's right of recourse fuzzy, and the court does not have a unified standard in the case of the case, which leads to the case of the same case. Therefore, the internal recourse problem of the employer's replacement responsibility is worth paying attention to. This article tries to compare the internal compensation system of the replacement responsibility of the foreign employers and combine with my national state. The present situation of law and judicial practice, and the internal recovery of employer's vicarious liability in China are discussed in detail.
Apart from the introduction and conclusion, the full text is divided into three chapters.
The first chapter, "the extraterritorial investigation of the right of employer's recourse", mainly investigates the internal recourse of the replacement responsibility of the employers in the common law, the European continent law, Japan and the Taiwan region of our country. This chapter does not simply introduce foreign laws, the extraterritorial investigation of the right of recourse for employers is for reference and provides a comparison of the relevant problems in our country. A more legal suggestion.
From the legal provisions and the development of the jurisprudence of the inspecting area, the employer replacement responsibility system is generally established in all countries. There are two legislative modes for the replacement responsibility of employers: one is the German type of fault liability model, the other is the mode of replacement responsibility of the Anglo American tort law. There are differences in the issue of rights. Common law countries generally establish the right of employers to recourse employees through jurisprudence. In civil law countries, the right of recourse for employers has two legislations, one is that the internal legislation of the civil law stipulates the right of recourse for employers, such as the civil code of Japan, the civil code of the law, the civil law of Taiwan and so on; the other is in the civil code. It is not directly reflected, but it recognizes the right of recourse by the employer, for example, Germany. In other words, the civil code does not specify the right of recourse for the employer, which does not represent the liability of the employee.
Although the right of the employer's recourse is universally acknowledged, all countries tend to restrict the right to recourse to employers. The European continental law countries almost limit the compensation of employers to the scope of deliberate or major negligence. In the theory and jurisprudence of Taiwan, the principle of negligent offset is mainly used to limit the right of the employer's recourse. In practice, the ordinary law countries have made a strong restriction on the exercise of the right of recourse for employers, and more inclined to make up for the employer's loss and to the social division through the system of liability insurance. In addition, the theory holds that the employer's recourse may destroy the harmonious relationship between the employee and the employer, so the right of the employer's recourse needs to be restricted. In general, the countries of the world have restricted the right of recourse for employers, but the theoretical basis is not uniform.
The second chapter is about the justification of employer's right of recourse. By analyzing the legitimacy, legitimacy and rationality of employer's right of recourse, the employer's right to recourse is identified.
First, from the theoretical basis of the employer's replacement responsibility, this paper discusses the legitimacy basis of the employer's right of recourse. The views of the theorists on the basis of the employer's replacement responsibility are not unified. The author chooses the theory of compensation, the theory of control and supervision and the theory of public policy. Through analysis, the author thinks that the employer is recourse to three. Right has the basis of legitimacy.
Secondly, it discusses the legality of the right of employer's recourse. From the structure of employer's replacement responsibility, the law needs to make relevant provisions on the external responsibility and internal responsibility of the employer's replacement responsibility. From the perspective of historical interpretation of the legal interpretation, the legislator does not exclude the right of recourse from the employer; from the judicial practice, the right of the employer's recourse is in the judicial practice. It has been recognized by judicial practice; from the jurisprudence of similar situation similar treatment, the establishment of the right of employer's recourse can avoid the violation of value. Therefore, the silence of our law on the right of recourse of employers constitutes a legal loophole, and the right of the employer's recourse is legitimate.
Finally, it is reasonable to pursue the right of the employer's recourse. The employer's compensation for the employee has legal rationality. The employer's recourse system can not only protect the interests of the victim, but also effectively balance the interests between the employer and the employee. It's realistic.
In the third chapter, "the realization of the right of employer's recourse", this chapter discusses the exercise of the right of recourse of employers under the premise of affirming the right of recourse of employers. By drawing on the practice of comparative law and summarizing the current situation of judicial practice in our country, this paper studies the establishment of the right of recourse and the scope of employers' recovery. This is the most practical meaning of this article. The part of righteousness.
First, the establishment of the right of recourse for the employer should have three important elements. One is that the employer has made a compensation for the victim. Two is the employee's misconduct. This element involves the re determination of the employee's job behavior. The standard of re confirmation should be strictly the standard of identifying the job behavior when the employer is responsible for the responsibility. Three is the employee. The subjective mentality is intentional or gross negligence. It is a universal practice in the world to restrict the right of the employer's recourse to the intentional or major negligence of the employee. This restriction is in line with the risk, the principle of balance of interests and the basic legal ethics, as well as the practical maneuverability, can not only encourage the employers to perform effective supervision on the employees, but also can be used to supervise the employees. Maintain the enthusiasm and creativity of the employee's work.
Secondly, to find out how to share the internal responsibility of the employee and the employer. When the employment contract is not scheduled, the responsibility sharing between the two parties is the scope of the discretion of the judge. In the judicial practice of our country, the two factors, such as the subjective fault degree and the economic burden of the two parties, are the main considerations to determine the share of the internal responsibility of the employer and the employee. First, the subjective fault degree of employers and employees is identified, and then the responsibility sharing is finally determined. At the same time, the economic burden of employers and employees should be taken into account, especially to protect the employees' interests and ensure their normal life. The scope and amount of the employer's recovery should be under the basic principles. The specific circumstances of the case are flexible.
Finally, when the employer is exercising the right of recourse to the employee, it is necessary to regulate the employee's way of payment, considering the disadvantaged position of the employee. The use of one-time payment or installment payment and the determination of the installment amount should fully consider the employee's economic situation in order to protect the legitimate rights and interests of the employees. The employer has purchased the corresponding insurance, and the damages have been transferred to the insurer. The loss does not occur in recourse to embody the compensation function of the civil liability. However, if the law stipulates that the employer should buy insurance for the employee and not buy it, the loss should have been transferred to the insurance company, but this part of the loss can only be caused by the employer's fault. The employer is responsible for it and can not recourse to the employee.
As the continuation of the replacement responsibility of the employer, the employer's compensation for the employee's recovery is the responsibility of the employment relationship. Because of the complicated cases in the practice, this article can only provide the principle reference for the exercise of the right of compensation for employers.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923

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