家政服务机构的民事责任问题研究
发布时间：2018-08-07 11:54
【摘要】： 近年来,有关家政服务机构的纠纷层出不断,“富平家政案”、“三八家政服务中心案”等类似案件的出现更是引起人们的广泛关注。家政服务业与人们的日常生活密切相关,家政服务机构对整个行业的发展起着重要的推动作用,准确界定家政服务机构的法律责任是确保家政服务业健康迅速发展的前提和保障。 本文运用类型化分析的研究方法,结合现实实践中的典型个案,从不同家政服务机构的法律定性出发,分析其与家政服务员、客户之间的不同法律关系,界定其应当承担的民事责任,并对责任承担的具体范围与限制等相关问题进行较深入地探讨。 本文除引言和结语外,共分四部分。 第一部分家政服务机构的分类及法律性质。在该部分中,首先依据运营模式的不同,将现有家政服务机构分为员工制、会员制、中介制三种类型；其次分析三种模式家政服务机构法律上的性质,并将其划分为居间型和雇佣型家政服务机构两种类型。 第二部分析不同类型家政服务机构与其家政服务员及客户之间的法律关系。居间型家政服务机构与家政服务员和客户之间是居间人与委托人或居间人与第三人的关系,依据我国《合同法》关于居间合同的相关规定,居间型家政服务机构对家政服务员及客户负有居间人义务。雇佣型家政服务机构与家政服务员之间形成雇佣关系或劳动法律关系,与客户之间形成类似于派遣合同的特殊家政服务合同关系,而雇佣型家政服务员与客户之间基于服务合同也形成事实上的雇佣关系。这使得雇佣型家政服务机构运营模式下存在双重雇佣关系,也导致了雇佣型家政服务机构责任认定的特殊性。另外在本部分,还对近来影响较大的“富平家政案”及“三八家政服务中心案”中相关家政服务机构的法律性质及相关主体之间的法律关系进行了较详细的分析。 第三部分具体讨论家政服务机构的民事责任问题。居间型家政服务机构负有居间人义务,其主要是如实报告义务。对于如实报告义务,笔者认为应当包括积极调查义务的内容,并且过失提供虚假情况也构成如实报告义务的违反。违反如实报告义务的法律责任主要包括：不得请求居间报酬、承担损害赔偿责任。雇佣型家政服务机构承担的是雇主责任,但由于其中双重雇佣关系的存在,使其雇主责任具有特殊性：在特定情况下雇佣型家政服务机构与客户承担连带责任。另外在此部分,笔者考虑到现实中家政服务机构的具体情况,对于与家政服务员形成劳动关系的雇佣性家政服务机构所要承担的劳动法上的用人单位的责任也进行了简单分析论述。 第四部分是家政服务机构的责任范围问题。主要是讨论家政服务纠纷中家政服务机构往往要承担不合理的巨额赔偿而引起争议的问题。居间型家政服务机构的违约责任受到可预见性规则、居间人过错及责任承担能力等方面的限制；雇佣型家政服务机构的责任也应在赔偿数额、精神损失赔偿方面有所限制。
[Abstract]:In recent years, there has been a continuous dispute over domestic service institutions. The emergence of similar cases, such as "the case of domestic affairs in Fuping", "the case of the 38 domestic affairs service center", has aroused widespread concern. Domestic service industry is closely related to people's daily life. Domestic service institutions have played an important role in promoting the development of the whole industry, and it is accurate. Defining the legal responsibility of domestic service agencies is the premise and guarantee for ensuring the healthy and rapid development of domestic service industry.
Using the research method of typed analysis and the typical case in practical practice, this paper analyzes the different legal relations between the housewaiters and the clients from the legal nature of the different domestic service institutions, and defines the civil liability that should be undertaken, and the specific scope and limitation of the responsibility bearing are more profound. Probe into the land.
In addition to the introduction and conclusion, this article is divided into four parts.
The first part is the classification and legal nature of domestic service institutions. In this part, according to the different operating modes, the existing domestic service institutions are divided into three types: employee system, membership system and intermediary system. Secondly, it analyzes the legal nature of the three types of domestic service institutions and divides them into residence type and employment type housekeeping service machine. Construct two types.
The second part analyses the legal relationship between the domestic service agencies of different types and their housekeeper and customers. The relationship between resident housekeeping service institutions and housekeeping attendants and clients is the relationship between the resident and the client or the broker and the third. The employment relationship or labor legal relationship is formed between the mercenary domestic service service agency and the housekeeper, forming a special domestic service contract relationship with the customer, and the service contract between the hired housekeeper and the customer is also formed in fact. Employment relationship. This makes the employment model of domestic service institutions dual employment relationship, and also leads to the particularity of the responsibility identification of the employment type domestic service institutions. In addition, the legal nature of the related domestic service institutions in the "Fuping domestic government case" and the "38 domestic service center case" which have recently been greatly influenced And the legal relationship between the subjects concerned is analyzed in detail.
The third part discusses the civil liability of domestic service institutions. The intermediary domestic service institutions bear the obligations of the resident, which is mainly the true reporting obligation. For the true reporting obligations, the author thinks that the content of the active investigation obligation should be included, and the negligence provides false circumstances and constitutes a violation of the true reporting obligation. The legal responsibility of the actual reporting obligation mainly includes: not requesting interviewing remuneration and taking on the liability for damages. The employment type domestic service institution assumes the employer's responsibility, but because of the existence of the dual employment relationship, the employer's responsibility is special: in certain circumstances, the domestic service institution of the hired servant bears joint responsibilities with the customer. In addition, in this part, the author, taking into account the actual situation of domestic service institutions in the reality, makes a simple analysis and Discussion on the responsibility of the employers in the labor law that should be undertaken by the mercenary service institutions that form labor relations with housekeeping attendants.
The fourth part is the issue of the responsibility range of domestic service institutions. It is mainly the discussion of the disputes caused by domestic service agencies in domestic affairs service disputes, which are often caused by unreasonable huge compensation. The responsibility of the employment type domestic service organization should also be limited in the amount of compensation and the compensation for mental loss.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.6
本文编号：2169941
[Abstract]:In recent years, there has been a continuous dispute over domestic service institutions. The emergence of similar cases, such as "the case of domestic affairs in Fuping", "the case of the 38 domestic affairs service center", has aroused widespread concern. Domestic service industry is closely related to people's daily life. Domestic service institutions have played an important role in promoting the development of the whole industry, and it is accurate. Defining the legal responsibility of domestic service agencies is the premise and guarantee for ensuring the healthy and rapid development of domestic service industry.
Using the research method of typed analysis and the typical case in practical practice, this paper analyzes the different legal relations between the housewaiters and the clients from the legal nature of the different domestic service institutions, and defines the civil liability that should be undertaken, and the specific scope and limitation of the responsibility bearing are more profound. Probe into the land.
In addition to the introduction and conclusion, this article is divided into four parts.
The first part is the classification and legal nature of domestic service institutions. In this part, according to the different operating modes, the existing domestic service institutions are divided into three types: employee system, membership system and intermediary system. Secondly, it analyzes the legal nature of the three types of domestic service institutions and divides them into residence type and employment type housekeeping service machine. Construct two types.
The second part analyses the legal relationship between the domestic service agencies of different types and their housekeeper and customers. The relationship between resident housekeeping service institutions and housekeeping attendants and clients is the relationship between the resident and the client or the broker and the third. The employment relationship or labor legal relationship is formed between the mercenary domestic service service agency and the housekeeper, forming a special domestic service contract relationship with the customer, and the service contract between the hired housekeeper and the customer is also formed in fact. Employment relationship. This makes the employment model of domestic service institutions dual employment relationship, and also leads to the particularity of the responsibility identification of the employment type domestic service institutions. In addition, the legal nature of the related domestic service institutions in the "Fuping domestic government case" and the "38 domestic service center case" which have recently been greatly influenced And the legal relationship between the subjects concerned is analyzed in detail.
The third part discusses the civil liability of domestic service institutions. The intermediary domestic service institutions bear the obligations of the resident, which is mainly the true reporting obligation. For the true reporting obligations, the author thinks that the content of the active investigation obligation should be included, and the negligence provides false circumstances and constitutes a violation of the true reporting obligation. The legal responsibility of the actual reporting obligation mainly includes: not requesting interviewing remuneration and taking on the liability for damages. The employment type domestic service institution assumes the employer's responsibility, but because of the existence of the dual employment relationship, the employer's responsibility is special: in certain circumstances, the domestic service institution of the hired servant bears joint responsibilities with the customer. In addition, in this part, the author, taking into account the actual situation of domestic service institutions in the reality, makes a simple analysis and Discussion on the responsibility of the employers in the labor law that should be undertaken by the mercenary service institutions that form labor relations with housekeeping attendants.
The fourth part is the issue of the responsibility range of domestic service institutions. It is mainly the discussion of the disputes caused by domestic service agencies in domestic affairs service disputes, which are often caused by unreasonable huge compensation. The responsibility of the employment type domestic service organization should also be limited in the amount of compensation and the compensation for mental loss.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.6
【引证文献】
相关硕士学位论文 前1条
1 胡晓燕;我国家庭服务法律问题研究[D];沈阳师范大学;2012年
，本文编号：2169941
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