农村建房中提供劳务者受害责任纠纷法律问题研究

发布时间：2018-10-18 18:27

【摘要】：近几年来,随着农村经济的发展,农民的可支配收入逐年提高,农民手头宽裕后,为改善自身的居住条件,纷纷拆除了旧有砖木结构的房屋,建起了楼房,有条件的地方在自家宅基地上修建两层以上房屋的也不在少数。农村房屋面貌改善的背后是大量提供劳务者纠纷的频发,面对农村建房中提供劳务者受害责任纠纷的司法现状及问题,笔者作为一名法院工作者,针对审理该类纠纷中遇到的一些法律问题,对该类案件中所涉及的法律关系、归责原则、法律适用进行了分析,以期对司法同仁们理清裁判思路提供借鉴。提供劳务者受害责任纠纷案件主要涉及三种法律关系:建设工程合同关系、一般承揽关系和雇佣关系。涉案当事人主要包括提供劳务者、雇主和房主。笔者通过对不同学说的分析,认为应按层高区分不同区分承揽合同关系与建设工程合同关系,并就如何区分承揽关系与雇佣关系提出了几点参考因素。并区分不同情况对涉案当事人之间究竟属于何种法律关系做了简要的分析。对农村建房中提供劳务者受害责任纠纷中各方的法律关系进行梳理后,本文进一步论述了提供劳务者发生损害,由谁承担责任,对于各方当事人雇主、房主应承担何种赔偿责任的问题。对于雇主赔偿责任而言,我国法律经历了从无过错归责原则到过错归责原则的转变,根据《侵权责任法》的有关规定,分析了雇主赔偿责任的构成要件包括违法行为、损害后果、因果关系、主观过错,雇主的免责事由包括不可抗力、雇员的故意。对于房主赔偿责任而言,司法实践中主要有补偿责任、选任过失责任、连带责任三种不同的认识,本文针对不同法律规定的内容及位阶分析了其法律适用问题。提供劳务者受害责任纠纷案件中还有一类特殊的侵权情况,即第三人致提供劳务者受损害,这时出现了两个赔偿主体——雇主和侵权第三人,笔者从实体法和程序法的角度论述了将雇主与侵权第三人共同诉讼的可行性。并认为在提供劳务者对雇主和侵权人择一诉讼后未得到实际赔偿的情况下另行起诉不违反“一事不再理”原则。并进一步讨论了法院在审理过程中侵权人与雇主之间的责任分配问题。
[Abstract]:In recent years, with the development of the rural economy, the disposable income of the peasants has increased year by year. In order to improve their living conditions, the peasants have demolished the old brick structure houses and built the buildings. There are not a few places with conditions to build more than two-story houses on their homestead. Behind the improvement of rural housing is the frequent occurrence of disputes among the providers of labor services. In the face of the judicial status and problems of the disputes on the victimization responsibility of the providers of labor services in the construction of rural housing, the author is a court worker. In view of some legal problems encountered in the trial of this kind of disputes, this paper analyzes the legal relations, imputation principles and legal application involved in this kind of cases, in order to provide reference for judicial colleagues to clear up the thinking of adjudication. There are three kinds of legal relations involved in the dispute case of the victim liability of the provider of labor: the contract relation of construction project, the general contract relation and the employment relation. The parties involved mainly include labor providers, employers and homeowners. Based on the analysis of different theories, the author thinks that we should distinguish the relationship between contract of contract and contract of construction project according to the level of height, and puts forward some reference factors on how to distinguish the relationship between contract and employment. It also makes a brief analysis of what kind of legal relationship between the parties involved in the case. After combing the legal relationship between the parties in the dispute of the victimization liability of the providers of labor services in rural construction, this paper further discusses the damage caused by the providers of labor services, who shall bear the responsibility, and the employers of the parties concerned. The question of what liability the homeowner should bear. In terms of employer liability, the law of our country has experienced a change from the principle of no-fault imputation to the principle of fault imputation. According to the relevant provisions of Tort liability Law, this paper analyzes the constitutive requirements of employer's liability for compensation, including illegal acts. Causes of damage, causality, subjective fault, employer's exemption include force majeure, employee's intention. There are three kinds of different cognition in the judicial practice, such as compensation liability, fault liability, joint and several liability. This paper analyzes the application of the law according to the content and rank of different laws. There is also a special kind of tort in the dispute case of the victim liability of the provider of labor service, that is, the third person is injured to the provider of labor service. At this time, two subjects of compensation, the employer and the third person of tort, appear. The author discusses the feasibility of joint action between employer and tort third party from the angle of substantive law and procedural law. It is also considered that the principle of "non bis in idem" should not be violated if the provider of labor services chooses a suit against the employer and the infringer without actual compensation. It also discusses the distribution of liability between the infringer and the employer.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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