雇员致第三人损害的雇主责任研究

发布时间：2018-12-10 19:55

【摘要】：随着经济的发展以及人们生活消费水平的日益提高,雇佣关系屡见不鲜,而由此引发的雇主责任纠纷随之而来。在理论上,我国对于雇员致第三人损害的雇主责任的研究主要是归责原则的研究,包括过错推定责任与无过错责任,虽然各执己见,但大多数学者支持采用无过错责任归责原则。在立法上,对于规范雇佣关系的法律很长一段时间处于空缺状态,直到《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》的出台,雇佣关系这一概念才出现在我国法律条文中,但该法第9条规定与后来颁布的《侵权责任法》第34、35条的规定,概念和具体内容均发生了变化,导致实践中对于二者的效力关系以及如何适用存在很大争议。由于雇佣合同没有纳入《合同法》,造成没有雇佣合同的相关规则作为裁判的依据,裁判结果主观随意性大导致当事人纷纷上诉,浪费了司法资源。概括来说雇员致第三人损害的雇主责任主要存在雇佣关系无明确的判定标准、从事雇佣活动的范围不明确、没有规定雇主追偿权三个主要问题。针对存在的问题,本文立足于我国的立法现状同时借鉴其他国家关于雇主责任的相关立法,在对雇主责任归责原则等理论基础进行研究后,为雇佣关系立法提出可行性的建议,希望能以民法典编纂为契机,完善雇主责任制度。首先,我国有必要将雇佣合同有名化,这一立法构想既有意思自治与民事行为理论做为理论基础,也有大量雇佣关系亟待法律规范的现实基础。在立法模式的选择上,我国可以借鉴德国关于雇佣合同规则的立法模式,在《合同法》中规定雇佣合同的一般规则,将劳动合同作为特殊规则加以规定。其次,在归责原则的选择上,我国今后关于雇主责任的立法应当采用无过错责任原则,不仅可以强化对受害人的保护,也符合我国社会层面与经济层面的基本国情。第三,对于雇佣关系的判定标准可以先采用雇佣合同标准进行判断,如无法判定进而采用控制监督标准。雇佣关系与劳动关系最根本区别在于劳动关系具有更强的人身从属性,但并不是所有的雇佣关系都不具有从属性,二者还需要从主体、报酬给付、价值追求与规范内容等方面进行区分。雇佣关系与承揽关系最根本区别在于给付内容一个为劳务另一个为劳动成果,此外在控制关系与报酬给付标准方面有所区别。第四,在认定雇佣关系这一前提下,对于从事雇佣活动的范围确定,可以以雇主意思为出发点,结合客观说与内在联系说综合把握。最后,在雇主承担无过错责任之后,赋予雇主追偿权,根据雇员对第三人侵权行为的过错程度确定追偿数额。同时发展雇主责任保险制度,分散雇主的责任风险。
[Abstract]:With the development of economy and the improvement of people's living and consumption level, the employment relationship is common, and the dispute of employer's liability is followed. In theory, the study of employer liability for damages caused by employees to the third party is mainly about the principle of liability imputation, including presumption of fault liability and liability without fault, although they hold their own opinions. However, most scholars support the principle of liability imputation without fault. In legislation, the law regulating employment relations has been vacant for a long time until the Supreme people's Court on the trial of personal injury compensation cases applicable to a number of issues of the interpretation of the law, The concept of employment relationship has just appeared in the legal provisions of our country, but the provisions of Article 9 of the Law and the provisions of Article 34- 35 of the Tort liability Law have changed the concept and the concrete contents. In practice, there is a great controversy about the relationship between the effectiveness of the two and how to apply them. Because the employment contract is not included in the contract Law, the relevant rules without the employment contract are taken as the basis of the judgment. The subjective arbitrariness of the judgment result leads the parties to appeal one after another and waste the judicial resources. Generally speaking, there are three main problems in the employer's liability for the damage caused by the employee to the third party: there are no clear criteria for determining the employment relationship, the scope of engaging in employment activities is not clear, and the employer's right of recourse is not stipulated. In view of the existing problems, this paper bases on the current legislative situation of our country and draws lessons from the relevant legislation of other countries on employer liability. After studying the theoretical basis of the principle of liability imputation of employers, this paper puts forward some feasible suggestions for the legislation of employment relations. It is hoped that the system of employer's liability can be perfected at the turning point of compiling the Civil Code. First of all, it is necessary to make the employment contract famous in our country. This legislative conception is based on the theory of autonomy of will and civil behavior, as well as the realistic basis of a large number of employment relations that need to be regulated by law. With regard to the choice of legislative model, our country can draw lessons from the German legislative model on employment contract rules, stipulate the general rules of employment contract in contract Law, and stipulate the labor contract as a special rule. Secondly, in the choice of imputation principle, the principle of no-fault liability should be adopted in the legislation of employer liability in our country in the future, which can not only strengthen the protection of the victim, but also accord with the basic national conditions of the social and economic level of our country. Thirdly, the standard of employment relationship can be judged by the standard of employment contract, such as the standard of control supervision. The most fundamental difference between employment and labor relations is that labor relations have stronger personal attributes, but not all employment relations do not have subordinate attributes, they also need to be paid from the subject, remuneration, Value pursuit and normative content and other aspects of the distinction. The most fundamental difference between the employment relationship and the contract relationship lies in the fact that the content of payment is one of labor service and the other is the result of labor, in addition, there are differences between the control relationship and the standard of payment of remuneration. Fourthly, under the premise of determining the employment relationship, we can take the employer's intention as the starting point and combine the objective theory with the internal relation theory to comprehensively grasp the scope of engaging in employment activities. Finally, after the employer bears the no-fault liability, the employer is given the right of recourse, and the amount of recovery is determined according to the degree of fault of the employee to the third party. At the same time, the development of employer liability insurance system to spread the employer's liability risk.
【学位授予单位】：延边大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923;D923.6

【相似文献】