论雇主追偿权

发布时间：2019-02-21 09:38

【摘要】：所谓雇主追偿权,是指在雇佣关系中,雇员因从事职务行为而致使他人受到损害,雇主向他人承担赔偿责任后,对有过错的雇员所享有追偿的权利。雇主只有替代雇员承担责任后即雇主履行雇主责任之后才可以向雇员行使追偿权。雇主责任,又称“用人者责任”、“辅助人责任”、“使用人责任”等,雇主责任有广义和和狭义之分。狭义雇主责任是指雇员在执行职务的过程中致使第三人的权益受到侵害,雇主替代雇员向第三人承担的赔偿责任。广义的雇主责任除狭义的雇主责任外,还包括雇员在执行职务的过程中自身受到损害时,雇主为雇员的损害承担的责任。本文所讨论的雇主追偿权是指在狭义的雇主责任下,雇主对雇员享有追偿的权利。出于保护受害人的合法权益和照顾弱势一方雇员的利益,法律上设置了雇主责任制度。2003年我国最高人民法院颁布的《关于审理人身损害赔偿案件适用法律若干问题的解释》(以下简称《人身损害赔偿司法解释》)和2010年颁布实施的《侵权责任法》都有关于雇主责任的规定。但是,这两个法律文件关于雇主追偿权相关规定确不一致。《人身损害赔偿司法解释》第9条明确指出雇员执行职务行为致人损害,主观上存在故意或重大过失的应与雇主承担连带责任,雇主向受害人进行赔偿之后可以向雇员进行追偿。2010年颁布实施的效力更高的《侵权责任法》第34条和第35条根据用人主体不同分别规定了“用人单位”主体和“个人用人”主体的雇主责任,但是对于雇主的追偿权根本没有提及。立法上的不确定使得我国是否承认雇主追偿权以及如何行使有不同理解,当事人对法律的适用产生争议。关于雇主能够行使追偿权以及如何行使追偿权,法院在实践中没有统一的适用标准,主要依靠法官的自由裁量,由于每个法官不同的背景和价值观,很容易出现同案不同判的现象。现在社会雇佣关系广泛存在,在我国,有关职务侵权、劳务派遣、有偿帮工、义务帮工、家庭保姆、小时工等侵权时有发生,对雇佣双方责任进行合理分配十分有必要。因此,雇主追偿权问题值得关注。本文通过对雇主追偿权我国立法现状和国外相关制度进行比较分析,肯定了雇主在一定条件可以对雇员行使追偿权。并通过对雇主追偿权存在的基础进行论证,分析其存在的正当性。从比较法来看,各国在承认雇主追偿权的基础上对雇主行使追偿权的条件和范围都进行了严格限制。本文将通过结合具体案例,对雇主行使追偿权需要的前提条件和追偿范围进行分析论证,以期对雇主行使追偿权进行限制和规范。对雇主追偿权问题的探讨和研究,可以弥补立法缺陷,对司法实践有一定的指导意义。完善的雇主追偿制度有利于保护受害人的权益,规范雇员的行为,平衡雇主和雇员之间的权利义务。
[Abstract]:The so-called employer's right of recourse refers to the employee's right to recover compensation to the employee who is at fault after he undertakes the compensation liability to others because of the injury caused by the employee's position in the employment relationship. The employer may exercise the right of recovery from the employee only after he has assumed the responsibility of replacing the employee, that is, after the employer has fulfilled the employer's responsibility. Employer liability, also called "employer responsibility", "subsidiary responsibility", "user responsibility", etc., is divided into broad sense and narrow sense. The narrow sense of employer's liability refers to the third party's rights and interests being infringed upon by the employee in the process of performing his duties, and the employer replacing the employee's liability for compensation to the third party. The broad sense of employer's liability, apart from the narrow sense of employer's liability, also includes the employer's liability for the employee's damage when the employee suffers damage in the course of performing his duties. The employer's right of recourse in this paper refers to the right of the employer to recover the employee under the narrow sense of employer's responsibility. In order to protect the legitimate rights and interests of the victim and to take care of the interests of the employee of the vulnerable party, In 2003, the Supreme people's Court of our country promulgated the interpretation of some issues concerning the applicable Law in handling cases of personal injury compensation (hereinafter referred to as "Judicial interpretation of personal injury compensation") and The Tort liability Act, enacted in 2010, contains provisions on employer liability. However, the provisions of these two legal documents concerning the employer's right of recourse are not consistent. Article 9 of the Judicial interpretation of personal injury compensation clearly states that an employee's act in the performance of his duties causes harm to a person. If there is intentional or gross negligence subjectively, the employer shall be jointly and severally liable, An employer may recover compensation from an employee after compensation to the victim. Articles 34 and 35 of the more effective Tort liability Act enacted and implemented in 2010 provide for the "employer" subject and the employer subject, respectively, according to the employer's main body. The employer's responsibility of the main body of "personal employment", But there is no mention of the employer's right of recourse. Due to the uncertainty of legislation, there are different understandings on whether the employer's right of recourse is recognized and how to exercise it, and the parties dispute the application of the law. With regard to the ability of the employer to exercise the right of recourse and how to exercise the right of recourse, the courts have no uniform standards of application in practice and rely mainly on the discretion of the judge, owing to the different backgrounds and values of each judge, It is easy to see different sentences in the same case. Nowadays, the social employment relations exist widely in our country. In our country, the infringement of duty infringement, labor dispatch, paid help, volunteer help, family nanny, hourly worker and so on occur from time to time, so it is necessary to reasonably distribute the responsibilities of both sides of employment. Therefore, the issue of the employer's right of recourse is worthy of attention. Based on the comparative analysis of the current legislation situation of the employer's right of recourse in our country and the relevant systems abroad, this paper confirms that the employer can exercise the right of recovery against the employee under certain conditions. The legitimacy of the existence of the employer's right of recovery is analyzed through the demonstration of the basis of the existence of the employer's right of recourse. From the perspective of comparative law, on the basis of the recognition of the employer's right of recourse, countries have strictly restricted the conditions and scope of the employer's exercise of the right of recourse. In this paper, the author analyzes and demonstrates the prerequisite and scope of the employer's right of recourse by combining with a specific case, in order to restrict and standardize the exercise of the right of recovery by the employer. The discussion and research on the employer's right of recourse can make up for the defects of legislation and have certain guiding significance to the judicial practice. The perfect employer recovery system is helpful to protect the rights and interests of the victim, regulate the employee's behavior and balance the rights and obligations between the employer and the employee.
【学位授予单位】：清华大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

【相似文献】