海上人身伤亡中的雇主责任研究

发布时间：2018-02-08 22:27

本文关键词： 雇主责任无过错责任雇佣关系与民事责任关系　出处：《大连海事大学》2011年硕士论文　论文类型：学位论文

【摘要】：雇主责任制度是民法中以雇佣关系为基础的一项基本制度,《海商法》中关于雇主责任的规定主要集中于运输领域,法律尚未对人身伤亡领域的雇主责任作出规定,海上人身伤亡中的雇主责任制度应当作为海商法的一项基本制度加以研究。笔者试以民法中的相关理论为基础,结合海商法的特殊性,对海上人身伤亡中的雇主责任进行较为系统的分析,进而提出在海上人身伤亡损害赔偿中确立雇主责任制度的建议。本文从基础理论、归责原则、构成要件、与民事责任关系等四方面对海上人身伤亡中的雇主责任进行论述。第1章阐述了海上人身伤亡的概念、雇主责任的概念,明确了本文雇主责任的含义比较宽泛,包含了雇主对雇员工伤损害赔偿责任和雇员致第三人损害的赔偿责任。第2章阐述了归责原则的一般理论,针对海上人身伤亡的特殊情况确认了雇主承担无过错责任的原则。第3章分别论述了雇佣关系的存在,人身伤亡事故发生在雇员从事雇佣活动中,雇员致第三人伤亡的行为构成侵权三个雇主责任的构成要件。主要针对海上作业的特殊情况,分析船员在海上作业中雇主的判断,包括船员外派机构存在情况下雇主的判断,不同船舶租用形式中船员雇主的判断,挂靠情形中船员雇主的判断等问题。第4章讨论了雇主责任与民事赔偿责任的关系,分别从雇员人身伤亡的不同原因讨论具体情况中雇主责任与民事赔偿责任的关系。第5章对全文整体研究,提出拟在海上人身伤亡损害赔偿中确立雇主责任制度的结论,提出界定雇主范围,明确船员的雇主,明确工伤保险赔偿和民事损害赔偿的关系等立法建议和构想。
[Abstract]:The employer liability system is a basic system based on the employment relationship in the civil law. The provisions on the employer's liability in the Maritime Law are mainly concentrated in the field of transportation, and the law has not stipulated the employer's liability in the field of personal injury and death. The employer liability system in maritime personal injury and death should be studied as a basic system of maritime law. The author tries to combine the particularity of maritime law with the relevant theories in civil law. This paper makes a systematic analysis of the employer's liability in the maritime personal injury and death, and then puts forward the suggestion of establishing the employer's liability system in the maritime personal injury and injury compensation. This paper discusses the employer's liability in maritime personal injury and death from four aspects: basic theory, principle of liability imputation, constitutive elements, and relation with civil liability. The first chapter expounds the concept of personal injury and death at sea and the concept of employer's liability. It clarifies the broad meaning of employer's liability in this paper, which includes the employer's liability for compensation for injury caused by employees and the liability for damages caused by employees to third parties. In chapter 2, the general theory of liability principle is expounded, and the principle of no fault liability is confirmed according to the special circumstances of personal injury at sea. The third chapter discusses the existence of employment relationship, the personal injury and death accident occurred in the employee engaged in employment activities, the employee caused the third party injury and death behavior constitutes the constitutive elements of the tort three employers liability, mainly aimed at the special situation of offshore operation. This paper analyzes the judgment of the employer in the operation of the crew at sea, including the judgment of the employer in the presence of the crew assignment organization, the judgment of the employer of the crew in different forms of chartering the ship, the judgment of the employer of the crew in the case of affiliation, and so on. Chapter 4 discusses the relationship between employer's liability and civil liability, and discusses the relationship between employer's liability and civil liability from different reasons of employee's personal injury and death. In chapter 5, the author puts forward the conclusion that the employer liability system should be established in the compensation for personal injury and death at sea, and the scope of the employer should be defined and the employer of the crew should be defined. To clarify the relationship between industrial injury insurance compensation and civil damages and other legislative proposals and ideas.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.294;D923

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