提供劳务者受害责任研究

发布时间：2019-04-13 19:06

【摘要】：在现代社会,用工关系是社会生活中的重要关系。我国市场经济体制不断深入发展,带动了人民生活消费水平的提升,同时涌现出更多的个人之间的劳务活动。个人劳务活动的增多,给市场经济注入了无限的生机和活力,细化了社会分工,提升人们的生活品质,促进市场经济繁荣发展,但不可否认的是,个人劳务活动的增多也导致越来越多的提供劳务者受害事故的发生。2009年出台的《中华人民共和国侵权责任法》第35条确认了提供劳务者受害责任的归责原则为过错责任归责原则,从而修正了2004年5月1日开始实施的《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》第11条中确立的雇主责任为无过错责任归责原则。过错责任归责原则的确立,第一次明确了个人劳务关系的法律规定,为审判人员审理提供劳务者受害责任纠纷案件提供了新的思路,但同时,《侵权责任法》第35条的规定又过于原则化,在司法实践中缺乏操作性,且归责原则的差异性为法官审理案件提供了更多的自由裁量权,即因法官个人对法律理解的不一致,极易造成同案不同判的乱象发生。自《侵权责任法》颁布七年来,笔者通过对提供劳务者受害责任纠纷案件的大量审理,积累了一定的工作经验,也已总结出一定的办案规律性,但也有很多困惑,从而体验到文字上的法律法规与实际的审判工作之间的鸿沟。本文通过对提供劳务者受害责任的研究,指出了提供劳务者受害责任和用工责任的区别,分析其立法现状及提供劳务者受害责任归责原则的发展演变,再具体到《侵权责任法》第35条的适用,并通过总结办理案件的特点,分析司法实践中该类纠纷责任划分的难点与疑点,并根据自身工作实际情况,得出相关结论：提供劳务者受害责任不应再适用无过错责任归责原则,同时,也不能将《侵权责任法》第35条的规定简单理解为一般过错责任归责原则,而是应当结合公平原则认定接受劳务者的赔偿责任。同时,本文提出应完善相关的社会保障制度,比如个人工伤保险制度,以期对提供劳务者受害责任制度的完善起到一定的推进和促进作用。
[Abstract]:In modern society, employment relationship is an important relationship in social life. China's market economy system continues to develop, leading to the improvement of people's living and consumption level, at the same time, more and more individual labor activities emerge. The increase of personal labor activities has injected unlimited vitality and vitality into the market economy, refined the social division of labor, improved people's quality of life, and promoted the prosperity and development of the market economy, but it is undeniable that The increase of personal labor activities has also led to the occurrence of more and more victims of workers. Article 35 of the Law of the people's Republic of China on Tort liability of the people's Republic of China, introduced in 2009, confirms that the principle of imputation of liability for victims of service providers is as follows. Fault liability imputation principle, Thus it amends the principle that employer's liability is no-fault liability established in article 11 of the Supreme people's Court's interpretation of the applicable Law of the Supreme people's Court on hearing cases of personal injury, which came into effect on May 1, 2004. The establishment of the principle of imputation of fault liability has for the first time made clear the legal provisions of personal labor relations, which provides a new train of thought for the trial personnel to try out the cases of liability for victimization of those who provide labor services, but at the same time, The provisions of Article 35 of the Tort liability Law are too principled and lack of operability in judicial practice, and the difference of the imputation principle provides more discretion for judges to hear cases, that is, because the judges' individual understanding of the law is inconsistent. It is very easy to cause the chaos of different sentences in the same case. In the past seven years since the promulgation of the Tort liability Law, the author has accumulated certain work experience through a large number of trials of disputes concerning the liability of victims of workers who provide them, and has also summed up certain regularity of handling cases, but there are also many puzzles. Thus experiencing the gap between the written laws and regulations and the actual trial work. In this paper, the author points out the difference between the victimization responsibility and the employment responsibility of the labourers, and analyzes the current legislative situation and the development and evolution of the principle of liability imputation to the workers who provide the workers' victimization responsibility, through the study of the victimization responsibility of the workers provided by the service providers. Then to the application of Article 35 of Tort liability Law, and through summarizing the characteristics of handling cases, this paper analyzes the difficulties and doubts in the division of liability for this kind of disputes in judicial practice, and according to the actual situation of its own work, It is concluded that the principle of no-fault liability imputation should no longer be applied to the injured liability of service providers, and the provisions of Article 35 of Tort liability Law should not be simply understood as the general fault liability imputation principle. It should combine with the principle of fairness to determine the liability of those who accept labor. At the same time, this paper proposes that the relevant social security system, such as the personal injury insurance system, should be perfected in order to promote and promote the improvement of the liability system for providing workers with injury.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923

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