摘要
我国学界的多数观点认为雇主责任是无过错的替代责任,而我国"人身损害赔偿司法解释"第9条不以雇员的侵权责任为雇主责任的要件,并规定轻过失的雇员可以免责,与替代责任说的原理相矛盾,因而遭到学界的批判。于此相对,我国司法实务界多认为雇主责任是过错责任,学界与实务界在问题意识和基本立场上存在着明显差异。结合对德国、日本和英国的比较法研究,笔者发现,纯粹无过失的雇主责任是不存在的,替代责任并非世界法律发展的潮流。雇主责任的本质是组织过失责任,其根源在于雇主在企业组织上的瑕疵,因此雇主责任的成立无须以雇员的侵权责任为要件,倘以之为要件反而会招致诸多弊端。雇员的轻过失只是雇主组织瑕疵的衍生物,为雇主的经营行为所吸收,雇员可以从赔偿责任中解放出来。"人身损害赔偿司法解释"第9条体现的正是劳动者解放的法理。
The prevailing view of Chinese civil law scholars regards employer＇s liability as vicari- ous liability without fault. However, Article 9 of the Judicial Interpretation for Liability of Per- sonal Injuries provides that the employer should be strictly liable for compensating the loss of the injured whilst the employee, who caused the injury in mere light negligence, should be privileged from not only the indemnity to the employer but also the claim from the injured party. It is in practice usually so construed that the liability of tort by the side of the employee is not a necessary condition for the liability of the employer. In short, the employer may be liable although the em- ployee is riot, which is obviously incompatible with the fundamental idea of vicarious liability and severely criticized by the advocators of the vicarious liability theory. The paper finds that the vicarious liability theory is no longer the development trend of em- ployer＇s liability and as a matter of fact there exists no pure liability without fault. Even in Eng- land and Japan, where employer＇s liability was traditionally considered as vicarious liability, the courts after taking the duty of the employer into consideration nevertheless tend to exempt the employer from liability only on the ground that the employee was not in execution of his employ- er^s business. The employer＇s liability is essentially the liability for organizational negligence and derives from the defect of the organization of enterprise. So the employee＇s liability of tort is not required as a necessary condition for the liability of the employer, otherwise would lead to harmful effects. The light negligence of the employee may only be a by--product of the defect of organiza- tion and therefore can be dissolved into the management activities of the employer. Generally speaking, employees in light negligence should be released from the liability of any compensation. In conclusion, Article 9 of the Judicial Interpretation for Liability of Personal Injuries is the one which develops on the basis of the theory of liberation of employee.
出处
《法学研究》
CSSCI
北大核心
2012年第3期105-125,共21页
Chinese Journal of Law
关键词
雇主责任
替代责任
组织过失责任
求偿权的限制
劳动者解放
employer＇ s liability, vicarious liability, liability of organizational negligence, limita- tion of indemnity, liberation of employee
