雇主责任构成要件之研究

Study in the Essential Factors of Responsibility for Employer

雇主责任为各国民法普遍承认,但我国《侵权责任法》中的规定还不够完善。雇主责任应包括过错与无过错责任,雇主责任的承担应以雇员的职务行为应当承担侵权责任为前提,要以直接侵权行为人与责任承担人之间存在劳动关系为前提。要求造成他人损害的行为是雇员从事雇佣活动的行为或者说是雇员的职务行为,这种职务行为有判断的标准,根据判断来制定雇主的职责。

The responsibility of employer has been accepted universally by many countries in civic laws, but China is not yet satisfactory for the definition of such a responsibility in ＂Law of Responsibility on Rights Violation＂. The responsibility of employer ought to include erroneous responsibility and unmistaken one. Covering the responsibility of employer should have the following fact as its premise： employee＇s professional act must cover the duty of rights violation, it also should take the labor relation between the act agent of direct fights violation and responsibility coverers. The act of endangering others ought to be defined as the act of employment by an employee or in other words, as the act of employee＇s profession. Such a professional act has its criterion of judgment, and can help judge emnlover＇s responsihility.