适用雇主责任的法律效果分析

The Legal Effect of Vicarious Liability

雇主对受害人承担雇主责任,并不意味着雇员免责,否则受害人将承担雇主无资力的风险,对受害人保护不周。雇员与雇主承担连带责任,才能周延地保护受害人利益。确定二者内部责任分担时,应首先结合雇员对雇主指示、操作规范的违反情况分析雇员过错程度,确定雇主可否追偿,雇员轻过失视为雇主组织瑕疵的衍生物,由雇主全部承担。雇员有重过失或故意时,再依雇主过错程度,适用过失相抵规则,确定追偿份额。

Employer has to bear the vicarious liability for the victim, but it does not mean that employee need not undertake the Lability for the victim, otherwise the victim will bear the risk of being uncompensated, which is unfair to victim. The employer and employee undertake joint liability, and then the interest of victim can be protected comprehensively. When determining the internal responsibility, we should consider employee＇ s violation of their employer＇ s instructions and of the code of practice so as to analyze the employee＇ s degree of fault and determine whether the employer has the right of recourse. The hght negligence by the employee may only be a by-product of the organization. In that case, employees should be released from the Lability of any compensation and the employer assumes all Lability. When the employees are guilty of gross or deliberate neghgence, the rule of contributory negligence is applied to determine the share of recourse according to the fault of the employer.