论雇员职务侵权的责任承担

On the Liability Assumption Rules for Tort by Employees

雇员职务侵权行为责任制度是现代侵权法中不可或缺的组成部分。各国侵权法均要求雇主承担雇员职务侵权之法律后果,在其学理解释上,采取无过错责任归责原则要比过错责任原则更符合雇佣关系从属性的特点以及雇佣双方的利益和风险分配状况。除了雇主的责任外,具有故意或重大过失的雇员还应当向受害人直接承担连带赔偿责任,并应允许雇主向雇员行使追偿权。考虑到雇员职务行为的从属性及其经济状况的弱势地位,对雇员的责任应进行必要的限制,以实现劳动者保护的目的。

The liability assumption rules for employee＇s tort are indispensable components of the contemporary tort law. Where a tort is caused by an employee of an employer in the execution of his work duty, the tort liability can be imposed on the employer according to the tort laws in all countries in the world. Because of the subordinate relationship and the status in the risk sharing and benefit allocation between the employee and the employer, the employer’s liability ought to be built on the basis of the principle of liability without fault rather than the principle of liability for fault. In addition, in order to offer more and better protection to the victims of the tort and avoid the employees unjust burden, the employee, as the cul-pable tortfeasor, should directly assume joint liability with the employer or can be recovered by the employer. Nevertheless, in consideration of the subordination and the vulnerable pecuniary condition of the employee, the liability charged with the employee should be restricted in a certain range so as to meet the need of protection of worker.