论雇主的侵权责任

针对《民法通则》对雇主特殊侵权责任的缺失,笔者提出宜在《民法典》起草时关注此问题。为完善立法,文章先对雇主与雇员可能形成的几种损害赔偿关系进行细分,并对通则只将其中一种列为特殊侵权范围提出质疑。指出雇主转承责任的归责原则有从代理责任向代表责任转变的趋势,过错推定将取代严格的过错责任,而公平责任原则不适用于雇主特殊侵权责任。

Study Of The Employer''s Tort Liabilities

Due to the vacancy of special tort liabilities of employers in Chinese civil legislation, it is necessary to be paid attention to this part for the drafters of Civil Code. In order to be helpful for the current legislation on this issue , the author first categorize those tort liabilities of employer according to different possibilities of the tort between employers and employees,there is doubt of the idea of judging only one of them. Then, after scrutinizing some abroad legal practice,the author indicates the theoretical intendancy, which explains the foundation of the doctrine should be deputy liabilities instead of agent liabilities, the presumptive tort instead of the tort liability as well,and the equitable liability doctrine cannot be applied in this special tort. Meanwhile, in order to prevent the employees from abusing of power,the author studies possible counterarguments against relieves under special employer' s tort liabilities.