First, the concept and identification of employment legal relationship
Whether the employment relationship exists or not is the basis of the employer's responsibility. Employment legal relationship refers to the legal relationship in which employees use the conditions provided by employers, under the guidance and supervision of employers, use the conditions provided by employers to provide services for employers with their own skills, and employers provide remuneration. In the employment legal relationship, the employee's main right is the right to ask for remuneration, and the main obligation is the obligation to serve the labor. The employer's main right is the right to claim for labor supply, and its main obligations are the obligation to pay remuneration and the obligation to guarantee.
The employment relationship is usually determined by the employment contract, but some parties have no such contract, but there is a de facto employment relationship. Therefore, judging whether there is an employment relationship can be judged not only from the formal elements, but also from the substantive elements. First of all, it depends on whether the rights and obligations of both parties are that one party provides labor services and the other party pays remuneration. Secondly, it depends on whether employees are controlled, directed and supervised by employers, that is, whether there is a subordinate relationship. The employer's control, command and supervision over employees is the basis of the existence of employment relationship. In the employment relationship, the employer is the person who controls the behavior of others, while the employee is only the person who is employed by the employer to complete a certain job. Employees obey the supervision and guidance of employers when completing this kind of work, and employers provide working conditions for employees. Third, employees should be selected by employers. Employees can be selected by the employer or authorized by the employer.
It should be pointed out that there is no employment relationship between independent contractors (contractors) and employers, between customizers and customers, and between customers and customers.
Second, the imputation principle that employees are injured at work and employers are liable for compensation.
The imputation principle of employer's liability for compensation when employees are injured at work is not clearly defined in Chinese laws and judicial interpretations (referring to the interpretation of personal injury compensation issued by the Supreme Court), and scholars have different opinions. In China's judicial practice, there are precedents of applying the fault principle to solve the employer's liability for compensation, such as the case of Zhang Guoli v. Zhang, published in the No.1 issue of the Supreme People's Court Gazette 1989, and the case of Liu Ming v. Eighth Engineering Company and Luo, published in the No.5 issue 1999, which were all adopted by the court. However, with the development of practice and the deepening of theoretical research, it has become a consensus that employers should bear no-fault liability for the injuries suffered by employees in employment activities. The reasons are as follows: ① Employees' completion of work creates economic benefits for employers, and employers are the beneficiaries. The employing unit has used the labor of others to expand its scope of activities and increase the possibility of obtaining benefits, so it should be responsible for the damage that occurs within the expanded scope. This is also in line with the traditional compensation theory of "where the benefits are, where the losses are". (2) Employees have the right to labor protection at work, and employers have the responsibility and obligation to pay attention to safety and labor protection in employees' professional activities. If the employing unit fails to take appropriate labor protection measures and causes personal injury to the workers, it shall bear the responsibility. (3) Employment activities are dangerous sources, and only employers can control and prevent such risks to a certain extent. It is beneficial to promote employers' awareness of labor insurance and labor protection to stipulate employers' liability without fault. (4) It is a common practice in modern countries to apply the principle of liability without fault. 1884 In July, Germany promulgated the Industrial Injury Insurance Law, which introduced the social insurance system for industrial accidents for the first time, so that the no-fault liability for industrial accidents could be implemented. France promulgated the Labor Compensation Law on April 1898, which stipulated the no-fault liability for industrial accidents. From 65438 to 0897, Britain promulgated the Labor Compensation Law, which stipulated that even if the injured employee, his companion and the third person were at fault for the accident damage, the employer was not at fault, and the employer should still be responsible for the injuries suffered by the employee during his employment. According to the Employees' Compensation Ordinance in Hong Kong, the employer's liability for compensation for work-related injuries to its employees is no-fault liability, and even if the accident is not caused by the negligence of the employer, the employer is still liable for compensation. 19 10 years later, American states promulgated labor compensation regulations one after another. These regulations usually stipulate that employers should bear the employment risk for the injury events, regardless of whether the employers or employees are at fault. The above examples show that no-fault liability has been widely recognized. ⑤ Adopting the principle of no-fault liability is conducive to protecting the interests of employees. Judging from the economic status of both employers and employees, employers are obviously superior to employees. In general, it is difficult for employees to prove that employers are at fault, and sometimes employers are at fault. At this time, if the employer does not take responsibility, it is extremely unfavorable to protect the legitimate rights and interests of employees, and it does not conform to the principle of fairness in civil law.
Accordingly, the Interpretation of Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases published by the Supreme People's Court in February 2003 clearly stipulates the responsibilities of employers to workers. Article 11 of this interpretation stipulates that "the employer shall bear the responsibility for the personal injury suffered by the employee in employment activities", which stipulates the employer's no-fault liability in the form of judicial interpretation for the first time, providing a legal basis for the employer to compensate the employee for the damage suffered in employment activities.
Three, the occurrence or expansion of employee's damage is related to negligence, whether it is applicable to negligence offset.
Negligence offset means that in the debt of damages, the victim is also at fault for the occurrence or expansion of damages, and the court can reduce or exempt the infringer's compensation liability according to certain standards according to its functions and powers, so as to distribute damages fairly and reasonably. This is a principle applicable to the field of tort debt. Whether fault offset is applicable to the special tort field with no-fault liability as the imputation principle has always been controversial in theory and practice. The Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Cases published by the Supreme People's Court in June 5438+February 2003 has completely stipulated the principle of negligence offset. Article 2 of this interpretation stipulates: "If the victim intentionally or negligently causes the occurrence or expansion of the same damage, the obligor's liability for compensation may be reduced or exempted according to the provisions of Article 13 1 of the General Principles of Civil Law. However, if the infringer causes damage to others intentionally or through gross negligence, and the victim has only general negligence, the liability of the compensation obligor shall not be reduced. When the third paragraph of Article 106 of the General Principles of the Civil Law is applied to determine the liability of the obligor, if the victim has gross negligence, the liability of the obligor may be reduced. " The interpretation stipulates that when applying the no-fault liability to determine the liability of the compensation obligor, if the victim has gross negligence, the fault offset should be applied. Although this interpretation is a judicial interpretation of personal injury compensation, its provisions on negligence compensation can be applied to all fields of damage compensation, which is also in line with the international common practice. It is of great theoretical and practical significance to determine the application of negligence offset theory to no-fault tort liability in the form of judicial interpretation. Therefore, in the employment relationship, fault offset can be applied between the employer's no-fault liability and the employee's fault liability. Different from the application of fault offset to fault liability, when fault offset is applied to no-fault liability, only the victim has gross negligence can reduce the liability of the compensation obligor, but it cannot be exempted from liability.
It is an indisputable fact in judicial practice that the objective standard of breach of obligation is adopted in the determination of negligence. Whether an employee's fault constitutes gross negligence can be determined according to the employee's objective attention ability or degree and the difference between his behavior and that of a "goodwill person". In the theory of civil law, the degree of negligence is divided into three levels: ① People who should pay attention to good managers and lack good managers (that is, people who think they have considerable knowledge, economy and sincerity according to the general concept of transactions) are abstract negligence; In this case, the actor bears the heaviest duty of care. (2), should deal with their own affairs and lack of attention, as a specific fault, also known as general fault; (3), the obvious lack of attention of ordinary people, for gross negligence. In this case, the actor pays the least attention, and with a little attention, the injury can be avoided. Actors with gross negligence do not consider the consequences of their actions, do not respect the interests of others, not only do not act according to the requirements put forward by law and morality, but also do not pay attention to what ordinary people can do. If the hired driver insists on driving under the condition that the brakes are not working properly and causes an accident, it shall be deemed as gross negligence.
Four, how to identify employees engaged in activities is employment activities?
How to determine the scope of "employed work" is the key issue to determine the employer's compensation responsibility to employees. The second paragraph of Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases defines the scope of "engaging in employment activities", that is, "it refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer". The scope of employee employment activities can be judged from the following aspects:
(1), it is within the scope of employment activities to see whether the affairs performed by employees belong to the activities authorized or instructed by the employer, that is, to perform duties within the scope authorized or instructed by the employer. If the employer's explanation is not specific enough, but the laborer's work is for the benefit of the employer, it should still belong to the scope of employment activities.
(2) From the appearance of employees performing their duties, if the behavior objectively meets the requirements of the events instructed by the employer, it should be considered as belonging to the scope of employment activities.
(3) The identification of employee's behavior beyond the authorized scope should be grasped according to the provisions of the second paragraph of Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, that is, the employee's behavior beyond the authorized scope, but its manifestation is or is intrinsically related to the performance of his duties, which should be identified as "engaging in employment activities".
Moreover, to judge whether to work for an employer or get injured in employment, we should also consider the following three aspects: first, the nature of the work that the laborer is engaged in, that is, whether the work he is engaged in is what he should do; Second, whether the employee suffers damage during the employment period is related to the employment work; Third, when the damage occurs, whether the employee's location is the place where it should appear.
Verb (abbreviation for verb) Reasons for employer exemption
Although the employer's liability for compensation to employees is no-fault liability, not all employers are liable for any damage to employees in the process of employment completion. If the employer can prove that it is exempt from liability, it may not be liable. There is no legal provision on the exemption of employers in China, but it should include the following two items; 1, force majeure. Article 107 of the General Principles of Civil Law of China stipulates: "If the contract cannot be performed due to force majeure or causes damage to others, it shall not bear civil liability." Force majeure, as a general exemption, can be exempted from the responsibility of the perpetrator on any occasion unless otherwise stipulated by law. The employer shall not be liable for any damage caused by force majeure during the completion of employment. 2. The victim intentionally. Everyone should be responsible for his intentional behavior, and the victim is no exception. Therefore, if an employee intentionally suffers damage in the process of completing employment, he should bear the responsibility, and the employer should not bear the responsibility.