A Study on the Employer-Employee Relationship as a Prerequisite of Employer’s Liability
Date Issued
2011
Date
2011
Author(s)
Chang, Yen-Ling
Abstract
The purpose of this study is to find out how to define the “employer-employee relationship” as a prerequisite of employer’s liability provided in Article 188 of Civil Code. The approach is to search the basis of defing “employer-employee relationship” through comparative and domestic case law by considering the theoretical basis of employer’s liability as well as the relevant liability systems.
The study finds that the theoretical basis of employer’s liability is to ensure the fuction of tort liability. The main fuctions of tort are compensation and deterrence, which can function well only when the actor has sufficient ability to manage the risk (i.e., the ability to prevent harm as well as to compensate loss).However, in employer-employee relationship, the employer choose those with inferior ability than himself to engage in activities on behalf of himself. The law does not prohibit this kind of choice, but would impose a higher obligation or duty on him to ensure the function of tort. Thus, the defing of “employer-employee relationship” would lie in wheather there is an “anti-selection of actors” in the present case.
Nevertheless, it is found that the mere “anti-selection of actors” as the basis of imposing employer’s liability cannot satisfyingly resolve all the cases after the review of case law. Referring to the relative liability systems in comparative and domestic law, the study proposes that an extra “reliance protecting” fuction similar to that of apparent authority in Common Law be assigned to the employer’s liability. Moreover, the liability of employer for independent contractors provided in the proviso of Article 189 of Civil Code should be make good use of. Whenever the independent contractor engages in such dangerous activities that it is fair to think the value of economic benefit brought by division of labor should concede, stricter liabilities should be imposed on employers the effect of which similar to the non-delegable duties in Common Law through Article 189 by imposing risk-preventing duties and by means of presumption of negligence instead of applying Article 188 in order to achieve more reasonable results.
Subjects
employer-employee relationship
apparent authority
non-delegable duties
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-100-R96a21048-1.pdf
Size
23.32 KB
Format
Adobe PDF
Checksum
(MD5):02be82b244b88f4cacb2b8ef6bad6079