追偿权的行使--从雇主责任的角度分析

摘要

Nowadays employees’ torts are widespread, employer responsibility system is set to solve the problem. However, regulation on the part is not thorough for that there is no relative rule on the employer's right of recovery to the employee. By studying the condition under which the right could function the legal loophole could be solved. Judicial interpretations on compensation for person damage has regulated the employer's right of recovery to the employee, but there should have been more specific regulations being legal basis of juridical practice, thus we should legalize the employer's right of recovery to the employee. After employers undertaking the responsible of their employees’ tort, they, under some circumstances, should have rights to seek all or part of compensation from the employees. How to divide liability share between employer and employees is important. One common theory is that three parts, including employers’ actual loss in employees’ torts, respective financial situation, respective fault, should all be considered to lead to the answer. Setting rational regulations could balance profits of employee and employer, then make good affections on the harmonies between the two sides and social stability.%当前，雇员侵权行为广泛存在，法律对其的规制体现在雇主责任制度上，雇主的追偿权只在《人身损害赔偿解释》中做了相关规定。基于司法实践的操作，应当推行雇主追偿权的法定化，雇主在承担了雇员致他人损害的赔偿责任后，在符合一定条件的情况下，得以向雇员进行全额或部分份额的追偿。因此，划分雇主和雇员之间的责任份额是重点，通说认为应当综合考虑雇主因侵权行为所受的实际损失、双方的收益和经济状况、双方的过错程度等三个方面的因素。对雇主追偿权的合理规定，可以平衡雇主和雇员双方的利益，从而有利于双方之间的和谐及社会的稳定。