But I think, based on the principle that personal life is priceless, we should support these two kinds of compensation.

I have seen similar cases before. After the work-related injury, the work-related injury insurance of the social security system was lost, and the commercial personal accident insurance in Shanghai also had to be compensated.

However, it is indeed somewhat vague whether the infringer and social insurance are double insurance.

Attach relevant papers.

Work-related injuries and damages in traffic accidents

Around May 2004, the state successively promulgated and implemented three normative documents related to personal injury compensation, namely the Regulations on Work-related Injury Insurance, which came into effect on June 65, 438+0 and May 65, 438+0, and the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Injury Compensation Cases, which came into effect on May 65, 2004 and May 65, 438+0. The joint promulgation of the three normative documents is not accidental, but echoes the requirements of the new government to emphasize the people-oriented administrative concept and strengthen legislation and improve the quality of legislation. 1

Coincidentally, the author recently came into contact with a traffic accident-related work-related injury case, which is directly related to these three normative documents. The case is as follows: On April 24th, 2004, employees Han and Li of a company were appointed by the company to drive the company's vehicles on a business trip. On the way, the vehicle hit the highway guardrail and was seriously damaged. Three people were also injured to varying degrees. Among them, Li is seriously injured and may be disabled or even die. The road traffic law enforcement department determined that the traffic accident was caused by the improper operation of the driver Han, and Han assumed full responsibility for the traffic accident. The company requires relevant legal advice.

The circumstances of the case are by no means complicated, but many questions can be raised around the personal and property damage and compensation of the parties, and it seems that they are not easy to answer. These problems are mainly:

1. The personal injuries suffered by two employees did not occur in factories, offices and other commonly understood labor or workplaces, but occurred on business trips. Can it be considered a work-related injury?

2. Driver Han's improper operation, if it is a fault, is his personal injury a work-related injury? Accordingly, can the employer or statutory industrial injury insurance agency be exempted from industrial injury liability?

3. After the employer or the industrial injury insurance agency bears the liability for compensation for work-related injuries, does it still need to bear the civil liability for compensation for personal injuries of employees?

4. After employees are identified as work-related injuries, are they still liable for property losses such as company vehicles and highway guardrails?

The company was not at fault in this traffic accident. Is it necessary to bear the responsibility for property losses such as damage to highway guardrails?

6. After receiving the treatment of work-related injury insurance, if the driver Han is at fault, can he also request personal injury compensation from Han?

These problems involve the principle of no-fault liability for damages adopted in legislation such as industrial injury and traffic safety, the civil liability that employers should bear for the damages caused to employees, and the concurrence of industrial injury insurance and civil damages. In view of these legal aspects involved in the above cases, this paper tries to make some brief analysis and discussion. These legal aspects have always been controversial in practice. This paper discusses that it is not extravagant to get people's full recognition, but to expose the problems and clarify the relevant viewpoints as much as possible so that interested people can refer to them when they encounter similar problems.

Part II No-fault Liability and Compensation for Work-related Injury

First, the concept of work-related injuries

Work-related injuries, also known as occupational injuries, refer to personal injuries suffered by workers in the process of productive labor due to work, performance of duties or activities related to work and performance of duties, including injury, disability, death or occupational diseases. In short, work-related injuries are "work-related injuries". Industrial injury insurance is an important part of social insurance system in labor law. three

Two. The principle of no-fault liability for industrial injury compensation and its theoretical basis

In China's civil legislation and damage compensation theory, the principle of liability for damage compensation can be divided into fault liability, fault presumption liability, no-fault liability and fair liability principle.

1. Principle of fault liability.

Fault liability not only refers to taking fault as the constituent element of imputation, but also refers to taking fault as the final element of imputation and taking fault as an important basis for determining the scope of liability of infringers. In short, there are faults and responsibilities; No fault, no responsibility; How big the fault is, how big the responsibility is. This is the general imputation principle established in the General Principles of Civil Law.

2. The principle of presumption of fault liability.

The principle of presumption of fault is essentially the development of the principle of fault liability, which means that if the victim can prove that the damage he suffered was caused by the perpetrator, but the victim cannot prove that he is not at fault, the perpetrator is presumed to be at fault and bear civil liability. This principle exempts the victim from the burden of proof of the offender's fault and adopts the method of inversion of the burden of proof.

3. The principle of no-fault liability means that under the special provisions of the law, as long as the damage consequences have occurred, the actor without fault will bear civil liability.

4. Fair liability means that neither the offender nor the victim is at fault for the consequences of the damage. Based on the concept of fairness, the court ordered the offender to give appropriate compensation to the victim's damage, taking into account the property status of the parties. Its essence is that under the condition that neither party is at fault, both parties share the losses fairly. The principle of fair liability is mainly applicable to cases of infringement of property rights and interests, but not to cases of compensation for mental damage. four

At present, all countries in the world generally adopt the principle of no-fault liability for industrial injury insurance compensation. The so-called no-fault principle of industrial injury compensation, that is, no matter whether the responsibility of occupational injury lies with the employer, others or themselves, the victim should get the necessary compensation; This kind of compensation is unconditional, regardless of whether the individual worker is at fault or not.

The application of no-fault liability to industrial injury compensation increases the responsibility of employers, which is conducive to protecting workers with relatively weak economic and negotiation status, and embodies the concept of protecting the weak and realizing social substantive justice in labor law. This principle has a series of complete supporting theories and reasons, mainly as follows:

1. The danger of workers' working environment, that is, people are always in a relatively weak position compared with machines, and it is inevitable that workers will be hurt;

2. The danger of workers comes from employers, that is, employers may cause occupational injuries to workers by using machines to engage in production activities;

3. Injuries to laborers are involuntary, even if they are sometimes caused by their own mistakes. The laws of industrial society assume that workers will not hurt themselves. five

4. The employer's no-fault liability is conducive to protecting the rights and interests of employees. Compared with employers, employees are relatively weak in economy and bargaining power. In the case of personal injury, employees are in a more unfavorable position, and the employer bears no-fault responsibility, which can make workers get relief in time.

Employers assume no-fault liability, which apparently increases their responsibilities, but employers can distribute the losses to the public by raising the price of goods or services or by means of liability insurance. six

Three. Identification of work-related injuries under the principle of no-fault liability

China's Industrial Injury Insurance Regulations, which came into effect on June 5438+ 10/2004, does not define the concept of industrial injury, but divides industrial injuries into three types according to the principle of no-fault liability, namely, those that should be recognized as industrial injuries, those that should not be recognized as industrial injuries or those that are recognized as industrial injuries, as follows:

1. Circumstances that should be recognized as work-related injuries: (1) Those who are injured by accidents during working hours and workplaces due to work reasons; (two) before and after working hours in the workplace to engage in work-related preparatory work or finishing work was injured by an accident; (3) Accidental injuries such as violence are caused during working hours and workplaces due to the performance of work duties; (4) Suffering from occupational diseases; (five) when going out to work, he is injured or his whereabouts are unknown due to work reasons; (six) injured by a motor vehicle accident on the way to and from work; (seven) other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations. seven

2. It is regarded as a work-related injury: (1) sudden illness or death within 48 hours after being rescued; (2) Being injured in activities such as emergency rescue and disaster relief to safeguard national interests and public interests; (3) Employees who were disabled in the army because of war or work have obtained revolutionary disabled servicemen's certificates, and their old injuries have recurred after going to the employing unit. eight

3. It shall not be recognized as a work-related injury or regarded as a work-related injury: (1) Causing casualties due to crime or violation of public security management; (2) Drunkenness causes casualties; (3) Self-mutilation or suicide. nine

China's "Regulations on Work-related Injury Insurance" lists various situations that define work-related injuries, which are basically consistent with Japan, Germany and other major countries in the world. Taking Germany as an example, according to "Summary of Achievements of Sino-German Labor Legislation Cooperation Project 1993- 1996", industrial injury insurance in Germany can be divided into three categories:

1. Work-related accidents: Work-related accidents refer to accidents related to insurance activities suffered by the insured. Specifically, it can be understood as accidents that occur when employees are at work or when the company sends employees out to work, and when the company organizes collective activities such as tourism. Including (1) accidents caused by safety guarantee, transportation, maintenance, loading and unloading of equipment and instruments related to the company's work; (2) an accident caused by going to the bank once a month to get a salary (the salary has been transferred to the bank by the employer); (3) The sports meeting organized by the company has an accident (the sports meeting is not mainly about competition); (4) Accidents between the two parties and short trips organized by the company.

2. Commuting traffic accidents: Commuting traffic accidents refer to traffic accidents that occur on the direct road to and from work or on the road that must be bypassed. Including (1) commuting traffic accidents; (2) accidents on the way to and from work (excluding work); (3) Accidents that occur during detours when people hitchhike to and from work; (4) Accidents in the process of detouring (a route longer than the normal route) in order to get to the work place faster; (5) Traffic diversions caused by road construction and other reasons, as well as accidents during this period.

3. Occupational diseases. Occupational diseases recognized by industrial injury insurance must meet the following requirements: (1) The disease is caused by job factors; (2) The proportion of people engaged in this job is higher than other ordinary people; (3) The disease should be included in the list of occupational diseases of the federal government.

4. Except for industrial injury insurance; First, intentional behavior; Second, the main reason is the accident caused by drunkenness; Third, private behavior.

Obviously, China has followed the legislative model of industrial injury identification in Germany. The industrial injury matters listed in German legislation are slightly different from those listed in China's Regulations on Industrial Injury Insurance, but they are completely consistent with the legislative intent embodied in the Regulations on Industrial Injury Insurance. Therefore, referring to these differences is conducive to judging those work-related injuries that are not listed in the Regulations on Work-related Injury Insurance.

In addition, it needs to be clear that the Regulations on Work-related Injury Insurance does not include work-related injuries, including violations of public security management. The violation of public security management here refers to the act of disturbing social order, endangering public safety, infringing on citizens' personal rights and infringing on public and private property. If the circumstances are minor and not serious enough for criminal punishment, it shall be punished in accordance with the regulations on administrative penalties for public security. This kind of behavior is usually based on whether the actor has subjective "knowing" intention, because these behaviors are relatively minor, which is not enough for criminal punishment, and it is not enough for punishment if the actor is at fault.

The third part is the no-fault liability of traffic accident damage compensation.

The imputation principle of road traffic accident damage compensation has been adopted by all countries in the world. The establishment of this principle in China's road traffic safety legislation has experienced a tortuous and chaotic process, but it was finally clearly stipulated in the form of law.

I. Legislation of countries around the world

/kloc-at the end of 0/9, human beings invented the automobile and entered the automobile era, which was followed by a serious social problem of casualties caused by traffic accidents. According to the principle of fault liability in traditional civil law, victims often can't get compensation because they can't prove the wrongdoer's fault. 10 Since the beginning of the 20th century, many countries have adopted the no-fault liability for traffic accident damages through legislation or court justice.

No-fault liability for traffic accident damage was first established in written form as a principle, which is German Land Traffic Law (Highway) 1952. The law stipulates: "If a motor vehicle causes death, injury or personal health or property damage to others while driving, the owner of the motor vehicle shall be liable for damages to the victim. If the accident is caused by an inevitable event, and this inevitable accident is not caused by vehicle failure or operational error, it will not be liable for compensation. " After Germany, Japan, France, Italy and other civil law countries and the former Soviet Union also made similar provisions. 12 China established this principle in the General Principles of Civil Law in 1986.

Corresponding to civil law countries, common law countries adopt strict liability. Although strict liability and no-fault liability are not the same, they are exactly the same in this respect, that is, the liability of the infringer is not based on the fault of the infringed, but on the causal relationship between the tort and the damage consequences. 13 In short, no fault liability (or strict liability) is adopted in the legislation and theory of both civil law countries and common law countries in the liability fixation of motor vehicle traffic accident damage.

2. Theoretical basis of no-fault liability for traffic accidents

There is a consistent legal basis for major countries in the world to adopt the principle of no-fault liability to determine the liability for damages caused by traffic accidents, which mainly includes three aspects: 14.

1. Liability theory. This theory is developed from the Roman proverb "the beneficiary takes the risk". Car companies and car owners enjoy the benefits of cars, and naturally they have to bear the risks brought by car operation. The so-called "gain will lose". Let those who pursue their own interests bear their own losses at the same time, which conforms to the principle of economic rationality and the principle of fairness and reasonableness in civil law.

2. Danger responsibility thought and danger control theory. That is, the principle of "whoever can control and reduce the danger will bear the responsibility". According to this theory, motor vehicle is a kind of high-risk machine, and motor vehicle traffic accident is a special tort that is inevitable with its operation. Car companies or car owners can control and avoid this danger, so they should be responsible for the damage caused by cars. This will encourage him to drive carefully, avoid danger as much as possible and minimize injuries.

3. Risk sharing theory. This view holds that, on the surface, the implementation of no-fault liability seems to be very harsh on automobile companies and car owners, but by increasing the freight rate and taking out liability insurance, the damage they bear will eventually be passed on to the whole society, that is, the compensation they pay will actually be borne by the consumers of the whole society.

3. No-fault liability for traffic accidents in our legislation.

The establishment of no-fault liability in China's Traffic Safety Law has gone through a tortuous process: 1986 General Principles of Civil Law stipulates that the principle of no-fault liability shall be applied to those who engage in high-risk operations such as high-speed vehicles and cause damage to others; 1992 The Measures for Handling Road Traffic Accidents promulgated and implemented by the State Council adopts fault liability in handling traffic accident damage compensation; The Traffic Safety Law, which came into effect on May 1 2004, noted the difference between traffic accidents between motor vehicles and traffic accidents between motor vehicles and non-motor vehicle drivers and pedestrians, and re-implemented the no-fault liability for the latter.

(a) the provisions of the general principles of the civil law

1986 has established the principle of no-fault liability for traffic accident damage compensation in advance, although it is relatively rough. Article 123 of the General Principles of the Civil Law stipulates: "Those who engage in operations with high altitude, high pressure, inflammable, explosive, highly toxic, radioactive and high-speed means of transport that are highly dangerous to the surrounding environment and cause damage to others shall bear civil liability; If it can be proved that the damage was intentionally caused by the victim, it will not bear civil liability. " This article clearly stipulates that high-speed vehicles are dangerous operations, and the principle of no-fault liability applies to damage compensation. Although there is a theoretical dispute about whether cars belong to high-speed means of transportation, the judicial practice of all countries in the world holds a positive attitude. 15

In particular, it should be pointed out that article 123 of the General Principles of Civil Law stipulates that the cause of exemption for the injurer is limited to "the victim's intention", excluding traditional causes of exemption such as force majeure and the fault of the third party. This is quite different from the legal provisions of western developed countries. In addition to the victim's intention, Germany, France and other countries also use force majeure and the gross negligence of the third party as excuses. China's General Principles of Civil Law is more conducive to protecting the interests of victims.

The principle of no-fault liability for traffic accident damage compensation stipulated in the General Principles of Civil Law is quite advanced, but its carelessness is also obvious. As far as automobile traffic accidents are concerned, there are no different liability principles for traffic accidents between motor vehicles, between motor vehicles and non-motor vehicles, and between pedestrians. 16

(2) Provisions of the Measures for Handling Road Traffic Accidents

1992 The Measures for Handling Road Traffic Accidents (hereinafter referred to as the Measures) promulgated and implemented by the State Council is an administrative regulation that comprehensively stipulates the handling of road traffic accidents. It applies fault liability to traffic accident compensation, which directly conflicts with the general principles of civil law as the basic law.

According to Articles 17 and 35 of the Measures, the following simple reasoning can clearly highlight that the Measures are applicable to traffic accident damages:

1. Article 17 stipulates, "After finding out the cause of a road traffic accident, the public security organ shall determine the party's responsibility for the traffic accident according to the causal relationship between the party's illegal behavior and the traffic accident and the role of the illegal behavior in the traffic accident. If a party violates regulations and there is a causal relationship between the violation and the traffic accident, it shall bear the responsibility for the traffic accident. There is no violation of rules or regulations by the parties, but there is no causal relationship between violations and traffic accidents, and they are not responsible for traffic accidents. " This article can be simply stated as: no violation of regulations, no responsibility for traffic accidents.

2. Article 35 stipulates: "The person responsible for the traffic accident shall bear the corresponding liability for damages according to the responsibility of the traffic accident." In fact, this article equates traffic accident liability with civil liability for damages, that is, traffic accident liability = liability for damages. 17

3. Article 2 stipulates that an illegal act refers to an act that violates the Regulations of the People's Republic of China on Road Traffic Management and other road traffic management laws and regulations. In other words, an illegal act is an illegal act, which is based on the subjective fault of the actor.

4. To sum up the above three points, traffic accident liability is equivalent to civil liability, that is, no violation of regulations does not bear civil liability; Violation of rules and regulations is a kind of behavior with fault as its constitutive element. The conclusion is that there is no fault and no liability for civil damages-obvious fault liability.

The application of the Measures to fault liability directly violates the general principles of civil law as the basic law. Some people say that the "Measures" is a special law to deal with traffic accident compensation, and the "General Principles of Civil Law" is a common law. According to the principle that "special law is superior to common law", the Measures should be applied first. This is completely wrong. The so-called principle that special law is superior to common law means that in the same rank, when special law conflicts with common law, special law takes precedence. The premise of applying this principle is that the conflict laws are in the same rank, otherwise this principle cannot be applied. 18 The Measures is an administrative regulation formulated by the State Council, while the General Principles of the Civil Law is a basic civil law formulated by the National People's Congress, and the former should be subordinate to the latter. Regrettably, on the one hand, the general principles of civil law are too principled, on the other hand, the overall legal quality of administrative law enforcement personnel and judges is not high, which leads to more and more measures being applied in practice.

There are a series of obvious confusions or mistakes in the provisions of the "Measures" around the imputation principle of traffic accident damage compensation, which are as follows:

1. Definition of traffic accidents

Article 2 of the Measures stipulates that "the road traffic accidents mentioned in these Measures (hereinafter referred to as traffic accidents) refer to accidents in which drivers, pedestrians, passengers and other people engaged in traffic-related activities on the road cause personal injuries or property losses due to acts (hereinafter referred to as illegal acts) that violate the road traffic management regulations and rules of the People's Republic of China." The irrationality of this definition is obvious:

(1) This definition regards subjective fault as a constituent element of traffic accidents, but in fact, the occurrence of traffic accidents is not necessarily related to the subjective fault of the parties. According to the principle of ergonomics, there is a certain limit between people's attention and adaptability. Even if the parties have fulfilled all the necessary and high duty of care, it is difficult to absolutely avoid traffic accidents. 19

(2) The traffic accidents defined in the Measures only refer to negligence. This definition is obviously not GAI, because there are a large number of traffic accidents, and the perpetrators have neither intention nor negligence, including force majeure and force majeure. The former situation is obvious, and the latter situation is not noticed by people, but it exists objectively. For example, a driver who has been in good health suddenly had a very short-term angina pectoris while driving on the expressway, which led to an accident.

2. Confusion between traffic accident liability and civil compensation liability.

As mentioned above, Article 31 of the Measures stipulates that "the person responsible for traffic accidents shall bear the corresponding liability for damages according to the responsibility for traffic accidents." Traffic accident liability belongs to administrative liability, and damage compensation liability belongs to civil liability. This paper regards traffic accident liability as the basis of compensation for damages, which confuses the essential difference between administrative liability and civil liability. The former aims at punishment and management, while the latter aims at compensation and relief. The relationship between them is similar to that between oranges and apples. At the same time, letting the liability for civil damages be determined according to the liability for traffic accidents is equivalent to letting the court obey the administrative decisions of the administrative organs, which violates the independent judicial power of the people's courts stipulated in the Constitution.

As an administrative regulation, the Measures were formulated on the basis of China's previous experience in handling traffic accidents by administrative means, and followed the traditional practice of combining public law norms with private law norms and not distinguishing administrative relations from civil relations. The contents contained in the Measures belong to civil laws and regulations, such as the provisions on the scope and calculation standard of damages in Articles 36 and 37, which supplement and improve the relevant provisions of the General Principles of Civil Law. For example, it will play a positive role in the handling and judgment of traffic accident damage compensation cases by increasing the cost of appliances and death compensation for the disabled and stipulating the specific calculation standards of living allowance, death compensation and living expenses of dependents for the disabled. However, the Measures try to solve the problems of administrative punishment and civil damages in traffic accidents with the same concept, principle and benchmark, which eventually leads to conflicts with the general principles of civil law and a series of confusion or mistakes. This result is not only due to the age limit, but also related to the defects of the common "departmental legislation" in China.

(3) The provisions of the Traffic Safety Law

The Traffic Safety Law, which came into effect on May 1 2004, is a refreshing law. It eliminates all the defects of the above measures and is a pure administrative regulation. 2 1 On the other hand, it also notes the connection with the general principles of civil law, and makes a detailed distinction between the general principles of civil law on the principle of liability for damage caused by high-speed means of transport.

According to the provisions of Article 76 of the Traffic Safety Law, "if a motor vehicle accident causes personal injury or property loss, the insurance company shall compensate it within the liability limit of compulsory third-party liability insurance for motor vehicles." For partial compensation exceeding the liability limit, this article distinguishes different situations and applies different principles of liability:

1. Principle of fault liability. This principle applies to traffic accidents between motor vehicles, that is, "if a traffic accident occurs between motor vehicles, the party at fault shall bear the responsibility;" If both parties are at fault, they shall share the responsibility in proportion to their respective faults. " 22

2. The principle of no-fault liability. This principle applies to traffic accidents between motor vehicles and non-motor vehicle drivers and pedestrians, and to no-fault liability, that is, "if a traffic accident occurs between motor vehicles and non-motor vehicle drivers and pedestrians, the motor vehicle party shall bear the responsibility". 23

3. Fault cancellation principle. This principle applies to non-motor vehicle drivers and pedestrians who violate the rules or intentionally, that is, "if there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations and the motor vehicle driver has taken necessary measures, the responsibility of the motor vehicle side will be reduced", and "the motor vehicle side will not be held responsible for the loss caused by the non-motor vehicle drivers and pedestrians intentionally." 25

Although Article 76 of the Traffic Safety Law explicitly considers the different principles of liability for different traffic accidents, it seems to ignore a situation, that is, in addition to traffic accidents between motor vehicles, traffic accidents between motor vehicles and non-motor vehicles, pedestrians, and unilateral accidents of motor vehicles, resulting in property losses such as highway isolation belts. The traffic safety law does not stipulate how to pursue responsibility in this case. But this situation is not difficult to solve. As far as damages are concerned, the Traffic Safety Law is a special law and the General Principles of Civil Law is a common law. According to the legal application principle that "the special law does not stipulate the application of the common law", the liability without fault should be applied according to Article 123 of the General Principles of Civil Law.

Responding to the principle of no-fault liability established in the Traffic Safety Law, the definition of traffic accidents in the Traffic Safety Law is different from that in the Measures. The fifth item of Article 119 of the Traffic Safety Law stipulates that a traffic accident is "an event that causes personal injury or property loss due to the fault or accident of a vehicle on the road." This definition includes intentional, negligent and accidental traffic accidents. Here, the two concepts of accident and fault are juxtaposed, which obviously regards accident as a fault-free situation. This definition is concise and GAI, and it also conforms to the modern Chinese interpretation of the word "accident". Compared with the definition of "measures", it can be said that it is better or worse. 27

The fourth part is the civil liability of employers for employees' injuries.

Damage caused by employees in employment activities includes personal injury and property damage. In the former case, the law has clearly stipulated the civil liability of the employer; In the latter case, there is no explicit provision in the law.

I. Personal injury situation

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 (hereinafter referred to as the Interpretation), which came into effect on May 1 2004, clearly stipulates the civil liability of employers for personal injury to employees. According to Article 9 of the Interpretation, the employer's liability for personal injury caused by employees in employment activities can be divided into two situations: the first situation is that the employer bears the liability for compensation alone, which is applicable to employees who have no intention or gross negligence in causing damage in employment activities. In the second case, the employer and the employee are jointly and severally liable for compensation. After the employer assumes joint and several liability for compensation, it may claim compensation from the laborer. This situation applies to employees who cause damage in employment activities and have intentional or gross negligence. 28

Article 9 of the Interpretation: In both cases, the liability for compensation undertaken by the employer is no-fault liability. In addition to the above-mentioned risk sharing theory and liability theory, employers assume the liability for compensation for victims instead of employees for the following reasons:

1. agency liability theory. The employment relationship between the employer and the employee means that the employee's behavior when performing the task is carried out according to the employer's intention, which is actually equal to the employer's own behavior. Therefore, the employer should bear the consequences of the laborer's performance of the task. Countries call this kind of liability "agency liability", that is, a legal system that is liable for damages caused by other people's actions because of legal provisions or specific relationships. 29

2. The employing unit shall take the place of employees to bear the liability for compensation or joint liability for compensation, which is beneficial for the victims to get timely and adequate relief, and also beneficial for the employing unit to strengthen the management of enterprises, strengthen the education of employees and raise their awareness of risk prevention. 30

The second situation stipulated in the Interpretation, that is, after an employee causes damage due to intentional or gross negligence, the employee can recover compensation, and the employer bears joint and several liability for compensation, is for the sake of fairness, to prevent immoral employees from taking advantage of the employer's vicarious liability and acting recklessly. These provisions are in line with the view that "immoral reasons will not produce litigation rights" 3 1

Two. property loss

The General Principles of the Civil Law and other laws do not clearly stipulate the civil liability of employers for causing property damage to workers in employment activities. The author believes that there seems to be no obvious difference between the principle and theoretical basis of the employer's civil liability for compensation when employees cause property damage and personal injury. Therefore, the principle of employer's civil liability for compensation to victims should still be no-fault liability. Referring to Article 7 of the Interpretation, the employer's civil liability for the victim can also be divided into two situations: the first situation is that the worker has no intention or gross negligence. In this case, the employer shall bear all civil liabilities alone and shall not claim compensation from the laborer. In the second case, the employee has intentional or gross negligence. In this case, it may be controversial whether the employer is jointly and severally liable with the employee or on behalf of the employee.

Agency liability, also known as employer's liability or employer's tort liability, refers to the employer's liability for compensation for the damage caused by tort when his employees engage in duty behavior. The provisions of Article 31 of the original Measures for Handling Road Traffic Accidents are typical of vicarious liability. This article stipulates: "If a motor vehicle driver is responsible for a traffic accident while performing his duties, the unit to which the driver belongs or the owner of the motor vehicle shall be liable for compensation; After the driver's unit or the owner of the motor vehicle compensates for the loss, it can recover part or all of the expenses from the driver. " First-generation liability and joint liability are two easily confused concepts, but they are quite different:

1. In the case of joint and several liability, the victim may choose to claim compensation from the party who is jointly and severally liable, and the party who is jointly and severally liable may claim compensation from other joint and several debtors after paying off the debt. In the case of agency liability, the victim can only claim compensation from the employer, and the employer can recover compensation from the laborer after compensating for the loss.

2. In litigation, joint and several liability