中国法中提供劳务者受害责任漏洞与未来民法典应对

Abstract

China’s legal theory distinguishes between the labor relation and the employment relation. The legislation only confirms the labor relation and individuals’ employment relations.In China's judicial practice, it is recognized that the employment relation can be formed between individuals and units. Article 11 (1) of the interpretation of the Supreme People's Court on liability for personal injury compensation adopts the no-fault imputation principle for the employers. The tort liability law article 35 adopts the fault imputation principle for the individual employer, both in the imputation principle is different, the former should not continue to apply due to conflict with the latter, the employer liability between individuals and units exists legal loophole, can only through the analogy for the tort liability law article 35 to solve. The draft of Chinese civil code solves this conflict on the legislative level, but it still avoids the preset problem of whether the employment relation between individuals and units can be established. In the long run, the employment relation between individuals and units should be denied in the civil code, victimization liability of labor providers between individuals and units should be included in the labor law, and the labor law should unify and adjust the subordinate labor relations, and try to establish a normative system of quasi-subordinate labor relations in the labor law. In the civil law, it is necessary to refine the service contracts and retain the autonomous services to maintain the purity of the civil law.