Jiujiang: If an employee causes losses to others due to work, can the employer exercise the "right of recourse"?

Core Tip: Article 34 of the Tort Liability Law stipulates that employees of an employer shall bear tort liability if they cause damage to others due to the performance of their work tasks. However, it is not clear whether the employer can recover the compensation from the staff with gross negligence, and the Civil Code has responded to this controversial issue.

Wu Dan/Cartography

Reporter | Zhuang Detong

Editor | Xu Qiuying

Text * * * 3508 words, estimated reading needs 1 1 min _

What should the staff do if they cause injuries to others or property losses at work? The first reaction of many people is often that the employer should bear the relevant responsibilities.

Paragraph 1 of Article 34 of the Tort Liability Law of People's Republic of China (PRC) stipulates that if an employee of an employer causes damage to others due to the performance of his work tasks, the employer shall bear the tort liability.

However, there are also cases where accidents are caused by the gross negligence of staff. After the unit assumes the responsibility, can it recover from the staff? For a long time, the relevant laws have not clearly stipulated the "right of recourse" of the employer. In view of this, the forthcoming Civil Code of People's Republic of China (PRC) has clearly stipulated that the employer can claim compensation.

In addition, the relevant provisions of the Civil Code also make it clear that in the labor relations formed by individuals, if the party providing services causes damage to others because of the service, the party receiving the service should bear the tort liability, but it can also recover from the party providing the service with intentional or gross negligence.

The law stipulates that the employer shall bear the tort liability.

Li Wenquan was an employee of a property service company in Jilin, and was later sent to an aluminum company in Jilin as a cleaner. Zhao Xu is a regular employee of the aluminum company.

On April 20 18, Li Wenquan was knocked down by a Zhao Xu motor tractor from driving without a license while the company was cleaning the yard. After being crushed, Zhao Xu continued to drive for 50 meters without stopping or stepping on the brakes, causing Li Wenquan to be injured all over.

In the case of labor dispute between Li Wenquan and the property management company, the court ruled that the property management company, as an employer, compensated Li Wenquan for one-time disability allowance and other losses totaling 6,543,800 yuan. However, the property management company thought that the money should not be paid by itself, but should be borne by Zhao Xu and Aluminum Company, so it took Zhao Xu and Aluminum Company to court again.

Among the industrial injury insurance benefits paid by the property company to Li Wenquan, which items can be recovered from the aluminum company, and what is the amount of recovery? Should Zhao Xu share the responsibility with the aluminum company?

The People's Court of dongliao county, Jilin Province held through trial that according to Article 34 of the Tort Liability Law of People's Republic of China (PRC), in this case, Zhao Xu, an employee of the aluminum company, caused damage to Li Wenquan while performing work in the company's factory area, and the aluminum company should bear the tort liability, so the aluminum company should pay the property management company the medical expenses paid in advance by Li Wenquan during the treatment.

The Intermediate People's Court of Liaoyuan City, Jilin Province, the court of second instance, supported this view.

The case also caused thinking, if the employer thinks that the staff has gross negligence, can it recover from the staff?

Zhang Xining, a lawyer of the labor law team of Deheng Law Firm, told the reporter that Article 34 of the Tort Liability Law only stipulates in principle that if a staff member causes damage to others due to the performance of his duties, the employer shall bear the tort liability. However, there are no further regulations on whether and how employers can recover compensation from staff members who are at fault in performing their work tasks.

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 (referred to as the Judicial Interpretation of Personal Injury Compensation) stipulates that if a worker causes damage in employment activities, the employer shall bear the liability for compensation; Workers who cause damage to others due to intentional or gross negligence shall be jointly and severally liable for compensation with the employer. If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer. ......

"This only stipulates that in the employment relationship, the employee intentionally or grossly neglects to cause damage, and the employer bears joint and several liability, and it does not stipulate the employer's right to recover from the employee." Zhang Xining said.

The Civil Code clearly stipulates that the employer can recover the compensation.

Article 1 19 1 of the Civil Code stipulates that the staff of the employing unit shall bear tort liability if they cause damage to others because of performing their work tasks. After the employer assumes the tort liability, it may claim compensation from the staff who have intentional or gross negligence.

During the period of labor dispatch, if the dispatched personnel cause damage to others due to the execution of work tasks, the employing unit that accepts labor dispatch shall bear tort liability; If the labor dispatch unit is at fault, it shall bear corresponding responsibilities.

Zhang Xining believes that the civil code clearly stipulates that the employer shall bear the tort liability, which changes the situation that the employer can only rely on the labor contract to recover from the laborer, and the user unit really has laws to follow when safeguarding its legitimate rights and interests.

At the same time, the Civil Code also restricts the conditions for the employer to exercise the right of recourse, that is, the employer can recover from the employee only if the employee has intentional or gross negligence, but not if there is general negligence.

So, what is intentional or gross negligence?

Zhang Xining believes that this needs to be comprehensively analyzed from the specific duties of staff, the specific behavior of performing duties, relevant laws and regulations, the rules and regulations of employers, and professional ethics. For example, in the course of performing their duties, the company's security personnel intentionally use violence to cause injuries to others, and if the public security organ makes administrative detention or the court decides to investigate their criminal responsibility, it can be considered as intentional; The full-time driver of the enterprise had a traffic accident in the process of picking up and dropping off customers, and the customers were personally injured. After the traffic police department determines the responsibility, the driver of the enterprise takes full responsibility for drunk driving, and it can be determined that there is gross negligence.

In addition, for some sensitive positions, such as finance and legal affairs. If you fail to fulfill your duty of care, it will cause losses to others; Or employees in specific industries, such as banks and securities companies, fail to comply with the regulations of the industry and the rules and regulations of the employer, and fail to fulfill their due review obligations, resulting in customer losses, which is also easy to be identified as gross negligence.

In addition, compared with the changes in the second paragraph of Article 34 of the Tort Liability Law and the second paragraph of Article 1 19 1 of the Civil Code, the word "supplement" in the preceding paragraph "if the labor dispatch unit is at fault, it shall bear corresponding supplementary responsibilities" has been deleted.

In this regard, Zhang Xining said that although it is only two words, the legal meaning has undergone a qualitative change. Supplementary liability is a concept corresponding to the main liability, which means that the main responsible person bears legal liability first. If the principal responsible person is capable of taking full responsibility, the party who takes supplementary responsibility need not take legal responsibility for the victim.

The second paragraph of Article 1 19 1 of the Civil Code means that the responsibility of the labor dispatch unit is no longer limited to the supplementary scope, but needs to bear the corresponding compensation responsibility according to its own fault. This is not only conducive to protecting the interests of the victims, but also conducive to prompting the dispatching unit to fulfill its obligations according to law and prevent the occurrence of infringement.

In labor relations, the party receiving labor services can also claim compensation.

It is worth noting that compared with Article 35 of the Tort Liability Law, Article 1 192 of the Civil Code also makes it clear that in the labor relations formed between individuals, the party receiving labor services may also claim compensation from the party providing labor services or the third party.

Article 1 192 of the Civil Code stipulates that labor relations are formed between individuals, and if the party providing labor services causes damage to others, the party receiving labor services shall bear tort liability. After assuming the tort liability, the party receiving the labor service may claim compensation from the party providing the labor service with intentional or gross negligence. If the party providing labor services suffers damage due to labor services, it shall bear corresponding responsibilities according to the respective faults of both parties.

During the period of providing labor services, if the behavior of a third party causes damage to the party providing labor services, the party providing labor services has the right to request the third party to bear tort liability and the party receiving labor services to compensate. After receiving compensation, the laborer may claim compensation from a third party.

In fact, this provision also responds to the fact that the consignee claims compensation from a third party in reality.

In February, 2065438+2008, we signed a scaffolding lease agreement with, and agreed to lease 4 sets of horse scaffolding, and each set will be in 2 yuan every day. Ma was hired because of labor relations. 2065438+On the afternoon of March 5, 2008, Ma et al. were arranged to install a spray booth in a machinery factory (individual industrial and commercial households) in Xingyang. During this period, due to the fracture of the scaffold hook, the scaffold rolled over and the horse fell off the scaffold and was injured.

Subsequently, the parties caused great controversy because of who should pay compensation. On July/KOOC-0/day, 2009, Ma sued the People's Court of Xingyang City, Henan Province for a victim liability dispute with a machinery factory in Xingyang City, and the court awarded compensation to Ma for various losses of/KOOC-0/40,000 yuan. After refusing to accept the appeal, during the second trial, both parties reached an agreement through mediation and paid Ma 90,000 yuan.

Subsequently, Zhao Heng took Ma Yan, who rented scaffolding to him, to court, demanding that Ma Yan, as the lessor, bear the corresponding liability for compensation.

The People's Court of Xingyang City, Henan Province, the court of first instance, held that according to Article 1 1 of the Judicial Interpretation of Personal Injury Compensation and other relevant provisions, the employing unit should be liable for the personal injury suffered by workers in employment activities. If a third person other than the employment relationship causes personal injury to the laborer, the right holder of compensation may request the third person to bear the liability for compensation or the employer to bear the liability for compensation. After the employer assumes the liability for compensation, it may claim compensation from a third party. Therefore, in this case, after compensating the horse's losses, he has the right to recover from him.

If the breakdown of the leased property provided by Ma Yan directly leads to the accident, it shall be mainly responsible for the consequences of the damage. As the lessee and employer, they failed to fulfill their security obligations during the use of the leased property and should be responsible for the damage consequences of the horse. The court ruled that Ma Yan should bear 80% of the compensation paid by Zhao Heng.

Ma Yan refused to accept the first-instance judgment and appealed. The court of second instance of Zhengzhou Intermediate People's Court of Henan Province upheld the original judgment.

Cui Jie, a lawyer of Deheng Law Firm, said that Article 35 of the Tort Liability Law does not stipulate the tort liability of the third party in labor relations between individuals. If an employee is harmed by a third party when providing labor services, the employee can only pursue the legal responsibility of the third party according to the general tort liability clause and fault liability. If the third person escapes or is unable to pay compensation, the employee can only ask the employer to pay some compensation according to the principle of fairness. If the employer is also at fault, the employer shall also bear corresponding responsibilities according to the fault.

However, article 1 1 of the judicial interpretation of personal injury compensation, which is the basis of the judgment in this case, clearly stipulates that the right holder of compensation may require the employer to bear the "liability for compensation", while the Civil Code stipulates that the party providing labor services has the right to require the party receiving labor services to "pay compensation".

"Giving compensation means that the party receiving the labor service will no longer bear the tort liability, which actually reduces the legal liability of the employer." Cui Jie said.

Zhang Xining, on the other hand, believes that the employer should bear the "liability for compensation" for employees who suffer from infringement by a third party, which solves the dilemma that the third party cannot be found or cannot bear the tort liability, and at the same time reduces the economic burden of the employer and avoids the employer from falling into a crisis of survival due to huge compensation.

(Liu Yufang, an intern lawyer of Deheng Law Firm, also contributed to this article. The characters involved in the article are all pseudonyms)

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