Can An Employee Be Infringed Upon By Third Party And Require His Employer To Assume Full Responsibility?

　　 [case]

In February 2013, the Honghe company hired Xie to sweep the pavement of its construction site. In May of the same year, Qi car hit a Xie man who was sweeping the road, causing him nine disability. According to the traffic police department, the company has a responsibility of 70%, and Honghe company has 30% responsibility. Xie knew that he could not afford the high compensation fee, so he sued Honghe company and asked him to bear all liability for compensation.

The first opinion is that the corresponding liability should be strictly borne according to the size of the fault. Xie's request for Honghe company to assume all responsibilities should not be supported.

The second opinion is that the responsibility of Honghe company's 30% is fault liability. Besides the fault liability, there is still unreal joint liability between Qi and the company. Xie has the right to ask Honghe company to bear all the liability for compensation. After that, Honghe company can recover it from Qi.

　　 [comment]

The author agrees with second opinions.

According to the traffic police department, Qi and Honghe company are responsible for the result of their disability. Responsibility commitment The ratio is different. The eleventh interpretation of the Supreme People's Court on the application of law in the cases of personal injury compensation, December 2003, stipulates: "employees suffer from employment activities. Personal injury The employer shall be liable for compensation. The third person outside the employment relationship causes personal injury to employees. Right of indemnity The beneficial person may request the third party to undertake the liability for compensation, or the employer shall be liable for compensation. After undertaking the liability of compensation, the employer can recover the claim from the third party. " According to this provision, xemou can prosecute Qi Mou alone, and can also sue Honghe company separately. And "the employer can undertake the compensation to the third party after assuming the liability for compensation", which shows the unreal joint and several liability between the third person and the employer. The fundamental role of unreal joint liability is to equitable relief to creditors. Its main characteristics are as follows: 1. when employees perform their duties, they are injured by the infringement of third persons other than the employment relationship, and the subjects of compensation can be third or employers. 2., no fault liability is applicable to employers. 3. if the employer exceeds the share of liability for compensation, the excess part may recover from the ultimate responsible person.

In the above second characteristics, the employer has a statutory obligation to ensure the safety of the employee's duties. As long as the employee is personally injured in the process of performing his duties, the employer must bear the liability for unconditionally. If the employer is negligence in the personal injury of the employee, his liability is generally liable for compensation. This general liability does not prevent the employee from continuing to ask the employer to bear the unreal joint liability for the third party's compensation share. Of course, if the employee himself is also at fault, the corresponding fault liability should be borne by the employee himself.

To sum up, once an employee suffers personal injury caused by third party infringement, he can sue for the full responsibility of the employer.