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雇主责任制度在各民事国立法中均已确立,然我国民法通则对其未作规定,理论界对预期相关的诸多法律问题众说纷纭,审判实践中也难以操作。最高人民法院《关于审理人身损害赔偿案件适用法律若干问题的解释》第九条首次从实体法角度规定了雇主责任制度并采用了无过错责任原则。但笔者认为无过错归责原则对雇主责任的适用还有待商榷,并认为采过错推定原则可以更好地平衡雇主与受害人的利益。
The system of employer responsibility has been established in the civil law of all civil countries. However, the general rules of civil law in our country make no provisions on it. The theoretical circles have different opinions on many legal issues that are expected to be relevant and are difficult to handle in trial practice. Article 9 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Compensation Cases for Personal Injury Compensation stipulates for the first time in the substantive law the employer responsibility system and adopts the principle of no-fault liability. However, the author believes that the principle of no-fault attribution should be open to the employer’s liability and considers that adopting the wrong-presumption principle can better balance the interests of employers and victims.