英文摘要 |
Article 188 of the Civil Code provides, 'the employer shall be jointly liable to make compensation for any injury which the employee has wrongfully caused to the rights of another in the performance of his duties.' The question is when the aforementioned joint-obligation is barred prescription, can the employer propose the extinctive prescription defense on the extent of the amount of his share under article 278 paragraph 2 of the Civil Code or not? For the premise of such proposition is based on the legal fact that between the joint-debtors there exists an inherently obligation sharing relation. This article analysis the very nature of such joint-obligation, which is a constructive fault. The reasoning of why the employer should be liable is for he did not exercise reasonable care in the selection of the employee or failed to perform proper supervision of the performance of such duties, which result in any injury has the employee wrongfully caused to the rights of another in the performance of his duties. With this context, we can say the postscript of the first paragraph of article 188 of the Civil Code permits the employer to free himself from the liability by overthrowing constructive fault. Therefore, this kind of joint-obligation shall be borne pro rata by both employer and employee. This leads to the conclusion that if joint-obligation is barred prescription, the employee should be able to propose the extinctive prescription defense on the extent of the amount of his share under article 278 paragraph 2 of the Civil Code.But if the employee discharged the whole debts without proposing the extinctive prescription defense and claimed for reimbursement against his employee. This claim should be considered as a new one, thus the prescription counting must be reset, and the employee will not be able to propose the extinctive prescription defense against his employer because of it. Therefore, in order to protect his right, the employee shall inform his employer regarding the claim of the joint-obligation is extinguished by prescription, then ask him to propose the extinctive prescription defense on the extent of the amount of his share against the creditor, and refuse any further performance. |