連帶債務人時效完成之效力──以僱用人之侵權責任為中心

The Efficacy of joint-obligations with completion of a prescription on joint-debtors: Focus on the joint-liability of employers

依民法第188條第1項規定，受僱人因執行職務，不法侵害他人之權利者，由僱用人與受僱人負連帶損害賠償責任。當受僱人之債務消滅時效完成時，僱用人得否依民法第276條第2項規定就受僱人應分擔之部分對債權人主張時效抗辯？本文先從僱用人責任之性質分析，認為僱用人侵權責任之性質屬推定過失責任。僱用人之歸責事由乃因其選任受僱人及監督其執行職務有過失，對因受僱人執行職務受有損害之第三人構成不作為侵權，民法第188條第1項但書屬推定僱用人過失得舉證免責之規定。因此，對於第三人之損害，受僱人與僱用人間個案上應依作為侵權與不作為侵權負比例分擔之責。進而，因適用民法第276條第2項規定之前提，必須連帶債務人間內部有應分擔責任之情形，於受僱人時效完成時，僱用人自得依民法第276條第2項就受僱人應分擔之部分主張時效抗辯。然而，若僱用人不援引受僱人之時效抗辯而對債權人全部清償，向受僱人行使求償權時，因求償權乃一新生的權利，時效重新計算，受僱人無法對僱用人主張時效抗辯。因此，受僱人應於時效完成時通知僱用人，使僱用人得對債權人就受僱人之應分擔部分主張時效抗辯而拒絕給付。

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.