受損型用人者合同責任與侵權責任競合論

The Research on the Concurrence of Contractual Liability and Tortious Liability of Workplace Owner to Compensate the Injured Employee

《民法典》僅從侵權責任角度規定了受損型用人者責任，明確適用過錯責任，這一規定需要從合同責任角度進行反思。從《民法典》第930條可以推知，用人者風險分配型合同責任采無過錯責任，並與用人者違約責任產生競合。無論是用人者風險分配型合同責任，還是用人者違約責任，皆系無過錯責任，這與受損型用人者過錯侵權責任發生了抵牾。解釋論層面下合同責任之無過錯責任與侵權責任之過錯責任各有其法理基礎、歷史背景與配置邏輯，從單一視角來看，二者都具有一定的合理性。在受損型用人者合同責任與侵權責任發生競合的情況下，幾種調整路徑各有不同優勢，解釋論上應肯定幾者的競合。立法論上，受損型用人者合同責任與侵權責任規則應予統一。

The Civil Code only provides for the workplace owner’s liability to compensate the injured employee from the perspective of tortious liability, which clearly applies the responsibility for fault. This rule requires reflection from the perspective of contractual liability. From Article 930 of the Civil Code, it can be inferred that the risk-allocation contractual liability of the workplace owner shall be subject to nofault liability and will compete with the workplace owner’s no-fault default liability. Both the workplace owner’s contractual liability of risk distribution and the liability for breach of contract adopt no-fault liability, which is contrary to the tortious liability for fault to compensate the injured employee. At this point, it should be noted that the non-fault liability of contractual liability and the fault liability of tortious liability on an interpretative level have their respective legal bases, historical backgrounds, and logical configuration, and both are reasonably based on a single perspective. When contractual liability and tortious liability to compensate the injured employee competes, several adjustment paths mentioned above have different advantages, and the concurrence of them should be recognized in interpretation theory. In terms of legislation, the rules governing contractual liability and tortious liability to compensate the injured employee should be unified.