幫工關係、幫工責任與用人者責任關係論

Research on the Relationship between Help Relationship, Liability of Helped, and Liability of User

自明文規定幫工責任規則以來，《人身損害賠償解釋》一直都將幫工關係與幫工責任深度綁定，在符合其他構成要件的基礎上，由幫工關係所產生的責任必為幫工責任，被幫工人因此承擔無過錯責任、替代責任。如此理解並不具正當性。《民法典》借鑒比較法通例，依據控制力標準動態區分用人者責任與承攬人責任，以體現替代責任與自己責任之分、無過錯責任與過錯責任之別，形成了“1：1”的二元模式，這一立場應予貫徹。在不同的幫工關係中，應基於被幫工人與幫工人間控制力的強弱，分別給予被幫工人替代責任或幫工人自己負擔的評價，故應將司法解釋規定的幫工責任規則置於《民法典》用人者責任與承攬人責任之二元模式下進行理解。既有幫工責任規則中的“無償”“明確拒絕”與用人者責任規則具有適配性。

The Civil Code has established a binary model corresponding to the user's liability and the independent contractor's liability, treating the user's liability as an exception to one's own liability. It dynamically distinguishes the liability of user and independent contractor based on the criterion of control, reflecting the distinction between vicarious liability and one's own liability, as well as the difference between no-fault liability and fault liability, forming a "1 : 1" binary model. Against this backdrop, it is necessary to provide a theoretical answer to how the liability of helped, which has always been stipulated in judicial interpretations, coordinates with the liability of user and the liability of independent contractor at the legal level. Since the explicit provision of the rule on the liability of helped, the Interpretation of Compensation for Personal Injury has deeply intertwined the help relationship with the liability of helped. On the basis of meeting other constitutive requirements, the liability arising from the help relationship must be the liability of helped, and the helped therefore bears no-fault liability and vicarious liability. However, such an interpretation lacks justification. There is a fluid relationship between the two, and those who do not fall under the "employment relationship" must belong to the "independently contracting relationship". The help relationship is also a type of labor relationship and should be treated differently. Therefore, it should be recognized that the help relationship is an association formed by help activities, and the closeness between the helper and the helped differs depending on the relationship. At this time, depending on the different factual situations, under the "1 : 1" binary model of the Civil Code, the help relationship is associated with both ends. When the helped exercises command and supervision over the helper, meeting the criterion of control, it enters the system of the user's liability, and the liability of helped is established, applying vicarious liability. When the helper has a high degree of freedom in their actions, it enters the independent liability system represented by the independent contractor's liability, and the helper independently assumes their own liability. At this point, all help relationships are decomposed and incorporated, either applying the rules of liability of helped under the user's liability or the helper assuming their own liability under the rules of the independent contractor's liability. In terms of interpretation, the rules on the liability of helped stipulated in Articles 4 and 5 of the Interpretation of Compensation for Personal Injury in 2022 should be understood and applied under the "1 : 1" binary model of the user's liability and the independent contractor's liability in the Civil Code. Articles 4 and 5 of the Interpretation of Compensation for Personal Injury in 2022 explicitly stipulate "gratuitousness" and "explicit refusal", which are characteristics of the rules on the liability of helped. Since the user's liability covers both paid and unpaid labor relations, it can be considered that the liability of helped falls within the scope of unpaid employment relations under the user's liability. Explicit refusal indicates that the helped has lost control, and at this time, the compensation obligation borne by the helped as stipulated can be interpreted as the result of the application of Article 980 of the Civil Code. While affirming that the recipient of labor services can become the helped, it should also be affirmed that employers can become the helped in special cases, and the user's liability can be applied in accordance with Article 1191 of the Civil Code.