帮工关系、帮工责任与用人者责任关系论  

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

作　　者：曹险峰 CAO Xian-feng

机构地区：[1]吉林大学理论法学研究中心 [2]吉林大学法学院 [3]吉林大学司法数据应用研究中心

出　　处：《当代法学》2024年第5期64-74,共11页Contemporary Law Review

摘　　要：自明文规定帮工责任规则以来,《人身损害赔偿解释》一直都将帮工关系与帮工责任深度绑定,在符合其他构成要件的基础上,由帮工关系所产生的责任必为帮工责任,被帮工人因此承担无过错责任、替代责任。如此理解并不具正当性。《民法典》借鉴比较法通例,依据控制力标准动态区分用人者责任与承揽人责任,以体现替代责任与自己责任之分、无过错责任与过错责任之别,形成了“1:1”的二元模式,这一立场应予贯彻。在不同的帮工关系中,应基于被帮工人与帮工人间控制力的强弱,分别给予被帮工人替代责任或帮工人自己负担的评价,故应将司法解释规定的帮工责任规则置于《民法典》用人者责任与承揽人责任之二元模式下进行理解。既有帮工责任规则中的“无偿”“明确拒绝”与用人者责任规则具有适配性。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 helpe

关 键 词：帮工责任 用人者责任 替代责任 雇主责任 帮工关系 

分 类 号：D923[政治法律—民商法学]