China: On The Forefront Of Labor Law – The Comparison And Explanation Of Labor And Employment Law And Local Labor Regulation, No. 144 Compensation For Employees' Infringement

Last Updated: 18 January 2017
Article by Broad & Bright
Most Read Contributor in China, October 2017

《劳动合同法》对于用人单位应对劳动者承担的赔偿责任规定较为细致全面,但对于劳 动者应对用人单位承担的赔偿责任则语焉不详,尤其是对于劳动者因给用人单位造成经济损 失而应承担的侵权赔偿责任并未进行规定。从法律法规层面来看,对劳动者侵权赔偿责任的 规定主要见于原劳动部发布并于1995 年1 月1 日实施的《工资支付暂行规定》第16 条。 司法实践中,劳动者给用人单位造成经济损失而引起的赔偿责任纠纷系一般侵权纠纷还 是劳动纠纷常常引起争议。多数法院认为,由《工资支付暂行规定》第16 条的规定可见, 劳动者因给用人单位造成经济损失而承担赔偿责任的,是劳动关系当事人双方在履行劳动合 同期间发生的纠纷,应当作为劳动争议案件,应以劳动仲裁为前置程序。尽管如此,亦有少 数法院认为,劳动者在履行职务过程中给单位造成经济损失并要求赔偿,其请求权基础系侵 权责任法律关系,而非劳动合同关系,无需先行进行劳动仲裁。在后一类案例中,案件当事 人常常并非仅为劳动者和用人单位,且常出现劳动者曾就其给用人单位造成的损失及其赔偿 责任进行书面确认的情形。

事实上,劳动者侵权赔偿责任与一般侵权责任在性质上确实存在差异之处。首先,劳动 者和用人单位的劳动关系具有人身依附性,二者法律地位明显不同;其次,用人单位支付给 劳动者的劳动报酬与劳动者创造的劳动成果具有不对等性,各自所承担的权利义务应当相一 致;第三,企业作为劳动成果的享有者,本就应承担一定的经营风险。基于劳动者侵权赔偿 责任与一般侵权责任在属性上的差异,劳动者侵权赔偿责任在构成要件、赔偿方式等方面都 与一般侵权责任明显不同。

首先,司法实践中,一般要求劳动者对其造成的用人单位的损失存在故意或重大过失, 理由在于,如果严格要求劳动者根据其过错来承担赔偿责任,实质上是将企业的全部经营风 险都转嫁到劳动者身上,但用人单位支付给劳动者的劳动报酬与该等经营风险并不对等,这 对处于弱势地位的劳动者极不公平。

其次,《工资支付暂行规定》第16 条明确规定,因劳动者本人原因给用人单位造成经济 损失的,用人单位可按照劳动合同的约定要求其赔偿经济损失,此即意味着,劳动者承担侵 权赔偿责任通常以劳动者和用人单位有事先约定为前提。多数地方性规定和司法实践均沿用 了这一原则,认为在未事先约定的情况下,劳动者对其给用人单位造成的经济损失不应当承 担赔偿责任。__

第三,对于劳动者承担的赔偿责任大小往往也有限制,通常不适用一般侵权责任中的完 全赔偿原则。基于劳动者赔偿责任区别于一般侵权责任的特殊属性,用人单位应当承担一定 的经营风险,司法实践通常认为,即使系因劳动者原因造成用人单位的损失,该等损失也不 应当全部由劳动者全部承担,而应综合考量双方的过错程度、赔偿责任的可预期性、用人单 位损失的性质、劳动者的收入水平等因素予以确定,劳动者承担的侵权赔偿责任必须以不影 响劳动者基本生存为前提。需要注意的是,如果劳动者以书面形式确认因其过错给用人单位 造成的损失、并明确其承担赔偿责任的金额,则法院直接依据该等确认判定赔偿责任的可能 性仍然存在。

根据上文所述,用人单位在劳动合同、规章制度中应当事先约定劳动者应对其给用人单 位造成的经济损失承担赔偿责任、以及承担赔偿责任的方法等;此外,在损失实际发生后, 尽可能就劳动者的过错、给用人单位造成的损失以及劳动者赔偿责任的金额取得劳动者的书 面确认。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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