| 摘要: | 本文啟發於2013年發生之八里媽媽嘴咖啡店雙屍案，該案件之被害人有兩人，被害人家屬分別向加害人與加害人之僱用人請求損害賠償，兩案皆上訴到最高法院，卻得出不同判決結果，值得探討。該案涉及民法第一百八十八條第一項僱用人之連帶賠償責任規定適用問題，而構成要件中，「僱用關係之成立」、「執行職務範圍之判斷」與第三項「僱用人與受僱人內部責任之分擔」於實務上判斷最容易產生爭議。僱用關係之認定上，實務認為應以事實上的僱用關係為判斷標準，即以選任監督關係的有無為依據；而關於執行職務的範圍，實務以客觀說為認定的標準。而僱用人與受僱人內部求償權，實務認為民法第一百八十八條第三項並無明文規定，而認為僱用人於內部上不須以已與有過失而認為無應分擔之部分。故本文針對上述三個爭議問題，挑出多個實務上判決作分析，並與其他相似類型案件作比較，檢視法院對於「僱用關係之成立」、「執行職務範圍之判斷」、「僱用人與受僱人內部責任之分擔」之見解是否有調整的空間，並給予建議。
This article was inspired by the Bali Mamazui Coffee Shop Double Corpse Case that occurred in 2013, in which there were two victims, and the victims' families respectively requested damages from the perpetrator and the perpetrator's employee, and both cases appealed to the Supreme Court, but different judgments were reached, which is worth exploring. The case involved the application of the provisions on joint and several liability of the employee in article 188, paragraph 1 of the Civil Law, and among the constituent elements, the establishment of the employment relationship, the judgment of the scope of the performance of duties and the third item "the sharing of the internal liability of the employee and the employee" were the most likely to be disputed in practice. In the determination of employment relationships, practice holds that the criterion for judging should be based on the de facto employment relationship, that is, the existence or absence of an election supervision relationship; As for the scope of the performance of duties, the criterion for determining objectives is to be taken as the practice. In practice, the employer and the employee's internal claims are held to be expressly provided for in Article 188, Paragraph 3 of the Civil Law, and that the employer does not have to be considered internally to be partly to be apportioned on the grounds that it has been negligent. Therefore, in view of the above three controversial issues, this article selects a number of practical judgments for analysis, and compares them with other similar types of cases, to examine whether there is room for adjustment of the court's views on the establishment of the employment relationship, the judgment of the scope of the performance of duties and the sharing of internal responsibilities between the employer and the employee, and gives advice. |
