On The Test Driver’s Civil Liabilities For Third Party’s Damage

Along with the rapid economic development and the improvement of people’s livingstandards in China, an increasing number of Chinese families can afford a car. In the huge carsales market, in order to enhance car dealers’ competitiveness, most of them attempt to offertest drive service. At the same time, to get a better understanding of car’s function, theconsumers are willing to participate in such activities. But the test drive may cause a potentialthreat to traffic, the case which because of a dispute caused by an accident causing damage toa third party other than the passengers and the drivers during a try-out driving has become anew type of case in recent years. By using the survey method, comparative research method,literature research method, this paper will discuss the subject of civil liability and the ways toundertake civil liability arise from test drive process, providing some helpful advices for thejudicial practice.The introductory of the paper has a brief introduction of the try-out driving in the currentcar sales field and the main legal issues involved it, furthermore, explains that this paper islimited to the situation that an accident cause non-motor vehicles and pedestrians damaged.The text makes a research on the civil liability issues of the accident during try-out driving, onthe basis of our current law, judicial determination and related theories. The text is dividedinto five parts.The first part is about the law review of the test drive. Essentially, the test drive is a roadtraffic activity. Meanwhile, there is a contractual relationship between the driver who is also aconsumer and the sales company, who is also a seller. The test drive is only a stage of thewhole process of concluding the contract between the both sides.The second part is about Chinese current possible provisions relating to the test drive.Through examining the existing laws and regulations of the activities of road traffic, we canfind that there is no direct and clear rule about trying-out driving. Only article49of the TortLiability Law sets the tort liability in the traffic accident, in the circumstances when the ownerof the car and the user of the car are not the same person, such as leasing, loaning and so on.But it seems that this situation mentioned is different from the trying-out driving.The third part is about the body of civil responsibility of traffic accident during thetry-out driving. From the theoretical origins and existing regulations two-pronged approach, supplemented by the identification of the judicial practice situation, draw the “Run Control+Operational Profit” as the standard of choosing the traffic accident compensation obligor, thusthe civil liability subject should include the driver and the sales company.The fourth part is about the way of bearing the legal liability. On this issue, the focus ofcontroversy is which is the subject should bear, shared liability or joint and several liability.From the perspective of tort act, the focus is that it is what act, a contributory infringement orconcurrence of tort. By analyzing the try-out driving behavior, it shows that this situation canbe handled consulting the joint infringement, the subject of liabilities bear the jointresponsibility to the victims, and according to their own fault to divide the responsibility.The fifth part is the conclusion.