A Study On The Liability For Substitute Driving Infringement

In recent years,the proportion of substitute driving infringement cases in civil action is constantly increasing,and in such cases first instance becoming last instance have been less commonly,the losing party is against trial situation.The main reason is that the " Road Traffic Safety Law of the People's Republic of China "(hereinafter referred to as the "Road Traffic Safety Law"),“the People's Republic of China Tort Liability Law"(hereinafter referred to as the "Tort Liability Law"),"the Supreme People's Court on the trial of road traffic accident damage compensation case applicable legal interpretation"(hereinafter referred to as the "Road Traffic Accident Liability Judicial Interpretation")and other relevant laws and regulations have not yet been isolated from the general processed principle of road traffic accidents,for substitute driving,the emerging industry conform to the times,no clear law applies,thus,the courts at all levels don't have the same judgment in the similar cases,and experts and scholars have different opinions in this subject.On the confirmation of legal relationship of liability of substitute driving,educational circles have higher voice in the legal relationship of employment contract,the contract legal relationship,the legal relationship of the intermediary contract;the minority experts and scholars holding the existing contract legal relationship that could not cover its characteristics,and put forward the nameless contract legal relationship.The author believes that the substitute driving infringement cases are complex and diverse that should not be generalized.There is a more appropriate way that it should confirm the infringement subject of legal relationship on the basis of the classification.: in the condition of private substitute driving by a nature person,they should set up the legal relationship of employment contract between the designated drivers and passengers,people who drive a car need a substitute driver need to undertake the main tort liability as an employer;in the situation that substitute drivers obtain business through the network platform,the company of substitute driving,guesthouse,hotel and other intermediary agencies(hereinafter referred to as the intermediary agency of the substitute driving),and the substitute driving and the intermediary agency of the substitute driving established the legal relationship of employment contract,the intermediary agencies of substitute driving undertake the main responsibility as the employer,and the intermediary agency of the substitute driving and the person who is driven by the substitute driver should set up a contract relationship,the intermediary agency of the substitute driving as the contractor to undertake the main responsibility.In the determination of the subject of infringement and the distribution of liability,China's trial of cases generally use “operational control + operational interests” as the legal basis of dealing with substitute driving transportation liability disputes.The author believes that substitute driving accidents generally involve many subjects.Such as agent,passengers,the intermediate agency of substitute driving and insurance company,etc.And there are many uncertain factors in specific definition of “operational control” and “operating interests”.That is: the substitute driving has the most direct control of the motor vehicle.However,the person who is driven by the agent also has specified destination,and the right of indirect domination in the approach of operation;the substitute driving has the operated interests by gaining the service income or cultivate the private emotion with their passengers by substitute driving,but the person who need to drive a car by substitute driving also obtained the operated interests of vehicles and people are sent to specified locations.Therefore,the author put forward the following solutions: First,classified according to whether the substitute driving get the material benefits,it can be divided into the paid driving and free driving;second,analyzing the internal and external contractual legal relationship of different types of substitute driving behavior;third,to further confirm the legal definition of “operational control + operational interests”.In other words,“operational control” is direct domination,who operates who is responsible for this;“operational interests” is direct interests and it is only limited to material benefits;fourth,on this basis,make clear the standard of identifying the internal fault of the substitute driving and nature of their responsibilities.To solve the problem that the tort liability of substitute driving is not clear.This article start with the typical judicial substitute driving case,based on the development evolution of road traffic laws and regulations,combining the domestic and foreign legislative cases,using historical analysis,solid evidence analysis,literature analysis,comparative analysis and other study methods to analyze the nature of the legal relationship of the substitute driving from multiple angles,the determination of the subject of tort liability and the problem about the distribution for tort liability,and discuss the development of the substitute driving industry at the legal level.Directing at the existing problems in this industry combine with the advanced experience of Germany,Japan and South Korea and other typical countries of civil law system,putting forward the advice of perfecting the substitute driving industry qualification,perfecting the supervision and perfecting the liability insurance of the substitute driving.Its purpose is to clarify the internal and external legal relationships between each subject of the substitute driving and including tort liability distribution.When the driver can not drive the car by himself,it can eliminate this problem that the driver also can't eliminate thoroughly scruple,which will play a positive role in promoting the healthy and prosperous development of the driving industry.It will help to unify judgments in judicial cases and avoid appearing the awkward situation of different judgments.It has the meaning of juridical practice to decrease the rate of trial of second instance to cases of the substitute driving infringement.