| With the rapid economic development recent years,the number of motor vehicles in China has reached 310 million by the end of 2017.Additionally,the number of motor vehicle drivers has reached 385 million,ranking the first in the world.With the addition of the crime of dangerous driving in "Amendment of the Criminal Law of the People's Republic of China(VIII)" in 2011,the punishment for drunk driving is now unprecedented and unparalleled,which,together with the popularization of mobile phones and the rapid development of network technologies,has caused the emerging of designated driving services and agencies.However,without a fixed mechanism,the industry is featured with low barriers to entry and poor security,which has led to loopholes in legal supervision,industry management,and infringement remedy.Moreover,it is noteworthy that laws and regulations have not formulated a unified norm for this industry,thus resulting to the ambiguity in and nature,the application of laws,and civil rights relief of designated driver for drinker contract.There have even been controversial judgments in judicial practice.In this respect,this article takes the disputes over subrogation of insurers in Guangzhou Wuyou Car Leasing Co.,Ltd.and China Pacific Life Insurance Company Co.,Ltd.,Guangzhou Branch as an example,which the questions are usual among much judicial practice.This case mainly reflects the main disputes that need to be resolved,mainly include two tasks.Firstly,to identify the two parties of this designated driver for drunker contract.Secondly,to figure out whether the drivers are the third party in this contract?Orwhether the insurance company has the subrogation right to the designated driving company?All of the above problems are quite controversial in practice.This article analyzes the existing legal regulations and relevant theoretical and judicial practices in the academic circles and analyzes the judgment results made by the court on this basis.Studying these issues can effectively sort out the legal responsibilities of the relevant parties in the driver's contract,clarify the nature of the driver's contract,and protect the rights of related parties.In order to solve the problems in the case of disputes over driver's contracts,on the one hand,makes the conclusion that there is an employment relationship between the designated driver and the designated driving company,that is,the behavior of the designated driver is actually an act of duty.Therefore,the result of driving service shall be borne by the driver company and it is the driving company rather than the designated driver that has signed the designated driver for drunker contract with the vehicle owner.On the other hand,according to the legal norms and theoretical basis of the "Insurance Law",the third party should be defined by the principle of damage filling.Moreover,with the consideration of facts and interests consistency,it proposed that the designated driver is the third party in insurance accidents happened in the course of designated driving service.Therefore,the insurer legally obtains the right of subrogation to the driver company.Finally,with the consideration of current academic viewpoints((i.e.contract for work,commission contract,and employment contract)on the nature of designated driver for drunker contract,the author claimed that although the designated driver for drunker contract meets of some of their characteristics,it is still not very suitable to draw an equal-sign between them.As for the the nature of the contract,the designated driver for drunker contract belongs to nameless contracts and its legal application should be applied in accordance with nameless contract.Through re-typed analysis,designated driver for drunker contract is actually a type of service contract.In this respect,some features of contract for workcan be used for reference. |
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