Research On The Tort Liability Of Online Car Hailing

In the context of the rapid development of platform economy,ride-hailing has increasingly become one of the most important modes of transportation.On the one hand,in the traditional transportation industry,there are at most three main bodies of online taxi drivers,passengers and a third party.In the new business form of online car hailing,the online car hailing platform exists as the fourth party subject and may become the new subject of responsibility.On the other hand,there are many business models under the new business mode of online car hailing.Under different business models,there are certain differences in management modes between ride-hailing platforms and ride-hailing drivers,and the above differences make the legal relationship between parties more complicated.On this basis,there are many different views on how to define the legal relationship between the ride-hailing platform and the ride-hailing driver,and how to reclassify the compensation liability caused by the infringement of ride-hailing between the two.In view of the frequent disputes over online car booking,seven ministries and commissions,including the Ministry of Transport and the Ministry of Industry and Information Technology,adopted the Interim Measures for The Management of Online Booking Taxi Operation And Service(hereinafter referred to as the Interim Measures)in 2016.In July of the same year,The General Office of the State Council issued the Guiding Opinions on Deepening Reform and Promoting the Healthy Development of The Taxi Industry(hereinafter referred to as the Guiding Opinions).However,the above-mentioned disputes have not been fundamentally resolved after the adoption of the Guiding Opinions and the Interim Measures.No matter it is the current legislation that lacks pertinence or is difficult to apply,or the special regulations with vagueness,it makes the judicial practice fall into a dilemma,and the situation of "different sentences for the same case" often appears.This paper argues that the importance of sustainable development of new business forms should not be ignored in the analysis of online car hailing.Therefore,the identification of the legal relationship between ride-hailing platforms and drivers should not only conform to the basic legal principles,but also fully combine the business model of ride-hailing to meet the needs of the development of the new economic model.No matter based on the liability theory of employer or the theory of motor vehicle owner protection,both the ride-hailing platform in the mode of private hire and the mode of express train need to bear the liability for the infringement damages caused in the operation of the ride-hailing vehicle,and the driver of ride-hailing only bears the tort liability in exceptional cases.The exceptions mainly include the following two types: First,in the mode of express train and private train,if the driver of online ride-hailing has intentional or major negligence,the online ride-hailing platform has the right to recover the employer’s liability.Second,in the express mode,if the online ride-hailing vehicle is not in the state of receiving orders,the online ride-hailing platform has the right to claim exemption from liability for traffic accident compensation,and the online ride-hailing driver shall bear the tort liability by himself.This paper is divided into five parts:The first part is an overview of the tort liability of ride-hailing.This part defines the scope of ride-hailing and infringement behaviors discussed in this paper.At the same time,the business model of online car hailing and the complexity of tort liability are analyzed.The second part is about the legislation and judicial practice of online car hailing in China.In terms of legislative practice,this part firstly combs and analyzes the provisions related to the infringement of online car hailing in the current Civil Code,Road Traffic Safety Law,E-commerce Law,Guiding Opinions and Interim Measures.In terms of judicial practice,this part selects representative cases for analysis,mainly sorting out the legal relationship between platforms and drivers and the assumption of tort liability.The third part is the legal relationship between ride-hailing platforms and drivers.This part gives a brief overview of the current mainstream academic views,including intermediary relationship theory,cooperative relationship theory and labor relationship theory.Based on the characteristics of ride-hailing,this paper makes a specific analysis of various theories,and finally determines that the ride-hailing platform and the driver belong to the labor relationship and the new labor relationship respectively in the mode of private car and express train.The fourth part is the legal basis of the infringement liability of the ride-hailing platform,mainly including the liability theory of the employer and the theory of motor vehicle insurance.This part mainly starts from legal principles and analyzes relevant laws,and concludes that the online ride-hailing platform should bear tort liability.The fifth part is the legal basis for the infringement liability of ride-hailing drivers.This paper argues that although the principle is that the ride-hailing platform should bear the tort liability in case of an infringement accident,the ride-hailing driver should bear the tort liability by himself in the following two cases.First,if the driver of a private car or an express car is guilty of intentional or gross negligence,the ride-hailing platform has the right to seek compensation.Secondly,in the mode of express,the ride-hailing platform has the right to claim exemption from liability for infringement caused during the non-operation stage.