An Empirical Study On The Civil Liability Of Passengers For Damage Caused By Online Car Hailing Traffic Accidents

With the development of Internet technology,there are more and more industries that rely on the Internet platform.The online car hailing industry is one of the representative industries.The emergence of new things is usually accompanied by new legal issues.When a traffic accident occurs due to the fault of the online taxi driver and causes damage to passengers,how to bear civil liability between the online taxi platform and the driver is a practical problem that needs to be solved urgently in judicial practice.In order to solve this legal problem,the Ministry of Transport,the Ministry of Industry and Information Technology and other seven ministries and commissions jointly officially issued the "Interim Measures for the Management of Online Booking Taxi Business Services"(hereinafter referred to as the "Management Measures for Online Car hailing")on July 27,2016,which uniformly stipulated that the online car hailing platform should bear the responsibility of the carrier,However,this one-size-fits-all approach does not take into account the practical problem that the online car hailing platform plays different roles in transportation transactions under different business modes of online car hailing,and the "Management Measures for Online Car hailing" only stipulates the legal status of the online car hailing platform,but avoids the legal relationship between the online car hailing platform,the online car hailing driver and the online car hailing passenger.In judicial practice,most judges took into account the impact of the online car hailing business model on the legal status of the online car hailing platform when making decisions,so they did not uniformly judge the online car hailing platform to assume the carrier’s responsibility according to the provisions of the "Management Measures for Online Car hailing".However,due to the fact that the "Management Measures for Online Car hailing" does not make specific provisions on the scope of adjustment according to the online car hailing business model,and the different understanding of the judges on the scope of adjustment and the different grasp of the characteristics of different online car hailing business models,there are great differences in the judges’ judgment on the scope of adjustment and the legal relationship between the online car hailing platform,driver and passenger under different modes,As a result,there is a phenomenon of different judgments in the same case on the civil liability for passenger damage caused by the traffic accident.The analysis of the legal relationship and the bearing of civil liability in the theoretical circle also presents a state of "hundred flowers contend".In the determination of legal relations and the assumption of civil liability,we should adhere to the principle of proceeding from reality and seeking truth from facts.First,we should understand the characteristics of different business models of online car hailing,clarify the role of online car hailing platforms in passenger transport transactions under different business models,and the degree of management and control of drivers,so as to analyze the legal status of online car hailing platforms under different business models,as well as the legal relationship between them and drivers and passengers.In the undertaking of civil liability,in addition to the legal relationship between the subjects,we should also take into account the ability of the subjects to bear the responsibility,the matching of income and responsibility,and the protection of passengers’ damage to get full and effective relief.Under the special and express modes,the online car hailing platform plays a dominant role in passenger transport services,and should be within the scope of adjustment of the "Online Car hailing Management Measures".It forms a passenger transport contract relationship with passengers and bears the responsibility of the carrier.In this mode,the labor control of online car hailing platform on drivers is fragmented and hidden,but it cannot change the nature of the employment relationship between online car hailing platform and drivers.In terms of civil liability,the online car hailing platform shall bear the liability for breach of the passenger transport contract and the liability for alternative infringement of the driver.After assuming the alternative liability,the online car hailing platform shall have the right of recourse against the driver.At the same time,the damage caused by the fault driver and the fault third party to the passenger may constitute the infringement of several people who have no intention to contact,and shall bear the partial or joint liability to the passenger.Under the free ride mode,the online car appointment platform only acts as an intermediary in the passenger transport transaction between passengers and drivers,so the online car appointment platform under the free ride mode is not within the adjustment scope of the "Online Car hailing Management Measures".The online car hailing platform under this mode still has some involvement in passenger transport transactions after the establishment of passenger transport transactions,which is different from the intermediaries in standard intermediary contracts,so the online car hailing platform forms a non-standard intermediary relationship with drivers and passengers,and the online car hailing platform belongs to the e-commerce operators specified in the "Electronic Commerce Law of the People’s Republic of China"(hereinafter referred to as the "Electronic Commerce Law"),Therefore,under the free ride mode,the online car appointment platform has the dual legal status of an intermediary and a management organizer.In terms of civil liability,the online car hailing platform may bear the liability for breach of the intermediary contract and the liability for infringement when violating the security obligation.