私人有偿代驾合同性质及责任承担分析

发布时间：2019-05-18 14:31

【摘要】：代驾作为一个新时代的新兴行业,在现在这个交通发达的社会日益普及起来。随着代驾行业的发展,随之而来的法律问题也越来越多。代驾一词本身有着很宽泛的含义,本文所说的代驾指的是被代驾人提供自己所有的非营运性车辆,代驾人驾驶该车辆将被代驾人和车辆送达指定地点的行为。代驾合同为无名合同,在《合同法》中并没有明确的规定。从特征上来看,代驾合同属于诺成的、不要式的、既可以有偿也可以无偿的、无名合同。对于此类合同,我国的学界和司法实践中通常会参照类似的典型合同来适用,如果没有,那么就归结为新型的无名合同。目前学界认为最类似于代驾合同的典型合同有三:雇佣合同、承揽合同、委托合同。通过详细的对比分析,我们发现:代驾合同需要交付一定的工作成果“将机动车和被代驾人送达”,在驾驶过程中,代驾人拥有对机动车的独立支配。这无疑和承揽合同不谋而合。我国对于交通事故责任主体的认定采用“运行支配+运行利益二元说”的判断标准。在代驾行为中,代驾人拥有对机动车最直接的运行支配;代驾人通过代驾行为获得自己的劳动报酬,享受机动车的运行利益。因此,代驾人同时享有“运行支配”和“运行利益”,应当作为交通事故的责任主体。
[Abstract]:As a new industry in a new era, substitute driving is becoming more and more popular in this developed traffic society. With the development of driving industry, there are more and more legal problems. The term substitute itself has a very broad meaning. The term substitute in this paper refers to the behavior that the driver provides all the non-operating vehicles, and driving the vehicle on behalf of the driver will be delivered to the designated place by the driver and the vehicle. The substitute contract is an nameless contract, which is not clearly stipulated in the contract Law. From the characteristic point of view, the substitute contract belongs to Nocheng, do not want the form, can be paid or free of charge, nameless contract. For this kind of contract, the academic and judicial practice of our country will usually refer to the similar typical contract to apply, if not, then it boils down to a new nameless contract. At present, the academic circles think that there are three typical contracts which are most similar to the representative contract: employment contract, contract and entrustment contract. Through detailed comparative analysis, we find that the driving contract needs to deliver certain work results, "deliver the motor vehicle and the substitute driver", in the driving process, the surrogate has independent control over the motor vehicle. This undoubtedly coincides with the contract of contract. In our country, the determination of the subject of traffic accident responsibility adopts the criterion of "the dualistic theory of operating dominant operational interests". In the driving behavior, the surrogate has the most direct control over the motor vehicle, and the surrogate obtains his own labor reward and enjoys the running benefits of the motor vehicle through the driving behavior. Therefore, the driver should be the main body of responsibility for traffic accidents because he enjoys both "operation control" and "operation benefit" at the same time.
【学位授予单位】：贵州民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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