网约车侵权责任法律问题研究

发布时间：2018-05-24 05:19

本文选题：网约车 + 机动车侵权　；参考：《上海社会科学院》2017年硕士论文

【摘要】：网约车侵权责任与普通机动车侵权责任的不同之处在于存在作为侵权主体的网约车平台,根据网约车车辆的性质、车辆所属公司与网约车平台的关系、平台在预约车辆过程中起到的作用等方面可以确认网约车平台为侵权责任主体。驾驶员取得网约车驾驶资格并通过网约车平台审核,通过网约车平台进行接单,即可认为是网约车平台的兼职或全职员工;驾驶员驾驶的车辆取得运营网约车资格并接入网约车平台,其性质是网约车,则驾驶员提供服务时网约车平台应当是侵权责任主体。网约车发生机动车交通事故,驾驶员是实施职务行为,应由网约车平台承担雇主责任。当确定驾驶员与网约车平台之间的劳动关系时,应考虑驾驶员的工作特点、工作时长和服务频次等。无论驾驶员与网约车平台之间所存在的劳动关系是全职劳动关系或者兼职关系,只要是在承担网约车平台服务的过程中发生机动车侵权,驾驶员的侵权行为均应当认定是职务行为,网约车平台均应当承担雇主责任。在网约车发生机动车交通事故,且受害人没有过错的情况下,对车辆行使直接支配权的是驾驶员,对车辆行使间接支配权的是平台;具有运营利益的是驾驶员、网约车平台、机动车所有人。网约车平台享受运营利益,且通过支配驾驶员对网约车行使支配权,应承担赔偿责任,此责任与雇主责任竞合,这也符合我国《侵权责任法》的规定。当乘客乘坐网约车发生机动车事故时,存在网约车侵权责任与合同责任竞合,乘客仅能选择其中一种。如乘客要求网约车平台承担合同责任,则乘客无权请求驾驶人、机动车所有人承担连带责任,所请求赔偿的范围,应以双方合同约定、《合同法》有关客运合同为依据。如乘客请求侵权责任赔偿,则可以要求侵权网约车平台、驾驶人、机动车所有人承担赔偿责任,请求范围应根据《侵权责任法》规定,包括损失、精神赔偿等。
[Abstract]:The difference between the tort liability of net car and the tort liability of ordinary motor vehicle lies in the existence of the net car rental platform as the tortious subject. According to the nature of the net car charter vehicle, the relationship between the company belonging to the vehicle and the network car rental platform. The role of the platform in the process of vehicle reservation can confirm that the platform is the subject of tort liability. Drivers can be regarded as part-time or full-time employees of the net car ride platform if they obtain the qualification of driving and pass the examination of the network car ride platform and receive orders through the network car ride platform; The vehicle driven by the driver has the qualification of ride-sharing and access to the ride-hailing platform, the nature of which is that the ride-hailing platform should be the subject of tort liability when the driver provides the service. In the case of motor vehicle traffic accidents, drivers are responsible for their duties and should be held responsible by the network ride-hailing platform. When determining the labor relationship between the driver and the ride-sharing platform, the characteristics of the driver's work, the length of the working hours and the frequency of service should be taken into account. Whether the labor relationship between the driver and the ride-sharing platform is a full-time labor relationship or a part-time relationship, as long as the vehicle infringement occurs in the process of assuming the service of the ride-sharing platform, The driver's tort should be recognized as duty, and the ride-hailing platform should bear the employer's responsibility. In the case of a motor vehicle traffic accident on the net, and the victim has no fault, it is the driver who exercises direct control over the vehicle, the platform who exercises the indirect power over the vehicle, and the driver who has the operating interests, and the platform that has the net car charter. The owner of the motor vehicle. The ride-sharing platform enjoys the operating benefits, and by dominating the driver to exercise the right of control over the net-chartered car, it should bear the liability for compensation, which is in line with the provisions of the Tort liability Law of our country, and the liability of the employer is competing with the liability of the employer. When the passenger rides the net car to have the motor vehicle accident, there exists the net charter car tort liability and the contract liability to match, the passenger can choose only one of them. If the passenger demands that the ride-sharing platform bear the contractual liability, then the passenger has no right to ask the driver and the owner of the motor vehicle to bear the joint and several liability. The scope of the compensation requested shall be based on the agreement between the two parties and the relevant passenger transport contract in the contract Law. If the passenger requests the tort liability compensation, he may request the tortious net car-sharing platform, the driver, the motor vehicle owner to bear the compensation liability, the request scope should be according to the "Tort liability Law" stipulation, including the loss, the spirit compensation and so on.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923

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