酒后代驾合同研究
发布时间：2018-12-11 23:29
【摘要】：随着醉驾入刑,酒后驾驶成本加大,越来越多的人选择酒后代驾,为我国的酒后代驾行业发展提供了契机,出现极大发展空间,然而我国的代驾行业仍然处于初级阶段,缺乏法律、行业规制,收费不一,服务水平不一,缺乏必要监管,酒后代驾事故频发,且发生事故后责任不明,纠纷得不到及时解决。因此,本文立足于实际问题,希望能够对我国酒后代驾提供一定借鉴,文章主要围绕合同的性质进行分析,通过分析不同学说最后得出自己的认定观点,再由合同性质解决责任承担的实际问题,最后查缺补漏,弥补我国的不足,以期对整个行业的发展起到规制。本文主要采用案例分析法和对比分析法,从国内外对比中寻求我国的发展可能,以案例引出责任承担的问题,从而针对解决问题,从合同定性上解决责任的承担。本文主要包括以下内容：第一部分,通过对酒后代驾相关概念和国内外现状的描述,分析酒后代驾合同的特点,分析我国酒后代驾存在的问题,包括法律法规不健全、行业内部缺乏统一规范和监管、酒后代驾市场乱象、合同缺乏统一规范等,以此为全文写作奠定基础。第二部分,先从四个主流学说入手,具体分委托合同说、客运合同说、雇佣合同说和承揽合同说,分析目前存在的性质研究,通过对比分析与酒后代驾合同的相符点和不符点,探析其法律特征,进行法律定位,最后得出结论,认定酒后代驾合同的性质。第三部分,对酒后代驾的签订进行分析,主要分为签订主体和签订的效力研究,通过从主体角度具体考察签订合同的效力问题,分醉酒者本人和同行其他人签订的合同两种情况考虑,具体分析不同情况下合同是否有效。第四部分,通过从当事人来具体分析代驾者与被代驾者的权利义务,从权利义务角度分析酒后代驾合同的内容。第五部分,酒后代驾研究意图之一也在于解决纠纷,这一部分就从此入手,分析责任承担问题,首先分析各项酒后代驾合同责任承担的共性,再具体分析各类不同合同的个性和免责事由。第六部分,对我国酒后代驾合同及酒后代驾行业的发展提出几点法律建议,如建立行业标准,设置代驾保险,加大立法力度。
[Abstract]:With the penalty of drunk driving and the increase of the cost of drunk driving, more and more people choose to drive by their offspring, which provides an opportunity for the development of the future generation driving industry in our country, and has a great space for development. However, the substitute driving industry in our country is still in the primary stage. Lack of laws, industry regulation, different fees, different service levels, lack of necessary supervision, alcohol offspring driving accidents, and after the accident is not clear, disputes can not be resolved in time. Therefore, this paper is based on practical problems, hoping to provide some reference to the future generations of our country, the article mainly around the nature of the contract analysis, through the analysis of different theories finally come to their own point of view, Then the nature of the contract to solve the actual problem of responsibility, and finally check the gaps to make up for the deficiencies of our country, in order to regulate the development of the entire industry. This article mainly uses the case analysis method and the contrast analysis method to seek the development possibility of our country from the contrast at home and abroad, leads to the responsibility bearing question by the case, thus solves the responsibility from the contract qualitatively to solve the problem. This paper mainly includes the following contents: the first part, through the description of the related concepts and the domestic and foreign status quo of the alcoholic descendant driving, analyzes the characteristics of the wine descendant driving contract, and analyzes the problems existing in our country's wine descendant driving, including the imperfect laws and regulations. There is a lack of uniform regulation and supervision in the industry, a chaotic market for future generations of wine, and a lack of uniform norms for contracts, which lays the foundation for full text writing. The second part, starting with four main theories, the specific sub-commission contract theory, the passenger transport contract theory, the employment contract theory and the contract theory, the analysis of the nature of the existing research, through comparative analysis with the future generations of wine driving contract coincidence and inconsistency, Analyze its legal characteristics, carry on the legal position, finally draw a conclusion, confirm the nature of the future generations driving contract. In the third part, the author analyzes the signing of the future generations of wine, mainly divided into the signing subject and the effectiveness of the signing, through the study of the effect of signing the contract from the perspective of the main body. This paper analyzes the validity of the contract under different conditions. The fourth part analyzes the rights and obligations of the substitute driver and the substitute driver from the angle of rights and obligations. In the fifth part, one of the intention of the study is to resolve the dispute. This part begins with the analysis of the responsibility assumption, first of all, it analyzes the commonness of the contract responsibility of the future generations of wine driving. Then specific analysis of different types of contract personality and exemption reasons. In the sixth part, the author puts forward some legal suggestions on the development of the future generation driving contract and the future generation driving industry in China, such as establishing the industry standard, setting up the substitute driving insurance, and strengthening the legislation.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
本文编号：2373424
[Abstract]:With the penalty of drunk driving and the increase of the cost of drunk driving, more and more people choose to drive by their offspring, which provides an opportunity for the development of the future generation driving industry in our country, and has a great space for development. However, the substitute driving industry in our country is still in the primary stage. Lack of laws, industry regulation, different fees, different service levels, lack of necessary supervision, alcohol offspring driving accidents, and after the accident is not clear, disputes can not be resolved in time. Therefore, this paper is based on practical problems, hoping to provide some reference to the future generations of our country, the article mainly around the nature of the contract analysis, through the analysis of different theories finally come to their own point of view, Then the nature of the contract to solve the actual problem of responsibility, and finally check the gaps to make up for the deficiencies of our country, in order to regulate the development of the entire industry. This article mainly uses the case analysis method and the contrast analysis method to seek the development possibility of our country from the contrast at home and abroad, leads to the responsibility bearing question by the case, thus solves the responsibility from the contract qualitatively to solve the problem. This paper mainly includes the following contents: the first part, through the description of the related concepts and the domestic and foreign status quo of the alcoholic descendant driving, analyzes the characteristics of the wine descendant driving contract, and analyzes the problems existing in our country's wine descendant driving, including the imperfect laws and regulations. There is a lack of uniform regulation and supervision in the industry, a chaotic market for future generations of wine, and a lack of uniform norms for contracts, which lays the foundation for full text writing. The second part, starting with four main theories, the specific sub-commission contract theory, the passenger transport contract theory, the employment contract theory and the contract theory, the analysis of the nature of the existing research, through comparative analysis with the future generations of wine driving contract coincidence and inconsistency, Analyze its legal characteristics, carry on the legal position, finally draw a conclusion, confirm the nature of the future generations driving contract. In the third part, the author analyzes the signing of the future generations of wine, mainly divided into the signing subject and the effectiveness of the signing, through the study of the effect of signing the contract from the perspective of the main body. This paper analyzes the validity of the contract under different conditions. The fourth part analyzes the rights and obligations of the substitute driver and the substitute driver from the angle of rights and obligations. In the fifth part, one of the intention of the study is to resolve the dispute. This part begins with the analysis of the responsibility assumption, first of all, it analyzes the commonness of the contract responsibility of the future generations of wine driving. Then specific analysis of different types of contract personality and exemption reasons. In the sixth part, the author puts forward some legal suggestions on the development of the future generation driving contract and the future generation driving industry in China, such as establishing the industry standard, setting up the substitute driving insurance, and strengthening the legislation.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
【参考文献】
相关硕士学位论文 前1条
1 褚雪霏;对酒后私人代驾的性质及其责任探究[D];天津商业大学;2011年
，本文编号：2373424
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