有偿酒后代驾法律问题研究

发布时间：2018-09-05 15:12

【摘要】：随着《刑法修正案(八)》的正式实施,我国官方明确了其对于醉酒驾驶“零容忍”的立场。得益于此,我国的酒后代驾行业又逐渐焕发了生机。但是,由于缺乏专门的立法,所以酒后代驾行业经常会出现因代驾主体复杂、合同的内容不明确以及责任难确定等问题而引发的法律纠纷。为了解决上述纠纷,通过结合日韩等国外代表国家的先进做法,笔者提出了符合我国现实国情的代驾主体、合同的权利义务内容及责任承担制度。代驾主体是代驾业务开展的前提,因此在明确专业代驾公司的代驾主体地位后,笔者还提出了其开展代驾业务所应符合的内外条件。合同的权利义务内容是当事人为了各自权益而相互博弈的结果,因此笔者在通过对多种学说辨析的基础上,认定了其独特的性质,并以此为契机提出了在合理的有偿酒后代驾合同中当事人所应具有的权利义务内容。责任承担制度作为受害人维护权益的最终途径,至关重要。所以,笔者分为违约责任承担及侵权责任承担两条途径来实现对受害人的权益保障。笔者围绕代驾主体、合同权利义务内容及责任承担予以阐述,旨在提出平衡有偿酒后代驾中所涉及的代驾人、车主以及第三人等三方利益的途径。
[Abstract]:With the implementation of the Criminal Law Amendment (8), our government has made clear its position of zero tolerance for drunk driving. Thanks to this, the future generations of China's driving industry is gradually coruscating with vitality. However, due to the lack of special legislation, there are often legal disputes caused by the complexity of the main body of the substitute driving, the unclear content of the contract and the difficult determination of the responsibility of the future generation driving industry. In order to solve the above disputes, by combining the advanced practices of Japan and South Korea and other foreign countries on behalf of the country, the author puts forward the system of acting driving subject, the content of rights and obligations of the contract and the responsibility bearing system in accordance with the actual situation of our country. The main body of acting driving is the premise of carrying out the acting driving business, so after defining the status of the acting driving agent of the professional acting driving company, the author also puts forward the internal and external conditions which should be met in carrying out the acting driving business. The content of the rights and obligations of the contract is the result of the game between the parties for their respective rights and interests. Therefore, on the basis of discriminating and analyzing various theories, the author determines the unique nature of the contract. At the same time, it puts forward the content of rights and obligations of the parties in the reasonable contract of paying for the future generations of wine driving. As the ultimate way to safeguard the rights and interests of the victims, the system of liability-bearing is of great importance. Therefore, the author divided into breach of contract liability and tort liability to protect the rights and interests of victims. The author expatiates on the main body of acting driving, the content of contract rights and obligations, and the responsibility, in order to put forward the way of balancing the interests of substitute driver, owner and third party involved in the driving of paid future generations.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924

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