Who is responsible for the safety of Didi taxis?

In view of the fact that the Interim Measures for the Administration of Online Booking Taxi Management Services has not been officially promulgated, and the court has not issued guiding precedents on relevant cases, the majority of taxi users should be cautious, aware of the particularity of online booking taxis and their own legal risks under different taxi modes, and can purchase traffic accident insurance to spread risks when necessary.

In recent years, the disputes over compensation for traffic accidents caused by Didi taxis have gradually increased, which has aroused widespread concern in society. Therefore, we need to understand the division of responsibility for traffic accidents caused by Didi taxis within the framework of China's current legal system.

At present, there are four main business modes of Didi taxi, so the responsibility division of traffic accidents is also divided into four situations, namely taxi mode, express mode, free ride mode and special car mode.

Taxi mode: The responsible party is the taxi company.

In this taxi mode, the taxi software matches the passenger's car information with the taxi company's vehicle and driver information. After the passenger sends the driver a free ride order through the software platform, the company forms a service contract relationship with the passenger. The company provides taxi service to passengers, who pay for it.

Here, because Didi platform is not built in taxi mode and does not participate in the operation, it only provides information matching service between taxis and passengers, so it is difficult to ask Didi to bear the liability for compensation.

In order to explain the responsibilities of the company more clearly, the following four internal relationships between drivers and the company are sorted out one by one:

(1) The driver is employed by the company and the profits are turned over to the company. Drivers receive a fixed salary from the company every month. Because the driver is an employee of a taxi company, according to the provisions of Article 9 and Article 1 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, if an employee causes damage to himself or others due to his/her job behavior in the course of employment, the employer shall bear the responsibility, and if the employee causes damage due to intentional or gross negligence, he/she shall bear joint liability with the employer. If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer.

(2) The driver contracts the motor vehicles of the company, pays a certain profit every month, and the remaining income belongs to himself, still operating in the name of the company. The driver contracts the company's motor vehicles, and the contractor bears the ultimate liability for compensation. Because the contractor pays a certain profit to the company, the driver still operates in the name of the company, so the employer company bears joint liability. If there is an internal agreement, bear the responsibility according to the agreed content.

(3) Affiliated contract operation, that is, all your motor vehicles will be affiliated with a taxi company to operate in the name of the company, and the company is responsible for handling its operating license and paying a certain fee to the company every month. Since the profit belongs to the actual owner, the company only plays the role of unified management, so the actual owner should bear the ultimate liability for compensation. In addition, as affiliated companies charge a certain fee, the company should bear limited joint liability within the income range. If there is an internal agreement, it shall be withdrawn in accordance with the provisions of the agreement.

(4) The so-called "second-in-command", namely "co-driver", refers to the contractor, namely "main driver", who recruits others to participate in the operation. Here, there is an employment relationship between the operator and others, and the employer and the operator should bear the responsibility first. What kind of responsibility the company undertakes should be analyzed in detail.

In short, in any case, as long as the taxi is operated in the name of the company, the company has the management responsibility for the taxi, and the company has indeed gained some benefits, the taxi company should be the direct responsible subject. Taxi companies will divide their responsibilities with insurance companies and drivers according to insurance contracts and company regulations.

Express mode: the driver and passengers are responsible according to the fault principle.

In this mode, the taxi software matches the passenger's car information with the private car owner's car information. Private car owners and passengers voluntarily establish a service contract relationship based on the above matching information. Private car owners provide services for passengers, and passengers pay the fees, which are owned by private car owners.

Didi platform did not transfer money in express mode, nor did it participate in the operation. It only provides information matching services for both parties, and it is difficult to ask Didi to bear the liability for compensation.

At this time, the principle of fault should be applied to the traffic accident tort damage dispute, that is, the corresponding civil liability should be borne according to the specific fault in the damage.

Here, passengers should clearly realize that private car operation is illegal; Passengers should also realize that the safety performance of private cars is not guaranteed; Private car drivers are not qualified to drive taxis, which increases the risk of accidents. So the passengers themselves are at fault.

According to Article 131 of the General Principles of the Civil Law, if the victim is also at fault for the damage, the civil liability of the infringer may be reduced. Therefore, in the event of a traffic accident on an express train, even if the driver of the private car is determined to be fully responsible for the accident, the passenger should also bear part of the responsibility when determining the civil liability.

In addition, in terms of insurance compensation, under the express mode, private cars are engaged in passenger transport business, which changes the nature of the use of vehicles and leads to an increase in the risk of insured motor vehicles. According to Article 52 of the Insurance Law, if the risk of the subject matter insured increases significantly within the validity period of the contract, the insured shall notify the insurer in time as agreed in the contract, and the insurer may increase the insurance premium or terminate the contract as agreed in the contract ... If the insured fails to fulfill the notification obligation stipulated in the preceding paragraph, the insurer will not be liable for the insurance accident caused by the significant increase in the risk of the subject matter insured. Therefore, the insurance company can refuse to pay compensation for the passenger injury or car damage caused by the car accident in the operation of this kind of private car according to the law and the corresponding insurance clauses.

Mode of ride: drivers and passengers are responsible according to the principle of fault.

Here, the purpose of private cars is to save costs. With the consent of the driver, hitchhikers can hitchhike. Drivers publish their own driving routes on the Didi platform, or accept the carpooling needs of others and share with passengers through the Didi platform. However, passengers need to pay a certain fee to share the expenses of private car owners in terms of fuel, tolls, car maintenance and so on. After the accident, the responsibility should be determined according to the fault responsibility of the parties to the traffic accident. There are several specific situations:

First, if the traffic accident damage is caused by the fault of a third person's motor vehicle, the third person shall be liable for damages.

Second, the accident happened because of the driver's fault. As the manager of the vehicle, the owner or driver has the obligation to ensure the personal safety of the passengers. If the hitchhiking driver has a traffic accident during carpooling and suffers personal injury, the owner or driver is obliged to compensate him. If the passengers are also at fault in carpooling, the fault offset rule can be applied to appropriately reduce or exempt the compensation liability of the driver or the owner.

Third, the accident happened because of the fault of the passengers. At this time, the owner's liability for damages to passengers can be exempted or reduced, that is, the principle of fault offset. Article 13 1 of the General Principles of Civil Law stipulates that if the victim is also at fault for the damage, the civil liability of the infringer may be reduced.

Fourthly, the accident happened because of the fault of the driver and passengers. If the owner and rider of "carpooling" reach an agreement on the rights and obligations of both parties in advance, then when a traffic accident causes personal injury compensation, both parties can bear the liability for compensation according to the agreement.

On insurance compensation for hitchhiking accidents. At present, because private cars are insured in the form of non-operating vehicles, the insurance contract generally stipulates: "Non-operating units and private vehicles are used for business purposes and cannot get insurance compensation." Therefore, in the event of an accident, the insurance company may refuse to pay or pay less for the paid ride.

Special car mode: take responsibility in many ways according to the principle of fault.

This model is the only profitable model of Didi platform so far.

Responsible parties include: Didi platform, which is jointly and severally liable for the faults of car rental companies, labor dispatch companies and drivers; Car rental company; Labor dispatch company; Driver.

This mode adopts the mode of "car rental+driver driving", involving five parties, namely: passengers, car rental software platform (Didi platform), drivers, car rental companies and labor dispatch service companies.

According to Didi taxi software's statement in the "Terms of Use of Special Cars" on its APP client, passengers, as special car users, form a car rental relationship with the car rental company and a labour relation with the labor service company. Passengers are not only passengers, but also lessees of rented vehicles and employers of labor dispatch companies. Therefore, in addition to the risk of passengers' own injuries, they also need to bear the following risks: as a lessee, they are responsible for vehicle injuries without the fault of the car rental company; As an employer, you need to be responsible for the damage caused by the driver to the third party and the damage caused by the driver without fault. ?

Obviously, it is unfair and unreasonable to impose many responsibilities on passengers in the form of contracts with many unreasonable terms.

The unfair and unreasonable structure of the special car mode stems from the fact that Didi Platform itself does not have the qualification of taxi management service. This structure is to avoid the mandatory provisions of laws and regulations. The Didi platform adopts multi-party cooperation. On the one hand, we cooperate with qualified car rental companies and ask them to provide cars with operational qualifications. On the other hand, cooperate with labor dispatch companies and ask them to provide qualified drivers. The advantage of Didi platform is that it has a user base with strong demand for cars. The fare paid by passengers is distributed by four parties according to the agreed proportion, namely: car rental company, labor dispatch company, driver and Didi platform.

However, it is impossible for Didi platform to completely clarify the responsibility for accidents that may occur when passengers ride. From the perspective of fault liability in civil law, and from the perspective of legal fairness and rationality, Didi Platform, car rental companies, labor dispatch service companies and drivers are all service providers that provide special car services to passengers, and they have obtained direct economic benefits from them, and they should all be responsible for their own faults. ?

Moreover, Didi platform, as a special car platform, should also be jointly and severally liable for the losses suffered by passengers in traffic accidents and the compensation liabilities of the above parties. There are three reasons:

First, Didi platform should bear corresponding fault liability for its fault. In order to avoid the mandatory provisions of the law, Didi Platform has built a special car service model, which is the most important and fundamental fault of Didi Platform. During this period, Didi platform plays a key and leading role.

Secondly, Didi Platform has issued the Internet Special Car Service Management and Passenger Safety Guarantee Standard, which also ensures the safety and reliability of the special car when it is promoted to users, and should be responsible for its commitment.

Third, in the event of a traffic accident, the internal operation mode of the private car platform is not a defense for exemption, but can only be used as the basis for the division of internal responsibilities of the private car platform.

On insurance compensation for special vehicle accidents. For special vehicles without operating qualifications, insurance companies can also change the nature of vehicle use, which will increase the risk of insured motor vehicles and require refusal or less compensation.