The affiliated vehicles after the traffic accident was affiliated analysis of civil responsibility of the

Li Gang

   [the referee essence]In the dispute of compensation for the affiliated vehicles liable for the accident the traffic accident damage, should it bear the liability to pay compensation to third people, the affiliated person in charge of the link management fees range assume joint responsibility for compensation.

   [case]

   The afternoon of September 3, 2006, the defendant Huo a driving semi-trailer truck, the Beijing Railway unsupervised crossing, no parking lookout, rushed through, causing the vehicle and the passenger train collided, resulting in passenger train locomotive and 9 passenger cars off-lineBeijing line traffic interruption, 9 hours and 35 minutes, the direct loss of more than 330 yuan. The accident investigation committee found the defendant a hall for the accident responsibility. The driver employed by the owner Liu, and the vehicle is anchored in a turnGeneral cargo transportation center to carry out business. Huomou has constituted the crime of the traffic accident is, incidental civil lawsuit requesting defendant huomou Liu and transportation center, the owner shall bear civil liability for compensation.

   [dispute]

   Proceedings in this case, a city traffic freight center as the vehicle liable for the accident of the linked units, should assume civil liability issues, there are three kinds of views:

   The first kind of view, by the affiliated person (has the right to operate transport enterprises) and it (vehicle owner is the owner) are jointly and severally liable. The reason is: according to the Supreme People's court "on the application of 'of the people's Republic of China Civil ProcedureLitigation law 'opinions on several problems of "the forty-third stipulation:" the individual industrial and commercial businesses, individual partnership or titular collective enterprise and private enterprise engaged in the production and operation activities in its name, in the proceedings, the individual industrial and commercial households, individual partnership or private enterprises andThe affiliated enterprises as the common litigants." The rules are linked and was on units on the external take legal basis even pedicle responsibility.

   The second view, bear the responsibility to advance from the affiliated person of the affiliated person responsibility first, and then by the affiliated person according to affiliation agreement affiliated person to exercise the right of recourse. The reason is: the link between the victim unaware of operating vehicles, tort damageThe evil is vehicles in operation process occurs, and the operation is also to be linked to the name of the person, to be linked to human defendant, in line with the civil law principle of vicarious liability.

   The third view, should be linked to assume liability to pay compensation to third people, from the affiliated person in charge of the link management fees range assume joint responsibility for compensation. The reason is: because the transport business needs, the affiliated vehicles registered in the project nameNext, but it is not the owner of the car. Vehicle transportation management by the affiliated person control. The affiliated vehicles occurs the accident, from the affiliated person in charge management fees range are jointly and severally liable in accordance with the rights and obligations consistent principle.

   The Court adopted third views to judge. After the first instance verdict, the defendant and the victim did not appeal the incidental civil action, the prosecution did not protest, the verdict is already in force.

   [jurisprudence]

   One, what is the motor vehicle management

   In judicial practice, motor vehicles linked refers to the vehicle owner or owners, the consent of the transportation enterprise, engaged in the transportation business behavior to transportation enterprise name. Among them, the owner called it, transportation enterprise called the affiliated person. The carA private business relationship is generally obtained by it have been linked with the person who enters into a vehicle of affiliation agreements arising from the. Vehicle of affiliation agreement usually between it and the affiliated person the rights and obligations of both parties, as well as the management behavior of the foreign debtSuch issues to be agreed.

   It was linked to conduct business activities in the name of the affiliated business purpose is. A large number of individual owners only through transport management, in order to meet the strict market access conditions for the industry. Therefore, the essential link of vehicle shall be indicatedTo link it to the transport management right. It should be said, this kind of management mode is a kind of special phenomenon exists widely nowadays, passenger and freight transport industry. Although the link the transport management right does business qualification on suspicion, formerly the Department of transportation has never encourageTo implement the business model. However, governments around the country and the Department has issued the relevant provisions in quite a long period of time, to support or drive the development of the modes of. This is a motor vehicle management in current market economy needs all-round development of case based, there are three aspects of advantages;

   One is in line for, sourcing, reputation and policy are the dominant passenger and freight transport enterprises to solve because of heavy historical burden, lack of funds and operating vehicles less, poor condition and the formation of the operating difficulties, enhance the transport power. The second is for those who haveFunds or driving skills and needs the help of transportation enterprise visibility and reputation to attract supply of goods, transportation enterprises to provide various services for which fees to pay, so that they can specializes in personal realize capital appreciation purposes.The third is an effective solution to the individual transporters illegal operation long forbidden to vast and lots of tax loss and other problems, the affiliated service management unit to bear the responsibility, to a certain extent, can guarantee the individual transport to form a standardized management and payment mechanism.

   Review and demonstration, the controversial views of two

   About the affiliated vehicles traffic accident damages disputes in business, has been linked responsibility bearing units, China's legislation has no explicit provisions, only the Supreme People's court in the "about the actual owners hit and its affiliated units should bear the responsibilityLetter "(2001) No. twenty-third people he had expressly:"... The actual owners hit and its linked to from the affiliated vehicles in operation made interest is linked units shall bear civil liability to an appropriate extent." However, the meaning of the words used in the reply comparison modelPaste, the meaning of "civil liability" appropriate not speak in detail. In judicial practice, the existence of understanding and application of chaos in such cases.

   By the affiliated person of the affiliated person responsibility to bear the responsibility to advance the view that can not be established, primarily because of the affiliated person responsibility cannot apply vicarious liability principle. In tort law, vicarious liability is responsible for the actions of othersThe special tort liability form. Generally speaking, the main legal features of vicarious liability in the following three aspects: 1, vicarious liability and to have the special relationship between people, specific performance for the membership, employment, monitoring the identity relation, and vicarious liabilityIn the special relationship with nature in dominant position. For example, in the status of legal person management and control of its staff. 2, Harmer in performing their duties and other related with the specific status of the relationship. 3, compensation duty main body not injurerThe vicarious liability, but one, namely Harmer and separated from the responsible person. Typical vicarious liability for tort is the state organ personnel of state organs in performing duties of the vicarious liability, the guardian of the guardian is the tort of vicarious liabilityThe employer, and violations of employees engaged in employment activities of vicarious liability. There is link between specific between it and the affiliated person, does not have the membership, employment, monitoring identity relation, the affiliated person in the affiliated relationship to hangBy the people more in the service management status, relationship, different between the injurer and vicarious liability people so, cannot apply the vicarious liability principle to the vehicle, it was affiliated relationship between man and the three man.

   We also see, the Supreme People's court "on the application of 'people's Republic of China Civil Procedure Law' opinions on several problems of" forty-third stipulation about civil litigation subject of judicial interpretation, mainly expounded the link it with the affiliated person as a commonLitigants to participate in the proceedings. Joint and several liability current civil law in China can be understood as: the above responsibilities are two, opposite party has the right to all or part of the responsibility that bears all responsibility, responsibility part assume full liability, right beyond hisShould undertake to share part of the responsibility of the person entitled to the other. Because of the joint and several liability is a kind of common full heavier responsibility mechanism, to prevent abuse, and contact the legislation of various countries, usually only in the law or the parties have a clear aboutTiming is produced. From the above provisions cannot be derived directly affiliated person caused by link it jointly and severally liable for damages the conclusion. Let's change the angle of the Supreme People's court in the "about the actual owners of the linked units should hitNo responsible reply "in the" civil liability "proper guidance, it apparently is made without distinction shall be full of joint and several liability viewpoint. At the same time, taking into account the 2000 to reply, the vehicle management is still in theTry to use "appropriate" stage of development, the flexible instruction, aims to encourage local courts continue to explore more in line with the conditions of legal and judicial rules in specific judicial practice.

   The author thinks, should take the operation control and operation interests as the subject of tort liability cognizance standard of motor vehicle traffic accident, namely whether somebody is the motor vehicle traffic accident liability subject, must also meet two criteria, not only to look at the vehicleWhether the dominant position of management in fact, but also look at the motor vehicle operation itself is benefit. The standard integrated embodies the theory of hazard liability and compensation liability. Dangerous liability is refers to the unavoidable realityHarm, but the managerial control and dangerous activities against material can prevent and reduce, the natural hazard against should dominate and dangerous activities shall bear. The compensation responsibility is derived from "who benefit burden dangerous" legal proverbs,At the same time burden refers to its loss by people who pursue their own interests. The risk of liability and compensation liability to be specific, the main responsibility is to through the operation control and evaluation of operational interest to consider the road traffic accident.

   The Supreme People's Court on 2001 "did not apply for transfer procedures Serial purchase a car owners whether or not the original name of motor vehicle accidents were liable for damage caused by the reply" provisions, serial purchase a car not handled corpse procedures, as vehicles have been delivered, the original carThe Lord can't control the car operations, also cannot benefit from the vehicle operation, it is not the original owners deal with motor vehicle traffic accidents responsibility. Visible, in recent years, in our judicial practice and theory has been gradually recognized andAnd is suitable for operation control and operation benefit of liability principle.

   Three, the case analysis and the conclusion

   In this case, the driver huomou employed by the owner Liu, in the operation way because of illegal driving accidents, resulting in railway passenger train off-line and other major economic losses. Identified by the accident investigation committee, the defendant in a hall for the accidentAll responsibility. According to the Supreme People's court "on personal injury compensation case applicable legal interpretation of several issues" the ninth regulation, the owner Liu shall bear the liability of compensation. Theoretically, employed a between Huo and owners of Liu that Huo employerRelationship is vicarious liability relationship. Owners Liu to assume the liability of compensation, can exercise the right of recourse to the driver. So, does not support the request about Huo a bear the liability of compensation in incidental civil action.

   The vehicle owner Liu and city traffic transportation center signed a "protocol, the agreement by the transportation center for the pay various fees, insurance and other projects, the monthly charge 100 yuan management fee, and put his own truck in Che KwunRegistration department in the transportation center. From the perspective of ownership of a motor vehicle, motor vehicle registration is the vehicle management means and measures, Liu will link the vehicle registration in the transportation center name, just the affiliated business needs, while the affiliated vehicles ownershipIs still liu. In the freight business process, concrete transportation, how to charging matters entirely by Liu control of the vehicle when where why people, freight service income in addition to fixed fee outside all by its domination, no transport centerAsk. In short, the owner Liu implementation control of vehicle operation, enjoy the most actual transport benefit. The operation control and operation interests standard to measure, the vehicle owner Liu as the main subject of liability for tort, should bear the damagesCompensation liability. On the other hand, even if will be built between 100 yuan per month as a two service charge, but Liu foreign business after all is the name of the transport center, the inevitable link in the management of undeniable. Responsible for transportation centerCompany transport safety daily supervision and education and other functions, so it has some mistakes in the management. So, the transportation center may be regarded as affiliated liability tort compensation of motor vehicle traffic accident.

   Taking into account the vehicle management mode of existence, need to include various departments constrained grooming individual transport operators and supervise administrative management fees to pay. If the company was linked to bear the full compensation for risk nearly 100 vehicles linked,Obviously the current this kind of only hundreds of thousands of yuan of registered capital management company is the lack of responsibility ability. Because it is the management fee charged in affiliated enjoyed relationship of rights and obligations, according to the agreement signed by both sides is linked to complete a variety of serviceProject. Therefore, in accordance with the rights and obligations of the principle, the Court adopted by the affiliated person bear joint and several liability Limited is fair and reasonable.

   It should be said, the limited liability is not clearly stipulated in legislation, the civil judgment the expression mainly in the province high court trial guidance and all related, such as the Liaoning Provincial Higher People's court, the Public Security Bureau of Liaoning province "Opinions about some problems of road traffic accident cases "(Liao bus (2001) No. 62) and ninth (5):" the provisions of item affiliated registered affiliate traffic accidents and responsible, the affiliated person shall bear the liability for compensation, has been linked unit chargeIt management costs, by the linked units assume limited liability in the amount of management fees charged." It is the judicial practice of moderate development of joint and several liability, mainly to limit the scope of the joint, other legal effect of the content and the same joint and several liability.

   Generally speaking, civil joint responsibility according to the internal relationship between the responsibility of the person is different, can be divided into several liability, joint and several liability and supplementary liability. The Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case explanation" SixthRegulation: "because third person tort caused damage happen,... The obligation of safety guarantee is at fault, it shall bear the corresponding supplementary liability in its ability to prevent or stop damage." Here the responsibility of compensation shall be prescribed byThe principal debtor common liability does not perform or can not perform as the premise, from the debtor only assume complementary liability in the second order. And the joint and several liability outstanding parallelism, that is not the primary and secondary each debtor, unconditionally to assume the debtJoint and several liability, creditors can claim to any debtor pay off all the debts. Visible, limited liability except for the adjustment in the joint range; parallel characteristics is still with the joint and several liability. It is because it is in the range of the flexible jointProperty, which can effectively solve the problem of a lot of responsibility distinction; therefore, it has great application space in dealing with civil responsibility, civil legislation should regard it as a kind of joint and several liability model, to absorb and affirmation.

   In sum, the court in accordance with paragraph second of general principles of the civil law in the judgment of 117th, vehicle owner Liu should compensate the direct losses and a railway bureau, transportation center for the affiliated vehicles causing damages, in the management fee charged 600Yuan range assume joint responsibility for compensation. At the same time, transportation center is not on schedule to fulfill the affiliated vehicles for motor vehicle traffic accident liability compulsory insurance obligations, resulting in the loss of the injured party should be able to get insurance company 2000 yuanProduction quota compensation. Therefore, the court verdict was affiliated to additional bear limited liability in 2000 yuan property loss compensation limit.

Author unit: Tongliao Railway Transportation Court