In recent years ,With the popularity of private cars ,Brought traffic congestion, environmental pollution, energy shortage and serious problem ,In order to solve these problems ,In China's Beijing, Shanghai, Guangzhou and other cities have spontaneous "to fight" phenomenon. "Carpool" phenomenon in the history of the development of ,With China's current economic development, the environment needs to adapt to,It can relieve the traffic pressure,Saving resources and energy consumption and traffic cost,Reduce the exhaust pollution. The current,China is to promote the conservation oriented society,In the face of extreme shortage of oil resources,We think the car is a feasible way of saving resources. So far, China has not yet enacted laws to regulate the carpool behavior, once the car in a traffic accident, we should use legal means to resolve disputes, legal responsibility to balance has become a problem worth discussing.

A,The definition of carpooling behavior type

We think, to determine the responsibility of the accident in the car, first we should define the different categories of carpooling behavior. Carpooling types, legal responsibility of all parties liable should also be different, can not lump together, make it rigidly uniform, should be a concrete analysis of concrete problems. "Carpool" behavior according to whether or not for profit purposes can be divided into for-profit and non-profit car car

(a)   For-profit carpooling:

Profit sharing is driving people to one side for the purpose of profit, a transport protocol and a number of car, the price charged to the car in accordance with the agreement, and will to fight people sent to the designated place to fight. There are four main features, first, drivers to take the initiative to attract customers; second, not by meter charges; third, to talk about price and passenger; fourth, the passengers and owners do not know each other. The common car behavior of the vehicle can be daily operating taxis (taxi sharing), can also be privately owned cars (commonly known as the "black car"). It is illegal for illegal operation of the typical. According to the "road transport regulations," the people's Republic of China stipulates that the sixty-fourth ", has not obtained the license for road transport, unauthorized engaged in road transport business, the road transport management institution at or above the county level shall be ordered to stop business, confiscate the illegal income, and impose fines, criminal responsibility shall be investigated according to the situation." Profit sharing is a kind of illegal behavior, violation of personal property rights and interests of passengers, disrupt the country's transportation order, law is expressly prohibited. According to the "road transport regulations," the people's Republic of China stipulates that the sixty-fourth, without obtaining a business license for engaging in road transport, road transport business, the road transport management institution at or above the county level shall be ordered to stop business, confiscate the illegal income, and impose a fine, shall be investigated for criminal responsibility according to the situation

Two.   Non-profit carpooling:

Non-profit carpooling and according to whether it involves the payment of money, is completely free of charge carpooling and non-profit compensatory Carsharing

1Free carpool. Free carpool mainly refers to the premise owners without affecting their established route, find in helping others, the good intention not to take charge any fees and send it to the behavior. Free carpool behavior mainly embodies the characteristics: first, usually occurs in the comparison between relatives, friends, familiar with related colleagues and neighbors, a few cases also occur between strangers; second, the implementation of the behavior of private car owners have good intentions very clear, with a strong favor color, is not to ask for any expenses a man will be sent to the destination; third, private car owners usually is the premise without affecting their established by piggybacking on route; fourth, belonging to the petty behavior in everyday life, is a factual behavior, it does not belong to the legal category, also do not have the force of law.

2The nonprofit compensatory Carsharing. The non-profit paid carpool, ride that is usually said, that in order to save costs for the purpose, through the private car travelers (including private car owners, drivers, users, managers) agree, a civil act by a hitchhiker. But the riders need to pay a certain amount of money, to share the private cars to run on oil fees, tolls, auto repair cost overhead. The author thinks, subjective, carpooling both parties because of the car have the same expected, namely save travel expenses, and reached the meaning is the same, subjective objective distinction in the transport industry profit. To provide transportation service charge a service fee to the passenger transport, passenger and carrier to reach is said to transport the service agreement means; objectively, carpooling party to balance the owner cost cost is not the owner of the occupation or the source of life, pay significantly lower than the contract of carriage in the same conditions of transport the cost of. Paid contract that Professor Wang Liming ", refers to a party by the performance of the contract obligations and to each other, each other to get some interests, the interests must pay the corresponding cost contract". Obviously, carpooling pay not ride car "price", a way to share only to the owners of the cost, not for profit, not for illegal operation.

Two,For non-profit free carpool traffic accident responsibility

(a)The legal nature of the non-profit free carpool:

Free carpool behavior is the friendship behavior typical. Friendship behavior refers to the social, moral reason for help, occur, no civil rights and obligations act, also known as gefalligheitssvehaltnis. The good intention is not a civil legal act,His behavior does not produce legal consequences. On the surface,The owner invited or others put forward a request,Offer and acceptance of others to make a expression of intent or owners allow others to ride the behavior is similar to the "contract law" provisions of the,When the owner is not in accordance with the agreed with each other on other cases,The owner should bear the liability for breach of contract. But,As the owner invited or allow others to take action is based on "the friendship",Owners intention is not hopes to have the corresponding legal consequence,His behavior is not legally binding,So,There is no contractual relationship between the owner and the free riders. When the owner is not in accordance with the agreed with each other on other cases, The owner shall not bear any legal consequences.

(two) for free car after the accident responsibility:

Before the present our country does not have introduced the relevant legal provisions about the problem of "free carpool" behavior to make specific provisions, "carpool" traffic accidents are generally according to "the people's Republic of China Road Traffic Safety Law" for processing, in case of damage compensation, to traffic accident responsibility confirmation as the basis, by accident party shall bear the responsibility for compensation; if the accident is caused by the owners of illegal, the owners should be responsible; if it is third party caused the accident, then take the main responsibility; if the third party does not have the ability to pay for all the damage, then take people often find the owners compensation. We think, "the liability for traffic accident happened to fight" behavior can refer to the following principles identified: 1. once the accident damage compensation, first consider the vehicle liability insurance. Distinguish between drivers and drivers of non negligence negligence in two kinds of situations, to determine the fault liability insurance compensation. The insufficient part of insurance compensation, the hitchhiker can voluntarily give up any possible damage to the motor vehicle drivers and vehicles all people the right to claim compensation, or by the party at fault liability;Both parties are at fault,In accordance with their respective proportion of fault responsibility;In the case of no fault,In accordance with the principle of fairness,The passengers, owners and third appropriate sharing. In view of the non-profit nature of the fight,Allows owners and passengers on the question of responsibility set limit of liability,As agreed by people at your own risk, responsibility assume,But to prove that except the owner have the intention or gross negligence of the.

2. traffic accidents, causing both vehicles damaged this part of the loss, under normal circumstances, the two sides should be the driver in accordance with the traffic accident liability ratio to share, passengers need not be responsible for. But the passengers to the traffic accident has fault, it should be according to their degree of fault, liability for compensation shall assume the corresponding proportion. "Fault" includes many things, such as motorists have inappropriate behavior in the car, the driver driving effect caused by traffic accident; or the passengers forced drivers driving causes traffic accidents etc..

3. "fight" passengers who knowingly driver has drunk, no driver's license, the vehicle does not meet the standard of illegal driving behavior and so on, passengers still insisted on, once has the traffic accident, liability to a car drivers will be reduced accordingly, passengers will face the risk to bear the corresponding consequences.

Three,For non-profit compensatory Carsharing traffic accident responsibility

(a)   Non-profit nature compensatory Carsharing:

At present, our law does not and clearly defined the non-profit compensatory Carsharing, its legal status in a grey. Carpooling, road traffic management departments, the taxi industry associations from the different angle to the non-profit compensatory Carsharing have different positioning. We believe that the non-profit compensatory Carsharing and taxi, car has a fundamentally different, its greatest feature is its non-profit,Therefore it charges to subsidize vehicle gasoline fee and other expenses as the premise,The cost is far lower than the taxi fare. The owner to carpool people receive cash, in kind or symbol of labor compensation, and these cash, goods or labor compensation price way, just a simple settlement, and is not a commercial mode of operation. Business or commercial fees need clear provisions of this regulation and legal, substantial differences.

The author thinks that the compensatory Carsharing is not illegal operations, in accordance with the relevant legal provisions, the so-called illegal operations, refers to not get the license for road transport, road transport engages in business activities. According to this provision, a behavior should constitute illegal operation must have two conditions: one is without obtaining a business license of road transportation; two is the behavior of people engaged in business activities must be transported. The so-called business transportation, refers to the provision of services, with the commercial road transport activities for the public. However, in the non-profit compensatory Carsharing owners not to take charge him with driving service when the service fee,He only charge the cost of vehicle loss fees, tolls, fuel costs, vehicle operating costs,The owner of the fees do not have profit. Although it meet the first condition of illegal operations, but it is not the business transportation activities and therefore it is not illegal operation. In the clarification of the legal status of compensatory Carsharing, to further define the legal relationship between owners and occupants. There is no transport contract relationship between compensatory Carsharing vehicle and passenger, but an atypical contract relationship. According to the "PRC Contract Law" article302The provisions:"The passenger in the course of carriage carrier shall be liable for damages for the death of,But death is caused by the passenger's own health reasons or the carrier proves that casualties except passenger intentionally, gross negligence. The provisions of the preceding paragraph shall apply in accordance with the provisions of free of charge, holding a complimentary ticket or permitted by the carrier to travel without a ticket." According to the provisions of the above terms,The practice in the following corollary:Passengers without tickets paid carpool passengers of the carrier allows on,The existence of transport contract relationship between the owner and the riders paid carpool. On the concept of understanding is the key to whether there is a contract of carriage to clarify the relationship between the owner and the riders. According to the "contract law", "the people's Republic of China road transport regulations" provisions,The carrier is the access road transport business license, engaged in freight or passenger,For the purpose of profit operators. However, compensatory Carsharing owners only partially to charge the cost of vehicle loss fees, tolls, fuel costs, vehicle operating costs,Between the owners and passenger transport contract relationship does not exist.

Carpooling behavior paid should belong to the contract behavior. According to the provisions of China's "contract law", this kind of contract behavior has the following properties: first, the contract belongs to nameless contract. Although from the point of view of the characteristics, private car pooling behavior paid and the "contract law" in the passenger transportation contract approximation, however, the two are different in essence, passenger transport contract for passenger transportation contract form, and private car owners obviously does not take the passenger transportation for the occupation and its purpose, therefore, paid private car a nameless contract. Second, the contract is bilateral, bilateral, consensual, not a contract. Since the private car pooling behavior paid belongs to contract behavior, by the nature of the contract law.

(two) non-profit compensatory Carsharing after the accident responsibility:

1. determine responsibility according to the mistake responsibility size parties in traffic accident

1. The third cause of damage compensation liability. If a traffic accident damage is caused by the third party motor vehicle fault, it should be by the third party shall bear the liability for damages. "The provisions of article seventy-sixth paragraph 1 of the people's Republic of China Road Traffic Safety Law": "traffic accidents between motor vehicles, the faulty party shall bear the liability; if both parties are at fault, in accordance with their respective proportion of fault responsibility." Thus, caused by a traffic accident fault third party for the personal injury compensation liability is reasonable and legitimate. If the application of strict liability in this case, then aggravate "to fight" the responsibility of the owner, this is too harsh conditions in violation of the "fight" behavior of mutual aid and cooperation intention.

(2) because drivers fault accident. That is ruled out on the third party, in this case, the owner should bear the responsibility without fault. In this case, the owner or the driver as the vehicle management, have the obligation to ensure the safety of passengers, if a traffic accident in the car during the fight and suffer personal injury, the owner or the driver of the compensation obligation. If the passenger in the "fight" also has the mistake, can apply the rule of contributory negligence, appropriate to reduce or compensate for the exemption from liability of the driver or vehicle all people.

(3Because the fault) by accident. At this time, due to the reality of social justice, the owners of a person's liability for damages may be waived or reduced, namely "the principle of contributory negligence". "General rule of the civil law" article131Regulation: the victim also at fault for causing the damage, the civil liability of the infringer may be reduced. "The people's Republic of China Road Traffic Safety Law" article76Article1Paragraph2Rule: there is evidence of non motor vehicle drivers, pedestrians in violation of road traffic safety laws and regulations, motor vehicle drivers have to take the necessary measures, reduce motor vehicle liability side. According to the above provisions, the motor vehicle traffic accident caused a traffic accident damage compensation and the pedestrian owners or drivers to take casualties compensation, can apply the principle of fault offset. Contributory negligence, negligence is not the offender and victim fault offset each other, but the victim's negligence damage component to the total damage from the meaning than offset. The core principle of contributory negligence is, carry out the fair responsibility principle, reasonable distribution of burden, avoid will bring their negligence damage on the other, so as to realize social justice.

(4) the accident caused by the common fault drivers and passengers. "Carpool" owners and occupants if agreed upon in advance the rights and obligations of both parties, so when the traffic accident compensation for personal injury occurs, both sides can bear the responsibility for compensation according to the agreement in the contract. "Contract law of the people's Republic of China" the eighth stipulation: "the contract established according to law, legally binding on the parties. The parties shall perform their respective obligations in accordance with agreed, shall not alter or rescind the contract." It should be noted, the terms of the contract must be lawful, and shall not be contrary to public order and good customs. If the owners of exemption agreement first with the riders reached a personal injury, then such disclaimer will lack legal recognition. If no prior to the rights and obligations of the parties to reach an agreement, only with the principle of contributory liability, responsibility allocation in the drivers and passengers.

2"Problem. Insurance compensation compensatory Carsharing" accident: at present, emergence of compensatory Carsharing accidents in our country and in personal injury damages, the insurance compensation can be used as a remedy to relieve all compensation pressure. However, at the present stage of owners and take power will face great risk, because in the vehicle insurance system in our country, all the cars are in the non operation of the vehicle to the insurance, the insurance contract also stipulates: "for business purposes in non business units and private vehicles, can't get insurance compensation." Therefore, once the accident, the insurance company may be paid to ride the exclusions or less. The insurance company claims at the time also tend to "fight" acts as the illegal operation, the owners and occupants do not receive appropriate compensation. We think, "to fight" behavior is not illegal operation, the insurance company can not be operating illegally as an excuse to refuse to undertake the insurance liability. Because I have to "fight" and illegal operation of a detailed distinction here no longer I think "to fight" the owner should buy motor vehicle liability insurance in the car in the process, it is a kind of additional risk, mainly refers to the insurance vehicle in use on the car accident causes the personnel casualty, in accordance with the law by economic liability assumed by the insured. This insurance is the insured and insurer can negotiate insurance limit of indemnity, compensation and the seat number in the process of law, and not on passenger restrictions, therefore, the vehicle officers liability insurance indemnity played a good role. Although the car personnel liability insurance is not compulsory insurance, we propose to "fight" to insure against the owner. This is mainly because of "motor vehicle traffic accident liability compulsory insurance regulations" not insurance vehicle drivers and passengers into the scope of protection, if only strong risk of the insured to pay, the staff will not claim. In the legal system is not perfect, the insured vehicle liability insurance has become the important way to reduce the risk of accidents "to fight". In addition, we suggest should be a motor vehicle drivers and passengers into the cross strong insurance coverage. Although according to the "Regulations of motor vehicle traffic accident liability compulsory insurance regulations" in article third, motor vehicle traffic accident liability compulsory insurance (hereinafter referred to as the compulsory insurance), refers to the insurance company to the insured motor vehicle road traffic accidents caused by the vehicle, the insured to the body, loss of property and the victim's person, be insurance mandatory liability compensation within the limit of liability. That is to say, if the "fight" in the course of traffic accidents and cases for personal injury damages, the insurance company will not compensate the insured motor vehicle on the driver and passengers. However, the implementation of China's compulsory insurance is intended to reduce the traffic accident liability compensation pressure, while strengthening the protection of the rights and interests of the victim, so as to effectively address the issue of compensation, promote stability and protect the safety of the lives and property of the citizen society. If the guarantee scope in the vehicle at the time of the accident the counterpart, which not only can not reduce the pressure on the owners compensation for riders, and cross strong insurance purpose is contrary. Therefore, we suggest that should be a motor vehicle driver and passengers into the cross strong insurance coverage.

Four,For carpooling behavior security escort through the above analysis, we can see, carpooling has rationality, also has the legitimacy problem,Administrative law enforcement how to achieve a balance between the two is a new problem faced by the relevant departments. To "fight" phenomenon, should not easily with the relevant laws and regulations to artificial obstacles, but should not be down at one stroke. It should be as soon as possible to improve our country's relevant laws, to make clear the legitimacy carpool behavior, a correct understanding of the difference between carpool behavior and illegal trading, strengthen the supervision of carpooling behavior.

(a)   To strengthen publicity and education to improve the owners and occupants responsibility consciousness.

Owners and take in practice, the car before signing a agreement shall take, clearly the rights and obligations of both parties to the extent permitted by law, in order to avoid unnecessary disputes. If it is found through the network way Hitchhiker,Must be in agreement before the meeting,Mutual check ID, driver's license and other documents to ensure safety, prevent some illegal stem illegal things in the name of the car. The owner shall abide by the traffic regulations, drive carefully, to ensure the passenger in the "fight" in the process of personal and property safety. Only in this way, this way of travel will be more lawful and orderly, safe and reasonable. At the same time, suggest the owner purchased the vehicle officers liability insurance, the riders to buy accident insurance, The risk to the insurance company.

Two.   Administrative management.

Private cars in the city has entered the family,Risheng hitchhiking phenomenon,The government should introduce relevant policies and regulations,Study on a set of feasible management measures,Not only can meet this demand,But also on the implementation of standardized management. Such as the establishment of "carpool" registration system, the establishment of a special car registration network by the relevant departments, database management, "to fight" the intention of the owners must be in the online registration license plate number, his driving license number, insurance situation, driving route and other basic information, vehicle license plate number and have the intention to "ride" passengers must register their intent on and my ID number. Only in this way can the "information transparent to fight" the parties, can also strengthen the effective management of "carpool" behavior, is convenient for traffic police and other relevant departments to check at any time, at the same time, to prevent the "black car" excuse management. Recommendations relevant departments to ride the difference:Vigorously advocate free ride,Also by establishing appropriate tax, preferential policies to encourage;For the owners of not for profit purposes,Only collect fuel cost or time, wear and other cost,Significantly lower than the market price,To ride on the fixed route, fixed time, fixed personnel,Should be allowed;To borrow a car ride,It should be resolutely crack down. At the same time,According to the difference of the consumption level,Develop private car owners to the charge standard and calculation formula as the top limit,To ensure that the owners can not profit,To distinguish them from operating vehicles. Otherwise,If the report or the road transportation management departments to verify,Can be severely punished.

Two.Legal safeguard

The ride is a good way of travel and public transport and private travel advantages,But a series of new problems arising from the urgent need for us to pick up the legal weapons to solve,Strengthen the legal protection,More helpful for us to nip in the bud.

1 Improve road traffic management regulations. Because the ride is not like the passenger service,Countries have special passenger transport management regulations and passenger transportation contract regulation,Once a traffic accident occurs,How to share the responsibility?How to protect and take the interests of the owners?According to China's "road traffic safety law" article76The provisions:Motor vehicle traffic accidents caused casualties, property loss,By the insurance companies in motor vehicle compulsory third party liability insurance liability limits the scope of compensation. More than some of the limits of liability,Traffic accidents between motor vehicles,The faulty party shall bear the responsibility;Both parties are at fault,In accordance with their respective proportion of fault responsibility.

2 To perfect the insurance law. "Carpool" behavior is a new thing, the government should amend the rules and regulations, and to coordinate the interests of various departments, will "fight" accident into traffic accident insurance category. We think,Ride if the insured third party liability compulsory insurance, vehicle liability insurance and other insurance,Traffic accidents caused casualties, property loss of passengers,An insurance company shall make compensation in the insurance liability limit. The insurance company franchise need a contract basis and legal basis,And is responsible for the name carpooling with for-profit evidence. If the insurance company to operate on grounds of exclusions pure carpooling is no legal basis, so as to protect the interests of all owners of carpooling.