If say the telephone call that who has cannot be received with refus,
Estimation belongs to express little elder brother
Dried food little elder brother takes everybody to understand problem of a solid Wu today:
Express member traffic accident produces in sending a road
By who to assume liability to pay compensation?
The study that passes dried food little elder brother and understanding --
Majority express business is used concessionary join in management mode
Head office gives each to raise a company to manage authorization of concessionary right of administration,
Each company grants concessionary right of administration again second join in branch,
Second join in branch contracts again express is individual person,
Express is individual person again service express delivery member undertake deserving to send
So, fall in this kind of mode --
Express member traffic accident happens to send other to damage in sending a road, external by the liability to pay compensation that be assumed by concessionary person, in-house contractor is not assumed external liability to pay compensation.
1
Recommend case
Express member traffic accident happens to send other to damage in sending a road, external by the liability to pay compensation that be assumed by concessionary person, in-house contractor is not assumed external liability to pay compensation -- the desk of issue of liability of accident of motor vehicle traffic such as limited company of trade of Beijing Fang Tonghao heart and He Delong
Case argument: Adopt concessionary join in in the express industry of management mode, general existence is concessionary person, by concessionary person (join in company) , in-house contractor, express member wait for many law principal part and legal impact. When express member when traffic accident happening to send other to damage in distributing express road, principle of responsibility of the person that the basis servantchooses a person for a job, answer external by by concessionary person (join in company) assume liability to pay compensation, in-house contractor is not assumed external liability to pay compensation.
Record date: (2017) Beijing 02 civilian eventually 4151
Cognizance court: Beijing court of the 2nd intermediate people
[review analyse]
Ten years short, line of business of our country express is depended on concessionary join in management mode expands quickly, from this and all sorts of contentious case year after year that those who come is experience express industry increase. In the processing of dispute, how li clear express is concessionary person, by concessionary person (join in company) , contractor, express member legal impact, how to assign the legal responsibility between each main body, it is the key that solves a problem. Specific to this case, the key of cognizance is: Express member when other is being sent to damage in distributing express process, who will assume main body responsibility?
One, service concern and working relationship, contract to do a job the li of the relation is clear
Yang Dezhi is in pay of the regular service that get in Zhang Jiang, the job gets Zhang Jiang government, vehicle of express in transit also is offerred by Zhang Jiang, but, because Zhang Jiang does not belong to legal to use project unit type, labor does not hold water to concern between reason poplar achieve one's ambition and Zhang Jiang, also do not belong to contract to do a job relation, and should maintain concern for employ.
2, contract relation and commerce are concessionary the cognizance of management relation
(one) contract the cognizance of the relation
Zhang Jiang is the individual that does not have express to manage aptitude, the autograph has company of the square heart that connect bright and Zhang Jiang ripely fast give contract the contract gives fulfill, can maintain Zhang Jiang and company of the square heart that connect bright to build belong to enterprise interior to send a package, contract the law of property concerns.
Contract in the company below management mode, the contractor develops management activity external with sending the name of packet of company. Although contract,agree mostly in the contract, the total debt during the contractor has total worth to contract to its oneself with its assumes pay off responsibility, but the company that send a package is the legal person that has capacity of independent and civil liability, the contract concern between its and contractor belongs to company interior to concern, the relationship of creditor's rights debt between company and creditor belongs to company exterior concern. Accordingly, in concerning external, creditor has authority to find out the civil liability of the company that send a package directly. In concerning internally, after the company that send a package is assuming responsibility of debt pay off, can chase after countervail to the contractor separately according to relevant agreement. Accordingly, although be Zhang Jiang,employ poplar achieve one's ambition is engaged in express distributing professional work, but assume in what concern external in, should wrap a person in order to send to just connect bright heart company to regard liability to pay compensation as main body.
(2) commerce is concessionary the cognizance of management relation
Ripely company and company of the square heart that connect bright sign concessionary management contract one, bilateral agreement, company of the square heart that connect bright serves as by concessionary person, can be in Beijing east the city zone is managed inside restful area ripely express business, the concessionary right of administration that authority informs knowledge property right, management mode, management to running a circle inside this area system, express serves a product to wait inside undertakes the gender is used molopolizing. Accordingly, can maintain square Tong Haode company and ripely the company establishs business concessionary management relation. The question of civil liability relationship that as a result of our country's active law, code concessionary to commerce management mode leaves did not make clear a regulation, reason considers this case in, concessionary person and by concessionary average per capita it is the principal part that can assume civil responsibility independently, and ripely the company is direct to this second accident responsibility person (Yang Dezhi) operation control force is lesser, although its are put in the error on management, but the happening of this error and traffic accident is not had causal, accordingly, maintain ripely the company does not assume liability to pay compensation is to accord with our country active law to set.
3, responsibility of the person that company of square Tong Haode should deny the tort behavior that is Yang Dezhi to assume choose and employ persons
(one) " undertake service activity " maintain
Employ poplar achieve one's ambition distributes Zhang Jiang express. Because produce the car that the Yang Dezhi when traffic accident drives to imprint,have ripely fast give a label, yang Dezhi gives the goal of travel also is to distribute express, because this should maintain Yang Dezhi,be to undertaking service activity.
(2) responsibility of the person that servantchoose a person for a job is decided really
Zhang Jiang is the individual that does not have management express aptitude, sign according to just connecting bright heart company and Zhang Jiang ripely fast give contract contract, company of the square heart that connect bright needs square to Zhang Jiang staff member to undertake grooming, square staff member needs Zhang Jiang the regulation that abides by company of the square heart that connect bright and standard. Again basis ripely the registering information that the company submits shows, attributive company of Yang Dezhi is company of the square heart that connect bright. Accordingly, can maintain Yang Dezhi to be engaged in regarding square Tong Haode as the labor of company core business all the time, close namely send mailing express job. Yang Dezhi is in the job, name a person for a particular job of the time with must be in proper according to the requirement of the company, ground closes the express collection that sends express or send to appoint a client, cannot close to send mailing or lose attaint at will express, accept management of company of square Tong Haode essentially.
From theoretic tell, one of theoretical foundations of responsibility of the person that servantchoose a person for a job -- control force theory points out, the person that be used should comply with the instruction of the person that servantchoose a person for a job, get the management of the person that servantchoose a person for a job and control, inside the constituent put oneself in another's position of the person that be brought into to servantchoose a person for a job. That is to say, the staff member must be subject to the instruction of company or enterprise, be supervised accordingly when executive job job. Accordingly,
(Chen Bei, Fan Qiange: " express member the compensatory principal part that traffic accident produces in sending a road is maintained " , carry " case of people judicatory · " 2018 the 2nd period)
Juridical regulation
1. express member traffic accident happens to send a person to get hurt when distributing express, should by concessionary join in business assumes accident responsibility -- the desk of issue of liability of accident of motor vehicle traffic such as Zhu Xiaogong and Yi Yingjian, Yi Biao
Case argument: Express member traffic accident happens to send a person to get hurt when distributing express, attribute functionary action, answer to assume tort responsibility by unit of choose and employ persons. Express industry is medium concessionary person, concessionary the legal person main body that joins in business all is independence, concessionary join in business pursues express business inside concessionary limits, assume civil responsibility independently external, concessionary person does not assume accident liability to pay compensation.
Record date: (2017) revive 1191 civilian first 2032
Cognizance court: Jiangsu saves court of people of Zhenjiang economy developing zone
2. express member drive the electric tricycle that carries express causes other to damage, be answered to assume liability to pay compensation to the accident by concessionary person -- how is Beijing arranged fast give limited company to wait with desk of issue of liability of accident of traffic of square meeting motor vehicle
Case argument: Express member drive the electric tricycle that carries express causes other to damage, classics policeman team is maintained should bear full responsibility to the accident. When accident happening, express member for express industry by the employee of concessionary person, belong to the act that performs a job. The evidence that already was left his post by the member that concessionary person holds express delivery of the cause trouble when traffic accident happens is insufficient, the agree carries the legal consequence with adverse quote, be answered to assume liability to pay compensation to the accident by concessionary person.
Record date: (2018) Beijing 01 civilian eventually 3108
Cognizance court: Beijing court of the first intermediate people
3. driver drives in undertaking service activity van speeding, send other casualties, answer external by the person that send a package (by concessionary person) assume liability to pay compensation, concessionary person assumes liability to pay compensation of little part complement -- Zhu Xiumei, Zhang Deheng with Shanghai every day the desk of issue of liability of accident of motor vehicle traffic such as limited company of express limited company, representative of freight of Shanghai day favour
Case argument: Driver of employ of express business contractor is undertaking service activity in, drive van speeding sends other casualties, classics policeman branch is maintained, cause trouble express member the main responsibility of negative accident. Contractor and hair bag person (by concessionary person) built belong to enterprise interior to send a package, contract the law of property concerns, story reason answer external by the person that send a package (by concessionary person) assume liability to pay compensation. The person that send a package (by concessionary person) business of as bilateral as concessionary person department is concessionary management relation, concessionary person is scanty at be opposite accident car undertakes seasonable, effective supervise, examination, put in certain fault to the happening of the accident, the agree carries liability to pay compensation of little part complement.
Record date: (2013) Pu Min one (civilian) first word the 39337th
Cognizance court: Court of people of Shanghai Pudong new developed area
4. express member drive without name brand 3 rounds of electric cars are being fulfilled other is sent to get hurt in the post, outside deducting limits of insurance manage compensate, should assume liability to pay compensation by person of total hair bag external -- medium desk of issue of liability of accident of traffic of motor vehicle of an express Inc. , Shi Xiaofeng
Case argument: Express member drive without name brand 3 rounds of electric cars are performing a job other is sent to get hurt because of error behavior in the process, the member that policeman branch holds cause trouble express delivery bears the main responsibility of the accident. Principle of responsibility of the person that the basis servantchooses a person for a job, outside deducting limits of insurance manage compensate, be answered to be assumed by unit of choose and employ persons by the infringer's loss. Because packet of person and in-house contractor are sent to all did not obtain express business business certificate before the accident outside the case, do not possess the lawful qualification that with joining in means manages express, send with what enterprise interior belongs to between tripartite of person of total hair bag, contract relation, the liability to pay compensation of accident of reason experience case should wrap a person to assume by total hair.
Record date: (2017) short for Zhejiang Province 01 civilian eventually 4484
Cognizance court: Zhejiang saves court of Hangzhou city intermediate people
When
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3
Legal basis
1. " law of liability of tort of People's Republic of China "
Thirtieth servantchooses a person for a job 4 times because the staff member of the unit carries out working job to cause what other damages, assume tort responsibility by unit of choose and employ persons.
During the service is sent, because the staff member that is sent carries out working job to cause what other damages, assume tort responsibility by the unit using worker worker that accepts a service to send; The service sends an unit to have fault, assume corresponding additional responsibility.
Thirtieth 5 the service is formed to concern between the individual, because the service causes other to damage,provide service one party, by accept service one party to assume tort responsibility. Because him service is damaged,provide service one party, assume corresponding responsibility according to bilateral and respective fault.
2. " top people court about trying statute of comfortable use of person damages case the explanation of a certain number of problems "
The 9th employee sends a person to damage in undertaking service activity, employer ought to assume liability to pay compensation; Because employee perhaps weighs big error to send what the person damages intentionally, ought to assume implicative liability to pay compensation with employer. Employer assumes implicative liability to pay compensation, can chase after countervail to employee.
Fund place says before " undertake service activity " , it is to point to be engaged in employer accredit or the production inside indicating range runs an activity activity of other perhaps service. The behavior of employee exceeds accredit range, but its behave a form is to perform a job or with what fulfill a post to have immanent connection, ought to maintain for " undertake service activity " .
3. " top people court about hearing case of damages of road transportation accident applicable law the explanation of a certain number of problems "
The 16th is cast at the same time defend compulsory insurance of liability of motor vehicle a third party (the following abbreviation " make strong narrow pass " ) be sure with commerce of responsibility of a third party (the following abbreviation " commerce 3 person danger " ) accident of traffic of motor vehicle happening is caused damage, party sues infringer and insurance company at the same time, people court ought to decide liability to pay compensation according to following regulation:
(one) the insurance company that joins strong danger by accept insurance first gives inside liability limit range compensation;
(2) skimpy share, by accept insurance commerce 3 person the insurance company of danger gives according to insurance contract compensation;
(3) still have inadequacy, the relevant provision of law of safety of transportation of according to road and tort liability law is given by the infringer compensation.
By the infringer or its are near preferential compensation spirit damages the insurance company that belongs to request accept insurance to make strong narrow pass, people court should grant to support.
4. " commerce of People's Republic of China is concessionary management regulations "
This the 3rd byelaw place says commerce is concessionary manage (the following abbreviation is concessionary manage) , it is to point to have the symbol of registered trade mark, company, patent, company that has the management resource such as the technology only (weigh concessionary person below) , the management resource that has its in order to combine isomorphic form permits other proprietor (say below by concessionary person) use, begin below the management mode that is in to unite according to contract agreement by concessionary person manage, pay the management of concessionary running expenses the activity to concessionary person.
The other unit beyond the enterprise and individual must not undertake concessionary management activity as concessionary person.
5. " law of post of People's Republic of China " (2015 amend)
Fiftieth business of a management express, ought to this code obtains according to surely express business manages a license; Without the license, any units and individual must not run express business.
The foreign trader must not invest the business of domestic express delivery of management correspondence.
Business of domestic express delivery, it is to point to from the express business that controls the whole process that sends mailing to all happen in churchyard of People's Republic of China.
Fiftieth business of 2 application express manages a license, ought to have following requirement:
(one) accord with legal entity condition;
(2) manage inside limits of province, municipality, municipality directly under the Central Government, register capital not under the RMB 500 thousand yuan, cross province, municipality, municipality directly under the Central Government to manage, register capital not under RMB million yuan, of business of management international express, register capital not under the RMB 2 million yuan;
(3) the service capacity that the district limits photograph that runs with application suits;
(4) strict service quality manages system and complete professional work to operate a standard;
(5) perfect safety ensures system and measure;
(6) the other condition that law, administrative regulations sets.
