Text/Yangcheng Evening News all-media reporter Dong Liu Correspondent Zheng Songling Li Jie
Rushing in and out, not following traffic rules in a hurry for time – some takeaway riders sometimes bump into people and cause trouble.
Recently, the reporter searched the China Judgment Document Network and found that in the past three years, Guangdong has had dozens of personal injury compensation disputes involving takeaway riders every year, some of them are perpetrators, some are victims. After a takeaway rider in Jieyang hit someone, he was sentenced to pay more than 200,000 yuan out of his own pocket.
The takeaway rider bumped into someone, what to lose? It is reported that the current takeaway riders can be divided into three categories: self-operated riders, special delivery riders and crowdsourced riders. According to legal experts, the most complicated is the "crowdsourcing" type of employment relationship - the platform is relatively weak in dominance and less profitable, resulting in its great difference from the traditional employment model. Some "crowdsourced" platforms let riders wear the "vests" of four or five companies to work in order to evade responsibility, and the riders are often responsible for themselves after accidents.
Experts called for the need to make corresponding amendments to the labor law in the era of Internet employment, so that relevant Internet platform companies cannot evade legal supervision and safeguard the legitimate rights and interests of workers.
Say the case Jieyang a takeaway rider hit the person after compensating the injured more than 200,000 yuan
Recently, the Jieyang Intermediate People's Court concluded a dispute over the liability of a motor vehicle traffic accident in which a takeaway rider collided with a cyclist, and ruled that the rider Zhu Mou should bear tort liability and compensate the infringed person for more than 200,000 yuan.
At about 16:00 on August 24, 2019, rider Zhu Mou, driving his uninsured two-wheeled motorcycle without an insurance, collided with Lin Mou, who was riding a bicycle, while passing through the intersection of a village market, causing Lin to be injured. At that time, There were no items to be delivered in Zhu's takeaway box. The traffic management department issued the "Road Traffic Accident Determination Letter" in accordance with the law, and determined that Zhu and Lin respectively bore the same responsibility for the accident.
From August to December 2019, Lin was hospitalized with medical expenses of more than 290,000 yuan. Since Zhu is a rider of the life platform operated by Liu, the life platform is provided by a technology company to provide technical support and maintenance work, and the injured Lin mou sued Zhu, the platform operator Liu and the technology company to the court together, claiming personal injury compensation.
After trial, the court held that the facts of this case occurred before the implementation of the Civil Code, and the provisions of the laws and judicial interpretations at that time should be applied. As a software developer, the technology company did not participate in the operation of the platform, so the court did not support plaintiff Lin's request that the defendant, a technology company, should bear joint and several liability for damages in this case and that defendants Zhu and Liu should bear joint and several liability.
According to the "Registration Agreement" of the platform, the "Cooperation Agreement" signed by Zhu and Liu, and Zhu's statement, the cooperation agreement relationship between Zhu and Liu was determined to be an intermediary contractual relationship (also known as an intermediary contract relationship) according to law, and Liu was not at fault in this case, and did not need to bear compensation liability for Lin's losses according to law; Zhu, as an infringer, should bear tort liability for Lin.
The court then ordered Zhu to compensate Lin for more than 200,000 yuan in losses such as medical expenses, hospital meal subsidies, nursing expenses, transportation expenses, etc.
The reporter inquired about the data of the China Judgment Documents Network and learned that since 2018, Guangdong courts have tried dozens of civil and criminal cases involving takeaway riders bumping into others or being bumped by others every year. Among them, there were more than 20 cases in 2018 and 2019, more than 30 cases in 2020, and more than ten cases this year.
The employment relationship between the rider and the platform affects the division of tort liability
Lin Hankui, a judge of the Jieyang Intermediate People's Court who handled the case, said that at present, takeaway riders can be divided into three categories: self-operated riders, special delivery riders and crowdsourced riders.
Self-operated riders are employed by platform operators and form an employment relationship with platform operators; special delivery riders refer to takeaway riders recruited and managed by third-party delivery companies; crowdsourced riders refer to takeaway riders who self-register through takeaway APP applications provided by takeaway platform operators. The legal relationship between the rider and the platform affects the division of tort liability.
Lin Hankui said that although Zhu was wearing uniform clothing distributed by the takeaway platform operator at the time of the accident in this case, there were no items to be delivered in the takeaway box, and there was no direct evidence to prove that Zhu was in a state of receiving orders or delivering meals.
Moreover, Mr. Zhu did not claim to be employed by Mr. Liu, and the "Cooperation Agreement" signed by the two parties clearly stipulated that the relationship between the rider and the platform was not labor, labor service, and employment, and that "when a traffic accident caused injury to himself or caused injury to a third party, the responsibility shall be borne by Mr. Zhu, and Mr. Liu shall not bear any responsibility for it", so it should be determined that Mr. Zhu and Mr. Liu do not constitute a labor and labor relationship.
In this case, Mr. Zhu has the right to decide whether to undertake the task of running errands, the platform does not limit attendance, does not limit the working hours and locations, does not have a designated location to report, does not have the quota requirements for completing the delivery task, and there is no agreement between Zhu and the platform operator on the basic salary and fixed settlement cycle, and the remuneration comes from the delivery fee paid by the orderer, and the delivery fee can be settled and withdrawn at any time after completing the errand running task.
Lin Hankui pointed out that it can be seen that the platform involved in the case is a third-party network platform that provides transaction matching and processing, order inquiry and management, delivery fee collection and payment, and online transaction processing services for riders and orderers, and according to the provisions of article 424 of the Contract Law and the contract between the two parties, Zhu is a crowdsourced rider, and the relationship between him and the platform operator is determined to be an intermediary contract relationship according to law. Mr. Liu was not at fault in this case and should not be liable for compensation for Lin's losses.
There are platforms to induce riders to register as business entities in order to evade employment responsibilities
Meng Qiang, deputy secretary-general of the Civil Law Research Association of the China Law Society and director of the Civil Code Research Center of the Law School of Beijing Institute of Technology, said that the employment responsibility of Internet platforms belongs to a new type of employment responsibility problem, and it is also a problem that has not yet been solved in the labor law community, and it has not yet formed a general theory.
Meng Qiang introduced that from the perspective of civil law, article 1191 of the Civil Code stipulates that if the employee of the employer causes damage to others due to the performance of work tasks, the employer shall bear the tort liability. After the employer bears the tort liability, it may recover compensation from the staff member who has intentional or gross negligence. During the labor dispatch period, if the dispatched worker causes damage to others due to the performance of work tasks, the employing unit receiving the labor dispatch shall bear the tort liability; if the labor dispatch unit is at fault, it shall bear the corresponding liability.
Article 1192 of the Civil Code stipulates that if a labor service relationship is formed between individuals, and the party providing the labor service causes damage to others due to the labor service, the party receiving the labor service shall bear tort liability. After the party receiving the labor service bears the tort liability, it may recover compensation from the party providing the service with intent or gross negligence. If the party providing the service suffers damage due to the service, it shall bear the corresponding liability according to the respective faults of both parties. During the provision of labor services, if the party providing the services is damaged by the act of a third party, the party providing the services has the right to request the third party to bear tort liability, and also has the right to request compensation from the party receiving the services. After receiving compensation from one of the laborers, it may recover compensation from a third party.
Meng Qiang said that in other words, the civil code clearly stipulates the responsibility of self-operated platform companies (companies that employ workers to work as their own employees) and the liability for damage caused to others during labor dispatch. However, the situation of "crowdsourcing" type employment relationships is often complicated.
The "crowdsourcing" type relationship has two characteristics: one is that the dominance of the platform is relatively weak, it does not require workers to work at a fixed time, nor does it require how many orders must be taken; the other is that the platform has relatively little profit.
Compared with the traditional employment model, in the "crowdsourcing" type of employment relationship, the platform provides intermediary matchmaking, and the employment characteristics are not so obvious, many courts cannot take the platform as the main body of compensation, and finally can only be compensated by the workers themselves.
"Some social survey scholars have found through long-term investigations that the relevant situation may be more complicated in real life: the app registered by the rider is a company, the contract signed with the rider is another company, the third company takes the order, the fourth company pays the rider a tax, and the rider pays the salary is actually the fifth company... With four or five companies circling the riders, it is impossible to determine who the employer really is. So, in the event of an accident, which company does the rider go to? Riders maintain no-holds-barred ties with these companies, culminating in a situation where riders are held personally held accountable. Meng Qiang said.
"Now it has also been found that some platforms use more immoral practices to deliberately induce riders to register as individual industrial and commercial households." This means that the rider is the main body of the business, not an employee or employee, who is working for his own benefit, and that he is completely responsible for what happens. Meng Qiang said that putting aside the superficial intricate relationships of these extreme cases and asking who the riders' labor creates the most value for, the answer is still Internet platforms and large companies, because these platforms and companies are at the top of the "food chain".
Meng Qiang believes that the era of Internet employment needs to make corresponding amendments to the labor law, so that relevant Internet platform companies cannot evade legal supervision and safeguard the legitimate rights and interests of workers. In addition, Internet platform companies should use more income to compensate workers and improve the treatment of workers.
Remind the rider that not following the traffic rules may harm others and harm themselves
Judge Lin Hankui of jieyang Intermediate People's Court reminded that the majority of riders should firmly abide by traffic rules when delivering meals, and must not take risks and ignore traffic safety in order to race against the clock. If there is an unfortunate traffic accident, it will not only endanger your own life and health, but also face huge compensation for personal injury to others. (For more news, please pay attention to Yangcheng Pie pai.ycwb.com)
Source | Yangcheng Evening News Yangcheng Pie
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Editor-in-charge | Wu Flaw