网约车平台民事侵权责任的反思与构建

Reflections and Construction of Civil Tort Liability of Online Ride-Hailing Platforms

2016年《网络预约出租汽车经营服务暂行办法》把网约车平台定位为普通承运人,使得网约车平台承担了过重的民事责任。平台的运营模式、控制力与驾驶员的从属程度等都说明了其不同于一般承运人,它的侵权责任认定必须符合平台技术与商业发展现实,具体设计应有价值层面和技术层面的双重考量。网约车平台应履行有限的事前注意和事后补救义务,其侵权责任可遵循过错责任原则,前提是知晓具体侵权行为发生而不采取补救措施,即客观上存在违背合理注意义务的行为,主观上对具体侵权行为存在知晓或应当知晓。另外兼顾考虑各方利益,平台可以履行先行赔付义务,与驾驶员之间是一种附条件不真正连带责任。

In the Tentative Measures for the Administration of Online Ride-Hailing Services of 2016^ online ride-hailing platforms are regarded as ordinary carriers, making the platforms bear excessive civil liability. The platforms^ operation mode and management system and the subordination degree of drivers indicate that they are different from general carriers. The identification of their tort liability should conform to the reality of platform technology and commercial development, and the design of their structure should take into account both the value and technological aspects. Besides,they should perform limited obligations of prior attention and after remediation. And their tort liability can follow the principle of fault liability, provided that they know the occurrence of a specific tort but do not take any remedial measures, that is, objectively they do not fulfill the attention obligation but subjectively know or should know the specific tort. Moreover, considering the interests of all parties,the platforms can fulfill compensation obligation in advance> and there is a relationship of conditional and unreal joint-liability between them and drivers.