How to solve the problem of shared transportation supervision
Involving multiple parties, the legal relationship is unclear and it is easy to blame
After Xiaogao, a boy under the age of 12, was killed after riding an ofo shared bicycle in 2017, his parents claimed more than 7.6 million yuan from ofo. This is my country's first death claim for a child under the age of 12 riding a shared bicycle.
On June 12, the People’s Court of Jing’an District in Shanghai made a first-instance verdict on this case: the defendant, Beijing Backlock Technology Co., Ltd., the operating company of ofo shared bicycles, should pay the plaintiff’s parents more than 67,000 yuan in compensation. Other claims of the plaintiff.
In fact, infringement disputes caused by the use of shared vehicles are not uncommon.
Experts interviewed by a reporter from the Legal Daily believe that shared transportation involves multiple parties such as providers, users, insurers, and regulators, and many problems have been exposed in practice. The legal risks brought about by the unclear legal relationship have brought new problems and challenges to the regulatory mechanism and laws and regulations originally oriented to the traditional economic model.
Separation of ownership
Accidents are easy to shirk
In the sharing economy model, in order to achieve the matching of resource supply and demand, the resource provider provides some of its own resources for sharing, and when the resource demander uses it, the corresponding fee is charged through the sharing platform, and ownership and use rights are separated.
At present, the sharing economy model has been involved in many areas, including travel, accommodation, Wi-Fi, labor, entertainment, etc., affecting many aspects of people's daily lives. Among them, the utilization rate of shared transportation is relatively high.
However, with the high utilization rate comes infringement disputes after various accidents.
On February 21, 2020, in Changsha, Hunan, Liu drove a leased China Travel Company "Mofan Travel" shared vehicle and collided with a heavy truck driven by Peng, causing damage to the two vehicles and transportation facilities. Afterwards, the traffic police determined that Liu assumed full responsibility for the accident.
On May 16, 2018, in Dujiangyan, Sichuan, Li, a sanitation worker riding an electric car collided with a shared car. Afterwards, because the traffic accident involved multiple parties, there was a dispute between the two parties regarding the advance payment of Li's medical expenses, and neither was willing to advance the payment.
Industry insiders analyzed that after an infringement incident occurred in the use of shared vehicles, "who should be held accountable" became a problem. In the event of an infringement or breach of contract, the injured party did not know which party to claim against, and the parties also evaded responsibility.
"Legal Daily" reporters searched on the Chinese Judgment Documents website using "sharing" and "infringement" as keywords, and found that related lawsuits mostly involve sharing economy companies, sharing service users, injured parties, insurance companies, etc.
Beijing lawyer Xiao Dongping told the reporter of "Legal System Daily" that at present, under Chinese law, the responsibility for tort liability under the sharing economy model is mainly based on Article 37 of the Tort Liability Law. The administrator or organizer has not fulfilled the safety guarantee. If it is obligated, it shall bear corresponding supplementary responsibilities. In addition, Article 26 of the Product Quality Law stipulates that producers shall be responsible for the quality of their products.
"Citizens must register before renting a car, and pay a part of the deposit. If a car rental citizen commits an illegal act, whether it is captured by the electronic police or punished by the police on the spot, as long as the shared car background inquires or receives unhandled traffic violations by the user The ticket will be proactively confirmed with the traffic police department. If it is confirmed that the car rental user is responsible, the cost will be borne by the user. If the user does not pay the fine, it will be deducted from the deposit he paid in advance. In addition, such dishonest behavior will also be subject to Being blacklisted will affect subsequent leases." Xiao Dongping said.
A traffic controller in Jiangsu also said: “Whether it is shared bicycles or shared cars, after the occurrence of traffic violations, the handling is the same as other car rental behaviors, which is similar to driving ordinary vehicles. Therefore, shared bicycles and shared cars have traffic violations. , The driver will still be punished."
Deposit management is at risk
Serious or criminal responsibility
On June 22, 2020, the "2019 China Sharing Economy Market Data Report" released by the Net Economics E-commerce Research Center showed that the size of the shared bicycle market in 2019 reached 18.348 billion yuan, a year-on-year increase of 37.99%; the number of users reached 260 million , An increase of 8.33% year-on-year. In 2019, the online car-hailing market reached 304.41 billion yuan, a year-on-year increase of 3.42%; the number of users reached 577 million, a year-on-year increase of 4.7%.
Behind the huge number of shared transportation users, what can be seen is a certain scale of prepaid deposit.
Prepaid deposit is a common mode used in sharing economy services where ownership and use rights are separated. However, in practice, there have been many hot social incidents caused by delayed refunds or refusal to refund user deposits, creating a crisis of trust between users, shared resource providers, and shared platforms.
Zhang Yunshu, a professor at Anhui University of Finance and Economics, believes that although the single amount of deposits paid by users is usually limited, if a specific sharing economy model and a specific product involve a large number of users and a wide range of coverage, the prepayment deposit system of the sharing economy model will be more complicated. Big risk.
In August 2017, the owner of Coolqi Bicycle, Coolqi (Beijing) Technology Co., Ltd., delayed in returning the user deposit due to its own financial difficulties, which caused mass complaints from users in many cities.
In December 2018, ofo shared bicycles fell into controversy due to the difficulty of refunding the deposit.
Guo Zeqiang, a professor at Zhongnan University of Economics and Law, believes that once the deposit cannot be refunded, it may cause serious social impact, and the sharing platform and resource providers may also be criminally liable if certain conditions are met.
On May 9, 2019, the Ministry of Transport, the People’s Bank of China, the National Development and Reform Commission, the Ministry of Public Security, the State Administration of Market Supervision, and the China Banking and Insurance Regulatory Commission issued the “Administrative Measures for User Funds in the New Type of Transportation (Trial)” to promote the health of the new type of transportation Develop, strengthen the management of user deposits and prepaid funds, effectively prevent user capital risks, and require that the longest refund period for car-sharing rental and Internet rental bicycle deposits should not exceed 15 working days and two working days, respectively.
Extensive development in the early stage
Later supervision still needs to be improved
According to an interview with a reporter from the Legal Daily, there was a “barbaric” expansion of shared transportation in the early stages of development. In the context of market saturation and disorderly competition among enterprises, abandoned shared bicycle "cemeteries" have appeared in many parts of the country. At the same time, there are hidden dangers such as disorderly parking and inadequate vehicle operation and maintenance. The large number of shared transportation vehicles restricts and affects the development of the industry and public travel, and brings difficulties to supervision.
In August 2017, the Ministry of Transport, the Central Propaganda Department, and the Central Cyberspace Administration of China issued the “Guiding Opinions on Encouraging and Regulating the Development of Internet Rental Bicycles”, aiming at the indiscriminate parking of vehicles, inadequate operation and maintenance of vehicles, and inadequate corporate responsibilities. Issues such as implementation, user funds and information security risks, in order to encourage and standardize the development of Internet rental bicycles, provide more detailed regulations on the nature, legal relationship, parking, registration, deposit and other issues of shared bicycles.
At the local level, relevant regulations for specific sharing economy models are also continuously issued:
In September 2017, the Shenzhen Municipal Transportation Commission, the Shenzhen City Administration Bureau, and the Traffic Police Bureau of the Shenzhen Municipal Public Security Bureau jointly issued the "Shenzhen Internet Rental Bicycle Standardized Management and Rectification Action Plan." In the same month, Tianjin issued the "Guiding Opinions of Tianjin on Encouraging and Regulating the Development of Internet Rental Bicycles (Trial)."
In October 2017, the Shanghai Municipal Government issued the "Shanghai Guiding Opinions on Encouraging and Regulating the Development of Internet Rental Bicycles (Trial)".
However, since the development of shared vehicles, there are still chaos such as illegal investment vehicles and data fraud.
The "Announcement on the Operation and Supervision of the Internet Rental Bicycle Industry in the First Quarter of 2020" issued by the Beijing Municipal Commission of Transportation shows that Haro Bicycles have serious violations of vehicles, and Qingju Bicycle companies have serious vehicle data fraud.
Guangzhou Qi'an Technology Co., Ltd. was punished twice by administrative penalties and a total of 100,000 yuan in administrative fines due to the large-scale illegal placement of green orange bicycles in Haidian District and Dongcheng District of Beijing.
Shanghai Junfeng Network Technology Co., Ltd. was punished once and imposed an administrative fine of 50,000 yuan on a large-scale illegal release of Haro bicycles in Dongcheng District, Beijing.
Wuhan Xiaoxiang Creative Technology Co., Ltd. (Mango Travel) and Renren Travel (Beijing) Technology Co., Ltd. (Renren Travel) refused to rectify after an interview for illegally renting electric bicycles. They were each imposed an administrative fine of 50,000 yuan. All leased electric vehicles that operate in violation of regulations shall be recalled before March 31 within a deadline.
Industry insiders interviewed by a reporter from "Legal Daily" believe that shared transportation, as a new thing, brings convenience to people's travel, and the chaos that exists cannot be ignored. How to conduct discussions and reflections on the level of ethics, law and system improvement, speed up the formulation of corresponding laws and regulations, and manage shared transportation vehicles in accordance with the law has become a social consensus.
□ Our reporter Wang Yang □ Our reporter trainee Bai Chuxuan