【作者】 李磊；

【导师】 李有星；

【作者基本信息】 浙江大学 ， 民法学， 2018， 硕士

【摘要】 禁酒法律在全国得到了严格的实施过后,增强了公民法律观念,提升了安全意识,大多数司机严格执行开车不喝酒、喝酒不开车的准则。为了方便广大人民群众,代驾服务行业得到了迅猛的发展,在发展的同时,出现了大量的机动车代驾交通事故,其间的交通事故责任追究问题与其法律适用备受大众关注。酒后驾车造成的事故越来越多,治理酒后驾车成为我国当前急需解决的问题。自《道路安全法》颁布以及实施以后,法律法规对酒驾的态度是非常坚决的,对于酒驾的处理也是极其严格的。因此,代驾行业逐渐走进人们的视野。但是受各种因素的影响,代驾行业的发展还很缓慢,缺乏统一适用的代驾行业法律,导致代驾市场的管理存在很大的纰漏。代驾虽然对于广大民众来说比较便利,但出现了交通事故,加上司法认定不统一,理论争执的不断,代驾人与机动车主究竟应当由谁才是责任主体,成为讨论的热点。此外,已经不具备驾车能力的车主在与代驾公司或者是酒店签署代驾服务合同的时候,是否具备相应的民事行为能力?我国的相关法律法规对协议的签署该如何进行规定才能避免有争议的事件的发生?醉酒的车主在不清醒的情况下签署的合同是不是具备法律效力?如果在代驾的过程发生的交通事故,此责任应该由谁承担?对车主造成的伤害又该由谁负责做怎样的处理?以上的几种情况都是法律需要完善的热点,我国急需出台有符合法理和情理的评判标尺。在机动车、驾驶人、公路通车里程及交通流量持续大幅增长的情况下,有效遏制事故高发,加强对机动车代驾交通事故责任主体及责任承担进行研究尤为重要。为了权衡行为自由与权益保护,可以将不可抗力和过失相抵制度作为主要的判定依据,对代驾人以及被代驾人的赔偿责任做出有效的规定对其进行限制,规范侵权责任法。同时建议政府应尽快发展代驾行业自治,成立代驾行业协会,由协会制定统一的行业规则,并制定标准的代驾合同,从而明确代驾法律关系中双方的权利义务,减少纠纷的产生,还能起到行业自律作用,引导代驾业良性发展。并通过立法部门出台相应法律法规,保护公民合法权益。同时建议政府牵头,保监会在大型寿险、财险公司试点设立“代驾险”。保险公司将“代驾险”设定为一个独立的险种,在代驾的过程中如果发生意外,保险公司会在第一时间对责任进行鉴定从而对其进行赔偿,使事故能够快速的被解决,从而促进代驾行业的可持续发展,同时促进社会安定。本文采用查阅相关资料和文献、案例分析等方法,对机动车代驾交通事故的责任主体的认定、机动车代驾法律关系的性质、机动车代驾交通事故的侵权责任进行专题研究,期望在具体实践中能够有效保障当事人权益利益,捍卫法律的公正与公平。更多还原

【Abstract】 After the strict enforcement of the Prohibition Law in the country,the citizen’s legal concept has been strengthened,and safety awareness has been promoted.Most drivers strictly implement the rules of driving without drinking alcohol and drinking without driving.In order to facilitate the broad masses of the people,the driving service industry has experienced rapid development.At the same time as development,there have been a large number of traffic accidents involving motor vehicles.The issue of accountability for traffic accidents and its legal application have attracted public attention.As more and more accidents caused by drunk driving,managing drunk driving has become an urgent problem in China.Since the promulgation and implementation of the "Road Safety Law," the laws and regulations have resolutely maintained a firm attitude toward drunk driving.The treatment of drunk driving is also extremely strict.Therefore,the driving industry gradually came into sight.However,due to various factors,the development of the driving industry is still very slow.However,the lack of a uniform law applicable to the driving industry has led to great flaws in the management of the driving market.Although the driver’s visit is convenient for the general public;there have been traffic accidents,coupled with the inconsistency of judicial determination and the continuous disputes over theories,who should be the main responsibility of the driver and motor vehicle owner and become the focus of discussion.In addition,does a car owner who does not have the ability to drive have the appropriate capacity for civil conduct when signing a driver’s service contract with the driving company or the hotel?How should the relevant laws and regulations of our country stipulate the signing of the agreement in order to avoid the occurrence of controversial events?Does a contract signed by a drunk owner legal?If there is a traffic accident outside the driving process,who should bear this responsibility?Who should be responsible for the damage caused to drunk drivers?Many of the above situations are hot spots that the law needs to be perfected.China urgently needs to issue judgement scales that meet legal principles and reasonable conditions.With the continuous and significant increase in the number of motor vehicles,drivers,highway traffic mileage,and traffic volume,it is particularly important to effectively curb the high incidence of accidents and strengthen the investigation of the responsibility and liability of the motor vehicles.In order to balance the freedom of behavior and the protection of rights and interests,the system of force majeure and negligence can be used as the main basis for judgment,and the compensation for liability of the cost person and the owner of drunkenness can be effectively regulated and the tort liability law can be regulated.At the same time,it is suggested that the government should develop the autonomy of the driving industry as soon as possible,set up a driving industry association,formulate unified industry rules,and formulate standard driving contracts so as to clarify the rights and obligations of both parties in driving legal relationships and reduce disputes.It can also play a role in industry self-regulation and guide the healthy development of the driving industry.And through the legislative department to issue the appropriate laws and regulations to protect the legitimate rights and interests of citizens.At the same time,it is recommended that the government take the lead,and China Insurance Regulatory Commission will set up a "drive insurance" pilot for large-scale life insurance and property insurance companies.The insurance company sets the "driving insurance" as an independent insurance policy.If an accident occurs during the driving of the driver,the insurance company will identify the responsibilities at the first time to compensate them,so that the accident can be quickly resolved.In order to promote the sustainable development of the driving industry.At the same time promote social stability.This article adopts methods of consulting relevant materials and documents,case studies,and other methods to carry out special studies on the identification of the main body responsible for motor vehicle traffic accidents,the nature of motor vehicle legal relations,and the tort liability of motor vehicle traffic accidents.The specific practice can effectively protect the interests of the parties and safeguard the fairness and fairness of the law.更多还原