Is Didi liable for breach of contract?
One view holds a positive conclusion. The reason is that Didi, as a carrier, failed to deliver passengers safely to their destination according to the Interim Measures for the Administration of Online Taxi Reservation and the People's Republic of China (PRC) Contract Law, which constituted a breach of contract for passengers and caused casualties during transportation. Didi should be liable for damages for breach of contract.
Another view holds a negative conclusion, because the rider information platform user agreement 1.5 stipulates: "the rider information platform does not provide rental, car use, driving or transportation services, but only provides information interaction and matching services between registered users of the platform." Judging from the agreement and performance of the agreement, there is an intermediary service legal relationship between Didi and passengers. As long as the information review obligations and necessary safety management obligations are fully fulfilled, the main responsible person should be the murderer, and the legal responsibility of Didi Platform is not great. After all, criminal offences can't be easily foreseen, and it should be an accident for the "Didi" platform. You don't need to bear the liability for breach of contract, you just need to bear the moral responsibility.
However, this statement cannot be established. Although Didi is not a carrier, it still has to bear the liability for breach of contract. The reason is that, judging from the user agreement and actual operation of the hitchhiking information platform, Didi is not a transportation contract but an intermediary contract with passengers and registered drivers, and its obligation is to urge the conclusion of the transportation contract to ensure that the legitimate interests of the parties to the transportation contract are not harmed; However, in this case, "Didi" did not prompt the passenger to conclude a transportation contract with the registered driver, because Didi did not verify whether the registered driver was himself or not, and the registered driver did not know who the passenger was serving, let alone with whom to conclude a transportation contract. Therefore, Didi constitutes a breach of contract in the performance of the intermediary contract.
Does Didi need to bear tort liability?
For general tort, China's Tort Liability Law implements fault liability. Article 6 of the law stipulates: "If the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability." Is Didi responsible for the death of the victim? The answer is yes. 20 16 promulgated the Interim Measures for the Management of Online Booking Taxi, which specifically stipulated the security obligations of the online rental platform. Article 16 of the Measures stipulates: "The network car rental platform company shall bear the responsibility of the carrier and shall ensure the safety of operation and protect the legitimate rights and interests of passengers." This means that once the network car platform violates the statutory security obligations, the victim will die; We must bear the fault liability according to the tort liability.
In this case, the Didi night face recognition mechanism was not triggered; Even before the incident, the suspect had a complaint record of verbal sexual harassment, and Didi did not have an account. "Didi" obviously failed to fulfill its legal security obligations, and there is a causal relationship with the victim's death, so it must bear the fault responsibility.
From the above analysis, we can see that Didi's behavior constitutes the concurrence of liability for breach of contract and tort liability. Article 122 of China's Contract Law stipulates: "If one party violates the personal and property rights of the other party, the injured party has the right to choose to require it to bear the liability for breach of contract according to this law or to require it to bear the liability for infringement according to other laws." Therefore, the close relatives of the victims can choose to pursue one of the responsibilities.
Does Didi have to bear administrative responsibility?
The answer should be yes. Article 35 of the Interim Measures for the Administration of Online Booking Taxi stipulates that "if the online car platform company violates these provisions and commits one of the following acts, the taxi administrative department and the price department at or above the county level shall order it to make corrections according to their duties, and impose a fine of more than 5,000 yuan 10000 yuan for each illegal act; If the circumstances are serious, a fine of 1 10,000 yuan but not more than 30,000 yuan shall be imposed: (2) The driver who provides the service has not obtained the taxi driver's license for online reservation, or the driver who provides the service online is inconsistent with the driver who actually provides the service offline ... "According to this regulation, Didi has the situation that the driver who provides the service online is inconsistent with the driver who actually provides the service offline, and the passenger's death is serious.
Will Didi or its staff bear criminal responsibility?
Based on the case disclosed at present, it cannot be concluded that the driver's killing of the stewardess constitutes intentional homicide, rape, robbery or other violent crimes; What is certain, however, is that members of Didi Company and drivers cannot have the same criminal intent, so they will not constitute the above violent crimes.
But this does not mean that Didi or its staff are exempted from criminal responsibility. Article 26 of the Interim Measures for the Administration of Online Booking of Taxi stipulates: "The personal information of drivers, owners and passengers collected by online car platform companies shall not exceed the scope necessary for providing online car service." Article 37 stipulates: "If the network car platform company and the network car driver illegally use or disclose the personal information of the owner and passengers, the public security, network information and other departments shall impose a fine of more than 2,000 yuan10,000 yuan according to their respective duties; If losses are caused to the information subject, it shall bear civil liability according to law; Anyone suspected of committing a crime shall be investigated for criminal responsibility according to law. "
20 15 Amendment to the Criminal Law (IX) stipulates the crime of infringing citizens' personal information. Article 253 of the Criminal Law stipulates: "Whoever, in violation of relevant state regulations, sells or provides personal information of citizens to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. Whoever, in violation of the relevant provisions of the state, sells or provides others with personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or illegally obtains citizens' personal information by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of the preceding three paragraphs. "
In combination with the above two provisions, the online car platform goes beyond the scope necessary to provide online car service and provides personal information of car owners and passengers to others. If the circumstances are serious, it shall bear criminal responsibility according to law, including imposing a fine on the unit, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment or criminal detention, with or without a fine.