CAJ | 학술논문

机动车代驾存在形态多样,从代驾人与被代驾人双方的法律关系来看,有偿代驾的性质为承揽合同,而无偿代驾则根据当事人之间有无合意进一步区分为情谊行为和无因管理。以“运行支配＋运行利益”的二元说作为判断机动车交通事故责任主体的一般标准,代驾人作为运行支配和运行利益的归属,应被认定为责任主体,对外承担侵权责任。但当被代驾人存在过错时,在承揽合同型代驾中,其与代驾人承担连带责任;在情谊行为型代驾和无因管理型代驾中,其与代驾人之间的责任形态则为单向连带责任。
궤동차대가존재형태다양,종대가인여피대가인쌍방적법률관계래간,유상대가적성질위승람합동,이무상대가칙근거당사인지간유무합의진일보구분위정의행위화무인관리。이“운행지배＋운행이익”적이원설작위판단궤동차교통사고책임주체적일반표준,대가인작위운행지배화운행이익적귀속,응피인정위책임주체,대외승담침권책임。단당피대가인존재과착시,재승람합동형대가중,기여대가인승담련대책임;재정의행위형대가화무인관리형대가중,기여대가인지간적책임형태칙위단향련대책임。
There are various kinds of designated driving. According to the legal relationship between owner of motor vehicles and designated driver, the nature of paid designated driving is contract for work, and voluntary designated driving can be divided into Gef lligkeit and voluntary service. Operation control together with operation interests are regarded as general judgement standard for the person who should assume tort liability in motor vehicle traffic accidents. As a result, the designated driver should assume tort liability. When the owner of motor vehicle has fault, he will assume joint and several liability with the designated driver in the designated drivingwhose nature is contract for work. But in the designated whose nature is Gef lligkeitor voluntary service, the relationship between the liability of owner of motor vehicle and designated driver is unidirectional joint and several liability.