Analysis on the Responsibility Caused by the Property ＂parking service＂

　　　 Summary of the case:

　　　 A commercial management company in Shanghai and Zhao are both tenants of properties managed by a property management company in Shanghai. Xu is the security guard of the property. One day, a Mercedes-Benz car owned by this commercial company was parked at the entrance of the building property where vehicles could not be parked for a long time, and Zhao’s Buick car was parked behind it. Xu thought that Zhao’s vehicle affected the traffic of other vehicles, so he got the vehicle key from Zhao’s colleague Qu and wanted to move Zhao’s vehicle. However, when Xu made a mistake in opening Zhao’s vehicle, Zhao’s Buick crashed into the rear of Mercedes-Benz, which made the Mercedes-Benz vehicle hit the marble pillar in front of the front of the car, causing serious damage to the Mercedes-Benz car. After investigation, the security guard Xu did not obtain a vehicle driver’s license, and the traffic police determined that Xu was fully responsible for the accident. The commercial company of the Mercedes-Benz car owner sued the court, demanding that Zhao and Xu’s property company and Xu be liable for compensation.

　　　 Court view:

　　　 The court of first instance held that Xu was the security guard of the property company. He moved Zhao’s vehicle as his duty to perform his duties, and the liability for compensation should be borne by the property company. Therefore, the property company was ruled to bear all the liability for compensation.

　　　 After the first-instance judgment was issued, the property company refused to accept it and filed an appeal. The court of second instance held that the accident was caused by Zhao’s vehicle, and according to the existing laws and regulations, although the vehicle was driven by Xu at that time, the vehicle owner still had to bear corresponding responsibilities; Xu was performing his duties at that time, and his employer, the property company, should bear the corresponding responsibilities. Therefore, it was determined that a property management company in Shanghai and Zhao constituted a joint infringement, and Zhao and the property were sentenced to bear joint liability for the losses of that commercial company. Since then, the property company has sued the court for the distribution of liability for compensation, and the court ruled that the property and Zhao each bear half the responsibility.

　　　 Lawyer analysis:

　　　 The focus of controversy in this case mainly includes the following points:

　　　 A, whether a company in this accident should be responsible for negligence.

　　　 In this accident, all the vehicles of the commercial company were seriously damaged. Article 131 of the General Principles of the Civil Law stipulates: "If the victim is also at fault for the occurrence of the damage, the civil liability of the infringer may be reduced." There are two main reasons why the property company thinks that the commercial company is at fault: First, parking is prohibited in the parking place of the commercial company when the accident occurs. Commercial companies park their vehicles at the entrance of the building property where parking is prohibited. There are many obstacles and vehicles and pedestrians come in and out frequently, so it is not appropriate to park vehicles for a long time. Facts have also proved that the loss of Mercedes-Benz is largely caused by the head of the vehicle hitting the marble column, so it is hard to say that the commercial company is not at fault on this issue. Second, the commercial company did not use hand brake when parking and the driver left the vehicle for a long time. As we all know, "parking hand brake" is the most basic driving knowledge. The company’s claim that "the vehicle has no hand brake" is extremely ridiculous, and to some extent, it admits that its drivers did not take this measure when parking the vehicle and leaving for a long time. The existence of this fault led to the increase of the impact of the front of the car on the marble column and the expansion of the loss.

　　　 In the trial, the court held that the evidence that the property company claimed that the commercial company was at fault in the accident was insufficient, and ruled that it was not responsible.　　

　　　 2. Is "parking service" a duty behavior of Xu?

　　　 Article 43 of the General Principles of Civil Law stipulates: "An enterprise as a legal person shall bear civil liability for the business activities of its legal representative and other staff members." It can be seen that Xu started Zhao’s Buick similar to "parking service". Whether this behavior is recognized as a duty behavior determines the responsibility of Xu and the property management company. How to identify the job behavior and whether the staff enjoy the authorization of the unit are the key to judge the job behavior. In this case, the property company believes that its internal related documents have never made it clear that the security guard has the responsibility of "parking service", that is, the unit has no clear authorization, and Xu’s behavior does not constitute a job behavior; That commercial company thinks that the security of the property has been "parking service" behavior for a long time, and the property company also knows this situation and allows it by default. According to this, the commercial company of Mercedes-Benz owners thinks that this practice of the property constitutes a "implied authority", then Xu’s behavior constitutes a duty behavior, and its liability for compensation should be borne by the employer, that is, the property company. This view was supported by the court.

　　　 3. Should Zhao, the owner who is not at the scene, bear the responsibility?

　　　 In this case, Zhao, the owner of the accident vehicle, was not at the scene at the time of the accident, but the court finally ruled that Zhao, who seemed innocent, was jointly and severally liable.

　　　 Whether the owner should bear the responsibility for an accident when a motor vehicle is not used by himself has always been a topic of common discussion in theoretical circles and judicial practice. The Tort Liability Law has a special chapter on "motor vehicle traffic accident liability". Article 49 of the Law clearly stipulates: "If the owner and user of a motor vehicle are not the same person due to lease, loan, etc., it is the responsibility of the motor vehicle party after a traffic accident … … The motor vehicle user shall be liable for compensation; If the owner of the motor vehicle is at fault for the occurrence of the damage, he shall bear the corresponding liability for compensation. " According to this article, whether Zhao needs to take responsibility needs to consider whether he is at fault. In this case, Zhao parked his car at the entrance of the building where parking is forbidden, and for convenience, he set the key in a condition that he was not in his own hands and could be moved by others. It can be seen that Zhao was negligent in this accident. Although the Tort Liability Law has not yet come into effect, the court still has to bear the responsibility based on the same principle.

　　　 Four, the proportion of responsibility distribution between the two parties who bear joint and several liability.　

　　　 The property company believes that Zhao did not fulfill the responsibility of custody and caused losses to others, and should bear the main responsibility. Zhao said that his car caused losses to others without knowing it at all, and he resolutely refused to bear the main responsibility. In judicial practice, if it is difficult to define the share proportion of the responsible parties in similar cases, the court will take the discretionary solution, which is also the embodiment of "judge’s discretion". In this case, it is difficult to determine whether the fault of Zhao and the property company is big or small at the time of the accident, and the court has made clear the distribution of their respective responsibilities equally. Article 14 of the Tort Liability Law, which came into effect later, clearly stipulates: "The joint and several liable persons shall determine the corresponding compensation amount according to their respective responsibilities; If it is difficult to determine the size of the responsibility, it will be liable for compensation on average. "

　　　 To sum up, Xu parking service, a common service behavior in the property management industry, led to a series of litigation disputes. As the owner of the vehicle, he should be responsible for keeping his property properly to avoid unnecessary losses and risks; As an employer, in management, it should be clear about the scope of responsibilities of its employees and the scope of responsibility of its employees’ behavior, so as to put an end to the phenomenon of "implied authority" and avoid taking unnecessary risks.　　　

　　　　　 (The author is a lawyer of Shanghai Henglong Law Firm)