Based on the above understanding of affiliated operation and the specific analysis of the responsibility of affiliated units, it can be seen that it is more reasonable to order affiliated units to bear the liability for accident compensation. However, the theory of joint and several liability, the theory of supplementary liability and the theory of subsidiary liability all have great defects.

1, joint and several liability theory: it is the most popular view in practice, which urges affiliated units to strengthen vehicle management and at the same time give maximum relief to victims. But its most criticized is the lack of evidence. Because there are two kinds of joint liability, the law expressly stipulates that it is inconsistent with the agreement of the parties. The affiliated contract stipulates that the affiliated unit shall not be liable for compensation, and the law does not clearly stipulate that the affiliated unit shall bear joint liability. Because it is impossible to determine that all affiliated units have joint negligence in causing the accident, it is impossible to determine all joint torts. It does not constitute joint infringement, nor does it meet other statutory circumstances of joint liability. Therefore, the defect of the theory of joint and several liability is that it violates the principle that joint and several liability cannot be presumed.

2. Supplementary liability theory: based on the principle of consistency of rights and obligations, it is believed that affiliated units should bear the responsibility within the scope of collecting management fees. However, this view does not conform to the jurisprudence of tort liability. The determination of tort liability depends on the tort and its causes, not the charges.

3. Related party liability theory: based on the theory of "business domination and business interests". It is believed that the affiliated person operates independently and is responsible for its own profits and losses, and the affiliated unit does not dominate the operation of vehicles and does not obtain operational benefits, so it should not bear the responsibility. The mistake of this view lies in excluding external tort liability by internal contractual relationship.

4. Liability of affiliated units: It is believed that affiliated units should be liable for compensation. The author agrees with this view for the following reasons:

(1) As far as the actor is concerned, the affiliated unit is the infringer. According to the laws of our country, the transportation industry implements the access system, and only those who have obtained the road transportation business license are qualified to engage in transportation business, so the main body of business behavior is the affiliated unit. The affiliated person is not an independent subject of behavior, and the personality of the actor has been absorbed by the personality of the affiliated unit. Administratively, all kinds of specific administrative actions implemented by administrative organs are aimed at affiliated units, and the consequences of illegal business operations are directly borne by affiliated units. In civil affairs, business activities undertake business and undertake obligations in the name of affiliated units, which is obvious in the relationship between transportation contracts and compensation for accident damage. If both the passenger and the third party are injured in the accident, the passenger can obviously ask the affiliated unit to bear tort liability. At this time, the affiliated unit is the infringer, so for the third party, the infringer is also the affiliated unit. At this point, it is obviously absurd in logic to think that the perpetrator who infringes on the third person is the infringed person. In addition, some people think that it is reasonable for the behavior of the callee to constitute apparent agency.

(2) Based on the principles of good faith and fairness, the affiliated unit shall be liable for compensation. In the process of affiliated operation, affiliated units perform affiliated contracts with positive behaviors, and assist affiliated personnel in registration, vehicle identification and ticket collection. And declare to the competent administrative organ and the unspecified public that the vehicle belongs to the affiliated unit. Only after a traffic accident can a specific victim be exempted from liability. He is not the owner of the vehicle. This kind of excuse denies the previous declaration for the purpose of evading responsibility, which violates the principle of good faith. For the victim, it is obviously unfair to ask him to defend himself according to the changeable words of the affiliated unit, instead of registering the right to declare as before.

(3) Based on the theory of "business dominance and business interests", affiliated units shall be liable for compensation. Vehicle operation control includes not only specific control such as driving operation and route selection, but also abstract and macro control such as management, supervision and safety education. When the state grants its transportation business qualification, the affiliated unit has the responsibility to manage and supervise the vehicles, drivers and affiliated personnel to ensure the safe operation of the vehicles. If the vehicle is found to have potential safety hazards, it must be stopped, otherwise it is dereliction of duty. On the one hand, operating benefits include not only direct benefits such as operating profits, but also indirect benefits. In fact, the affiliated units have obtained indirect benefits such as the expansion of enterprise scale and the enhancement of competitiveness, which have been taken into account when accepting the affiliated units. On the other hand, there are many ways of affiliated operation, some affiliated units charge according to the turnover commission, and some affiliated units collect the operating income first, and then settle with the affiliated person according to the affiliated contract, which belongs to the internal distribution of operating interests. Therefore, the affiliated units have gained operational benefits. Can control the operation of the vehicle and obtain business benefits, so the affiliated unit should bear the liability for compensation.

(4) From the perspective of the principle of relativity of contracts, the stipulations of subsidiary contracts do not affect the liability for compensation. The affiliated contract usually stipulates that the affiliated person shall be responsible for compensation in case of an accident, and the affiliated unit shall not bear the responsibility. However, this agreement is only binding on both parties to the contract and cannot affect the right of the accident victim to claim compensation according to the tort law. The parties to the contract cannot transfer the tort liability according to the contract, so the affiliated unit cannot be exempted from the liability for accident compensation by virtue of the affiliated contract.

(5) From the perspective of motor vehicle accident insurance claims, affiliated units should be liable for compensation. The affiliated vehicle is insured in the name of the affiliated unit. After the insurance accident, the insurance company is responsible for the affiliated unit, and the affiliated unit needs to issue relevant procedures when paying the insurance premium. In addition, the insurance company that underwrites compulsory insurance directly compensates the victim in the lawsuit, and the insurance company that underwrites commercial insurance has the obligation to assist the court to withdraw the insurance money in the execution procedure, and it is often necessary to freeze the insurance money in the litigation preservation, so the affiliated unit should be judged to bear the responsibility in the lawsuit. Otherwise, there will be settlement obstacles in the insurance contract relationship.

(6) Understanding of Articles 49 and 34 of Tort Liability Law. Article 49 of the Tort Liability Law stipulates that "if the owner and user of a motor vehicle are not the same person due to reasons such as leasing or borrowing, and the motor vehicle party is responsible after a traffic accident, the insurance company shall make compensation within the limit of motor vehicle compulsory insurance liability. For the insufficient part, the motor vehicle user shall be liable for compensation; If the owner of a motor vehicle is at fault for the occurrence of damage, he shall bear the corresponding liability for compensation. " The respective responsibilities of vehicle owners and users are stipulated here, but the provisions of this article cannot be applied to the case of affiliation, because the affiliated company, as an external operator, is both the owner and the user of the vehicle, and the two are the same. This rule does not even apply to taxi companies that specialize in leasing business. "No matter whether such taxi companies adopt corporate operation mode or affiliated operation mode, no matter how the internal relationship between taxi drivers and taxi companies is agreed, taking into account the judgment criteria of operational interests and operational control, the mutual matching of risks and benefits, the full protection of victims and other factors, and the provisions of Article 34 of this Law (refer to the Tort Liability Law), taxi companies should be recognized as the subject of compensation." As a foreign operator, the affiliated company should be liable for compensation in the case of a taxi company. Similarly, when it is other transportation companies, it should also be liable for compensation.

According to the provisions of Article 34 of the Tort Liability Law, if the affiliated person, as a staff member of the affiliated unit, causes damage to others while performing work tasks, the employer, that is, the affiliated unit, shall bear the tort liability. Signing the affiliated contract can be regarded as the establishment of a special employment relationship between the transportation company and the affiliated person. From this point of view, the legal relationship and the division of responsibilities can be clearly defined: the affiliated unit, as an employer, bears no-fault liability, and should bear external compensation liability regardless of whether it is at fault in causing traffic accidents.

To sum up, in the event of a traffic accident involving the affiliated vehicle, the affiliated unit shall be liable for compensation to the victim.

Third, the rights relief and risk prevention of affiliated units.

It is indeed biased for affiliated units to assume the liability for compensation in the short term, but in the long run, it can promote affiliated units to strengthen management, reduce accidents and promote the standardized operation and healthy development of the transportation industry. At the same time, affiliated units also have ways to make up for losses and measures to prevent risks.

1, the rights relief of affiliated units. The affiliated contract usually stipulates that the affiliated person is responsible for the accident. Even if there is no agreement or the agreement is not clear, because the traffic accident is caused by the major fault of the affiliated person, the affiliated person is the ultimate responsible person for the traffic accident damage compensation. The affiliated unit shall bear the responsibility of paying compensation in advance, and after the affiliated unit compensates the victim, it may recover from the affiliated person.

2. Risk prevention of affiliated units. When accepting the affiliation, the affiliated unit faces corresponding risks, which is basically the risk that the affiliated person fails to perform the contractual obligations of accident compensation liability. While exchanging unlimited risks for limited benefits, affiliated units should not just cry foul, but should actively take measures to prevent risks. For example, the affiliated vehicles are required to participate in commercial insurance, and the affiliated people are required to provide effective guarantees and raise the charging standards until the affiliated operation is gradually cancelled.

Four, several other issues related to affiliation.

1, the specific operation in trial practice. Procedurally, due to the clear provisions of the Supreme Court, when the accident victim sues both the affiliated person and the affiliated unit, the local courts unanimously list him as a co-defendant. However, when the victim only sues the affiliated unit or the affiliated person, attention should be paid to differential treatment. If only the affiliated unit is sued, the choice of the parties should be respected, and it is not necessary to add the affiliated person as the defendant. If only the affiliated person is prosecuted, it should be explained to him that it is necessary for the affiliated unit to participate in the lawsuit, and the affiliated unit should be added as a co-defendant. In fact, if the affiliated party participates in the litigation and agrees to bear the liability for compensation, in order to reduce the litigation burden, the affiliated unit and the affiliated party can be directly ordered to make joint compensation.

2. Distinguish the nature of the case and apply the law correctly. There are many kinds of civil cases caused by traffic accidents involving motor vehicles. First of all, we should distinguish the nature of the case. Generally speaking, if the injured passenger files a lawsuit, it is determined whether it is a dispute over a transport contract or a dispute over personal injury compensation in a road traffic accident according to the cause of action; If the injured third party brings a lawsuit, it belongs to the dispute of personal injury compensation in road traffic accidents; If the related parties sue each other, it is a contract dispute; If the driver sues the affiliated person or affiliated unit, it is a dispute over employee damage compensation, and so on. Accurately distinguish the nature of the case, so as not to confuse various legal relations and apply the law correctly.

3. A clear attitude of expecting legal or judicial interpretation. Linked operation is a gray activity, which has certain administrative illegality in essence, so the relevant ministries and commissions require it to be cleaned up. However, the law does not explicitly prohibit this, and some normative documents recognize it to a certain extent. Coupled with the objective demand of the market, this leaves a living space for affiliated operations. Therefore, although the clean-up efforts in various places have been increasing in recent years, affiliated operations will not withdraw from the historical stage in a short time. However, the affiliated person pursues profit maximization relatively independently, and the affiliated unit lets itself drift objectively, which greatly increases the accident risk. Therefore, even if it is inconvenient for the law to explicitly recognize or prohibit it, the Supreme Court can express its attitude towards this universal objective phenomenon through judicial interpretation, such as stipulating that affiliated units and affiliated persons shall bear joint and several liabilities. This not only solves the differences in trial practice, but also connects with the relevant judicial interpretation of the Civil Procedure Law. After all, there is no legal obstacle for related parties to bear joint and several liability, and what is lacking is the express provisions of the law.

After reading the above viewpoints, I will understand. From now on, I don't want to provide formalities for the annual inspection.