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Who is responsible for the accident in the 4s shop when testing a new car (how to compensate for the accident in the 4s shop)

Recently, when a woman was driving a car in downtown, the car suddenly rushed to the sidewalk and hit a mother and son, resulting in one death and one injury. Afterwards, the car dealer said that the female customer signed a test drive agreement before the test drive, and she must be responsible for this matter. The incident caused a heated discussion. Can a car dealer be exempted from liability after the customer signed a test drive agreement? How to determine the responsibility of causing damage to others by traffic accidents during test drive?

The test drive is not applicable to the lease situation.

In many applications, there are advertisements for selling cars pushed by car manufacturers. At the end of the advertisements, there are usually advertisements for free test drive, and people are asked to fill in their mobile phone numbers and names to make an appointment. It can be seen that the test drive is one of the selling points in the promotion and marketing advertisements of automobile dealers.

The test drive in daily life means that the customer, accompanied by the car sales staff, rides the car he wants to buy and drives along the designated route, so as to understand the handling and comfort of this car. Because the test drive can make dealers sell their products to customers more intuitively, it has become a very common marketing service in the automobile sales market.

The core elements of judging the subject of motor vehicle traffic accidents in China's Civil Code are "operational dominance" and "operational interests", so it has also become two elements to judge how to determine the responsibility of test drivers and car dealers in the dispute of damage caused by traffic accidents in test drive.

Although according to the provisions of Article 1209 of the Civil Code, if the owner, manager and user of a motor vehicle are not the same person due to leasing or borrowing, and a traffic accident causes damage, the motor vehicle user shall be liable for compensation; If the owner or manager of a motor vehicle is at fault for the damage, he shall bear the corresponding liability for compensation. This is about the provisions on the responsibility of vehicle owners, managers and users when they are separated. Formally, during the test drive, the vehicle is completely controlled by the test driver, and it seems that the responsibility for traffic accident compensation should be borne by the test driver. However, from the perspective of "operational benefits", the test drive service is a service launched by dealers for marketing promotion and is a part of automobile sales. After a traffic accident, the dealer will not be liable for compensation at all, which is unfair to the test driver.

Further analysis shows that the purpose of the test drive is to finally reach an automobile sales contract, and the dealer gives the vehicle to the test driver to drive, which is not based on the delivery behavior of the automobile sales contract. At this time, the ownership of the vehicle has not been transferred. The test driver is the actual controller of the vehicle, and the car dealer is the owner of the test drive vehicle.

There are two differences between the test drive and the leasing and borrowing cases stipulated in Article 1209 of the Civil Code: First, the leasing and borrowing cases lead to the separation of ownership and the transfer of possession. Possession is the power to control and dominate things in fact, excluding others' interference. However, dealers have certain restrictions on the test drive time and route, and the time is short, so the test drive people and vehicles lack continuity in time. At the same time, the staff of the automobile distribution company usually serve as the escort, and the test drive of the vehicle is not separated from the actual possession and control of the dealer, so the possession of the vehicle has not been transferred to the test drive. Secondly, the purpose of possession transfer caused by legal relations such as leasing and borrowing is to reflect the use value of the object, and the test driver mostly relies on the test drive to understand the performance of the vehicle.

Therefore, if a traffic accident causes damage to others during the test drive, the provisions of Article 1209 of the Civil Code that the actual user of the vehicle shall be liable for compensation shall not apply.

The dealer who caused the damage to the test passenger is responsible.

Before buying a car, in general, in addition to the test drive, the car dealership also provides the test ride service. Trial ride has the characteristics of non-operation and free of charge. As a service provider, automobile distribution companies should fulfill the obligations of providing suitable test ride vehicles, providing professional drivers, choosing safe test ride routes, providing suitable test ride venues, and having license plates and taking out compulsory insurance for test ride vehicles.

Article 6 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Road Traffic Accident Damage Compensation Cases stipulates that if a traffic accident occurs during the trial of a motor vehicle, causing damage to the test passenger, and the parties request the test passenger to bear the liability for compensation, the court shall support it. If the test passenger is at fault, the liability for compensation of the test passenger service provider shall be reduced.

In June, 2021, when Liu, an employee of the automobile sales company, took two customers for a test ride, at the request of the other party, he explained the vehicle while driving. Due to inattention, the vehicle collided with the roadside fence, resulting in damage to the test ride vehicle and the fence and injuries to two customers. It was determined by the traffic police that Liu was fully responsible and the two customers were not responsible. After identification, two customers constitute a level 10 disability. After the incident, the two sides failed to negotiate on medical expenses and other compensation matters, and two customers appealed to the court. After the trial, the court held that the actual owner of the test vehicle driven by Liu was the automobile sales company, and Liu was an employee of the company. According to the provisions of the Civil Code on employer's liability, if the staff of the employer caused damage to others due to the execution of work tasks, the employer, that is, the automobile sales company, was liable for compensation. In the end, the court ruled that the car sales company should bear all the compensation responsibilities of the two customers.

The format clause that aggravates the responsibility of the test driver is invalid.

The author searched for "test drive" in China Judgment Document Network, and found that there were nearly 1,000 motor vehicle traffic accident liability disputes caused by test drive, which showed an increasing trend year by year, and there were two different situations in these accidents.

In the first case, although the test driver and the car dealer signed the Test Drive Agreement, the agreement was deemed invalid by the people's court, and the car sales company still needs to bear the liability for compensation.

Yang, who is ready to buy a car, took a fancy to a new car in the 4S shop and proposed a test drive. Yang signed the Test Drive Agreement with the sales company, stipulating that Yang was responsible for the traffic accident during the test drive. During the test drive, Yang accidentally had a traffic accident, causing damage to others. The traffic police brigade determined that Yang was fully responsible for the accident. After the trial, the court held that the test drive agreements provided by car dealers were all pre-drawn format contracts, and the exemption clause was a format clause that deliberately avoided its own responsibility and aggravated the responsibility of the test driver, and the effectiveness of this clause should be considered invalid. In the end, the court ruled that the automobile sales company should bear the main responsibility, and Yang should bear the secondary responsibility.

In the second case, the test driver and the car dealer have not signed the Test Drive Agreement, and the people's court divides the liability for compensation according to the fault degree of each party.

Li wants to buy a second-hand car and apply for a test drive. Zhang, the operator of the second-hand car dealership, arranged for the staff to accompany the test drive and did not sign the Test Drive Agreement with Li. During the test drive, Li was speeding and accidentally knocked Song, who was riding normally, into the roadside flower bed, causing damage to his vehicle. It was determined by the traffic police that the test driver Li was fully responsible for the accident, and other personnel were not responsible. Song asked Zhang, the second-hand car dealer, and Li, the test driver, for compensation. Because the negotiation failed, they sued the two to the people's court. After trial, the court held that the test drive is a kind of driving experience activity launched by merchants to potential buyers in order to increase vehicle sales. Although it is generally free of charge, it is part of the sales behavior, so it is profitable. In the test drive, Li experienced the handling performance of related vehicles and gained an intuitive feeling, which gained benefits in the process. As the beneficiaries of commercial activities, the second-hand car dealer Zhang and the test driver Li should bear reasonable risks. In the end, the court decided that the test driver Li should bear 70% of the civil liability for all property losses in this traffic accident, and the second-hand car dealer Zhang should bear 30%.

It can be seen that although automobile dealers often sign test drive agreements with consumers in order to control risks, and stipulate that the responsibility for accidents caused by the test drive shall be borne by the test driver himself, such agreements are standard contracts, in which the clauses on liability are obviously exempted from the company's responsibilities and exclude the main rights of the test driver. Therefore, the exemption clauses are mostly considered invalid by the people's courts. In addition, according to the relativity principle of the contract, the prior division of responsibilities in the agreement can not be used against the victims in traffic accidents. In extreme cases, even if an accident is caused by improper operation of the test driver, the civil liability of the automobile dealer cannot be shirked.

Judge's prompt

To reduce disputes, we must do our duty of care.

Most consumers will choose to take a test drive before buying a car in order to get a deeper understanding of the vehicle performance, which has become a necessary step in buying a car. Car dealers also use free test drive as a sales promotion means, so it is unreasonable and unrealistic to avoid disputes by simply prohibiting or reducing test drive behavior. In contrast, in order to reduce the occurrence of disputes and ensure the smooth and safe test drive, consumers and dealers need to do their duty of care.

First of all, as operators, car dealers have the obligation to protect consumers' property and personal safety. Although traffic accidents are sporadic, car dealers can't predict traffic accidents or control the improper behavior of other road participants, but they must fulfill their basic obligations, such as reviewing the driver's license, reasonably prompting the vehicle characteristics and test drive route, and providing vehicles that meet safety standards. If the car dealer fails to inform the test driver in detail about the performance of the vehicle involved and the test drive route, it can be determined that it is at fault in preventing and reducing the occurrence of dangers and ensuring the safety of the test driver, and it should be liable for compensation.

Secondly, consumers should carefully read the test drive agreement and carefully check the condition of the car. Before signing a test drive agreement with a car dealership, the test driver should fully understand the agreement, pay special attention to the test driver's obligations stipulated in it, drive and ride according to the designated route, and pay attention to the instructions and tips of the relevant staff in the 4S shop. Before the test drive, the test driver should also fully understand the performance and insurance status of the vehicle, take the initiative to ask the relevant staff of the 4S shop whether there are defects and related precautions in the test drive, make technical preparations for the vehicle condition and road conditions in advance, and listen to the guidance of the accompanying driver. In order to embody the principle of fairness, the test driver can also set up a recovery clause in the test drive agreement, so as to avoid that the party with a lower degree of fault will bear more liability for compensation in the case of joint liability for compensation.

Finally, under the background that "operational dominance" and "operational interests" are the core elements of determining the main body of motor vehicle traffic accidents, even if the test driver signs the Test Drive Agreement which contains the complete exemption of automobile dealers, it cannot be determined that the test driver should bear all the responsibilities, and the division of responsibilities depends on the people's court's identification of the fault facts of both parties and the determination of the degree of fault. When signing a test drive agreement with a dealer, consumers should not only pay attention to matters needing attention, exemption clauses, but also take photos to save the agreement. Drive carefully during the test drive, and try to avoid driving downtown or taking children for a test drive. After a dispute or traffic accident, don't be fooled by the dealer and forced to take full responsibility. The exemption clause is often deemed invalid by the court because it is a standard clause. Consumers should actively make reasonable demands and safeguard their legitimate rights and interests. (Author: Haidian District People's Court, Beijing)

Editor in charge: Yang Jingru]

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