Appearance Doctrine in Attribution for Damages to Third Parties Caused by Platform Riders

Author: Wang Tianyu

 

 

Abstract: In the case of damages to third parties caused by food delivery and instant delivery riders, it is controversial whether the third party can claim a platform's liability based on the fact that the riders wear the platform’s clothing, are equipped with the logo of the platform or have other behavioral appearance of the platform. The appearance doctrine is in the affirmative on this question, while the opposing view is that the examination of the controlling force of the employer's liability should be adhered to. The control is based on the theory of behavioral appearance under the employment relationship, in which the real employed persons who have clearly established the employment relationship are controlled to a greater degree, while the non-real employed persons who have not clearly established the employment relationship, such as those with vehicle affiliation, are controlled to a lesser degree. Among platform riders, dedicated delivery riders are the real employees of the platform or agents, and therefore the employer's responsibility should be determined in the traditional way. Crowd-sourced riders are not really employed by the platform, but form a risk community with the platform, and thus the theoretical basis is shifted from control theory to danger theory, and the platform should still bear the employer's responsibility. Accordingly, in the risk control of platform employment, the platform's employer liability is extended to employee-like persons in consideration of the protection of third parties and transaction security. Civil liability governance of social risk has limitations, and an industry-wide mandatory third-party liability insurance for food delivery and instant delivery should be established to achieve the socialization of risk governance.

Keywords:platform employment; food delivery riders; third party damages; employee like persons; appearance doctrine

 

Author:Wang Tianyu, an associate research fellow at and the deputy head of the Social Law Department of CASS Law Institute of Law.

 

Source: 4 (2021) China Review of Administration of Justice.