外卖送餐平台内外法律关系探析
来源：方乐律师
发布时间：2021-02-25
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INTERNAL LEGAL RELATIONSHIP OF TAKEAWAY FOOD DELIVERY PLATFORM UNDER DIRECT BUSINESS MODEL
The direct business model is led by platform operators and provides offline takeaway food delivery service through the food-delivery stations which are funded by platform operators. The platform operator manages food-delivery stations all over China uniformly to provide takeaway food delivery service. This model is beneficial to the plan and management of platform operators. Under this model, the platform operator sets up branch corporations that do not have independent legal status or subsidiary corporations controlled by the operators in specific regions and commits branch corporations or subsidiary corporations operating the offline takeaway food delivery service. Branch corporations and subsidiary corporations are subject to the operators of takeaway food delivery platforms to some degree. However, there is the difference in the aspect of legal status and legal relationships. In significant business areas, the platform operator usually sets up branch corporations to manage takeaway food delivery service. The subsidiary corporation of the platform operator is possible to commit part of offline service in a certain area to other branch corporations as well. Branch corporations do not enjoy legal personalities, which are only components of the head corporation. Thus, branch corporations of platform operators cannot sign takeaway food delivery service contracts in the name of themselves. They can only sign contracts in the name of the platform operator, and the platform operator should take corresponding civil liabilities. Similarly, the subsidiary corporation of platform operators should also implement juristic acts in the name of the subsidiary corporation, whose legal consequence belongs to the subsidiary corporation of platform operators. Besides branch corporations, there is a situation that natural persons sign contracts with subsidiary corporations of platform operators and organize teams to provide service. However, these natural persons and their teams do not have legal personalities; they should be treated as the internal department of the subsidiary corporation. So their civil liabilities generating from the delivery process should be taken by subsidiary corporations of the platform operator.No matter for the branch corporation or subsidiary corporation of platform operator, it is necessary to employ some staff to provide takeaway food delivery service. These staff that provide takeaway food delivery service are called deliverymen. If the deliveryman signs the labor contract with platform operators or branch corporations, or subsidiary corporations of platform operators, both parties can solve labor disputes in the structure of traditional labor law according to the relevant provisions. However, thanks to the high-speed development of internet technique, the employment relationship in the condition of Internet Plus becomes diversified. As far as the deliveryman is concerned, on the ground of traditional labor relationship, the operator of takeaway food delivery platform adopts a new employ form whose subject is ‘online employee’ as well. This employment form is called crowdsourcing, and the deliveryman of this form is called crowdsourcing food deliveryman. This form fully reflects the thought of sharing economy, which combines idle social recourses and needs for food delivery service to the largest extent, under the cover of big-data technology and mobile network. Meanwhile, the legal relationship between the takeaway food delivery platform and crowdsourcing food couriers breaks through the duty and right of traditional labor relations and has something special in the aspect of subjects and content. For example, the subject delivering food is not certain; the qualification requirement and job stability are relatively low; the nature of contracts signed with crowdsourcing food deliveryman still has disputes; the right and benefit of crowdsourcing food deliveryman lacks protection. In practice, there is no common sense for the judicial adjudication of labor relationship disputes and the allocation of accident responsibility. The remedy channel for loss in rights and interests of crowdsourcing food deliveryman is not smooth. Thus, the new problems caused by the takeaway food delivery platform business model should be solved by the design and improvement of the legal regime.Among all the judicial problems, the puzzle of labor relationship identification is unavoidable. From a macroscopical perspective, once the crowdsourcing food deliveryman chooses to join in a takeaway food delivery platform, he must obey the management regulations, involving food delivery requirement, the operation specification of delivering food, the time limit of delivering food, the appearance when delivering food, delivering food operation, allocating bonus, service quality management and so on. These regulations and rules are enacted by platform operators and are published on the platform to deliverymen. Crowdsourcing food deliverymen should obey these regulations and rules strictly, or they will be punished by platform operators. From a microscopic perspective, the platform operator can control the delivery behavior of deliverymen. In the link of registration, crowdsourcing food deliverymen should take part in training and pass the test under the arrangement of the platform operator. Only when they have passed the examination and satisfied other qualification requirements given by platform operators, can they get the qualification of delivering food, or they are not permitted to provide takeaway food delivery service. In the process of providing takeaway food delivery service, although crowdsourcing food deliverymen have the option to decide whether take orders or not, they must provide service according to the operating instruction made by platform operators if they take orders. The location they are situated in and the time they consume are under the supervision of platform operators.Furthermore, in the aspect of the reward and punishment regime, deliverymen are highly controlled by platform operators. The remuneration of crowdsourcing food deliverymen will be under the custody of platform operators at first. When they finish the delivery behavior according to the instruction of platform operators, they can get the remuneration of the full amount. Thus, it can be seen that, in the aspect of business management to deliverymen, the platform operator enjoys the substantial right of investigation and decision and plays a controlling role in fact, not only being a neutral service provider. On the condition that the platform operator sets up subsidiary corporations to operate the business, the platform operator and subsidiary corporations are all legal persons whose legal statuses are independent of each other. The subsidiary corporation can provide takeaway food delivery service in its name, as well as enjoy rights, perform obligations and take responsibilities by itself. In general, as the parent corporation of subsidiary corporations, the platform operator does not need to be responsible for subsidiary corporations’ debts. The independence of corporation personality is not only the respect to the equal principle of legal subject status, but also meets the commercial development of the parent corporation and subsidiary corporation, respectively. However, it should be noticed that the equality and independence among legal subjects are not conflicted with the control relationship between the parent corporation and subsidiary corporations. Generally speaking, as the controlling shareholder of subsidiary corporations, the platform operator can affect the behavior of subsidiary corporations through the organization structure of the corporation. For example, when the shareholders’ meeting makes a resolution to a certain problem, because of holding most of or even all shares of subsidiary corporations, the platform operator can take advantage of voting rights and control the major issues of the subsidiary corporation. If the platform operator misuses its independent status of the legal person and limited responsibility of shareholders and impairs creditors’ interests severely, the mechanism of piercing the corporate veil should be applied, denying the independent personality of subsidiary corporations. The platform operator should be responsible for subsidiary corporations’ debts. When this mechanism is applied in the area of the relationship between the parent company and wholly-owned subsidiary corporations, there should be something special. Because compared with other shareholding subsidiary corporations, the control from the parent corporation is stronger in wholly-owned subsidiary corporations. When the parent corporation infringes the rights and benefits of subsidiary corporations by corporation fraud or unequal connected party transactions, creditor is the only party who bears adverse results. Thus, the applying of piercing the corporate veil should pay attention to the need to protect the interest of creditors. Firstly, the scope of defendants should be expended, and the controlling shareholders of the parent company should be included, not limited to subsidiary corporations and shareholders of subsidiary corporations. Secondly, the applicable situation should be identified strictly, avoiding treating the superficial property confusion or organization confusion as the personality confusion of parent corporation and subsidiary corporations. Thirdly, in the subjective aspect, the rule of presumption of guilt should be used. The parent corporation and shareholders of the parent corporation have the duty to demonstrate their decisions are in good faith, or they can be presumed as being a subjective fault.
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