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CHINA LEGAL SCIENCE 2021年第1期|外卖送餐平台内外法律关系探析
日期:21-02-08 来源: 作者:zzs
ANALYSIS ON THE INTERNAL AND EXTERNAL LEGAL RELATIONSHIP OF TAKEAWAY FOOD DELIVERY PLATFORMS


Cao Fan

I. INTRODUCTION

In recent years, the further development of the internet and the development of techniques like cloud computing cause online data processing and the offline physical delivery service to be combined tightly day by day. Based on this background, the business model of takeaway food delivery service arises. The key feature of this business model is the extensive and in-depth combination of online service and offline service. Accompanying with the convenience it creates, there are also some new problems appearing. The case of the Eleme deliveryman knocking down the medical leading authority in Shanghai is a typical example reflecting the problems generated from the operating process of this business model. On February 24, 2018, Li Mouqiu, the leading authority of emergency treatment in Shanghai, was knocked down by a deliveryman of Eleme and died on March 26 after emergency treatment. This case is still on the court’s docket. The Eleme platform operator expressed that they should not take responsibility for this case, which makes the relationship of the injured party unsatisfied. On August 15, the relationship of the injured party was published on social media. The focus of the dispute of this case is whether the Eleme platform operator should take responsibility or not. The premise of solving this problem is to clarify the legal status of the takeaway food delivery platform, and then, finding the normal basis of claim right. The injured party believes that the platform operator is also the provider of the takeaway food delivery service, so they should take responsibility as a service provider. However, the Eleme platform operator claims that they are only a kind of technical service provider substantially. The deliveryman signs a contract with the labor service company other than the platform operator, so the responsibilities should be taken by the labor service company.

Generally speaking, in the takeaway food delivery service, the statuses of takeaway food delivery platform operators are different when they are in internal relationships or external relationships. In internal relationships, the takeaway food delivery service involves the operator of the takeaway food delivery platform and the provider of the takeaway food delivery service. In some specific circumstances, the two parties combine together, that is, the operator of the takeaway food delivery platform provides takeaway food delivery service on their own or by their branches. Except for this situation, the two parties distinguished from each other. The takeaway food delivery service provider can be any natural persons or legal persons if it obtains corresponding permissions. In practice, the takeaway food delivery service business model can be differentiated into the direct business model and the franchise business model. The former is the legal relationships between platform operators and takeaway food delivery service spots invested by the operators. Most of them manifest as head corporations and branch corporations or parent corporations and subsidiary corporations. The latter is the legal relationship between the platform and the franchisees. The rights and duties of each party are confirmed according to the relevant laws and specific operating contracts. In the external relationship, the takeaway food delivery service involves takeaway food delivery service providers, takeaway food delivery service recipients and the consumers who enjoy the takeaway food ultimately. The takeaway food delivery service contract connects each party together, and each party enjoys rights and takes responsibility according to the law. 

II. DEFINITION AND FEATURES OF TAKEAWAY FOOD DELIVERY SERVICE

Nowadays, the ‘Internet Plus’ strategy is inducing further revolutions in all areas. Under this background, in the area of daily service, the internet-based takeaway food delivery service business model, which is supported by the improvement of data-collecting method and the extension of data content, has gained further development. According to the relevant data, up to June 2020, the number of online takeaway food consumers is 409,000,000, which has increased 11,240,000 compared with March 2017. This business model takes advantage of the internet, whose function can be shown in every link. After consumers sign contracts with operators in the platform, the platform operator will transform the relevant information into the form of order through the computer system and send the order information to the relevant takeaway food delivery service provider after a series of complicated computing processes. The relevant provider will begin delivery service according to the order given by the platform operator. In the process of delivery, the platform operator cooperates and communicates with other takeaway food delivery service providers. The former can finish the transport capacity dispatch, the distribution of order and the patch planning in the shortest time with the help of arithmetic, and improve the efficiency and accuracy to a large extent. The latter can implement the order and plan of platform operators.
 
A. Definition of Takeaway Food Delivery Service

The takeaway food delivery service can be defined as a kind of e-commerce service taking advantage of the internet. The main participants include operators of takeaway food delivery platforms, and operators on the platform and consumers. It can provide services like online operating sites, matchmaking transactions and information disclosure and so on. The operator on the platform is the E-commerce operator providing catering service through the internet platform. According to the provision of the National Standard for Industrial Classification for National Economic Activities (hereinafter referred to as the Standard), the takeaway food delivery service is a kind of ‘catering delivery and takeaway food delivery service’, belonging to the ‘catering industry’. The Standard defines the takeaway food delivery service as below, ‘The service chooses proper transport tools and devices, sends goods and provides corresponding receipts to consumers in time and guaranteeing quality and quantity, according to the order from consumers and the demand of food safety.’ From this definition, we can know that, in the view of the catering industry, compared with traditional catering services like dinner service and fast-food service, the takeaway food delivery service has its own feature, and it is necessary to add a new category for it. The takeaway food delivery service refers to the process of delivering food, while the dinner service or the fast-food service emphasizes the producing process of catering products. The content and nature of the two kinds of service are different, so they should be governed by different terms. If we just analyze the takeaway food delivery service from the view of delivery, it can be treated as a service delivering food, which is similar to transportation, storage and postal service to some degree. However, to be specific, in the takeaway food delivery service, the subject that service providers deliver is takeaway food and beverage product, which has its own characteristic to some extent. Although the volume and weight of takeaway food and beverage product are relatively small, they demand the package, heat preservation and fresh preservation of food to a higher level. For example, hot food needs to be kept warm, and cold food needs to be kept cool. The food with soup needs to avoid being spilled during the delivery process. In the process of service, the takeaway food delivery service is door-to-door delivery, which does not involve truck-road transportation. While the trunk road transportation is the common process of express delivery service and transport service. In the aspect of timeliness, the timeliness of takeaway food delivery service is very important, which is computed by minutes. The request for express delivery service and transport service in the time limit is more flexible. 

As an important link of internet catering service, the takeaway food delivery service is one of the essential advantages of internet catering service. In traditional catering service, it is necessary for consumers to arrive at the restaurant. While, in the model of internet catering service, consumers can make deals with operators on the platform through e-commerce platforms, and the food will be delivered to the consumer under the organization of platform operators. Consumers can enjoy catering services without going outside. This model has saved a lot of time and energy for consumers, which has made consumption more convenient as well. From this level, as the last link of Internet catering service, takeaway food delivery service has played an important role in the development of Internet catering service. 

B. Features of Takeaway Food Delivery Service

The first is the diversity of service-providing subjects. As the technical carrier of takeaway food service, the takeaway delivery food service platform gathers the platform operator, operators on the platform and consumers together, making the communication between different subjects come true. In the traditional catering service business model, the food and beverage product is delivered by operators on the platform or by the third party committed by the operators. In the link of delivery, there is only one service provider. The platform business model has changed this situation, which makes part of the service can be finished online and assists the offline physical delivery service. In the link of online service, as the online organizer and administrator of takeaway food delivery service, the platform operator can manage and control the process of delivery actively by its own technical strength and information advantage. In the link of offline service, the platform operator can provide takeaway food delivery service on its own or by other subjects franchised by it. 

The second is the fragmentation of serving objects. The traditional catering delivery service cooperates with institutions like schools and companies, whose demand is vast and address is fixed. According to the agreement of the contract in advance, the operator on the platform prepares food and sends food to certain institutions, after that the service is finished. However, the takeaway food delivery service faces consumers directly, aiming at satisfying their daily needs, which means the quantity might be small. Besides, consumers’ demands on the accuracy of delivery address are very high, which generally means door-to-door service. The diversity of serving sites and the separation of delivering subjects put forward a higher demand for the takeaway food delivery service provider, which has improved their cost and difficulty of service.

The third is the comprehensiveness of service content. Under the platform business model, the platform operator is the provider and operator of the takeaway food delivery platform, which is also the creator of takeaway food delivery service transaction environment on the internet. Besides providing the necessary support of technique and data, the platform operator should undertake the duty of maintaining the order of transaction. In order to maintain the order of transaction of the platform, the platform operator should manage and service each party, not only including the guidance and support to parties’ behaviors, but also involving the restriction and limitation to parties. For example, the platform operator can make rules for the platform and manage each party according to these rules; they also can implement punishment to parties if someone disobeys the rules. 

The fourth is the informatization of service form. In the traditional catering delivery service, schools or companies order food and beverage products through contracts, and the catering seller prepares and delivers food and beverage products uniformly. The main part of the delivery service is finished offline, which does not rely on the internet. However, thanks to the internet technique like cloud computing, the takeaway-food delivery service shows a highly technological and informational feature. The platform operator can build the takeaway delivery food service platform, track the process of takeaway food delivery service and set up a feedback mechanism of takeaway food delivery service. What is more, they can transform the information from consumers, operators on the platform and takeaway food delivery service providers into data, concentrate them on the same platform and supply to each party, which can extremely improve the efficiency and lower the cost. 

III. 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.

IV. INTERNAL LEGAL RELATIONSHIP OF TAKEAWAY FOOD DELIVERY PLATFORM UNDER FRANCHISE BUSINESS MODEL

The franchise business model refers to the model in which the franchisor takeaway food delivery platform operators support the franchisees takeaway food delivery service provider in the aspect of the service network, organization structure, staff training, business management and so on, and the takeaway food delivery service provider should pay corresponding consideration and provide takeaway food delivery service. The platform operator adopting the franchise business model can expand the scope of the business, enhance the influence of their trade name and brand and lower the cost of operating at the same time, which can popularize takeaway food delivery service in high efficiency. The platform operator adopting the franchise business model should sign franchise contracts with takeaway food delivery service providers from the area where they aim to expand business in order to confirm the duty and right of each party. In consideration of the difference in target localization, the role in service and processing resources between two parties, the platform operator and the takeaway food delivery service provider can confirm their duties and rights of each other within the law. The former’s duty emphasizes the supervision and management of takeaway food delivery service, while the latter’s duties are mainly related to the specific process of takeaway food delivery service.

A. Franchisor’s Rights and Duties

In order to standardize the operating order of franchise, and manage the business of franchise, the relevant law has enacted a series of regulations on the admittance of franchisor, the right and duty of franchisors and franchisees, mutual dispute settlement and so on. As the dominant party in the franchise business model, the platform operator controls the elements like information, resources and so on, whose rights mainly reflect in the supervision and management of the operating activity of franchisees and whose duties concentrate on providing necessary service and convenience for franchisees. 

1. Rights of Platform Operator. — Firstly, the platform operator has the right of supervision and administration. Under the franchise contract, takeaway food delivery service providers are permitted to provide takeaway food delivery service in specific areas within their managerial resources by the platform operator. In the operating process, the takeaway food delivery service provider needs to show the wholesome appearance of the operating system of the franchise to the public. In order to control the quality of service, maintain the brand effect of franchise’s operating system and avoid the free ride and opportunism tendency of franchisees, it is necessary and reasonable for the platform operator to manage and control the franchisee properly.

To be specific, in practice, the platform operator’s management and control of the franchisee is shown in the following aspects: The first aspect is the cash deposit agreement. The takeaway food delivery service provider should pay a certain amount of cash deposit to the platform operator as the guarantee for performing debts in the promissory duration. If there are not any law-breaking behaviors or any other behaviors which may lead to the deduction of cash deposit in the operating process, the platform operator should return the cash deposit to the takeaway food delivery service provider, otherwise, the platform operator can deduct the cash deposit according to the agreement. The second aspect is the arrangement of performance assessment. In order to manage the behavior of franchisees and encourage franchisees to expand the market and optimize service, the platform operator generally sets up a quantitative standard in the form of standard forms and regularly assesses franchisees according to this standard. If the takeaway food delivery service provider cannot pass the assessment, it is the incomplete performance to the franchise contract. In specific situations, the platform operator has the right to dissolve the contract. The third aspect is the prohibition of the business strife clause. According to this agreement, the takeaway food delivery service provider can only sign franchise contracts with the platform operator and is forbidden to sign franchise contracts with other platform operators who compete with the platform operator, or the franchisee will be seen as breaking the contract and need to take corresponding liabilities for breach of contract. The fourth aspect is the arrangement of material purchasing. In order to help the platform operator control the service quality and promise the normalization and systematization of the franchise’s operating system, as the franchisor, the platform operator generally asks franchisees to purchase necessary devices and tools like food boxes and uniforms and so on from them.

Secondly, the platform operator has the unilateral right to dissolve the contract. According to article 562 of the Civil Code of the People’s Republic of China, the parties can make an agreement on the cause of rescission of the contract. When the cause occurs, the party with the right of dissolution can dissolve the contract. In the relationship of the franchise contract, the franchisor generally stipulates some situations as conditions to dissolve the contract unilaterally. In franchise contracts of takeaway food delivery service, besides the intangible property like the trademark and the trade name, the platform operator provides data interface service and information service for the franchisees as well. Only if the platform operator dissolves the contract, it means that the platform operator will close the data interface. The takeaway food delivery service provider can neither provide online service nor operate the offline business. Thus, dissolving the contract is a very harsh punishment for the takeaway food delivery service provider. In consideration of the unequal status between the platform operator and the takeaway food delivery service provider, for avoiding the abuse of the dominant position of platform operation, the exercising of the unilateral right to dissolve the contract of the platform operator should be restricted to some extent, in order to fully protect the lawful interest of the takeaway food delivery service provider. These restrictions can be shown in the conditions of dissolving the contract by the statutory form or the contractual form.

2. Duties of the Platform Operator. — Firstly, the platform operator takes the statutory duty of information disclosure. In the legal relationship of franchising, the platform operator totally controls managerial resources, which can manage and control the takeaway food delivery service provider according to the law or the agreement and is one of the important sources of information and with a natural informational superiority. For the purpose of balancing the status of the two parties and mitigating the takeaway food delivery service provider’s disadvantages in information, it should stipulate that the platform operator takes the duty of information disclosure statutorily. To be specific, the duty of information disclosure is shown in the stage before the conclusion of franchise contracts and the stage after the conclusion of franchise contracts. Before signing the contract, franchisees have the right to know about the content of the contract and make the decision to decide whether to enter into the contract or to negotiate with the franchisor on several articles. All these measures are helpful for franchisees to make up the disadvantage in collecting information, fill the informational gap between the franchisor and franchisees and help them make decisions prudently. After the conclusion of the contract, the duty of information disclosure for the platform operator still exists, which will extend to the time when franchisees begin to operate. If the information disclosed by the platform operator in advance has largely changed, the platform operator should take the duty of informing the franchisees on time according to relevant stipulations.

Secondly, the platform operator should take the duties of instructing/training and assisting. After the franchise contract coming into force, the franchisee has the right to operate business with the platform operator’s managerial resources like the trademark and the trade name. In order to help the takeaway food delivery service provider know about the process of business and regulate the operation as soon as possible, for the aim of maintaining and promoting the image of the whole franchise business system, the platform operator should instruct and train the takeaway food delivery service provider under the agreement of the contract, according to the relevant administrative regulations. At first, the takeaway food delivery platform operator should provide a franchising operation handbook for the takeaway food delivery service provider, and provide some instructions to the operating activities to franchisees. In the aspect of internal management, the platform operator should instruct the takeaway food delivery service provider to design organization structure rationally, distribute the duty of different vacations scientifically and arrange the size of personnel force properly. In the external relationship, the platform operator should help the takeaway food delivery service provider make proper operating strategy basing on the market environment and regional features, achieving high-efficiency operating. Second, the platform operator should organize the takeaway food delivery service provider to take part in some training as well. In the whole process of the operation and management of the takeaway food delivery service provider, the platform operator generally commits to provide professional teams that can provide targeted training service for the takeaway food delivery service provider in different stages, assisting the latter to coordinate the internal relationship and improve the external operation. Last, the platform operator should provide technical support and assistance. The takeaway food delivery service provider deeply relies on the technical support from the platform operator when operating. The technical support includes the provision and renewal of the platform system and the solution of systematical problems. If the takeaway food delivery service provider has any questions about the operational approach, the platform operator should answer properly. In the aspect of publicity and promotion, the platform operator should provide support for the takeaway food delivery service provider as well, like designing uniform advertisement templates, providing uniform promoting images and so on. 

B. Franchisee’s Rights and Duties

The takeaway food delivery service provider as the franchisee, who is one of franchise contract’s subjects, franchise rights of franchisees in accordance with contracts is the main content of the contract. Meanwhile, in the process of performing the contract, in order to rectify the unequal status between platform operators and the takeaway food delivery service provider and protect the legal interests and rights of the takeaway food delivery service provider, the takeaway food delivery service provider should enjoy the right of termination according to the law. Based on the principle of consistency between rights and duties, the takeaway food delivery service provider should take corresponding duties as well, like paying franchise operating fees according to the contract, keeping business secrets of platform operator in confidentiality and so on. The duty of confidentiality taken by the takeaway food delivery service provider has the legal source and contractual source as well, which is the emphasis of this paper. 

1. Rights of the Takeaway Food Delivery Service Provider. — Firstly, the takeaway food delivery service provider has franchise rights. According to the agreement of the franchise contract, the franchisee enjoys franchise rights in the scope of contractual area and time limit, that is, as a member of the franchise business system of takeaway food delivery service, the franchise enjoys the right of taking advantage of trade name and trademark of the platform operator in their operation. From the point of the time dimension, the content of this right and duty system changes and adjusts persistently with the proceeding of business, which has a little openness to some extent. After the variation, the takeaway food delivery service provider continues to enjoy the right to use according to the agreement. It should be noticed that, although the takeaway food delivery service provider right that franchisees enjoying is extensive, there are still some limitations, which mainly manifest as the restriction on the operating area and operating time. The takeaway food delivery service provider should exercise franchise rights in the stipulated area, which is not only a limitation to themselves, but also a limitation to the platform operator. Furthermore, the franchise rights of the takeaway food delivery service provider are time-limited. The takeaway food delivery service provider can exercise franchise rights in the time duration and be protected from the platform operator’s improper invasion. Absolutely, in the process of performing contracts, the platform operator and the takeaway food delivery service provider can change the operating duration of franchisees, or make an agreement on the solution of termination. 

Secondly, the takeaway food delivery service provider has the right of termination without any reason. In the contract relationship, the typical feature of the right of termination without any reason is that there is not any special requirement on the occurrence of contract termination causes and the remedy of the right of termination without any reason is the compensation for the reliance interest. In the area of takeaway food delivery service, the franchise contract has a personal nature obviously, whose maintenance and performance are both built on the basis of comprehension and performance of each party. Once getting franchise rights, the takeaway food delivery service provider can take advantage of the managerial resources of the platform operator and provide takeaway delivery food service as a member of the franchise business system. During the performing period of the contract, if one party violates the reliance of the other party, the party whose reliance interest is damaged has the right to opt-out of the contract. The reason is that in the franchise operating legal relationship, the franchisor has advantages in technique and information compared with franchisees, so for the franchisor is more possible to opt out of the contract by making an agreement in the contract in advance. While the franchisee is situated in a relatively weaker position, especially in the circumstance of using the model contract, the franchisee lacks the ability to bargain. In order to enhance the protection of franchisees, the Regulation on the Administration of Commercial Franchises stipulates the unilateral right of termination without any reason of franchisees as a contractual clause in the franchise contract.

2. Duties of the Takeaway Food Delivery Service Provider. — While the takeaway food delivery service provider has the rights, they should undertake duties as well. As for the takeaway food delivery service provider, the core duty is confidentiality. The information about the platform operator which belongs to business secrets and demands the takeaway food delivery service provider keep secret is generally with the nature of non-public, value and secret. The way for franchisees to know about business secrets includes the platform operator disclosing voluntarily and contacting with business secrets in the process of operating. Before the conclusion of the franchise contract and during the performing duration, as the franchisor, the platform operator should take the duty of information disclosure to the takeaway food delivery service provider. The disclosed information involves every aspect of the franchise operating relationship, which includes some information belonging to business secrets inevitably. In the process of providing takeaway food delivery service, the takeaway food delivery service provider may come to know about relevant information which involves the business secrets of platform operator, such as the user data of customers and the business model of platform operator, due to the close cooperation relationship with the platform operator. In order to protect the lawful rights and interests of the platform operator, the takeaway food delivery service provider should take the duty of confidentiality. For example, franchisees are prohibited from acquiring business secrets by dishonest methods and they are not allowed to use business secrets acquired illegally. The duty of confidentiality taken by franchisees includes the statutory content from law and the stipulated content from the contract. 

V. EXTERNAL LEGAL RELATIONSHIP OF TAKEAWAY FOOD DELIVERY PLATFORM

As mentioned above, the legal relationship of the takeaway food delivery platform can be separated into the external and the internal. The takeaway food delivery service provider is the core of the internal legal relationship, which mainly manifests as the relationship between the headquarters and branch corporations or the parent corporation and subsidiary corporations in the direct business model, and the franchising contract relationship in the franchising business model. The external legal relationship is different from the internal relationship, whose key point is to reveal the legal relationship between the provider and recipients of the takeaway food delivery service. Observing from the outside, revolving around the providing of takeaway food delivery service, the relationship of a takeaway food delivery service contract has been formed between the provider and recipients of takeaway food delivery service. 

A. Recognition of the Subject of Takeaway Food Delivery Service Contract

The takeaway food delivery service involves many parties, including the operator of the takeaway food delivery platform, subsidiary corporations and franchisees of platform operators and operators and consumers on the takeaway food delivery platform. Among all these subjects, the provider of the takeaway food delivery service and operators on the takeaway food delivery platform are counterparties of the takeaway food delivery service contract. When judging takeaway food delivery service providers, the business model of the platform should be taken into consideration. As another civil subject rather than the party of the contract, the consumer plays the role of third party beneficiary, who enjoys a certain claim right.

1. Platform Operator. — In practice, the subject providing offline takeaway food delivery service is either the platform operator itself or the third party except for the platform operator. In the former circumstance, the operator of the takeaway food delivery platform provides online and offline food delivery service at the same time, which can be treated as the provider of takeaway food delivery service without a doubt. In the latter circumstance, the parties of the contract are the third party and operators on the platform. The platform operator does not take part in the process of making the contract in most cases and does not manifest as the party of the contract in form. However, it believes that all these factors cannot deny that the platform operator is the party of the contract substantially. Because in the process of providing the takeaway food delivery service, the platform operator shows a strong power of control, who can master the platform and service activities that enable the above objects to operate according to the platform operator’s own will to a certain extent, thus the platform operator is an active service provider rather than a neutral mediator. To be specific, the power of control of the platform operator shows in the aspects below:

Firstly, the platform operator enjoys the right to make operating rules of the platform. In the process of providing service, the platform operator has the power to apply rules to all the subjects or a certain type of subjects. If the parties related to transactions, such as operators on the platform, other takeaway food delivery service providers and consumers want to take part in the transaction organized by the platform; they must obey transacting rules made by the platform operator. For the subject who disobeys the rules, the platform has the right to stop providing service or take other measures. Secondly, the platform operator enjoys the right of control of the conclusion of the food delivery service contract. The platform operator processes the technical condition which is necessary for the conclusion of takeaway food delivery service and can control the relevant subjects by them. The platform operator takes charge of exploring the relevant system and designing a data interface program, and they can also set substantial market threshold conditions by procedures like registration. Only if operators satisfy these conditions can they enter into the platform and make transactions and finally control the contract conclusion from the origin by access qualification limitation. Thirdly, in the process of performing contracts, the platform can control to some extent by virtue of their advantages in information and technique. For example, the platform operator provides information like addresses and requirements to deliverymen, and supervises the real-time location of deliverymen and the practical state of food delivery service. In the aspect of the service fee, the platform operator collects service fees of operators and deliverymen and has the rights to hand over these fees after deducting the platform service fee, closing accounts with the operator on the platform in net amount. Fourthly, the platform operator processes the right of control when dealing with abnormal incidents in the process of takeaway food delivery service. For example, the takeaway food delivery platform sets up evaluation regimes by technical measures, and consumers can make a wholesome evaluation of food delivery service by this regime. If a consumer is not satisfied with the delivery service, he or she can make a negative evaluation of the deliveryman anonymously; meanwhile, the platform operator will take some form of punishment to the deliveryman according to the evaluating information. 

2. Takeaway Food Delivery Platform Operator. — Both the provider of offline service and the provider of online service belong to providers of takeaway food delivery service. They have rights, perform duties and take corresponding legal responsibilities of takeaway food delivery service provider in the contract. Because of the comprehensiveness and technicality of takeaway food delivery service, not only the offline food delivery service is included, but also the informational and technical service by means of the internet is involved, in order to provide offline service properly. As far as the parties of the takeaway food delivery service contract are concerned, it should be judged according to the internal legal relationship of the takeaway food delivery service provider. In the direct business model, the subjects who provide offline takeaway food delivery service might be the branch corporations or subsidiary corporations of the platform operator. The branch corporations of the platform operator do not have the qualification of the civil subject, so the subject who enters into the contract and provides offline food delivery service is the platform operator itself in this circumstance. While, as legal persons, the subsidiary corporation of the platform operator can take civil liabilities independently. Thus, when entering into a contract with subsidiary corporations, it is the subsidiary corporation of the platform operator who provides offline food delivery service. In the franchising legal relationship, because the platform operator generally demands franchisees with legal personality in practice, franchisees can enter into the takeaway food delivery service contract in their own name and provide food delivery service substantially.

3. Operators on the Takeaway Food Delivery Platform. — Generally speaking, takeaway food delivery service recipient, that is, the person who makes takeaway food delivery service contracts with takeaway food delivery service provider and enjoys corresponding rights in contract, is the operator on the platform. Before joining the platform, the operator on the platform can select the service they need by means of procedures like registration. The duties and rights of different types of service are not the same. The operator on the platform will sign specific takeaway food delivery service contracts with the platform operator or a third party to confirm the duties and rights of each party. When becoming the provider of takeaway food delivery service, the control right of platform operator to the whole takeaway food delivery service is stronger and has a wider scope of effect when exercising rights. Accordingly, the duty that the platform operator needs to take is much more comprehensive, not only managing online service, but also controlling offline service. In the following part, we will discuss the elements of takeaway food delivery service contract in this circumstance emphatically. Even though the platform operator is not the subject of the takeaway food delivery service contract and the takeaway food delivery service contract is drawn and performed by the third party substantially, the platform operator still needs to take corresponding liabilities basing on the control right to the platform.

4. Consumers. — Although there is substantial contact between consumers and takeaway food providers, this is not a direct legal relationship. Consumers are not the party of a takeaway food delivery service contract, but are third-party beneficiaries from the view of legal nature. The third-party beneficiary refers to the subject who enjoys rights and interests of the contract according to the agreement of parties. The aim of a takeaway food delivery service contract is to deliver food to consumers timely and soundly, so there must be some agreements between takeaway food delivery service providers and operators on the platform on it, like the method of performance, and the duration of the performance. It means that the consumer is not the party of the contract, but they can enjoy the rights according to the agreement of the takeaway food delivery service contract. When the takeaway food delivery service provider is delivered, the reason why the consumer can receive the food is the claim right awarded by the takeaway food delivery service contract. If the claim right is not admitted, the aim of the contract is hard to realize. Thus, the consumer acting as the third-party beneficiary of the takeaway food delivery service contract is not only the agreement of two parties, but also the requirement of fulfilling the aim of the contract. 

B. Clarifying Elements of the Content of a Takeaway Food Delivery Service Contract

The main source of the duty of the takeaway food delivery service provider is the agreement from the takeaway food delivery service contract. Furthermore, based on the specialty of the takeaway food delivery service provider, the platform operator in particular, the law imposes some duties to them as well. From the point of contractual duty, because the takeaway food delivery service includes online service and offline service, and both of the providers of online service and the provider of offline service belong to the takeaway food delivery service providers, the content of the takeaway food delivery service contract should not be limited to offline takeaway food delivery service. In practice, the agreement between offline takeaway food delivery service providers and operators on the platform, which stipulates the food delivery duty in particular and shows in the form of platform regulations or platform service contracts, is also a significant part of the takeaway food delivery service contract. To be specific, taking the platform operator as an example, as a takeaway food delivery service provider, the online duty they should take includes:

1. Online Duties of the Platform Operator. —  The first is the duty of setting up and building a food delivery platform. The takeaway food delivery platform is the technical and informational carrier of online service, as well as a protection for maintaining the operating of offline service. Setting up a stable food delivery platform and managing it properly is an important part of takeaway food delivery online service. According to the agreement of the contract, the platform operator should permit operators on the platform, consumers and other relevant parties to visit the internet platform explored and operated by the operator, and providing necessary technical measures for their visiting. What is more, the platform operator should take guarantee liability about right blemish for the takeaway food delivery platform software, and update and preserve the system on time according to the practical requirement. If there is any technical default in the platform, operators on the platform can ask takeaway food delivery service provider to undertake responsibility for the breach of contract.

The second is the duty of managing and controlling the condition of the takeaway food delivery service. In the link of forming orders, the platform operator should set and adjust the condition and process of formation of orders by means of technical measures, in order to improve the efficiency of taking orders to the largest extent, and improve the experience of consumers. After the formation of orders, the platform system should make the best deployment of the transportation plan and choose the most beneficial service mode with the help of arithmetic, combining the factors like locations, distances, quantities of orders, the requirement of consumers and so on. In the process of delivering food, the platform system should provide navigation service for deliverymen, assisting them to arrive at the destination as soon as possible. When the takeaway food is signed in, the system should close the account. Furthermore, the platform operator should build and improve the takeaway food service evaluation regime, forbidden to delete or falsify evaluations from consumers.

The third is the duty of persistent information disclosure. The platform operator processes advantages in the area of technique and information, which can influence the content of takeaway food delivery service contact directly by means of making or rectifying the transaction rules or platform service agreement. In order to mitigate the state of information asymmetry between the platform operator and operators on the platform, the platform operator should take the duty of information disclosure persistently, which is a statutory as well as a stipulated duty. According to the relevant provisions, the platform operator should make public their serving agreements and transaction rules at statutory location persistently and guarantee all these documents can be read and downloaded completely. When the relevant information changes, the platform operator should inform the public in a timely manner. Furthermore, the platform operator should remind operators on the platform to notice the clauses which exclude or limit the responsibility of the platform operator, so as to help them make decisions rationally. Based on all the requirements above, there is still some space for the parties to use their autonomy of will. They can discuss the rules of information disclosure, like the time to disclose and the way to disclose.

The fourth is the duty of protecting the safety of internet and transaction. In the process of providing takeaway food delivery service, the takeaway food delivery service provider executes large-batch technical operations and have the opportunity to make contract with the personal information of consumers. Thus, the platform operator should take measures to protect the safety of internet and transaction. According to the provisions of law, the platform operator should protect the stability of internet environment by technical measures combining with other measures, in order to keep away the behaviors that harm internet safety. In the process of providing takeaway food delivery service, the platform operator should provide a persistent safeguard. Moreover, in consideration that the safety of personal information of consumers is an organic component part of the safety of transactions, protecting the safety of consumers’ personal information is a duty for the platform operator. Thus, the platform operator should take corresponding technical measures actively, like adopting anonymous evaluation regimes, in order to keep the personal information of consumers from improper leakage and usage. 

2. Offline Duties of Takeaway Food Delivery Service Provider. — The first is the duty of delivery according to the agreement. There are many forms of takeaway food delivery service contracts, such as the stipulation related to takeaway food delivery in the service agreement, the takeaway food delivery service contract signed by the takeaway food delivery service provider and operators on the platform in addition and the consumers’ requirement showing on the platform. The provider of the takeaway food delivery service should deliver the food in the agreed time limit to the agreed location, according to the agreement of the contract. In principle, the takeaway food delivery service provider should provide a home delivery service. Only if the agreed location is forbidden to enter, the deliveryman should make contact with consumers to pick up the food. After checking the receiving voucher, the deliveryman should deliver the appointed takeaway delivery food to the consumers; if there is any alteration, the deliveryman should deliver the food to the altered consumer.

The second is the duty of timely notification. After the food is delivered to the agreed location, the deliveryman should inform consumers to receive it properly. According to the relevant industrial standard, the deliveryman should pay attention to their behaviors and informing manners. They should knock on the door gently, and make contact with calls or messages if no one replies. If the takeaway food delivery service provider has already performed the duty of notification, but the delivery is still delayed owing to the consumer, the provider does not need to take responsibility.

The third is the duty of preserving food properly. The takeaway food delivery service provider should guarantee the quality of food in the aspect of personal allocation, selection of delivery equipment and behaviors of delivering. For example, in the aspect of personal allocation, the employed deliveryman should meet the local relevant health requirements of the delivery personnel before delivering food. In the aspect of delivering equipment, the delivery box should satisfy the safety standard and be washed and disinfected timely, for the aim of satisfying the standard made by the relevant administrative department. In the process of delivery, the deliveryman should enter into the kitchen and put the food into the box carefully and properly, avoiding leakage and pollution in the process of delivering.

3. Corresponding Duties of Operators on the Takeaway Food Delivery Platform. — Operators on the platform are the party of the takeaway food delivery service contract and the recipient of takeaway food delivery service. After the cooking of takeaway delivery food, the operator on the platform delivers the food to the takeaway food delivery service provider, and the food is sent to the agreed consumer through the takeaway food delivery service providers. For the proper performance of the takeaway food delivery service contract, it should be confirmed that the operator on the platform should take some duties.

The first is the duty of paying the delivery fee. The takeaway food delivery service contract is a bilateral and paid contract. The consideration of the operator on the platform receiving the takeaway food delivery service is paying delivery fees, that is, paying the agreed delivery fee in the agreed period. In practice, the delivery fee is constituted by two parts: The first part is the agreed fee paid by operators on the platform, which deducts from the meal fee paid by consumers at the agreed ratio by takeaway food delivery service providers; The second part is the extra delivery fee paid by consumers, it is agreed when consumers make catering service contracts with operators on the platform, takeaway food delivery service provider is charged in the link of the online transaction. Due to the difference in service models chosen by operators on the platform when registering, the constitution of delivery fees in different models is not the same.

The second is the duty of packing food properly. It is very important for the takeaway delivery food to be kept wholesome and clean and that the food is packed properly. In accordance with the transaction practice and the agreement of the takeaway food delivery service contract, the operator on the platform should take this responsibility. To be specific, operators on the platform should use safe, clean and nontoxic dinnerware, and keep different types of takeaway food separated from each other. The package should keep food from leakage and maintain its original nature. If the operator on the platform disobeys the packing duty, the takeaway food delivery service providers are able to refuse to deliver.

The third is the duty of delivering food according to the contract. The operator on the platform should deliver food to the takeaway food delivery service provider timely at the agreed location, which is the premise of providing takeaway food delivery service. Because the requirement of timeliness for takeaway food delivery service is high, the operator on the platform should shorten the time that deliverymen wait for food, and improving the efficiency. The specific measures include: setting an area which is special for takeaway delivery food, placing takeaway food in a certain order and asking staff to help the delivery man when necessary. Besides, in order to keep the safety of takeaway food delivery service and promote the food meeting the requirement of consumers, the operator on the platform should check the information of food, consumer and deliveryman with takeaway food delivery service providers timely.

4. Rights and Duties of Customers. — The consumer is the third party of the takeaway food delivery service contract, which means that not only the operator on the platform has the right to ask the takeaway food delivery service provider to perform the service, but also the consumer has an independent claim right. Consumers have the right to demand takeaway food delivery service providers to perform obligations and make sure that takeaway food is delivered timely and soundly. It should be noticed that consumers do not have the independent claim right until they satisfy some conditions. Only if they agreed to receive the food, they get the claim right to takeaway food delivery service providers. Because the autonomy of the will of consumers should be respected, only if they agree to receive the food in an ostensive or implied way, the agreement of the contract will come into effect to them. There is also some limitation for consumers to exercise rights. In the condition that operators on the platform do not exercise the right or exercise the right passively, the consumer can exercise the independent claim right as a third-party beneficiary. According to the principle of unified rights and obligations, consumers should take some responsibility as well. Firstly, they should pay according to the contract. The takeaway food delivery service contract is a paid contract, the aim of the takeaway food delivery service provider to provide service is to gain delivery fees. If the consumer should pay delivery fees according to the agreement, consumers should pay delivery fees according to the agreed time limit, manner and amount timely. Secondly, the duty of receiving food timely. The consumer should receive the food according to the agreement timely, in order to facilitate the performance of the takeaway food delivery service contract. If the food gets degraded because of the consumer not receiving the food timely, the consumer should take all the negative results by themselves. This duty is an unreal duty. If consumers disobey this duty, they will suffer a loss on their own benefits and do not need to take responsibility for breaching the contract. Thirdly, the duty to check food timely. Checking the delivery food is not only a right but also a duty of consumers, which is also an unreal duty as well. The consumer has the right to check the food in a reasonable time limit, and raise an objection to the takeaway food delivery service provider in a reasonable period. After the food is delivered, if the consumer did not check the food and raised an objection, this situation can be seen as the initial proof of takeaway food delivery service provider providing takeaway food delivery service.

VI. CONCLUSION 

The goal of the ‘Internet Plus’ strategy is to form a new form of development with the internet as an important tool, so that the internet can better serve all sectors of the substantial economy and society, so as to promote the development of the substantial industry. The business model of the takeaway food delivery service is the direct embodiment of this strategy in the catering industry. By combining Internet platform technology with the catering industry, platform operators promote the deep integration of online business and offline business, bringing convenience to daily life. The takeaway food delivery service is related to the takeaway food delivery platform operator, the takeaway food delivery service provider, the operators on the takeaway food delivery platform, consumers and other subjects. Different subjects interweave to form the internal and external dual legal relationship. The internal legal relationship revolves around the takeaway food delivery platform operator and the takeaway food delivery service provider, and the rights and duties of the two subjects vary according to the different business models of the platform. Under the direct business model, the platform operator, branch corporations and subsidiary corporations of the platform operator have different legal status and play different roles in the takeaway food delivery service. Under the franchise business model, as franchisers and franchisees, the platform operator and the takeaway food delivery service provider should undertake certain duties while enjoying corresponding rights. For example, the platform operator has the right of supervision and administration and the unilateral right to dissolve the contract and undertakes the duty of information disclosure and instructing or training and assisting as well. The takeaway food delivery service provider has franchise rights and the right of termination without any reason. Meanwhile, the core duty which the takeaway food delivery service provider should undertake is confidentiality.

As for the external legal relationship, which is built upon the takeaway food delivery service contract. Generally speaking, the two parties to the takeaway food delivery service contract are the operator on the platform and the takeaway food delivery service provider. However, in view of the platform operators’ actual control over the process of takeaway food delivery services and the operators on the platform, even if the platform operator is not the actual service provider who provides takeaway food delivery services, the platform operator still should be regarded as the essential parties to the takeaway food delivery service contract. Specifically speaking, the platform operator should undertake online duties, such as the duty of setting up and building food delivery platform, managing and controlling the condition of takeaway food delivery service and disclosing information continuously; the takeaway food delivery service provider should undertake offline duties, such as the duty of delivery according to the agreement, timely notification and reserving food properly; the operator on the platform’s duties include paying the delivery fee, packing food properly and delivering food according to the contract. In order to accomplish the goal of the takeaway food delivery service contract successfully, the customer as the third-party beneficiary to the contract should have an independent right of claim. The acquirement and exercise of this right should be noticed, because the relativity of contract is one of the basic principles which cannot be queried, so only if the consumer agrees to receive the takeaway delivery food will they become the third-party beneficiary of takeaway food delivery service contract. Furthermore, the condition that they can exercise this claim right independently is the operator on the platform not exercising the right or exercising rights passively.


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