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CHINA LEGAL SCIENCE 2020年第6期|论我国交通警察权力模型
日期:20-12-10 来源: 作者:zzs

THE THEORETICAL MODEL OF THE ADMINISTRATIVE POWER OF THE TRAFFIC POLICE IN CHINA


Liu Qichuan & Liu Chao


TABLE OF CONTENTS



I. THE NATURE AND CONTENT OF THE TRAFFIC POLICE’S POWER OF LICENSING

II. THE INVESTIGATIVE POWER AND THE DETERMINATIVE POWER OF THE TRAFFIC POLICE AND ITS STATUS

A. The Investigative Power of the Traffic Police and Its Particularity

B. The Determinative Power of the Traffic Police and Its Status

III. COMPULSORY POWER OF THE TRAFFIC POLICE AND ITS STATUS

IV. THE PENAL POWER OF THE TRAFFIC POLICE AND ITS PRACTICE

V. OTHER POWERS OF THE TRAFFIC POLICE

A. The Mediation Power of the Traffic Police and Its Practice

B. The Reward Power of the Traffic Police and Its Expansion

C. The Guidance Power of the Traffic Police and Its Practice

VI. CONCLUSION




The field of administrative power of the traffic police in China has been relatively under-researched and has not been comprehensively regarded as a separate legal category. Previous research on this topic has been mostly restricted to limited understanding of the administrative power of the traffic police in China, let alone feasible legislative regulations. This study will deal with this issue by deconstructing the power of the traffic police. Based on the investigation of the administrative power and its practice of the traffic police, the administrative power model of the traffic police in China can be refined and modeled as the power of licensing, the investigative power, the determinative power, the mediation power, the reward power, the guidance power, and other forms of power. This theoretical model illustrates the theoretical framework of the administrative power of the traffic police in China, and helps administrative counterparts realize the traffic right of way and protect their legal rights. Meanwhile, it is conducive for traffic administrative departments to effectively regulate its power and practice. It will also improve the modernization of the national governance system and governance capacity, and facilitate the in-depth implementation of particular administrative laws, especially the police law.


Deepening the understanding of all existence, with the power of no exception, extensively needs constructed or stylized models that have become the prevailing status quo in the research field. Present researches on the administrative law and institutional practice are basically carried out based on the constructed powers and functions. The model of administrative act, namely the form, model, pattern or type, represents the concept or category of administrative act in the administrative law. The model refers to the content and procedure of administrative act in which behavior system has fixed and typical characteristics, either in theory or practice. However, the model and category of administrative act resemble the other categories of law, ‘Though the way of thinking is subjective in form, attributes and connections reflected by the content of category are objective and innate’. Thus, the subjectivity of modeling research is inevitable, but the objectivity of category determines the scope and development space, so the modeling research cannot deviate from the track of objectivity. Therefore, based on the previous research on modeling research, this study will delve into the power of the traffic police and hope to figure out the attributes of power. The standing point of this study is category research which is ‘a theoretical edifice for science. Where there is no category, there is no rational thinking, theoretical activity or expression.’ According to the statement above, the methodology of this study will be derived from the modeling research that facilitates the externalization of the power of the traffic police, so as to fully explore the established power model.


As a matter of fact, the traffic police play a variety of roles in the process of urban governance. These roles include but are not limited to current legal norms concerning the traffic police, existing forms of operation and theoretical frameworks at home and abroad. These kinds of power represent new scenes in new fields under the framework of stylized administrative act. In other words, the presentation and the stylized model of the administrative power of the traffic police can correspond with the exemplified practical activities of the traffic police. This study will further discuss and extend the forms of administrative act, not only aiming to explore the denotation of the power of traffic police, but also trying to figure out its uniqueness and lay a foundation for establishing rules and regulations. Due to limited space, this study will focus on the relatively important powers and functions and simply touch upon other aspects.


I. THE NATURE AND CONTENT OF THE TRAFFIC POLICE’S POWER OF LICENSING


The traffic police in China are responsible for the registration and management of motor vehicles and non-motor vehicles, the verification of the application of motor vehicle driver’s license, the issuance of motor vehicle inspection compliance mark, and even the statistics and analysis of the number of motor vehicles. Meanwhile, the power of administrative licensing exclusively belongs to the traffic administrative department of the public security organs. The power of administrative licensing of traffic police is specifically regulated in the Road Traffic Safety Law of the People’s Republic of China and the Regulation on the Implementation of the Road Traffic Safety Law of the People’s Republic of China, especially in the Provisions on Motor Vehicle Registration and Provisions on the Application for and Use of Motor Vehicle Driving Licenses. In this section, it has explained the background of the traffic police’s power of administrative licensing. This study follows up to explore the nature and content of the traffic police’s power of administrative licensing.


Based on the regulations of the Administrative License Law of the People’s Republic of China, there is no conclusion for the specific circumstances of the administrative license. With regard to the nature of the administrative law, there are two dominant views: resumption of freedom and entitlement of rights. Resumption of freedom regards administrative license as the ban-lifting of relative prohibition. ‘Relative prohibition refers to the prohibition or restriction of certain conduct by law in advance, and sets relevant requirements for lifting the ban. If an individual meets the requirements and submits the application, the individual shall be allowed to engage in a certain activity after being examined by the administrative organ, such as driving a car. Such relatively prohibited personal activities constitute the basic content of administrative license in the Administrative License Law of the People’s Republic of China.’ Resumption of freedom also proposes ‘The freedom of endangering other people’s life and property shall be deprived by the state; In case the freedom may endanger other people’s life and property but is conducive to the development of society, preliminary conditions shall be set in advance to eliminate the possible harmfulness. The individual shall resume the freedom to engage in such activities by meeting the conditions.’ In view of the above, resumption of freedom agrees that the content of administrative license originally belongs to the applicants’ rights, in other words, the applicants’ ownership of matter applied, rather than government’s favor or charity.


Entitlement of rights stands in the opposite position. For instance, some scholars argue that an administrative license is an administrative act in which the administrative subject issues the administrative counterpart the legal qualification or rights to engage in certain activities by issuing licenses at the request of the administrative counterpart. According to this logic, in the context of administrative license, the acquisition of the rights of the administrative counterpart is derived from the entitlement of the administrative subject. However, this logic is not consistent with the theory of law, and inevitably triggers disagreements. As the scholar Guo Daohui pointed out, ‘to entitle’ rights means to legislate or to enact new rights that have not originally existed. In fact, the rights presented in the administrative license have been indicated by laws or administrative regulations, as well as local regulations.


The above two views have different significance and values. The understanding of the content of administrative license should be put in the contemporary administrative context. The nature of resumption of freedom should be the general nature of administrative license under the background of administrative intervention or power administration. Nevertheless, entitlement of rights is in the context of welfare administration and supply administration where the content and connotation of administrative license develop with the time. One example is article 12(2) of the Administrative License Law of the People’s Republic of China, ‘The development and utilization of the limited natural resources, allocation of public resources and the market entry of the special trades that directly concern public interests shall be entitled with special rights.’ The reason why this article is provided is the result of supply administration. At the same time, it also ‘aims to provide better welfare for the public by offering some public goods and seeking for public interests.’ In order to achieve this aim, the government makes use of the market rules and provides some public goods for individuals or motivates them to compete for scarce resources.’ From the statement above, the administrative license not only has the nature of resumption of freedom, but also has the nature of entitlement of rights. To put it bluntly, what kind of nature of the power of administrative licensing do the traffic police have, or both?


Based on the current regulations, the administrative licensing of the traffic police mainly covers two aspects: the registration of vehicles, and the issuance of motor vehicle inspection compliance marks. These two aspects are included in articles 12(1) and 12(4) of the Administrative License Law of the People’s Republic of China, which conforms to the conditions of resumption of freedom.


Regarding the content of the administrative license, article 8 in the Road Traffic Safety Law of the People’s Republic of China indicates the state applies a system of registration to motor vehicles. Meanwhile, the articles in chapter 2 and other articles further specify the content of registration to motor vehicles. For example, the power of traffic administrative department as pointed out in article 9, the registration and examination of the motor vehicles and the issuance of a motor vehicle plate and the determination of a motor vehicle that carry any other plates. The pattern of the registration certificate, plate and driving permit of a motor vehicle shall be prescribed by and their production shall be supervised by the public security institution.


On this basis, the content of the power of traffic administrative police is specified in detail in the Regulation on the Implementation of the Road Traffic Safety Law. The registrations of motor vehicles shall be classified into initial registration, modification registration, transfer registration, mortgage registration and cancellation registration. These five ways of registrations are further specified in the Provisions on Motor Vehicle Registration. In addition to the provisions of different types of registration, the specific jurisdiction is also stipulated. For example, article 2 of the Provisions on Motor Vehicle Registration specifies the functions and powers of traffic control departments at all levels.


The issuance of the motor vehicle inspection mark is another important content of the traffic police’s administrative licensing. The purposes of the public security and traffic administrative department for issuing motor vehicle inspection compliance marks are two aspects. ‘On the one hand, it is to recognize that motor vehicles are qualified for factory inspection or regular inspection; on the other hand, it is requested that motor vehicle inspection qualification marks to be pasted on motor vehicles in the upper right corner of the front window. Therefore, it is easy to obtain information on the regular inspections of motor vehicles, which is conducive to the management of road traffic safety.’ At the same time, Motor Vehicle Inspection Compliance Mark stipulates ‘The owner of a motor vehicle can apply to the vehicle administrative department of the registration place for a motor vehicle inspection compliance mark within three months before the expiration of the motor vehicle inspection period.’ As a result, the motor vehicle inspection compliance mark stands for the confirmation of Motor Vehicle Safety Technology Inspection Report issued by the motor vehicle safety technology inspection organization.


It is noted that before the Road Traffic Safety Law of the People’s Republic of China was promulgated and implemented, motor vehicle safety technology inspections were ‘undertaking specific inspections’ at inspection stations run by the traffic administrative department of the public security organs. After the Road Traffic Safety Law of the People’s Republic of China was promulgated, the inspection authority was gradually separated from the traffic police and given to the public. In fact, this is a manifestation of de-policing and the result of deregulation. It is stated that after the promulgation and implementation of the new law, the scope of the power of the traffic police has been adjusted, being a significant step in returning to the nature of police. Nevertheless, the scope of the power of the traffic police is still large and broad in China. Some scholars deem it pessimistically that ‘The pace of deregulation is slow in China. The economic regulation of natural monopoly industries is very strict compared with other countries. Also, the scope and depth of deregulation are on a small scale, so the merits of deregulation have not been fully reflected.’


II. THE INVESTIGATIVE POWER AND THE DETERMINATIVE POWER OF THE TRAFFIC POLICE AND ITS STATUS


A. The Investigative Power of the Traffic Police and Its Particularity


The exertion of the power of the traffic police requires the use of input information and the judgment before it can affect the counterparty. This process is called administrative investigation. As a supervisory administrative practice, administrative investigation refers to the activities and processes in which administrative subjects exercise their powers and achieve administrative goals through inquiry, inspection, and retrieval of information. Administrative investigations have different standards in the civil law system and the common law system. In civil law practiced countries, administrative investigations are often regarded as a procedural activity that relevant administrative organs collect information for making relevant administrative decisions, that is, a procedural administrative act; The administrative legal circles in China define administrative investigations as ‘special administrative behavior theory’, ‘intermediate administrative behavior theory’, ‘procedural administrative behavior theory’, ‘factual behavior theory’, etc. In common law practiced countries, administrative investigation is often regarded as a technical means for administrative organs to collect information, and is a supplementary administrative act. Although administrative investigation plays different roles in the civil law system and the common law system, it can be seen that the two major legal systems basically agree with the process and auxiliary nature of administrative investigation. However, the understanding of its true nature needs to be in a specific situation due to its complexity. Meanwhile, it should be noted that the administrative investigation power of the traffic police is a prerequisite for the implementation of the administrative enforcement power and administrative punishment power.


The existing laws establish the principles of impartiality, comprehensiveness, promptness, and legitimacy of administrative investigation power of the traffic police, and stipulate different types and implementation procedures. For example, the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety clarifies the general provisions for the investigation and evidence collection of traffic illegal acts and traffic technical monitoring; The Provisions on the Procedures for Handling Road Traffic Accident stipulates that the investigative power of the traffic police is not limited to administrative activities, but also extends to the investigation, inspection, and identification of hit-and-run cases. In accordance with the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs, it is inevitable that the traffic police should go through investigation procedures such as interrogation of criminal suspects, interviews with witnesses and victims, inquests and inspections in traffic accidents, and conduct pre-trials on hit-and-run cases. Moreover, the traffic police should also review and verify the authenticity, legitimacy and probative force of the supporting materials of evidence. Although the traffic police have the power of investigation and pre-trial for hit-and-run cases, it does not indicate that the power wielded by the traffic police is judicial power or the combination of administrative power and judicial power. The main difference between administrative power and judicial power lies in the function: administrative power is about execution, and judicial power is about judgment. It cannot be because the traffic police perform certain judgment and decide to execute it on the investigation stage, and treat the power of the traffic police as the judicial power. As a matter of fact, though mainly conducting administrative activities in general, it cannot be denied that the administrative subject has a small portion of judgment power when taking actions prescribed by the law. Therefore, in the investigation of traffic hit-and-run cases, the traffic police exercise the investigative power prescribed by the law, but the investigative power is the criminal investigative power. However, in general, the investigative power exercised by the traffic police is basically the administrative investigation power in traffic policing activities.


There is another question: can the results of administrative investigations be the basis for administrative decisions? In the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety, a differentiated approach is adopted. To be more specific, the information obtained through direct investigation by the traffic police can be used as evidence; but the record data obtained from traffic technical monitoring needs to be reviewed before deciding whether to use it as evidence. This differentiated approach mainly takes into account a certain amount of errors in traffic technical monitoring. Owing to the lack of discernment, only relying on the traffic technical equipment is more likely to lead to errors. So, the traffic police will use the sense of judgment to discard the false and retain the true before the record data can be used as evidence.


Nowadays, the use of e-police which generally refers to the use of electronic eyes is introduced in modern society. However, there is controversy towards the use of e-police and its access to data. According to article 114 of the Road Traffic Safety Law of the People’s Republic of China, ‘the traffic administrative department of the public security organ may impose penalties on the owner or manager of a motor vehicle who violates the law under the monitoring of the traffic technical equipment. If the driver can be determined, the driver may be punished in accordance with the provisions of the law.’ Based on this article, the information obtained by the e-police can only be the evidence of administrative penalty.’ While in civil law practiced countries, the general standard is that the information obtained by the e-police should be regarded as administrative sanctions. Police administrative sanctions can be issued in written, electronic, verbal or other forms. Due to the development of science and technology and practical needs, police administrative sanctions are no longer limited to human behavior, but extend the scope to machines. ‘The traffic instructions made by the traffic police and traffic light installations are also immediate administrative sanctions. All reports must be completed within a short time after the violation of ban and other conditions such as space should not be over-considered. Otherwise, once the time is delayed over the proper length, it may violate the interests of the people; Even if it does not reach the level of illegality, it may lead to administrative negligence that disturbs the people.’ This theory has been practiced in German positive law. In 1976, articles 37(4) and 39 of the Administrative Procedure Act of Germany stipulate the determinateness and form of an administrative act. It is mentioned that a written or electronic administrative act must indicate the issuing authority and contain the signature or name of the head of the authority, his representative or deputy. If the electronic form is used for an administrative act for which written form is ordered by a legal provision, the qualified certificate on which the electronic signature is based or an associated qualified certificate of attribution shall also indicate the issuing authority. However, in the case of a written administrative act issued by means of automatic equipment, the signature and name required mentioned above may be omitted. Symbols may be used to indicate content where the person for whom the administrative act is intended or who is affected is able to comprehend its contents clearly from the explanations given.


Some scholars further argue that the data obtained by the e-police is an administrative decision. ‘In the history of theory development, some commentators believed that the use of traffic signals to direct traffic was the transfer of superior power from humans to machine. So that humans must obey the orders of machines, which is detrimental to human dignity. However, regardless of the traffic signal that is automatically changed or the administrative decision made by computers, the configuration and activation of the equipment and the operation method are all instructed by the tracking instructions of the administrative organs. In other words, despite a computer with a high level of automation, it still operates based on the procedures and data embedded in advance by civil servants. In the final analysis, the administrative organs are still the masters of administrative procedures rather than machines, and it is not detrimental to human dignity.’


It needs a further discussion on whether the data obtained from traffic technical monitoring should be deemed for administrative sanctions necessarily. Although existing legal norms in China have relatively detailed laws and regulations on traffic technical monitoring, the author holds the view that the use of traffic technical monitoring is still immature. When the monitoring equipment is relatively defective, the data obtained should be considered for its appropriateness of evidence. The traffic police could choose to distinguish proper and improper evidence and carry out administrative penalties. This is more beneficial to safeguard the legitimate rights and interests of the counterparty.


B. The Determinative Power of the Traffic Police and Its Status


Similar to the administrative power of the traffic police, the administrative power of determination is generally regarded as ‘quasi-legal behavior and pre-stage matter’. It is mainly because the nature of administrative determination proves, affirms or denies specific and doubtful legal facts or legal relationships. Thus the nature determines that the administrative power of determination is a factual judgment instead of an emotional value judgment. Meanwhile, this power has an obvious inheritance in comparison with other administrative acts. In other words, it ‘exists in a specific administrative act and is the part of the determination or confirmation of matters, rights and obligations, behaviors, relationships, etc. within. It can further be said to have the symbiotic relationship with each specific administrative act.’ However, the administrative power of determination wielded by the traffic police is widely used, especially in the investigation and handling of traffic accidents. For example, article 73 of the Road Traffic Safety Law of the People’s Republic of China stipulates: ‘The traffic administrative department of the public security organs shall, based on the on-site inspection, inspection, and investigation of the traffic accident, and the relevant inspection and appraisal conclusions, promptly prepare a traffic accident claim notification letter as a means of handling traffic accidents. A traffic accident claim notification letter should specify the basic facts, causes, and responsibilities of the parties involved in the traffic accident and serve for the related parties.’ In addition, section 1 in chapter 6 of the Provisions on the Procedures for Handling Road Traffic Accident has six clauses to help deal with traffic accidents. These clauses have more detailed regulations on the principles that should be followed for the confirmation of accidents, the determination of responsibility, the procedural regulations, and the measures to incapable prove through investigation. 


Compared with the investigative power of the traffic police, the power of determination of the traffic police is like one step further in the administrative power, involving the screening and determination of investigation data. The investigative power and the power of determination cannot be understood by divorcing it from the administrative process, and to some extent, they have a cause-and-effect relationship. However, both powers have a great impact on the rights and interests of the counterparty, so it is indispensable to regulate them.


III. COMPULSORY POWER OF THE TRAFFIC POLICE AND ITS STATUS


As far as the main administrative functions and powers of the traffic police are concerned, the administrative power of compulsion is indispensable in the handling of traffic accidents and the investigation of traffic violations. Resorting to the administrative power of compulsion to achieve administrative purposes is an essential part of the power of the traffic police, especially when dealing with matters related to traffic order. Also, to explore the legal norms of the administrative power of compulsion wielded by the traffic police, the Administrative Compulsion Law of the People’s Republic of China cannot be neglected. In other words, the nature and content of the administrative power of compulsion wielded by the traffic police should be carried out among administrative compulsory norms. However, it should be noted that the current laws and regulations governing the power of the traffic police predate the promulgation and implementation of the Administrative Compulsion Law of the People’s Republic of China. Therefore, it is inevitable that the current legal norms, especially the relevant provisions of the regulations of the Ministry of Public Security, cannot well echo or achieve consistency with the relevant provisions of the Administrative Compulsion Law of the People’s Republic of China. To deal with this issue, it requires the Administrative Compulsion Law of the People’s Republic of China to determine the nature of administrative compulsion measures and enforcement, and to find relevant content in the legal norms related to the traffic police.


According to the Administrative Compulsion Law of the People’s Republic of China, the term ‘administrative compulsion’ as mentioned in this law shall include administrative compulsory measures and administrative enforcement. Administrative compulsory measures refer to the temporary restriction of the personal freedom of citizens or temporary control of the property of citizens, legal persons or other organizations according to law by administrative organs in the process of administration for such purposes as stopping illegal acts, preventing the destruction of evidence, avoiding damage and containing the expansion of danger. Administrative compulsory measures include restricting the personal freedom of a citizen; seizing premises, facilities or properties; impounding properties; freezing deposits or remittances; and other administrative compulsory measures. Administrative enforcement refers to the performance of obligations as legally enforced by administrative organs or by the people’s courts upon applications of administrative organs against citizens, legal persons or other organizations which do not perform administrative decisions. Manners of administrative enforcement include fines and late fees; transfer of deposits or remittances; auction or legal disposition of premises, facilities or properties that are seized or impounded; removal of obstructions or restitution; performance on behalf of the party concerned; and other manners of enforcement. 


When comparing traffic laws and regulations in China and the listed articles related to administrative enforcement measures and enforcement in the Administrative Compulsion Law of the People’s Republic of China, it is not difficult to find that the types specified in the Administrative Compulsion Law of the People’s Republic of China are basically reflected in the process of enforcement. Specifically, the administrative compulsory measures of the traffic police include: (i) Compulsory evacuation; (ii) Detaining vehicles; (iii) Towing motor vehicles; (iv) Alcohol inspection, the inspection of state-controlled psychotropic drugs, and narcotic drugs; (v) Confiscating goods; (vi) Detaining motor vehicle driving licenses; (vii) Other administrative compulsory measures prescribed by laws and regulations. Traffic police enforcement methods include replacing the fulfillment; imposing additional fines or late fees; auctioning or legally handling seized vehicles.


It can be found that the administrative compulsion power of the traffic police mainly focuses on the regulations on administrative compulsory measures, and few special regulations touch upon the methods of administrative compulsory enforcement. For example, the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety has chapters that specify administrative enforcement measures in detail, but rarely mentions the administrative enforcement methods or deliberately avoids mentioning the methods to some extent. In fact, the power of the traffic police leads to this situation. In addition to the registration of motor vehicle license plates, the issuance of drivers’ license, the handling of traffic accidents, the investigation of traffic accidents, hit-and-run cases, and other traffic violations, other cases within the power of the traffic police are instantaneous. ‘The actual dangerous situation does not allow administrative actions to be executed afterwards, but must be dealt with immediately. For example, when the police are patrolling, they are convinced that the thief is attempting to enter the house. In this case, the police have the right to take necessary coercive measures immediately or directly.’ The situation like this requires the traffic police to make quick decisions and take actions, which is different from administrative enforcement methods that focus on basic decisions. Therefore, within the administrative power of the traffic police, administrative enforcement measures are favored.


In addition, it should be pointed out that the classification is questionable regarding administrative enforcement measures and enforcement in the Administrative Compulsion Law of the People’s Republic of China. In terms of legislative fundamentalism, the reason why legislators used the term administrative compulsory measures at that time was due to the fact that the Administrative Litigation Law of the People’s Republic of China treated administrative compulsory measures as a specific type of administrative act. In fact, ‘from a literal point of view, ‘measures’ are a way to deal with problems. Under normal circumstances, even legislative terms should also comply with the conventional usage of words, unless they are based on the special needs of legislation.’ The common practice of the civil law system is to divide administrative enforcement into immediate enforcement and administrative enforcement, which is more simple and clear. Therefore, some scholars have proposed that ‘in addition to the administrative enforcement and immediate administrative enforcement, the establishment of a parallel system of administrative coercive measures is a major ‘feature’ of China, but it is unnecessary. All administrative compulsory measures can be classified into administrative enforcement measures and administrative immediate compulsory measures according to certain standards. To regard administrative coercive measures as an independent administrative compulsory act is not in line with the meaning of Chinese words, but also a distortion of the internal structure of administrative compulsion.’


The concept of immediate enforcement has aroused some scholars’ criticism on its lack of basic decisions. ‘Under the immediate administrative enforcement, although the basic decisions and enforcement are often intertwined, and even the former is often covered by the latter, this does not mean that the basic decision does not exist. Without a basic decision, the content of the decision cannot be enforced.’ Moreover, ‘theoretically speaking, administrative immediate enforcement can still be divided into two levels or steps: the establishment of rights and obligations and the realization (or enforcement) .... From a practical point of view, it is difficult to find out and distinguish the two levels or steps of setting obligations and implementing administrative immediate enforcement. First, there is almost no sequence between them in terms of time, but they are basically completed at the same time (immediate setting of rights and obligations and immediate enforcement); Second, immediate setting and immediate enforcement are the same in terms of form. Because the immediate setting of certain rights and obligations, especially the illegal immediate setting, does not have a corresponding independent form and often occurs without written or oral notice, and will be reflected in the realization of the rights and obligations, that is, the administrative enforcement measures (actual actions). Because of the above reasons, it may be easy to ignore the level or step of setting obligations in administrative immediate enforcement, and mistakenly regard it as a simple enforcement measure or direct enforcement. Therefore, it is necessary to clarify the status of immediate enforcement in the Administrative Compulsion Law of the People’s Republic of China, or to classify the administrative enforcement measures into immediate enforcement. At the same time, the existing regulations should be revised in accordance with the Administrative Compulsion Law of the People’s Republic of China.


The advantages of the above-mentioned measures for the traffic police’s administrative compulsion power lie in that the traffic police can avoid the confusion or misuse of the legal norms in the process of law enforcement, and can more accurately select the specific way of enforcement. It is a pity that the legal norms such as the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety and the Provisions on the Procedures for Handling Road Traffic Accident have, as always, followed the expression of administrative compulsory measures. Even so, the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety and the Provisions on the Procedures for Handling Road Traffic Accident were implemented before the promulgation of the Administrative Compulsion Law of the People’s Republic of China, which did not correspond to the Administrative Compulsion Law of the People’s Republic of China. For example, the administrative compulsory measures listed in the above-mentioned norms are not explicitly stated in the Administrative Compulsion Law of the People’s Republic of China. While according to the Administrative Compulsion Law of the People’s Republic of China, the provisions of administrative compulsory measures are limited to the law. This will easily lead to the power of the Administrative Compulsion Law of the People’s Republic of China to be greatly reduced in the administrative compulsion power of the traffic police.


IV. THE PENAL POWER OF THE TRAFFIC POLICE AND ITS PRACTICE


In addition to the administrative compulsion power mentioned above, the administrative power of penalty wielded by the traffic police can be seen in existing norms and daily practice. There is no doubt that the administrative power of penalty is the core power of the traffic police to realize its functions, whether in the era of power administration or the period of payment administration. Because the functions of the traffic police are mainly focused on traffic order and traffic safety, and the realization of traffic order and traffic safety requires disciplinary punishment. To a large extent, this kind of punishment mechanism is the main external restriction force to ensure the public to abide by traffic order and traffic rules. The administrative punishment is immediate traffic punishment, aiming to strengthen road traffic management, maintain traffic and ensure traffic safety, and has a great impact on people’s life. But, is the administrative power of penalty wielded by the traffic police equal to the administrative power of penalty in the general sense? Is there anything else that needs to be paid attention differently?


From the perspective of external representation, the reason why the administrative power of the penalty lies with the traffic police is because of the maintenance of traffic order. ‘Administrative penalty can be regarded as a kind of order punishment to a large extent, that is, the purpose of administrative penalty is to maintain the administrative order required for the development of society. Any behavior harmful to administrative order should be subject to administrative penalty. Therefore, under certain conditions, if the counterparty commits to an act that interferes with an administrative order, if the counterparty cannot provide evidence to prove the innocence, the counterparty can be presumed to be at fault. The presumed fault is a special case of ‘negligence’, and it is a subjective element of assuming legal responsibility that is not premised on the occurrence of behavioral consequences. This special situation should be statutory and strictly limited as for its application, and the administrative organs have no room for discretion.’


Presumptive negligence is a common means in the process of the administrative penalty conducted by the traffic police. To some extent, this means reflects its value of the commitment to the maintenance of order. For example, illegal parking, drunk driving, overloading and other acts are not exempted from penalty due to the fault of the perpetrator. As for the way, the extent and the type of punishment, the provisions of the legal norms should prevail. From this point of view, the power of traffic administrative penalty also inherits the essence of general administrative penalty. ‘It does not take account into the subjective intentions of administrative counterparts, whether intentional or negligent, but pursues its responsibility by objective imputation. It means no matter whether a counterpart has intention or negligence, the penalty shall apply as long as the behavior objectively harms the administrative order. In order to obtain a principle of self-consistency, ‘presumption of fault’ has been introduced into the principle, which has become the legal basis for supporting this ‘punitive nature’.


Because the traffic police mainly have administrative power, the administrative power of the penalty should be paid more attention to when legislation is applied to the allocation of the power of the traffic police. ‘Although the general theory tends to think that the difference between administrative illegality and criminal illegality is ‘quantity’ rather than ‘quality’, it is still within the scope of legislative discretion to impose penalty or administrative order punishment on certain types of behavior. However, based on the ‘modesty principle of criminal law’ and with the consideration of legislative policy, the problem can be solved effectively by adding administrative illegal sanctions in advance, so there is no need of criminal punishment afterwards. The diversified administrative punishments can be amended by the administrative organs, and can be implemented by the administrative system directly. Their function of restoring legal administrative order is far better than criminal means.’ Therefore, ‘in the prevention of the excessive enlargement of the criminal law, it is necessary to strengthen the administrative law with regard to penalty. Administrative penalty should be used as a penalty substitute to a greater extent, so as to be complementary to criminal laws.’


This is reflected in the traffic police’s handling of traffic violations. Basically, in response to the administrative penalty of traffic violations, five categories of the penalties against illegal acts are listed in article 88 of the Road Traffic Safety Law of the People’s Republic of China ‘The five categories of the penalties against illegal acts on road traffic safety include: warning, fine, temporary seizure or revocation of the motor vehicle driving license, and detention.’ Moreover, it is inclined to the relatively minor penalty in the choices of ways of punishment. For example, in article 87 of the Road Traffic Safety Law of the People’s Republic of China, ‘The traffic administrative department of the public security organ and its traffic policemen shall timely correct the illegal acts on road traffic safety. The traffic administrative department of the public security organ and its traffic policemen shall, on the basis of the facts and in accordance with the relevant provisions of the present law, impose penalties upon the illegal acts on road traffic safety, or shall point out the illegal acts whose circumstances are too minor to affect the road passage, and impose an oral warning before release.’ This is related to the observance of the principle of proportional administrative penalty.


However, the distinction between administrative offenders and criminal offenders has begun to fade in modern administrative law theory, while the view that administrative offenders and criminal offenders have the same nature has begun to become the mainstream doctrine. At the same time, some scholars also hold this view that ‘The claim in emphasizing that administrative offenders and criminal offenders have ‘qualitative’ difference has gradually disappeared so far, thus confirming that the difference in ‘quantity’ has become a general theory. What kind of illegal acts constitutes an administrative offender and is subject to the administrative penalty? What kind of illegal act constitutes a criminal offender that should be subject to criminal punishment? It is often considered in legislation and policy but has nothing to do with the nature of the administrative penalty or criminal punishment.’ ‘When legislators formulate penalties for specific acts, they should stand on the grounds of the legislative policy at that time, rather than based on certain legal principles.’ This difference is reflected in the difference in handling the cases of drinking and drunkenness.


This is mainly because the legislators consider that the level of harmfulness of drinking and drunkenness is different, and there are more policies involved, so they take different treatment when dealing with it. For example, article 91 of the Road Traffic Safety Law of the People’s Republic of China lists ‘Whoever drives a motor vehicle after drinking alcohol shall be imposed upon the penalty of temporary seizure of his motor vehicle driving license for not less than 1 month but not more than 3 months, and be imposed upon a fine of not less than 200 yuan but not more than 500 yuan as well; whoever drives a motor vehicle when he is drunk shall be restricted by the traffic administrative department of the public security organ until he becomes sober, be detained for not more than 15 days, be imposed upon the penalty of temporary seizure of his motor vehicle driving license for not less than 3 months but not more than 6 months, and be imposed upon a fine of not less than 500 yuan but not more than 2,000 yuan as well. Whoever drives a commercial operating motor vehicle after drinking alcohol shall be imposed upon the penalty of temporary seizure of his motor vehicle driving license for 3 months, and be imposed upon a fine of 500 yuan as well; whoever drives a commercial operating motor vehicle when he is drunk shall be restricted by the traffic administrative department of the public security organ until he becomes sober, be detained for not more than 15 days, be imposed upon the penalty of temporary seizure of his motor vehicle driving license for 6 months, be imposed upon a fine of 2,000 yuan as well. Where anyone is penalized for twice or more within one year due to his drunken driving as prescribed in the preceding two paragraphs, his motor vehicle driving license shall be canceled, and he shall not drive a commercial operating motor vehicle within 5 years.’ In article 133 of the Amendment (VIII) to Criminal Law of the People’s Republic of China, ‘Drunk driving a motor vehicle on the road shall be sentenced to criminal detention and fined.’ So far, the penalty for drunk driving has been seamlessly connected with administrative punishment and criminal punishment.


V. OTHER POWERS OF THE TRAFFIC POLICE


The powers listed above are the main types of traffic police’s power. The power of the traffic police is not limited to these five types, but also includes administrative mediation power, administrative reward power, administrative guidance power, administrative legislation power, administrative reconsideration power, administrative supervision power, and other forms of power. As the administrative legislation power, the administrative reconsideration power and the administrative supervision power of the traffic police are relatively mature in China, they will not be discussed further this time. The following part focuses on the mediation power, the incentive power and the guidance power of the traffic police.


A. The Mediation Power of the Traffic Police and Its Practice


The traffic police mediation power refers to the activities of the traffic police to resolve disputes through persuasion and education and other methods to encourage road traffic parties to mutual understanding and concessions and to reach agreements on the basis of the Road Traffic Safety Law of the People’s Republic of China and related laws and regulations. The power of mediation wielded by the traffic police mainly exists in the process of investigating and handling traffic accidents. Article 74 of the Road Traffic Safety Law of the People’s Republic of China stipulates that ‘With respect to a dispute over indemnity for the damage from a traffic accident, the parties concerned may either request traffic administrative department of the public security organ for conciliation, or directly bring civil litigation to the people’s court. If, after conciliation held by the traffic administrative department of the public security organ, the parties fail to reach an agreement or refuse to perform the conciliation statement after it goes into effect, they may bring civil litigation to the people’s court.’ The mediation power of the traffic police is established in the form of law, and the starting point is the application of parties. Also, the relationship between the mediation power and the judicial power of the court is specified. Furthermore, chapter 8 of the Provisions on the Procedures for Handling Road Traffic Accident specifies the content of mediation for damages. Although this chapter indicates the procedure of mediation for damages, should the principle of mediation be carried out from beginning to end or after the parties decide to choose mediation? Article 60 of the Provisions on Procedures for Handling Road Traffic Accident stipulates that ‘if the parties have disputes on the compensation for damages caused by road traffic accidents and all parties unanimously request for mediation with the help of the traffic administrative department of the public security organs, they shall submit a written application to the traffic administrative department, within 10 days from the date of receiving the accident claim confirmation letter or the same conclusion of the original determination of road traffic accident by the traffic administrative department of the public security organ at a higher level.’ Although the intention of mediation does not seem to have a relation with the traffic police, the mediation is often from the prompt or even repressive interference of the traffic police. It is obviously against the original intention of the mediation system if the parties are deterred by the improper speech of the traffic police under the improper interference of the traffic police and thus give up other ways to protect their rights. Therefore, the voluntary principle should be a consistent principle in the mediation of traffic damage compensation, even if it is the emergence of mediation.


At the same time, the basis for the mediation of compensation for traffic damages in the current regulations is also debatable. Article 61 of the Provisions on the Procedures for Handling Road Traffic Accident stipulates that ‘The traffic administrative department of the public security organ shall conduct the mediation of road traffic accident damage compensation in accordance with the principles of legitimacy, impartiality, voluntariness, and timeliness. Auditors are allowed during mediation, unless the parties request that they not be disclosed.’ It can be seen that legitimacy, impartiality, voluntariness, and timeliness are the current mediation criteria. Apart from this, the basis of mediation can be other social norms, such as public orders, customary rules, village rules and folk agreements, moral rules, etc., which can be included in the process of mediation. After all, certain social norms should be supported as long as the parties can accept these norms and the legal rights and interests of the parties are not infringed, and there is no obvious impropriety as well.


B. The Reward Power of the Traffic Police and Its Expansion


As a beneficial administrative way, administrative award refers to the activity and process of giving material or spiritual encouragement to the units and individuals that have made significant contributions to the country and society based on their powers and functions in accordance with legal conditions and procedure. The aim of the administrative award is to achieve the administrative purposes of commending the advanced and encouraging the backward. The administrative award will first recognize the achievements made by units and individuals that have made significant contributions to the country and society, and thus create a good social atmosphere. Second, it aims to establish an incentive mechanism for administrative awards to achieve the purpose of administrative management. At present, China mainly focuses on the instrumental administrative award. As is listed in article 71 of the Road Traffic Safety Law of the People’s Republic of China, ‘Where a vehicle flees away from the scene after the occurrence of a traffic accident, the witnesses of the scene and other persons in the know shall expose it to the traffic administrative department of the public security organ or the traffic policeman. If the exposure is true to the fact, the traffic administrative department of the public security organ shall grant awards.’ Similar articles also appear in article 79 of the Provisions on the Procedures for Publishing Illegal Acts of Road Traffic Safety that ‘The traffic administrative department of the public security organ shall grant awards to persons and units that provide effective clues or assistance to the traffic hit-and-run cases.’ Simply from the above provisions, the main reason for the traffic administrative department to grant awards to investigate and deal with traffic accident cases. 


In fact, the governance of road traffic safety in modern cities should not be limited to the investigation of traffic accidents, but should encourage more people to participate in broader traffic governance. It is also a question of whether we should grant awards to all units or individuals that contribute to road safety and traffic order, and this question should be clearly answered in the legal system. So, it points out the direction that administrative award power should consider. Despite this, the good news is that the current ‘traffic illegal shooting’ is an expression of the need to expand administrative award in practice. People can take photos of traffic violations, and upload them to the program, and they can be granted awards if the photos are confirmed by the traffic police.


C. The Guidance Power of the Traffic Police and Its Practice


The most common form of guidance power of the traffic police is directing traffic, but it is not limited to this form. So, what are the other types of traffic guidance power? Because the guidance power of the traffic police is a sub-concept of administrative guidance, it is necessary to analyze the nature and practice of the guidance power under the structure of administrative guidance. The concept of administrative guidance is imported from Japan. It has been gradually valued in the context of service administration in recent years. Administrative guidance refers to ‘a form of behavior in which the administrative subject expects certain acts on the administrative object to achieve a certain purpose of public administration. Administrative guidance has no legal binding force, but can directly act on the administrative object.’ Most scholars interpret administrative guidance as an approach of inducement and persuasion. However, the guidance power of the traffic police is often seen in regulatory and restraining administrative guidance. This kind of traffic guidance right has the meaning of restriction or prohibition, which is shown as negative prohibition, although it needs corresponding notification procedures. Some scholars explained it more in more details ‘The so-called prohibition of entry refers to the traffic police prohibit people or vehicles from entering certain areas or places in order to fulfill their legal obligations to eliminate hazards when performing their duties .... Passively forbidding the counterpart to enter a certain range or place.’ There are detailed provisions in the road traffic regulations in China.


For example, the measures of traffic restriction, prohibition and control taken by the traffic police belong to regulatory and restraining administrative guidance. Specifically, article 39 of the Road Traffic Safety Law of the People’s Republic of China stipulates that ‘the traffic administrative department of the public security organ may, in light of the specific circumstance of the road and the traffic flow, take such measures against the motor vehicles, non-motor vehicles and pedestrians as directing the flow, restricting the passage or prohibiting the passage, etc. If, in the event of a large mass activity or large-scope construction, etc., it is necessary to take measures restricting the traffic, or to make a decision directly relating to the road traffic activities of the public, it shall be announced to the public in advance.’ Article 40 stipulates ‘If, in the event of any circumstance which seriously affects the traffic safety such as natural disasters, atrocious weather conditions or major traffic accidents, etc., it is difficult to guarantee the traffic safety by taking other measures, the traffic administrative department of the public security organ may practice traffic control.’ Article 21(1) of the Provisions on the Procedures for Handling Road Traffic Accident is detailed that ‘He or she shall demarcate the waning regions according to the requirements of the standards and specifications concerning the safety protection of accident sites, place illuminating or reflective cone and warning signs at the safety distance, and determine a special person to be responsible for on-site traffic command and guidance. Where a road traffic accident causes traffic disruption or a road needs to be closed, and other traffic control measures need to be taken for on-site disposal and investigation, he or she shall organize traffic diversion at the direction of vehicles at the scene of an accident in advance and place a bypass mark.’


Based on this, the regulatory and restraining guidance of the traffic police, especially in the form of traffic control measures, has a greater impact on the related parties. However, the reality is that the administrative guidance has not been brought into administrative relief and administrative litigation, which is extremely unfavorable to the protection of the rights and interests of the counterpart. In theory, ‘no administrative act, whether it is an administrative act or a factual act, shall be illegal without exception. Administrative guidance, which is not legally binding, is still bound by law and should abide by the boundary between substantive law and procedural law. In addition to its jurisdiction over the act, the administrative organ engaged in administrative guidance shall not have an improper connection or other violations of the law.’ Therefore, it is necessary to study deeply and design the system on how to remedy and regulate the regulatory and restraining guidance.


VI. CONCLUSION


Based on the study above, the theoretical model of the administrative power of the traffic police in China can be refined and modeled as the investigative power, the determinative power, the mediation power, the reward power, the guidance power, and other forms of power. Meanwhile, not only the controversy in a specific power model and its trend of development can be understood profoundly, but also its state of practice can be reviewed comprehensively. Therefore, the understanding of the power of traffic police will not be limited to handling traffic accidents or investigating traffic violations, but a more rational approach to the power model of traffic police in different scenarios. The significance and value of this refined study of the power model of the traffic police can be mainly manifested in the following three aspects:


First, for administrative counterparts, the study of the power model of the traffic police will help administrative counterparts realize the traffic right of way and protect their legal rights. On the one hand, with the understanding of the power model of traffic police, administrative counterparts can recognize corresponding legal norms and can be clearly aware of the boundary between legal activities and illegal activities and their following penalty, and thus act in accordance with legal norms. On the other hand, when traffic police infringe on the legal rights of administrative counterparts, administrative counterparts can find specific and corresponding approaches to protect their rights easily.


Second, for the traffic administrative department, the study of the power model of the traffic police will be conducive to the regulation of the power and its practice. The power model of traffic police is not merely a theory; it is based on and comes from real legal practices and will be used in real scenarios. In other words, the power model of traffic police in China has corresponding legal norms or systems design. The direct purpose of this study is to bring arbitrary power of traffic police into the track of legalization. It is necessary to explore whether the existing legal system is connected with the model power of traffic police, and then continuously improve the existing legal system so as to realize the power of traffic police abided by laws, and finally achieve the goals of maintaining traffic order, improving traffic efficiency and protecting rights and interests of persons and property.


Third, the in-depth study of the power model of traffic police in China is an inevitable requirement of the modernization of the national governance system and governance capacity, and also an inevitable trend of the in-depth implementation of particular administrative laws, especially the police law. This study will also help the fine development of the discipline system, and thus further facilitate the modernization of the national governance system and governance capacity. This study constitutes a part of the government governance system and national governance. At the same time, the combination of similar parts constitutes the integrated process of the modernization of the national governance system and governance capacity. In addition, the current research on particular administrative law in China still applies the traditional theoretical model of administrative law. Although the power model of the traffic police discussed in this study is based on the traditional theoretical model, it clarifies the primary forms of the power of traffic police in China, which will make significant contributions to the modernization of the national governance system and the promotion of our governance capacity.



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