The implementation of restrictions on car registration in many places involves violating the Administrative Licensing Law
Our reporter, Wan Jing
According to the "China Rule of Law Government Development Report (2016) " released by the Institute of Rule of Law Government of China University of Political Science and Law on April 8, as of December 28, 2016, a total of 19 localities have issued implementation measures or implementation rules for the management of online car-hailing services. However, only 3 localities have appeared in the form of government regulations, and the remaining 16 cities have issued other normative documents.
The "Report" analysis points out that the implementation rules issued by local city governments have set high standards for online car-hailing platform companies, vehicles and drivers, stifling the development of online car-hailing, not only violating the relevant provisions of the Administrative Licensing Law, but also inconsistent with the basic characteristics and development laws of the sharing economy.
Car registration is restricted to a common "standard"
The "Report" disclosed that in 2016, the "Interim Measures for the Management of Online Booking Taxi Business Services" (hereinafter referred to as the "Interim Measures") was issued. As of December 28, 2016, researchers at Peking University found 19 local online ride-hailing service management implementation measures. Among them, Shanghai, Chongqing and Guangzhou have issued implementation measures in the form of local government regulations, and Hefei, Tianjin, Beijing, Anyang, Xiamen, Jinhua, Dalian, Luzhou, Zhoukou, Luohe, Pingdingshan, Hangzhou, Xinxiang, Ningbo, Nanping, Longyan and other 16 cities have issued implementation measures in the form of other normative documents. The implementation measures of 19 localities, based on the content of the Interim Measures, have more stringent regulations on the licensing conditions for vehicles and drivers engaged in online car-hailing services.
Among them, the location of the vehicle’s registration is required to be the administrative area of the city, which has become the "standard" of local restrictions. In 19 cities, without exception, the location of the vehicle’s registration is the administrative area of the city as one of the conditions for engaging in online car-hailing services.
And electric vehicle power. Of the 19 cities, 13 have regulations on the wheelbase, displacement or power, and battery life of vehicles. Only Anyang, Zhoukou, Pingdingshan, Xinxiang, Nanping, and Longyan have not made relevant regulations. Cities that have regulations on vehicle wheelbases, displacement, etc. generally set higher standards. For example, Shanghai requires a vehicle wheelbase of more than 2,600 mm, and Beijing stipulates the wheelbase and exhaust volume of vehicles at the same time: "The wheelbase of a 5-seat seater passenger car is not less than 2,650 mm (including new energy vehicles), and the exhaust volume is not less than 1.8 liters; the exhaust volume of a 7-seat passenger car is not less than 2.0 liters, and the wheelbase is not less than 3,000 mm."
Many places have restrictions on the location of car owners
Among the 19 cities, 10 cities explicitly require drivers to have the city’s household registration or residence permit. Among them, Shanghai, Chongqing, Beijing and Tianjin clearly stipulate that online car-hailing drivers should have the city’s household registration. Guangzhou, Hefei, Anyang, Xiamen, Dalian, Luzhou, Hangzhou and Ningbo stipulate that drivers must have the city’s household registration or residence permit.
Guangzhou, Tianjin and Dalian three cities will junior high school graduation or above as one of the conditions for online ride-hailing drivers.
Six cities – Anyang, Dalian, Luzhou, Zhoukou, Luohe and Xinxiang – regulate the age of ride-hailing drivers. Among them, Anyang stipulates that men should be under 60 years old and women under 55 years old. Dalian, Luzhou and Zhoukou stipulate that the age of ride-hailing drivers should be under 60 years old. Luohe and Xinxiang stipulate that the age of ride-hailing drivers should not exceed the national legal retirement age.
The low level of normative documents makes it difficult to punish
The "report" pointed out that from the implementation of the new policy of online car-hailing in Beijing for two months, the traffic management department has made little effort to investigate and punish non-Beijing drivers, non-Beijing vehicles and non-compliant wheelbases, exhaust volume and other standards. On the one hand, the new policy of online car-hailing in Beijing is made in the form of general normative documents. According to the provisions of the Administrative Penalty Law, it shall not set any administrative penalty measures. Therefore, even if the traffic management department finds that there is a violation of administrative regulations to provide online car-hailing services, it shall not impose any administrative penalties. On the other hand, the new policy of online car-hailing in Beijing has not been strictly implemented, which also reflects that this regulation is too harsh. Once strictly implemented, it will definitely lead to a sharp decrease in the number of online car-hailing in Beijing. As a result, city residents will once again fall into the situation of "difficult" and "expensive" taxis, and the "black cars" that have been banned for many years but have been greatly reduced due to the emergence of online car-hailing will make a large-scale comeback.
The "Report" pointed out in this analysis that according to the requirements of the principle of proportionality, administrative organs should adopt means that minimize damage to the interests of the parties to achieve the administrative goals pursued. At the same time, administrative organs must measure the interests before implementing administrative actions, and can only be implemented when the benefits that may be obtained are greater than the benefits that may be damaged. And the local regulations on online car-hailing in Beijing and other places place too strict restrictions on car registration, household registration, model, etc., which violate the principle of proportionality in administrative law. In addition, the legislative norms of local online car-hailing also reflect the one-size-fits-all regulations oriented on regulation, which have been widely questioned by all sectors of society.
Multiple measures violate the Administrative Licensing Law
According to the analysis of the "Report", according to the provisions of the Administrative Licensing Law, normative documents have no right to set any kind of license. Among the 19 local regulations on online car-hailing, only Shanghai and Chongqing have issued implementation measures in the form of provincial government regulations in line with the provisions of the Administrative Licensing Law. Guangzhou has issued implementation measures in the form of local government regulations and other cities divided into districts have issued implementation measures in the form of normative documents. All violate the relevant provisions of the law.
In addition, according to Article 15 (2) of the Administrative Licensing Law, "when establishing an administrative license, individuals or enterprises from other regions shall not be restricted from engaging in production, operation and provision of services in this region, and goods from other regions shall not be restricted from entering the market in this region." Therefore, restrictions on vehicle and driver household registration in Beijing and other places violate the principles of market fairness and openness stipulated in the Administrative Licensing Law.
However, many local regulations require that the grade of online car-hailing must be higher than that of taxis or that the price must be 1.2 or even 1.5 times higher than that of taxis, which obviously violates the principle of fairness in establishing administrative licenses stipulated in Article 5 of the Administrative Licensing Law.
The report points out that legal regulation of the sharing economy must first correct the purpose of regulation. Many countries propose legal regulation of the sharing economy to prevent the provision of irregular services and violations of consumer rights and interests, not simply because it does not comply with the provisions of legal systems such as licensing.
The report argues that legal regulation of the sharing economy should focus on cooperation with online ride-hailing platform companies during and after the event, and make full use of big data to collect and analyze vehicle driving and passenger evaluation information to achieve comprehensive supervision of online ride-hailing safety and services.