Research On Several Issues In Traffic Accident Identification

It is for the high rate of frequency and large number of death toll arising from traffic accidents that the issue of traffic safety attracts extensive concerns from the society in recent years. In accordance with the stipulations of "Safety Law Of The Road Traffic",it is the legal authority of traffic administrative department(a branch of public security organ)to deal with the traffic accident and commit relevant disposition. During the law enforcement, the result of verdict will influence interests of the parties in such sides as the amount of civil damages,administrative sanction or even more worse ,the criminal penalty. Hence, the parties always challenge the administrative identifications. However in judicial practices there exists the unsettled dispute about the nature of traffic accident identification, which directly affects the parties right for remedy. The author studies and discusses the issue above-mentioned combining relevant theories in the administrative law field with present remedy situation. It is the purpose of this essay to reach the effective supervision towards the traffic accidents identification and promote the judicial world re-recognizing the issue. The author will do discussion about the issue concerning traffic accident identification in three parts: First part focuses on the concept defining between traffic accidents and the traffic accidents identification. Firstly as all know, the definition of traffic accident is the theoretical foundation of the whole disposition process, while the traffic accidents identification is the critical stage, thus both are related and inseparable. Through comparing and summarizing the concept of traffic accident in US,Japan and so on, based on the practical experiences of past ,the law in china define the traffic accident as the incident occurred on road by vehicles that results into personal injury or property loss for fault or unforeseeable fact. Thus, there are four elements of traffic accident :vehicles,road,fault or unforeseeable fact and damage. The exact purpose of analyzing the constitution of traffic accident is to make the traffic administrative department conclude justified identification ,and further objectively determine the liability of parties as support evidence of damages,sanction or penalty. Hence, It is very true that the exact understanding of constitution elements of traffic accident is the foundation of just and objective traffic accident identification. Secondly, with generalizing tendency of the concept for traffic accident, the past definition of traffic accident identification cannot reach the standard or requirement of "Safety Law Of The Road Traffic"whether in form or in content. Thus, the author defines the concept of traffic accident identification as following in accordance with the nature of "Safety Law Of The Road Traffic": one specific conduct of traffic administrative department in traffic accident ruling process, who analyzes and balances the evidence collected so as to ascertain the factual relation and evidential power to accident fact and further reaches judgment about the fact and cause of the accident and parties liabilities. On such basis, the author further summarize the characteristics of traffic accident identification as such: administrative ,unilateral,specific,indirect legal result,incoercive,arbitral and technical. It is due to the complexity of characteristics of traffic accident identification that the disputes about its nature havenot been settled till now. Thirdly, it is of important meaning for traffic safety to study traffic accident identification,which could lead to positive functions towards traffic accident prevention,set perfect traffic environment,propagate traffic safety,rule broker punishment,timely dispute settlement,safeguard social security and so on. The second part mainly detailed analysis about the nature of traffic accident identification. Firstly, the author introduce the research situation about the nature of traffic accident identification. No matter in scholar circle or practice field, there exists different explanations to the nature of traffic accident identification in china: doctrine of administrative appraisal,doctrine of quasi-administrative act,doctrine of concrete administrative act,doctrine of administrative ruling ,doctrine of administrative confirmation,doctrine of administrative testimony,doctrine of administrative arbitration. To conclude, the issue of above-mentioned doctrines reflected is whether to recognize traffic accident identification as the administrative act. Starting from the constitution of administrative act, The author testifies in turn with recent research results about administrative act that traffic accident identification satisfies 4 requirements of administrative act: the subject element,the power element,the legal effect element and the intention express element. At the same time of refuting the doctrine of quasi-administrative act, the author reaches the conclusion that traffic accident identification in nature is different from appraisal conduct, then successfully proves that traffic accident identification in nature belongs to administrative act. Through above analysis, the author believes that the doctrine of administrative confirmation discloses exactly the nature of traffic accident identification. The reasons are as follows: (1)From the concept defining, the administrative confirmation is one concrete administrative conduct that the administrative subject identifies,ascertains,rules and proves (or refutes)the legal position,the legal relationship and relevant legal facts of the counter party and makes final verdict, while the traffic accident identification is just the indication of such confirmation act in the disposition of traffic accident. (2)From the characteristic, both are the same. Thus, traffic accident identification from traffic administrative department is not only the administrative conduct but also the administrative confirmation conduct which directly relates to the interests of accident parties. So we should have efficient supervision process and remedy channel to guarantee the justice and fairness. The third part discusses the issue of remedy to traffic accident identification in china. Till now, it is still of no unanimous agreement about the nature of traffic accident identification in both theoretical and practical field, which makes it the unresolved problem that how to got remedy and cannot find the exact answer in existing law of china. This can be testified from two sides: One is from the achievements of theoretical study, the question of whether the traffic accident identification shall be got remedy as the conduct of authority is still outstanding. The other is from the stipulations of Chinese existing law, with regard to the questions such as whether and how the traffic accident identification shall be got remedy, the statute and related regulations and rules all takes the evasive and conservative attitude for without any explicit word, which leaves such conduct in vacuum area of legal remedy. And the system of traffic accident identification and remedy remains such defects which lead to the situation mentioned above: Firstly, there is no strict check and appraise measures to qualification of traffic accident judger; Secondly, one identification is the final ruling which may be reckless; Finally, the legal rights...