Research On Juridical Review Mechanism Of Traffic Control

Large flows of population, vehicles and material are imposing a growing pressure on traffic and security. To uphold public security and social order, it has been quite necessary to take traffic control measures such as forbidding or restricting road passage. However, overdoing traffic control in some cities is also attracting widespread criticism. Control itself is a kind of infringe on people’s basic rights like property right and right of freedom. In judicial practice, under the limits of analysis framework of traditional administration law, traffic control tends to be moved out of juridical review for lack of specific administrative behavior. This inclination is no beneficial to right guarantee of the traffic participants. According to the related statistics, traffic control summed over 7,000 frequencies in a year in Beijing, averaging out over 20 times each day. Traffic control on such a large scale will be bound to affect people’s rights and interests. Based on this issue, the article aims to dig out the legal basis for judicial review on traffic control and construct a related juridical review mechanism.The article makes a background introduction of the definition, modes and characteristics of traffic control in the part of Introduction. The article consists of five parts. Part I focuses on the practical necessity of juridical review on traffic control and the plight citizens are facing in juridical protection against traffic control behavior. The newly revised Administrative Procedure Law has cancelled the definition of specific administrative behavior and replaced it with administrative behavior. That can be regarded as a breakthrough, because any administrative behavior that affects citizen’s rights and interests will be under juridical review. Part II explains the legal basis for traffic control juridical review from the perspectives of use right of the public property, road right, general act of disposition for property and administrative process, and sets a theoretic structure for the whole article. The article holds that either use right of public property or road right has experienced a process from interest reflection to right evolution. Impacted by the idea of human rights protection, the thought of see traffic control as part of police rights and use of public property as government benefits shall be reviewed all over again. The article tries to reveal the nature of these two rights and give them corresponding supports and functions; by reference to legal theories in Germany or Taiwan of China, it introduces a definition of "general act of disposition of material" to solve the problem of specific traffic control behavior and provide operational basis for building a specific lawsuit system; from the perspective of administrative process theory, it divides traffic control behavior into three stages--detailed decision, implementation and feedback, and structures different lawsuit system for different stages. From part III to part V, the article pays attention to the prospect and design for juridical review system of traffic control. It respectively build three types of lawsuits for different traffic control administrative behaviors---general administrative lawsuit, preventive administrative lawsuit and compensation lawsuit, to make full consideration for citizen’s rights and form an organic and complete juridical review system for traffic control.