| The practice of law enforcement shows that because of the legislative loopholes in Chinese motor vehicle driving license, some behaviors of traffic administrative department of The Public Security Organization in the implementation of motor vehicle driving license are usually criticized, and some confusions also appeared in the practice of law enforcement. Firstly, the range of driving ban in The Law For Traffic Safety Of People's Republic Of China(referred to as ‘The Law For Traffic Safety' in the following) is not rigorous and the statements in legal provisions are not consistent. The statement about ‘driving ban' in Item 91 and 101 of The Law For Traffic Safety is that the driving license can not be obtained within five years( ten year, lifetime), which is suspected to ignore the undocumented drivers. In contrast, the statement in Item 103 of The Implementing Regulation For Traffic Safety is that the driving license can not be applied for within three years, while that in Item 13 of The Regulation For Application And Use Of Driving License is that the driving license can not be applied for in one of the circumstances. Obviously, they are inconsistent with the statement of ‘driving ban' in The Law For Traffic Safety.Secondly, there is no restriction on the suspects involved in causing a traffic accident and dangerous driving to applying for the driving licenses, so embarrassing phenomenon usually appear that it is hard for traffic administrative department of The Public Security Organization to justify in law enforcement. Vehicle Administrative Office accept the application of the person concerned before his crime or during his being taken coercive measures on. Though the person concerned passing the the test of ‘Subject I' and ‘Subject III' according to the procedures of application for driving license obtain it, the driving license will be revoked according to law because of the crime of causing traffic accident or dangerous driving, just as ‘the case of revoking Li's driving license' in the essay. Thirdly, according to some relevant items applying for The Regulation For the Application and Use of Motor Vehicle Driving License, the driving license is canceled by the computer without being informed by traffic administration department, which often leads to administrative litigation, just as ‘ the case of Chai suing the branch of traffic management organization in A for the cancellation of his driving license' listed in the essay. Judicial apparatus eventually affirmed that the behavior of the branch of A was illegal and invalid.In laws and regulations, such as the Law for Traffic Safety and its enforcement regulation, the statements about ‘driving ban' are not rigorous and consistent, which reflects the legislation for The Law For Traffic Safety is not precise. Though it has not caused serious passiveness in the actual enforcement, from the perspective of scientific legislation, it is still necessary to revise the relevant items about ‘driving ban'.According to Item 91 and Item 101 of the Law for Traffic Safety, which specifies that the driving license of anyone with the crime of dangerous driving or causing a traffic accident will be revoked and the driving will be banned. In terms of the original intention of legislation, The Regulation For Application And Use Of Driving License should have made reasonable arrangement and implemented certain restrictions on the suspects involved in the crime of causing a traffic accident or dangerous driving applying for the driving license, but this problem has not been referred to in any amendment of The Regulation For Application And Use Of Driving License. The loopholes in legislation existing in the procedures of applying for the driving license for a long time result in the embarrassing phenomenon similar to ‘the case of revoking Li's driving license', usually happening in the law enforcement. Motor vehicle driving license is administrative license in the legal attributes. Examined by the theory of administrative license, the internal standards about regulation about ‘cancellation' are not united in the relevant items of The Regulation For Application And Use Of Driving License, which confused the cancellation as a measure of background management with that as a specific administrative act. In addition, there is no design about implementing procedures as to the cancellation as a specific administrative act, which is also a major reason for the absence of ‘cancellation' procedures in the enforcement practice of traffic management laws.Taking the demand for scientific legislation into consideration, it is necessary to revise the statement about ‘driving ban' in The Law For Traffic Safety and its enforcement regulation. ‘Driving ban' can be implemented uniformly from the restriction on the right of application and undocumented drivers involved in the crime of causing a traffic accident and dangerous driving will be included in the scope of ‘driving ban' at the level of The Law For Traffic Safety. As to the loopholes in the legislation of applying and accepting procedures, giving full consideration of the actual situations undocumented drivers involved in the crime of causing a traffic accident and dangerous driving, as well as adding the suspension and termination in the procedures of applying for and accepting the driving license, not only can save the cost of administration, but avoid the embarrassment in the actual enforcement. Based on the theory of administrative license, figuring out the law attributes of various ‘cancellations' in The Regulation For Application And Use Of Driving License, separating the cancellation as a measure of background management from that as a specific administrative act in legislation, establishing more licensing measures about the changing and withdrawing of the driving license and clarifying the implementing procedures about canceling, withdrawing and changing of the driving license, not only can make up the defects in the legislation of ‘cancellation', but also can put an end to the chaos in actual enforcement. |
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