Liu illegal passenger business vehicles temporarily accept the traffic administration lawsuit

 A, case introduction

In February 28, 2005, the city Department of Transportation Transportation Management law enforcement team of law enforcement personnel according to the complaints of the masses, to carry out inspections of rectification on the long-distance bus station area illegal operation of vehicles activity. On the same day at eleven thirty in the morning, law enforcement inspection found a silver Jetta car, the car driver (i.e. the parties Liu) at that time and the passengers are quarrelling. Law enforcement officers by virtue of years of work experience, think the car has doubts, immediately came off the bus driver and passengers were asked, making the record of inquiry, and the whole process of law enforcement. After verification, the Liu is negotiated with 70 yuan fare passengers and two travel packages sent to the long-distance bus station waiting room at the entrance and passengers a hotel in the City Economic Development Zone, they quarrel in the car because the parties Liu in the bus station from about one kilometer requires passengers pay the fare and get off, due to the lack of passengers to the destination, and it caused the quarrel between passengers and drivers.

Traffic Bureau law enforcement personnel according to the party Liu's illegal facts, identify the existence of "without obtaining the license for road transport, engaging in illegal passenger management", according to the "Regulations" road transport regulations of the people's Republic of China on non law article sixty-third transport vehicles, was issued a "notice" and traffic violations "vehicle suspension certificates", and detailed told the rights and obligations of the parties Liu enjoys according to law. But the party Liu refused to sign the instrument of law enforcement, and called the passengers is commissioned by friends, not collection of passenger freight, does not belong to the illegal operation of passenger.

Two, the litigation process

In March 20, 2005, the parties Liu does not acknowledge the illegal facts themselves, to accept the traffic bureau of administrative compulsory buckle car measures and bring an administrative lawsuit to the people's court, and demanded the return of the detained vehicle.

In April 29, 2005, the people's court public hearing on the case conducted a trial. The people's court after hearing that: (a) according to the "Regulations" road transport regulations of the people's Republic of China in seventh, the city Department of transportation is the administrative law enforcement main body legal; (two) the traffic bureau of administrative law enforcement personnel in the mandatory administrative measures of executive detained vehicle before, according to the law on the parties Liu and passengers were investigated ask, making the record of inquiry and audio-visual materials, and the parties Liu in the law enforcement officers asked, approved illegal fact of their "to 70 yuan fare the passengers to the destination", at the same time it with passengers in the interrogation record testimony is completely consistent; (three) the traffic bureau law enforcement staff in the enforcement suspension of vehicles, shall inform the parties species, Liu Mou applicable administrative coercive measures based on reason and and its legal remedies and so. Accordingly, the court of first instance that the traffic bureau in February 28, 2005 to make a decision on the parties Liu on its driving vehicle compulsory administrative measures, finds that the facts are clear, the evidence is sufficient, correct application of laws and regulations, legal procedures, decided to be maintained, while rejecting the other litigants Liu request.

In May 18, 2005, the parties Liu to the court of first instance to confirm the facts are not clear, erroneous application of the law on the grounds of appeal to the intermediate people's court, request to withdraw the first instance judgment.

In August 29, 2005, the city intermediate people's court, in November 15, 2005 in accordance with the "administrative procedure law of the people's Republic of China" article sixty-first (a) the provisions of item decision as follows: rejecting the appeal, the second instance upheld; litigation costs borne by the appellant.

In December 14, 2005, the Bureau of traffic of Liu to take the initiative to accept the punishment.

Three, the case analysis

(a) in the case of Enlightenment

1, in this case the Liu not to charge passengers would constitute the facts?

2, the traffic administrative law enforcement officers in the investigation of illegal vehicles, in the first time to obtain the parties engaged in illegal passenger transportation management evidence is the key to future success in administrative litigation, what is the administrative evidence, how to collect evidence and burden of proof?

(two) the theoretical analysis

1, in this case the Liu not to charge passengers would constitute the facts?

According to the establishment of the contract is to deliver the subject matter to the elements, the contract will be divided into the promise and practice contract. Consensual contract, also known as don't contract, refers to the agreements of parties to contract. Consensual contract because the contract the parties set up after the entry into force. The practice of the contract, or to contract, refers to the agreements of parties, the object must deliver the subject to contract.

On the transport contract is promissory contract or practical contract, there are different views in theory. A kind of viewpoint thinks: "contract of carriage is consensual contract, but in the consignment note, bill of lading, instead of a written contract of carriage, the carrier to receive the goods and often for verification before issuing bills of lading or seal in the consignment note, so this contract be practice contract". Another view: "contract of carriage for consensual contract, but the parties have agreed otherwise." there is a view that: "passenger transportation contract for the practice of contract, transportation contract is promissory."

We believe that the contract of carriage for consensual contract. Reason.

First, if that contract of carriage for the practice of contract, the carrier to check without the actual delivery of the goods before the contract is not established, certainly not in force. Even then the shipper delivered goods will not be accepted and checked, will not bear the liability for breach of contract, it is not fair to the people, seriously affecting the shipper and consignee of the production and business operation activities.

Second, if that contract of carriage for the practice of the contract, if the shipper does not deliver the goods, even if the carrier has been prepared for shipment, but can not be the shipper's liability for breach of contract, it will affect the business.

The third, bill of lading and ticket is not the subject matter of the contract, the contract of carriage is not required to deliver, but evidence of the contract of transport exist, can generally be delivery of the bill of lading and ticket as the establishment of the contract of carriage, but cannot rule out other conditions such as verbal contract charter transport.

Fourth, if you think the passenger transportation contract is practical contract, then deduce the passenger car is delivered, the contract is established, and those who bought the car (machine) votes and does not immediately bus passengers will not get the contract protection.

Fifth, the contract of carriage is classified as a consensual contract, in line with the market economy, the professional requirements, the common interests of equal protection of the shipper and the carrier.

In summary, the contract of carriage should be promissory contract.

In this case, the parties have agreed verbally transportation and freight, completed the process of offer and acceptance, acceptance is already in force, is typical of the consensual contract. This belongs to the "contract law" article 293rd exception rules. Liu excuse "do not charge a penny", because the charges agreed conditions are not success, does not mean that there is no right to charge and subjective intention. If this is not done, the transport behavior and, according to the agreement, the access to the 260 yuan of right of claim of passengers, passengers would pay the money. Therefore, Liu's transport behavior is in the performance of the contract obligations, the operation of the subjective intention and objective behavior exist, so the illegal operation of the fact. Be based on the applicant to take compulsory administrative measures on vehicle facts clearly, correctly applies the law, legal procedures.

2, what is the administrative evidence, how to collect evidence and burden of proof?

The evidence is used to prove the facts of a case refers to all the material, administrative litigation evidence is used to prove the facts of a case are materials in administrative cases. Legal evidence in administrative litigation including documentary evidence, material evidence, audiovisual materials, the testimony of witnesses, statements of the parties, the appraisal conclusion, investigation transcripts and transcripts of the scene.

(a) documentary evidence. That is the ideological content by the text, symbols, pictures, recorded or representation, to prove some facts.

(two) evidence. The shape, quality and other forms of its existence proof of the facts of the case evidence.

(three) audio-visual materials. Audiovisual materials refers to the use of audio, video, computer stored information reflects the sound and image to prove the facts of the case evidence. It includes audio and video tapes, fax and so on, is a kind of independent evidence between documentary evidence and material evidence.

(four) the testimony of a witness. Is about to prove the facts of a case statement made by the circumstances of the case. The testimony of witness is one of the most widely used evidence in administrative reconsideration.

(five) statements of the parties. Refers to the parties to the administrative organ for the narrative is the case. All statements are not entirely consistent with the fact, the people's courts must be reviewed to identify it, can be used as evidence.

(six) the identification conclusion. The people's court in the trial of administrative cases, on specific problems need to solve were analyzed, identified by the people with specialized knowledge, scientific conclusion of the.

(seven) the written record of the inspection. Transcripts of the scene, records of inspection, is refers to the administrative personnel in order to find out the facts of the case, for the same dispute or articles, can prove the cases recorded exploration, the tests after. Transcripts of the scene, the record on the spot, is refers to the site by the functionaries of the administrative organ to implement the specific administrative act in the scene at the time of the record. Transcripts of the scene is a new kind of proof increase administrative litigation and administrative reconsideration of the documentary evidence, has the characteristic, it is written to reflect the objective things, is a fixed property preservation and evidence form, it with the records of inspection, the statements of the parties, the testimony of witnesses and other evidence form as a whole, with comprehensive functions. The transcripts of the scene is not only the original evidence, it is direct evidence can prove everything, mainly at the scene, convincing strong. Therefore, the authorities verified, can be used as a direct verdict evidence.

The characteristics of the evidence in administrative litigation is reflected in: (1) to strictly limit the burden of time; (2) the burden of proof of legal; (3) the supplementary evidence restrictions; (4) did not appear in court to limit.

1 the burden of time. "The Supreme People's Court on the implementation of the administrative procedural law 'problems' of the people's Republic of China to explain the" twenty-sixth stipulates: "in administrative proceedings, the burden of proof for the specific administrative acts made by the defendant." The "first" provisions of the Supreme People's Court on evidence in some administrative litigation regulation: "the defendant should be in receipt of a copy of the indictment within 10 days from the date of the submission of defence, and provides the specific administrative acts, on the basis of evidence; the defendant does not provide grounds for overdue or without proper provision, shall determine the specific administrative no evidence, behavior." If the defendant in administrative litigation, cannot provide evidence according to the legal requirements, or fails to provide evidence without justified reasons, the people's court may determine the specific administrative act is not evidence, basis. In accordance with the provisions of the administrative procedure law, article fifty-fourth, the court will be the executive decision.

2 bear the burden of proof. The defendant bear the burden of proof is "clear provisions of the administrative procedure law", this is the biggest standard of evidence system of administrative litigation is different from the criminal litigation and civil litigation evidence system. Because in the administrative law enforcement, administrative organs have the legal authority, in the process of law enforcement, always initiative, legal obligation in administrative law enforcement and the citizens, legal persons and other organizations should fulfill, between the two is the unity of law and obligation. The correct law enforcement is the embodiment of the principle of law, legitimate rights and interests of the parties will not damage the legal obligation to opposite party, but administrative acts should be undertake. On the contrary, the error of law enforcement, legitimate rights and interests of the parties will harm, fundamentally opposite law enforcement rights and obligations between the interests of the. The defendant bear the burden of proof is the embodiment of the unity of rights and obligations between the law enforcement standard.

3 additional evidence to limit. The defendant in administrative litigation supplementary evidence means that after the submission of defence and the relevant evidence materials and further provide evidence behavior. The provisions of this act is "explain" issues of administrative litigation evidence twenty-eighth "in any of the following circumstances, the defendant with permission of the people's court may supplement the relevant evidence. (a) the defendant had collected evidence in the specific administrative acts, but due to force majeure and other legitimate reasons can not provide; (two) the plaintiff or the third party in the litigation process, proposed in the administrative process did not refute reasons or evidence."

4 not to limit. "The Supreme People's court" about some problems of administrative procedure evidence of thirty-sixth "legally summoned, because the defendant refuses to appear in court and to the default judgment, the defendant to provide evidence can not be used as the basis for a final decision, but the parties in the pretrial exchange not disputed evidence in evidence except." If the administrative organ refuses to appear in court, even if the submitted evidence, the court will not accept, the administrative organ will surely lose.

The above provisions that, administrative organs should pay attention to: (1) in the implementation of administrative act, to collect evidence strictly in accordance with the law, in the irrefutable evidence, the facts are clear circumstances, to the implementation of the specific administrative act; (2) the administrative organ must attach importance to the administrative litigation, submitted to the time and method of strict grasp the defense and evidence; (3) make use of legal provisions, the supplementary evidence; (4) to actively respond to the action, should not refuse to appear in court without justified reasons.

(three) combining with the case

The focus of dispute in this case is whether the actual shipping charge to illegal operation for elements, and the answer to this question, classification theory to analysis of the contract.

The applicant and passengers are confirmed, the two sides agreed by the applicant to the passengers to the destination, the passenger to pay transportation costs 70 yuan. Thus it can be seen, the behavior consistent with the definition and characteristics of the contract of carriage, the behavior of both sides is obviously the transport contract.

This case involves illegal road passenger transport. The so-called "illegal passenger transportation management" refers to the road transport operators without approval by the road transport management institution, without obtaining the road transport business license, unauthorized engaged in business activities of road transport behavior. Illegal operation of passenger violations of the legitimate rights and interests of other operators, resulting in unfair competition, seriously disrupting the order of road transport market.

In this case the evidence is investigated and dealt with the illegal operation of passenger qualitative basis, is the focus of the parties concerned. Law enforcement officers only by legal means, in accordance with legal procedures to obtain and relative person "illegal passenger business" related documentary evidence, material evidence, audiovisual materials, to the testimony of witnesses, statements of the parties legitimate evidence to make corresponding administrative compulsory measures. Evidence is the key to investigate and deal with the illegal passenger business case. In the process of investigating illegal passenger transport business, law enforcement personnel should be relative to that status, bright card check. In asking the relative person, should inform its rights and obligations.

Ask the content should include the basic circumstance of the person being questioned, including their age, occupation, work unit, address, ID number, contact, make clear what is agreed freight transport object, in order to determine the nature of the transport. At the same time, but also the relationship between the check was asked the relative people and the car owners. In the production of an inquiry transcript, also should let the person being interrogated press the handprint on the transcript alteration, signature in the checked each record.

Report to the passengers, such as insider collecting material evidence. Passengers and cargo is the transportation of witnesses, their testimony comprehensively, accurately reflect the real situation of illegal business case. The use of cameras, camera and other modern forensics equipment, rapid collection of audiovisual data. To investigate and deal with illegal business cases, positive evidence is very difficult, and some evidence is usually transient, so we should use the modern means to obtain evidence quickly captured the scene. Passengers are sometimes reluctant to get off with the law enforcement officers interrogation record, can also be composed of a law enforcement officer asked about the situation, the conversation was taken by another law enforcement personnel, as evidence. In the acquisition of visual evidence, should keep the evidence overall, coherence, the whole process as much as possible to reflect and the case, avoid the clip.

In this case, law enforcement officers to parties and passengers (witness) show that the law enforcement inspection identity, in accordance with the law of investigation and evidence collection, making the "record of inquiry", the law enforcement process of the video, the law enforcement inspection open, transparent, with "administrative punishment law of the people's Republic of China" and "administrative penalty procedure of traffic regulations" provisions, the general procedure of legal procedures, finds that the facts are clear, the evidence is sufficient, the applicable law clause correctly, administrative act that eventually upheld a, people's Court of second instance.