The traffic police legitimacy processing accident compensation disputes deduction of behavior problems

The traffic police to deal with the accident compensation disputes deduction of behavior law basis of dubious legality
-- Comment on "implementation of Hunan province 'of the people's Republic of China Road Traffic Safety Law" thirty-fifth article' way
　　
Look this article with you it doesn't matter, in fact, and each car owners, have a driver's license a family of related. Hunan traffic police usually approach is the treatment of traffic accident damages, such as the owner of a party cannot meet the requirements of the other -- whether this requirement is reasonable and legal, the traffic police will require owners to pay margin or buckle car.
This paper demonstrates that this legal basis is "Hunan province implementation 'of the people's Republic of China Road Traffic Safety Law" article thirty-fifth "' approach is wrong and illegal, should be abolished.

"The implementation of 'of the people's Republic of China Road Traffic Safety Law' measures of Hunan province" (hereinafter referred to as the "measures") come into force on September 1, 2006. Hunan traffic police may detain the vehicle accident in dealing with traffic accident compensation in the process of law enforcement, which was based on the provisions of article thirty-fifth, the law stipulates: "the occurrence of traffic accidents caused casualties, property losses can not be settled, the liability of the parties or the accident vehicle owner shall provide effective guarantee; not provided, traffic management department of the public security organ may according to need to handle traffic accidents related to the accident vehicle detention. The traffic control department of the public security organ shall properly keep the accident vehicle is detained, and in accordance with relevant state regulations." However, the provisions of this local regulations violate the basic spirit of the legislation and the law "of the people's Republic of China Road Traffic Safety Law" specific law conflict, the reasons are as follows:
One, the provisions of article thirty-fifth authorized the traffic control department of the public security organ (hereinafter referred to as "the public security departments") accident vehicle detention "liability" side, this and "the people's Republic of China Road Traffic Safety Law" the legal provisions inconsistent.
"The people's Republic of China Road Traffic Safety Law" fifth stipulates: "the public security department under the State Council shall be responsible for the administration of road traffic safety nationwide. The traffic control department of the public security organs of the local people's governments at or above the county level shall be responsible for the administrative areas of the road traffic safety management". Therefore, the public security department is responsible for "responsible for the administrative areas of the road traffic safety management". Obviously, this is a kind of administrative duties, the public security department according to the law the exercise of power is an administrative power.
"The people's Republic of China Road Traffic Safety Law" stipulates that the seventy-fourth ": damages to a traffic accident dispute, may request the traffic control department of the public security organ mediation the parties, may also file a civil lawsuit directly to the people's court". Therefore, "damages to a traffic accident disputes," the public security departments as the administrative organ only at the request of the parties under the premise that presided over the civil mediation. The "measures" article thirty-fifth authorized the public security departments to deal with traffic accident civil compensation detain the vehicle accident, the public security department chair between parties of traffic accident under the voluntary mediation in fact become mandatory mediation. Visible, the "measures" thirty-fifth against the legislative intent.
"The people's Republic of China Road Traffic Safety Law" 123rd stipulates: "the Standing Committee of the people's congresses of provinces, municipalities directly under the central government, autonomous region, according to the actual situation in the region, in the provisions of this law within the prescribed range of fine, the specific implementation of standards". The public security department in charge of traffic accident damages civil mediation process, the law does not give detain the vehicle accident to disputes of administrative power. Therefore, the "measures" provisions of the public security department to detain the vehicle accident in the controversial problems of compensation for traffic accident damage powers beyond the legal authority.
Two, the "measures" thirty-fifth to the administrative power. Judicial power provides system support, is the legislative backward.
First of all, we do not deny: public security departments have the right to deal with traffic accidents, the need for collecting evidence, to detain the vehicle accident (see "the people's Republic of China Road Traffic Safety Law" seventy-second article), can make accident responsibility, can mediate civil disputes of compensation for damage in traffic accident. But it must be pointed out: This is the public security departments in the exercise of administrative law enforcement, does not represent the public security departments have the right to compensation for damage in traffic accident disputes arbitration; public security departments have the right to make accident responsibility, but has no right to decide who should bear the responsibility for compensation.
Analysis of the "thirty-fifth way", the public security departments to detain the vehicle accident premise is: traffic accidents caused casualties, property losses can not be closed, "liability" parties or the accident vehicle all people do not provide effective guarantee.
Visible, the law to blur the line between administrative power and judicial power, actually gives the public security departments to identify the accident vehicle party is the civil compensation responsibility is assumed power, executive power to judicial power.
Secondly, the original "approach to road traffic accidents" the thirteenth stipulation: "the traffic accident caused personal injury to rescue therapy, all the traffic accidents and their units or motor vehicles shall be prepaid medical fees, can also be made by a public security organ designated by a party in advance, after the case in accordance with the traffic accident liability. Traffic accident responsibility person refused to advance or temporarily unable to advance, the public security organ may temporarily detain the vehicle traffic accident." "The people's Republic of China Road Traffic Safety Law" did not follow the relevant provisions. In "the people's Republic of China Road Traffic Safety Law", whether it is during the rescue during treatment or the traffic police mediation, no provisions of the public security department may detain the vehicle accident (due to the collection of evidence different); other provinces and municipalities, such as Beijing, Sichuan, Zhejiang, no similar provisions. Its legal basis is:
In the dispute of compensation for traffic accident damage, the accident vehicle side need to bear the liability for compensation, should bear compensation responsibility is much, formed between the traffic accident parties to civil disputes. The tribunal civil dispute is not within the scope of the Public Security Department of statutory duties. The traffic accident damages disputes, such as when the thing the Fonda cannot agree, shall be borne by the people's court according to the civil procedure, the people's court verdict.
Visible, the "measures" thirty-fifth against the trend of legislation, violated the legal, legislative backwards.
Three, the "measures" thirty-fifth artificially created many problems.
According to the regulations, the public security department that the accident vehicle a liability, have the right to detain the vehicle accident or collateral (usually pay margin). This causes the following problems:
1, in the determination of the accident vehicle a party liability is that the public security departments, the possibility and judicial organs shall form the conflict.
Such as, the case to the court, the court adjudication that the accident vehicle shall not bear the liability for compensation, that is to the public security departments buckle car or collect margin error.
2, in the civil disputes of traffic accident damages, as the conflict of public security organs involved in the accident vehicle deadweight and administrative law enforcement organs of the party.
Such as, both the accident has not agreed, the accident vehicles, the other party and not to the people's court, the public security departments should be lifted on when the accident vehicle to detain or refund the deposit? In this period, the vehicle or margin direct losses from the indirect loss how to deal with? The accident vehicle party may request the public security organ to compensate for the losses?
3, the public security departments to enjoy the legitimacy of accident vehicle to pay margin fruits.
Due to frequent traffic accidents, the accident vehicle party pay security situation is not a few, the resulting fruits also many. Public security departments involved in the processing of civil disputes of compensation for traffic accident damage, without access to bond yields, its legitimacy is worth doubt.
　　
To make a long story short, "Hunan province implementation 'of the people's Republic of China Road Traffic Safety Law" thirty-fifth article' way of violating the legal principles, to administrative power arrogation of judicial power to provide a legal basis, in violation of "the spirit of legislation and the law of the people's Republic of China Road Traffic Safety Law". According to the "legislative law" provisions of the second paragraph of the people's Republic of China in ninetieth, the author has been submitted to the Standing Committee of National People's Congress review the legitimacy of the law.