The detailed rules for the implementation of online car-hailing have been issued in many places, and 70 cities have added administrative penalties without authorization

　　Our reporter, Wan Jing

　　On March 31, the Institute of Rule of Law Government of China University of Political Science and Law released the "Report on the Development of China’s Rule of Law Government (2017) ". Among them, the "Special Research Report on Local Online Car-hailing and Hitchhiking Policies" (hereinafter referred to as the "Report") disclosed that since the Ministry of Transport and other seven ministries jointly issued the "Interim Measures for Online Car-hailing" in July 2016, to February 4, 2018, the "Report" researchers investigated the implementation rules of online car-hailing in 184 cities in our country and found that 70 cities had no upper legal basis. They added or disguised fines, withdrew operating rights, suspended new registrations, ordered business suspension for rectification, and revoked licenses and other administrative penalties.

　　It is reported that the survey is based on public channels such as local government portals and local transportation department websites. At present, a total of 190 cities, including 4 municipalities directly under the Central Government, and 186 prefecture-level cities have issued local rules for online car-hailing. Among the 298 prefecture-level cities and municipalities directly under the Central Government, 63.76% of the cities have issued detailed rules.

　　Administrative penalties in nearly half of cities have no higher legal basis

　　The report points out that the rules or regulations of online car-hailing in various places violate the laws and regulations such as the Administrative Licensing Law, the Administrative Penalty Law, the Antimonopoly Act, and the cyber security law. The specific manifestations are illegal setting of administrative penalties, additional administrative licensing conditions, and measures that do not meet the requirements of fair competition.

　　According to the provisions of the Administrative Penalty Law, regulations only have the power to set administrative penalties such as warnings and fines, and other administrative normative documents cannot set administrative penalties. However, in 70 of the 184 cities without the basis of higher laws, administrative penalties such as fines, withdrawal of operating rights, suspension of new registrations, ordering business suspension for rectification, and revocation of licenses have been set without authorization or disguised. For example, cities such as Shenyang and Jinan have stipulated that after online car-hailing platforms commit relevant violations, the transportation department can suspend the acceptance of their new vehicle and driver registration business.

　　The "Report" pointed out that the addition of administrative penalties to normative documents violates the provisions of the Administrative Punishment Law. At the same time, the government in the Internet era needs new means of supervision over the Internet economy. How can the administrative punishment law keep pace with the times, better adapt to the needs of Internet regulation, and more effectively regulate the exercise of power by government departments? This is a new issue.

　　Less than a third of cities have mandated a transition period

　　The transition period refers to the necessary time left for online car-hailing platforms, drivers and vehicles to apply for permits after the implementation of the detailed rules. As we all know, whether it is the platform, drivers and vehicles preparing to apply for permits, or the transportation department accepting and reviewing the permit application, it takes time. Therefore, it is necessary to stipulate a transition period in the detailed rules. However, the survey found that only 51 cities out of 184 cities have stipulated a transition period, accounting for 27.72%. Among them, Nanchang and Yichun have stipulated the longest transition period, reaching 12 months.

　　The "Report" pointed out that under the circumstance that the processing progress of relevant licenses is limited, there may be a large number of drivers and vehicles who have not had time to apply for licenses. If drivers and vehicles are investigated and punished in the name of "illegal operation" at this time, there is also suspicion of insufficient legality and fairness. The premise of investigating and punishing "illegal operation" must be that the competent authorities have provided practical and available legalization channels for relevant practitioners. Therefore, it is necessary to set up a transition period to balance the connection between the competent authorities’ licensing and industry practitioners’ application for licenses.

　　70 cities ban online car-hailing from waiting for customers in secret areas

　　Airports, railway stations, bus stations and other areas with high passenger flow are areas where it is easy for online car-hailing and cruise cars to take orders and pull jobs, and should be open to all online car-hailing and cruise cars. However, the "Report" survey found that 70 cities out of 184 cities stipulate that online car-hailing cannot wait or pick up passengers in bus stations, railway stations, airports and other areas with high passenger flow; 72 cities stipulate that online car-hailing cannot enter the dedicated waiting lanes, dispatching stations, and stopping points for cruise cars to wait or pick up passengers.

　　According to the analysis of Dr. Lin Hua, a researcher in the "Report" and an associate professor at the Institute of Law and Government of China University of Political Science and Law, there are differences between the two types of prohibitions. The former prohibits online car-hailing from waiting or picking up passengers in the entire bus station, railway station, and airport area, while the latter only prohibits online car-hailing from waiting or picking up passengers in the dedicated waiting lanes, dispatching stations, and stops set up inside bus stations, railway stations, and airports. However, in actual implementation, the latter may be expanded to mean that it is consistent with the scope of the former, that is, it prohibits online car-hailing from waiting or picking up passengers in the entire bus station, railway station, and airport area. Looking at the detailed rules of various cities, we found that when formulating the detailed rules of online car-hailing, all localities have adopted the practice of completely incorporating online car-hailing into the cruise car licensing system in terms of licensing settings, but they treat online car-hailing differently in terms of service areas and convenient use of urban infrastructure. This also has the suspicion of violating the Antimonopoly Act and fair competition censorship.

　　Only 30 cities have no residency permit restrictions

　　The "Report" survey shows that in 184 cities, Beijing, Shanghai, Tianjin, Pingliang, Shangqiu, Zhumadian, Dongying, Tonghua and other 8 cities require online car-hailing drivers to have local household registration. Among them, Tonghua City also requires urban household registration.

　　146 cities require a local household registration or residence permit to become a ride-hailing driver. Among them, 21 cities, including Xiamen, Hangzhou, Yinchuan and Taiyuan, have clearly stipulated the length of residence permits, which are required to be between 6 months and more than 2 years respectively. In addition, six cities, including Zhoushan, Ganzhou, Shaoxing, Jinhua, Huzhou and Jiaxing, also require drivers to pay social security continuously in the local area for 6 months to 2 years.

　　There are 30 cities that do not require either a local household registration or a local residence permit.

　　Article 15 of the Administrative Licensing Law stipulates: "Local regulations and regulations of the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall not establish administrative licenses for the qualifications and qualifications of citizens, legal persons or other organizations that shall be uniformly determined by the state; the establishment registration of enterprises or other organizations and their pre-establishment administrative licenses shall not be established. The administrative licenses established by it shall not restrict individuals or enterprises from other regions from engaging in production, operation and provision of services in the region, and shall not restrict the entry of goods from other regions into the local market." The analysis of the "Report" pointed out that the above-mentioned 146 cities require that online taxi drivers should have local household registration or residence permits, and 8 cities require drivers to have local household registration, which clearly violates the Administrative Licensing Law.

　　Many urban online car-hailing rules also place conditional restrictions on the educational level of online car-hailing drivers.

　　Among the 184 cities, 14 cities, including Tianjin, Lanzhou, Guangzhou, Zhengzhou, Harbin, Jinan, Kunming, Tonghua, and Dalian, require online ride-hailing drivers to have a junior high school education or above.

　　According to the analysis of the report, there is no necessary connection between education level and whether you can be an online car-hailing driver. Even if you don’t have a junior high school education level or above, as long as you can drive and use a mobile phone, you will be able to drive an online car-hailing car. Moreover, using education level as a license condition for online car-hailing drivers is suspected of employment discrimination.