When an illegal act is in progress, the illegal act may not continue when it comes to transportation inspection, for example, the original passenger gave up his seat without paying for it and was suspected of illegally operating the vehicle, or the illegal operator gave the passenger a refund when he was accused of being unable to continue operating. This is the only case that I can think of that "there is no illegal income" but it should be punished according to law. Can colleagues engaged in passenger and cargo transportation management or inspection and law enforcement provide more specific information about illegal operations but no illegal income? In short, because the illegal act has occurred, even if there is no illegal income, it should be possible to punish according to the "no illegal income" provision.
The third question, does the so-called "illegal income" mean total income (cost plus profit) or net profit? I found the answer to this question from the internet, universities and reading rooms. Facts have proved that this is still a controversial issue in administrative law. However, if a dispute belongs to a dispute and laws and regulations are established, there must be a unified and specific identification, which cannot be implemented anywhere according to how people "understand". At present, in the absence of clear identification in China's laws and regulations, some administrative organs have made unified and specific identification based on jurisprudence and facts. Please refer to the Legal Interpretation of the Measures for Determining Illegal Income in Administrative Punishment Cases of the State Administration for Industry and Commerce (Order No.37 of the State Administration for Industry and Commerce in 2008) and the Measures for Determining Illegal Income in Administrative Punishment Cases of the State Administration for Industry and Commerce.
Similar problems exist in the provisions on administrative punishment in the Regulations on Road Transportation. I think the Ministry of Transport can and should make a unified and specific determination now. Second, it can be made clear when amending the regulations (very simple, Article 64 has a separate line: illegal income is calculated according to …).
Moderator You Shou also said: "In law enforcement practice, it is more difficult to find that there is no illegal income or the illegal income is less than 20,000 yuan" than to find a "black car". But we don't seem to have attracted attention. " That is to say, it is possible to determine the amount of illegal income after obtaining the evidence that the parties do engage in illegal business activities, but it is very difficult to verify that the parties have "no illegal income" (it may be unclear whether there is illegal income) and the amount of illegal income is "less than 20 thousand yuan" (it is unrealistic to have enough or less illegal income).
From this, I deeply feel the particularity of the transportation industry, which is not like the illegal operation of industrial, mining and trade. We can check the financial accounts to determine the specific amount of illegal income or whether it is "below" X million yuan. Therefore, Article 64 of the Regulations on Road Transport is not as simple as copying other laws and regulations. Immature opinions, whether the provisions on illegal passenger and cargo transportation in Article 64 of the Road Transport Regulations can be like this:
In violation of the provisions of these regulations, those who engage in road transport business without obtaining the business license for road passengers or goods transport shall be ordered by the road transport management institution at or above the county level to stop business; If there is illegal income, a fine of 3000 yuan to 15000 yuan will be imposed; If there is no illegal income and the illegal income is uncertain, a fine of not less than 3,000 yuan but not more than 65,438 yuan but not more than 0,000 yuan shall be imposed (taking the specific amount as an example, the starting point and the highest point of the fine range shall be determined after comprehensive consideration and demonstration); If a crime is constituted, criminal responsibility shall be investigated according to law.
The illegal income is calculated according to the total income MINUS the fuel cost and highway toll for illegal operation.
The above principles are as follows: firstly, the so-called generalized "failure to obtain a road transport business license" is changed to some kind of "failure to obtain a road passenger and cargo transport business license" (the so-called generalized "failure to obtain a road transport business license", according to the interpretation of the Road Transport Regulations, it is best to clearly stipulate the corresponding legal liability clauses for illegal acts), and secondly, the practice of setting a fine by multiplying the illegal income is not adopted. Directly stipulate the fine range for the illegal income (the illegal income is uncertain). Third, the starting point of fines for those with illegal income and those without illegal income is the same, and the confiscation of illegal income is weakened, mainly fines (if the parties do not admit that there is illegal income or there is no witness to prove that there is illegal income, the confiscation can be ignored due to insufficient evidence). In addition, the fine range is changed from RMB 1,000 to RMB 10,000, and those who engage in illegal business with passenger trains, chartered cars and tourist passenger transport shall be punished.
If we set aside the provisions of the original clause and conform to the practice of road transport administrative punishment, I tend to cancel the qualitative expression of "no illegal income" and the amount is below X million yuan, list "illegal income" and amend Article 64 to read:
In violation of the provisions of these regulations, those who engage in road transport business without obtaining the business license for road passenger and cargo transport: the road transport management institution at or above the county level shall order them to stop their business, and be responsible for contacting legal operators to transport passengers or dangerous goods; Illegal income, confiscate the illegal income; Illegal transport of ordinary goods, punishable by a fine of 2000 yuan to 10000 yuan; Illegal transport of passengers, punishable by more than 4000 yuan 15000 yuan fine; Illegal transport of dangerous goods, and impose a fine of 6000 yuan to 20000 yuan; (Taking the specific amount as an example, the starting point and the highest point of determining the fine range should be determined after comprehensive consideration and demonstration in combination with practice); If a crime is constituted, criminal responsibility shall be investigated according to law.
"Illegal income" is calculated according to the total income MINUS the fuel cost and highway toll for illegal operation; "Illegal transport of dangerous goods" means illegal transport of dangerous goods other than dangerous chemicals.
The above two revised drafts can be evaluated, scrutinized and revised by interested friends. In addition, according to the types of administrative punishments in the Administrative Punishment Law and the provisions in the chapter "(7) Other administrative punishments prescribed by laws and administrative regulations", can we add another severe punishment to illegal business operations: those who engage in illegal business operations for n times will be confiscated.
Moderator You Shou also believes that the name of the Regulations of the People's Republic of China on Road Transportation should be the Regulations of the People's Republic of China on Road Transportation Management. In combination with the punishment for illegal transportation, I have the following feelings:
If the vehicle supervision responsibility is still performed by the transportation management department, the transportation management department can have more measures and means to supervise the illegal operation of vehicles, and the administrative punishment can also have more reasonable and deterrent specific provisions. The current motor vehicle registration system and the responsibility of issuing motor vehicle driving licenses are the responsibility of the public security traffic safety management department. Traffic management departments have no other binding rights and means except administrative fines for vehicles and drivers who illegally engage in business transportation activities without permission, which is very helpless. Someone in this forum once said in a post that he thought the road transport license was a more comprehensive and scientific vehicle driving license, which I thought was true.
It is called "Regulations of the People's Republic of China on Road Transport", but it can only be stipulated in Article 2: "Those engaged in road transport operations and road transport-related businesses shall abide by these Regulations", excluding other transport activities (all motor vehicles are transport) that are not only road transport but also different from compliance and supervision. Therefore, if the name of the current regulations is appropriate and accurate, the webmaster thinks it should be the Regulations of the People's Republic of China on Road Transportation Management, but I think it is more appropriate and accurate.
Second, personal learning income
1. After the unauthorized administrative punishment of illegal passenger transport operators (so-called "black car" car owners) is determined to be illegal, we must first determine whether the business behavior is taxi passenger transport or bus passenger transport, chartered passenger transport and tourist passenger transport as stipulated in the Road Transport Regulations. Belonging to the taxi passenger transport business, the local regulations on taxi management formulated by the local provincial level shall apply. If there are no local laws and regulations, it shall be in accordance with the reply of the State Council Legislative Affairs Office to the former Ministry of Communications and the Ministry of Construction in 2005 (see: Notice of the Ministry of Communications on Forwarding the reply of the State Council Legislative Affairs Office on clarifying the legal basis for imposing administrative punishment on business activities that have not obtained taxi passenger transport business license, and the State Council Legislative Affairs Office also gave a reply to the former Ministry of Construction in the same period, which is the same as that given to the former Ministry of Communications).
Just as Article 82 of the current Regulations on Road Transportation has clearly stipulated: "Measures for the administration of taxi passenger transport and city bus passenger transport shall be formulated separately by the State Council". Therefore, it is obviously wrong to make a decision to punish the actor (so-called "black car" owner) who engages in illegal taxi passenger transport according to Article 64 of the Road Transport Regulations (some cases show that the court also wrongly cited the punishment for illegal taxi passenger transport in relevant trials).
2, the implementation of the "Regulations on Road Transport", the road transport management agencies at all levels should focus on monitoring the passenger distribution centers near the bus station and in the city, focusing on investigating and dealing with the so-called "black car" illegal business behavior that affects and impacts the passenger buses and tourist passengers that have passed the administrative license. There is such a "distribution center" in my city, which has existed for many years, but it has not been cracked down. It occurred to me that in a news report that Xi 'an Transportation Management revealed the inside story of law enforcement: you can't support yourself without paying a fine, and some transportation management personnel blew themselves up: "Starting from 200 1, the Ministry of Communications explained that" black cars "engaged in business activities must be their own vehicles parked at a fixed place waiting for passengers, and they were stopped on the way. Statement. Although the statement in this news report is groundless, I think there is some truth.
3. I also agree with the statement that "50 yuan can only impose a fine of 10 times the illegal income, otherwise 500 yuan cannot impose a fine". However, I still believe that the amounts of "illegal income" and "no illegal income or illegal income less than 20,000 yuan" determined in Article 64 of the Regulations on Road Transportation should be implemented according to the fine range stipulated in this article (the current laws and regulations clearly stipulate this, and no matter whether anyone's "explanation" or "understanding" is reasonable, it is only an opinion or understanding and cannot be replaced.
I found Professor Zhang's article about mutual training on the Internet-why is it difficult to fine 30,000 yuan? This article has criticized my point of view:
It is obviously wrong to "dismember" laws and regulations to punish discretion. The correct understanding should be: if there is no illegal income or the illegal income is less than 20 thousand yuan, a fine of more than 30 thousand yuan and less than 6.5438+10 thousand yuan will be imposed; If the illegal income is more than 20,000 yuan but less than 50,000 yuan, the illegal income shall be confiscated and a fine of more than 2 times 10 times shall be imposed; If the illegal income exceeds 50 thousand yuan, which constitutes the crime of illegal business operation, criminal responsibility shall be investigated according to law. According to judicial interpretation, if the illegal income exceeds 50,000 yuan, it constitutes the crime of illegal business operation.
According to the requirement of "trapezoidal ranking" of administrative penalty discretion, the punishment for illegal acts that do not constitute the crime of illegal business operation should be set in the order of "from heavy to light". If the illegal income is more than 20,000 yuan but less than 50,000 yuan, the illegal income shall be confiscated and a fine of more than 2 times 10 times shall be imposed. If there is no illegal income or the illegal income is less than 20,000 yuan, a fine ranging from 30,000 yuan to 6,543,800 yuan shall be imposed. Therefore, the minimum fine for engaging in road transport business without authorization is 30,000 yuan (source: China Traffic News).
I don't understand the scientific principle of the "trapezoidal sorting" of the administrative penalty discretion pointed out by the professor, but according to the "correct understanding" of the professor, Article 64 is written as "those who violate the provisions of these regulations and engage in road transport business without obtaining the road transport business license shall be ordered by the road transport management institution at or above the county level to stop business; If there is no illegal income or the illegal income is less than 20,000 yuan, a fine ranging from 30,000 yuan to 6,543,800 yuan shall be imposed; If the illegal income is more than 20,000 yuan but less than 50,000 yuan, the illegal income shall be confiscated and a fine of more than 2 times 10 times shall be imposed; If the illegal income exceeds 50,000 yuan and constitutes a crime of illegal business operation, criminal responsibility shall be investigated according to law. " I think it's better than the current 64. Why didn't Article 64 be written into the Road Transport Regulations? Why? God knows. Why are leaders, experts and professors, traffic control departments and institutions all trapezoidal "understanding"? Why are the parties and lawyers punished diamond-shaped "understanding"? Is it related to "interests"? I won't delve into it (but there are still two small problems written above: (1) those who are "less than 50,000 yuan" and those whose illegal income exceeds 50,000 yuan should be taken. Second, rewrite "confiscate illegal income" at the end of the first sentence, and then use a semicolon, otherwise good people will ignore their "understanding". If the illegal income is less than 20,000 yuan, the illegal income will not be confiscated.
The director of the Regulation Department of the Communications Department of Jiangsu Province wrote an article at the 2008 academic annual meeting of the Administrative Law Research Association of the Provincial Law Society (only the relevant contents are extracted here): "The standards of administrative punishment in current laws and regulations are seriously out of touch with the actual situation, and it is difficult to implement them in place. For example, the State Council's "Regulations on Road Transport" stipulates that those who engage in road transport business activities without a road transport business license shall be ordered to make corrections, temporarily detain the vehicle, and be fined between 30,000 yuan and 6,543,800 yuan; The State Council's "Regulations on the Management of Hazardous Chemicals" stipulates that those who engage in road transport of dangerous goods without a road transport license for hazardous chemicals shall be fined between 20,000 yuan and 200,000 yuan. Our province has not fined 654.38+10,000 yuan for engaging in commercial road transport without a license, and the fines of more than 30,000 yuan are very few, almost all of which are below 30,000 yuan. Some people think that the illegal operation of Chinese people is mostly vulnerable groups, mainly for the purpose of making a living. Often the value of an illegally operated vehicle is only 1 to 20,000 yuan, so the starting fine of 30,000 yuan is too high, unrealistic, and legislation is divorced from reality. "
Many provincial, municipal and county transportation departments or transportation management agencies have formulated discretionary implementation regulations and benchmark systems for implementing Article 64 of the Road Transportation Regulations. According to the consequences of illegal circumstances or the illegal income is less than tens of thousands of yuan, according to the degree of illegality, it is slight, general, heavy, serious and particularly serious, with a minimum of 30,000, 50,000, 60,000, 80,000 and 65,438+10,000. However, these standards of law enforcement discretion only stay on paper. In 2007, the Communications Department of Jiangsu Province issued the Notice on Adding Minor Traffic Violations to Exempt from Punishment and Defining the Lightening Standards for Some Major Traffic Administrative Penalties (Su Jiao Fa [2007] No.93). In the "Implementation Standards for Mitigation of Some Major Traffic Administrative Penalties", the mitigation standards for some unauthorized road passenger transport are set at several thousand yuan to thirty thousand yuan. In 2008, Fujian Province also formulated the Standard of Traffic Administrative Punishment Discretion in Fujian Province (finalized by Fuzhou Discretion 2008 12 15), which stipulated the penalty standards of 8,000 yuan for passenger cars, 5,000 yuan for minivans and 3,000 yuan for trucks for some illegal acts that met the provisions of Article 64 of the Road Transport Regulations.
I don't know whether the practices in Jiangsu and Fujian provinces have been implemented or are still being implemented. Obviously, they are trying to amend Article 64 of the Regulations on Road Transport, which is unrealistic, but it is suspected of violating the law.
It is imperative that the national transportation authorities should organize discussions on Article 64 of the Regulations on Road Transportation and similar problems in traffic regulations as soon as possible, and put forward suggestions to the Legislative Affairs Office of the State Council for an early solution. For a long time, due to the inaccurate positioning of legislation, the amount of punishment is too high and it is difficult to really implement it. In addition, the principles/fuzziness/fuzziness/generality of laws and regulations are not strong, which leads to laws that cannot be relied on, followed and followed in place, and rely on interpretation or understanding to enforce the law. Rule by man is the truth, and isn't illegal law enforcement and illegal management the rule of law?
The author is engaged in transportation management, but has never done administrative punishment business. He didn't learn to think temporarily until he forwarded the post. I hope that friends who have the ability to express their opinions and comments in this section can correct me, discuss the problems existing in the construction and implementation of road transport laws and regulations on this topic, and express constructive opinions.