Lawyer's Interpretation: Four Legal Obstacles in the Beijing-Shanghai Network Implementation Rules

On October 8th, the four sites of the North, Guangzhou, and Shenzhen announced the draft specifications for the implementation of the Internet Vehicle. Among them, the regulations in Beijing and Shanghai have attracted particular attention. Its core is the Beijing Jingjing car, the Shanghai Huju brand, and the strict access restrictions on vehicles. Then, on October 9th, Tianjin, Hangzhou, Chongqing and other cities published a detailed draft of the implementation rules of the website. Although they were still only drafts for consultation, once they were announced, they still triggered great repercussions from the public, and criticisms continued.

In any case, first of all, we should like the local government to open the door to legislation. In recent years, most of the legislation in the Internet sector has been open-door legislation and widely consulted. This is all the more so in the area of ​​online dating. Moreover, despite the constant criticism, the legislature is still afraid of pressure, openly public, and eventually adopted a lot of feedback. In view of the Beijing-Shanghai and other network implementation rules, I believe that there are four major legal obstacles that need to be resolved.

Obstacle I: Limiting employment discrimination in driver's household registration

Beijing, Shanghai, Tianjin and other areas of the network about the rules of the car required drivers to have a local household registration, this household registration restrictions on suspected employment discrimination, and even many people think that alleged violation of the constitution. Because the constitution stipulates that Chinese citizens are equal before the law, citizens have the labor rights and obligations. Although the current Labor Law, Employment Promotion Law, etc. only stipulate that discrimination on the basis of race, ethnicity, gender, religion, etc. is not allowed, and household registration is not directly classified as employment discrimination, the voice of anti-family-democratic discrimination in all walks of life has continued, due to household registration discrimination. There have also been many legal disputes, and in the end, almost all cases are settled by employers through mediation under the court's mediation.

In addition, the State Council's employment policy for graduates promulgated over the years has clearly emphasized that recruiting college graduates must not be restricted by age, household registration, etc. The Decision of the CPC Central Committee on Several Major Issues Concerning Comprehensively Deepening Reforms made by the Third Plenary Session of the 18th CPC Central Committee also clearly required that the system of recruiting people and employing people should be standardized to eliminate all institutional barriers and employment that affect equal employment, such as urban and rural areas, industries, identities, and gender. Discrimination.

Of course, some people may say that there is no labor relationship between the online vehicle platform and the driver, and there is no employment discrimination in recruitment. Regarding the relationship between the car and the driver of the network, the draft for the draft of the online car management law promulgated by the Ministry of Communications last year required the platform to sign a labor contract with the driver. Although the final version was changed to require the network about car platform to sign a labor contract or other agreement with the driver, that is, the network about the car platform has the right to choose, but does not rule out the network about car platform for business management and passenger experience needs, and with some drivers signed Labor Contract. Moreover, the discrimination against the driver's household registration is systemic discrimination, he has the employment promotion law and the spirit of the Third Plenary Session of the 18th Central Committee.

Obstacle II: Limiting the driver's cross-territory operation by setting a residence permit

Regarding administrative licenses, the laws enacted by the National People's Congress and the Standing Committee can be set in accordance with the Administrative Licensing Law. Where laws have not been enacted yet, the administrative regulations promulgated by the State Council can be set. Where laws and administrative regulations have not yet been formulated, local laws and regulations may be set; if no laws, administrative regulations and local regulations have yet been formulated, administrative licenses must be implemented immediately for the needs of administrative management, the regulations of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government may Set temporary administrative licenses. In addition, the departmental regulations of the ministries and commissions of the State Council cannot set administrative licenses.

The nature of the online vehicle management approach promulgated by the Ministry of Communications is the department's rules, in which three administrative licenses are set: taxi business license, vehicle operation license, and driver's license for passenger transport. There are legal issues in itself.

The implementation rules of Beijing, Shanghai, and Tianjin on the network about vehicles do not belong to the local regulations formulated by the local people's congresses and the Standing Committee. They are only the normative documents promulgated by the local government departments to implement the traffic management policies of the Ministry of Communications, but they also exceed the Ministry of Communications. The regulations governing the management of vehicles in the network.

In addition, Article 15 of the Administrative Licensing Law also clearly stipulates that local regulations and regulations of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall not set administrative licenses for the qualifications and qualifications of citizens, legal persons or other organizations that should be uniformly determined by the State; The administrative licenses set up may not restrict individuals or enterprises in other regions from engaging in production and operations and providing services in the region, nor may they restrict the entry of goods from other regions into the local market. It can be seen that the restriction on the registration of online drivers is a restriction on cross-regional operations and directly violates this provision of the Administrative Licensing Law.

Obstacle 3: Net booking does not fall within the scope of government guidance

According to the price method, China has three types of prices: market adjustment prices, government guidance prices, and government pricing.

Among them, the government guidance price, the pricing authority of the government pricing and the specific scope of application are based on the central and local pricing catalogs. In order to simplify the administration and decentralize the power, respecting the resources allocated to the market, the items included in the central pricing catalog were greatly reduced from the first 141 kinds to 13 items, and in 2016 they began to reduce to 7 items.

Urban passenger transport, including taxis, does not fall within the scope of the Central Pricing Catalog, but falls within the scope of the local pricing catalog. Taking the “Beijing Pricing Catalog” as an example, the sixth pricing item “Transportation” clearly stipulates: Taxi fares and fuel surcharges standards, priced by the municipal price authority, authorized district/county people’s government, and appointment of taxis. , except for tourist passenger cars.

The implementation rules of the network about Beijing in this and other places mostly provide that the network about the car to implement market regulation price, if necessary, can implement the government guidance price. However, the problem is that although the online tour car is managed in accordance with the traditional taxi method, does it belong to the range of taxis in local pricing directories? Is it possible to directly implement government pricing or government guidance? And generally, if it is a market regulation price, it is not in the central or local pricing directory. Moreover, the “Beijing Pricing Catalog” directly stipulates that taxi reservations are excluded from the implementation of government pricing or government guidance prices. Therefore, if the government guide price is stipulated in the local implementation rules of the online tour vehicle, it either lacks a clear basis or there is a clear conflict with the pricing catalog.

Obstacle #4: There is no legal basis for the restrictions on joint behavior

For riders, carpoolers, or carpoolers, the implementation rules of the car network around the country or the passenger car sharing advice separately announced are basically encouraged and supported. The main reason is that carpooling behavior falls into the category of civil legal relations, and the rules in places like Shanghai and Tianjin even explicitly categorized it as "voluntary civil actions by all parties." The reason for this is that there is a specific provision for cooperative behavior. One of the starting points is to standardize the operation behavior that is carried out in the name of ridership.

The key to achieving this goal is to define the boundaries between ride-by-play and operations, and to specify specific criteria for differentiation.

However, local regulations mainly adopt a standard: no more than twice per day per vehicle. Since it is also considered that carpooling is a voluntary civil act of the parties, why can't it exceed two times per day? The standard alone is obviously too arbitrary and may limit the normal behavior of carpooling.

In addition, there are many provisions in various localities that obviously lack legal basis, limit civil behavior, and affect the autonomy of enterprises.

such as--

Beijing stipulates that vehicles that provide carriage and ride must be local passenger license plates. Shanghai requires vehicles to be registered in this city. Tianjin requires that carpooling can only be conducted within the city;

Both Beijing and Shanghai stipulate that the carpooling software should be set up independently and should not be merged with the cruising car and net booking car software;

In almost all places, it is stipulated that the behavior of co-ordination can only be the prior release of the travel information by the ride-and-play service provider (driver). The traveler cannot release the travel information first.

There are many other such provisions.

At present, the implementation rules of the network around the car have stipulated very strict entry thresholds for vehicles and drivers. If these regulations finally take effect, it will inevitably lead to the vast majority of network vehicles quitting the market. . It is in order to block this possible regulatory loophole. Therefore, around the time of the announcement of the implementation rules of the Internet Vehicle, the documents are directly or separately published to regulate the behavior of co-ordination. This approach is understandable, but it cannot accidentally injure normal co-op behavior, and it cannot impose various restrictions without legal basis on it.

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