专车服务的行政法规制

发布时间：2019-05-15 08:52

【摘要】：随着网络技术的迅猛发展以及共享经济时代到来,网络预约出租汽车服务应运而生,也叫做专车服务。其具有很多不同于传统巡游式出租车的特点:第一,在服务模式方面,具有信息沟通顺畅和无需街边等候等优点;第二,支付方式简便,费用通过手机等方式支付,不再使用现金结算;第三,汽车闲置资源得以高效利用,同时,也为很多人创造了兼职或专职专车服务司机的机会。由前述可知,专车服务具有诸多的特点和优点,但也引发了许多利益冲突。其中,以专车服务与传统巡游式出租车之间的利益冲突最为显著:第一,专车服务打破了传统巡游式出租车的垄断利益,本就按时缴纳“份子钱”的出租车司机在此时的经济压力变得更大,市场份额降低。第二,传统出租车具有公共属性,需要通过行政许可来获得经营权,而专车服务则不具有公共属性却占用道路资源而分享乘客资源。第三,市场准入门槛也低于传统出租车行业,没有施行“牌照管制”制度。第四,专车服务的出现客观反应了市场需求的波动,唯有需求方的刺激才会促成供给方的主动改革,政府在专车服务的行政法规制中要以维护公共利益为目的,合理运用行业指导权,减少市场发展的负外部性,不能为了保护传统出租车行业的集团利益而打压专车服务。其实,面对交通运输市场的新变化,交通部和工信部等中央部门和地方人民政府都及时进行了规制。交通部作为主管部门,进行了如下规制:第一,认可了专车服务的合法地位;第二,从车辆、驾驶员和专车服务平台及其经营行为方面进行了硬性规定;第三,明确了专车服务经营活动中各主体的法律责任;第四,对于专车服务的价格管制有很大程度的放松,由市场决定和调节,不再实行政府指导价。但是,交通部的部门规章作为执行性的法律而言,仍然存在不足之处,其在创设行政许可事项时欠缺合法性。由此,也反映出我国行政法规制领域的诸多问题:第一,行政法律法规的缺位,仅有《道路运输条例》这一部行政法规来对专车服务进行规制;第二,行政许可制度不规范,尤其是涉及市场准入门槛、价格管制和数量管制等方面;第三,行政立法程序不规范,重实体而轻程序是长期以来的做法,公众参与专车服务的参与度不高。所以,专车服务的行政法规制要做到以下几方面:第一,遵循合法性原则、合理性原则、比例平衡原则和行政效益原则,这是专车服务行政法规制的前提;第二,完善行政法律体系,整合现有法律资源,通过地方性法规等切合地方实际的立法活动来对专车服务进行规制;第三,规范行政许可制度,降低市场准入门槛,破除数量管制和价格管制的固有管理思维;第四,规范部门规章的执行性法律地位,不擅自创设行政许可事项;第五,规范行政立法程序,动议权主体走向多元化,强化公众在行政立法中的作用,完善包括听证会和论证会在内的行政立法程序制度建设。本文通过文献分析法、比较分析法和跨学科研究法对专车服务行政法规制的现状和完善建议进行了研究。在共享经济蓬勃发展的大环境中,专车服务的行政法规制应当是为了整个社会的共同利益,满足乘客的出行需求,促进传统出租车行业的变革和创新,形成一个有序、健康的交通运输市场环境。
[Abstract]:With the rapid development of the network technology and the coming of the time of sharing the economy, the network reservation taxi service comes into being, also called a special car service. The method has the advantages of being different from the traditional cruise type taxi, first, in the service mode, has the advantages of smooth information communication and no need of street waiting, and the second, the payment method is simple and convenient, the cost is paid through a mobile phone and the like, and the cash settlement is no longer used; and thirdly, The idle resources of the automobile are effectively utilized, and at the same time, a part-time or full-time dedicated bus service driver is provided for many people. As can be seen from the foregoing, the car service has many characteristics and advantages, but also has caused many conflicts of interest. Among them, the conflict of interest among the special vehicle service and the traditional cruise-type taxi is the most remarkable: first, the special vehicle service breaks the monopoly interest of the traditional cruise-type taxi, and the economic pressure of the taxi driver who is paying the "the money of the terrorists" on time becomes larger and the market share is reduced. Second, the traditional taxi has the public attribute, and it is necessary to obtain the management right through the administrative license, while the special vehicle service does not have the public attribute but takes the road resources to share the passenger's resources. Thirdly, the threshold of market access is also lower than that of the traditional taxi industry, and the "license plate control" system is not implemented. Fourth, the appearance of the special car service objectively reflects the fluctuation of the market demand, only the demand side's stimulus will lead to the active reform of the private party, and the government should use the industry guidance right in order to maintain the public interest in the administrative regulations of the special vehicle service. The negative externality of the market development can not be reduced to protect the traditional taxi industry's group interests. In fact, in the face of new changes in the transport market, the central departments and local people's governments, such as the Ministry of Communications and the Ministry of Industry and Information, have been regulated in a timely manner. The Ministry of Communications, as the competent department, carries out the following regulation: first, the legal status of the special vehicle service is recognized; secondly, the rigid regulation is made from the vehicle, the driver and the specialized vehicle service platform and the operation behavior thereof; and thirdly, The legal liability of each main body in the operation activities of the special vehicle is defined; and fourthly, the price control of the special vehicle service has a great degree of relaxation, which is determined and adjusted by the market, and the government-guided price is no longer applied. However, the department rules of the Ministry of Communications, as the law of the enforcement, still have the shortcomings, which are deficient in the creation of administrative license matters. As a result, many problems in the field of administrative regulations in China are also reflected: first, the absence of administrative laws and regulations, only the road transport regulations and the administrative regulations to regulate the service of the special vehicle; secondly, the system of administrative license is not regulated, in particular to the threshold of market access, In the aspects of price control and quantity control, the third, the administrative legislative process is not standard, the heavy entity and the light procedure are a long-term practice, and the participation of the public in the special car service is not high. Therefore, the administrative regulations of the special vehicle service should be made in the following aspects: first, following the principle of legality, the principle of rationality, the principle of proportionality balance and the principle of the administrative benefit, which is the premise of the administrative regulations of the special vehicle service; and secondly, to improve the administrative legal system and the existing legal resources, To regulate the service of the special vehicle through local regulations and other relevant local and practical legislative activities; and thirdly, to standardize the administrative license system, to reduce the threshold of market access, to eliminate the inherent management thinking of quantity control and price control, and to standardize the executive legal status of the department rules, In order to improve the public's role in the administrative legislation, the construction of the administrative legislative procedure system, including the hearing and the debate, should be improved. Based on the literature analysis, the comparative analysis and the cross-disciplinary research, this paper studies the present situation and the perfection of the special vehicle service administrative regulations. In the big environment where the economy is booming, the administrative regulations of the special car service should be for the common interests of the whole society, meet the travel demand of the passengers, promote the change and innovation of the traditional taxi industry, and form an orderly and healthy transportation market environment.
【学位授予单位】：山西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.1

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