There are three ways to fill legal loopholes: by habit, by law and by precedent; In legal hermeneutics, legal supplement is the key, including purposeful expansion, purposeful contraction and analogy application. [10] As far as this case is concerned, the contents mentioned in the above Road Traffic Safety Law do not cover the actual situation that should be applied, and there are no other cases for reference, so it can only be supplemented by purposeful expansion in combination with legislative purposes. The so-called "purposeful expansion" refers to a certain type that is not covered in the legal sense, but is not included because of the negligence of legislators. In order to carry out the intention of the specification, it is a loophole supplement method to bring this type into the scope of legal application. The purposeful expansion is to bring the types that are not covered by the literal meaning into the scope of application of the law. " 〔 1 1〕
The provisions in Article 10 1 of the Road Traffic Safety Law and Article 86 of the Measures that a motor vehicle driver's license is revoked and it is not allowed to apply for a motor vehicle driver's license within the statutory time limit are aimed at preventing traffic offenders with personal danger from endangering society and protecting the legitimate rights and interests of individuals and organizations. According to this purpose, as well as the system and context of road safety legislation, we can purposefully expand and explain the relevant provisions of the two "Road Traffic Safety Laws" with loopholes.
Article 10 1 of the Road Traffic Safety Law can be interpreted as: "If a serious traffic accident occurs in violation of the provisions of laws and regulations on road traffic safety, which constitutes a crime, criminal responsibility shall be investigated according to law, and the traffic administrative department of the public security organ shall revoke the motor vehicle driving license that the criminal applied for before the judgment of the people's court takes effect."
Paragraph 1 of Article 86 of the Measures can be interpreted as: "If a criminal suspect causes a traffic accident by driving a motor vehicle without a motor vehicle driver's license, the application for a motor vehicle driver's license shall be suspended before the court decision takes effect; If it constitutes a crime, it shall not apply for a motor vehicle driver's license within two years from the effective date of the court judgment. "
After this explanation, the premise of this case can be found completely. But the purposeful expansion is mainly the legal method used in the stage of "finding the law". In the process of judgment and demonstration, if the conclusion of purposeful expansion is applied, it is necessary to apply the method of analogical reasoning. [12] In this case, since "driving a motor vehicle without a motor vehicle driver's license constitutes a crime, you may not apply for a motor vehicle driver's license within two years from the effective date of the court decision", then the facts of the case are the same and the traffic offenders are the same.
In the case of the same risk, the above explanation can be made to the relevant legal provisions to fill the legal loopholes, and the analogy can be applied to cases applying for motor vehicle driver's license during bail pending trial.
Fourth, specific opinions.
As far as this case is concerned, the author suggests that the above opinions should be adopted after the loopholes are filled, and according to the second paragraph of Article 64 of the Code for Handling Traffic Accidents of the Ministry of Public Security, after the judgment of the people's court on A takes effect, the relevant authorities will make a punishment decision to revoke the motor vehicle driver's license in accordance with the general procedures for road traffic violations.
After A's motor vehicle driver's license is revoked, it will also involve the division of responsibilities between A and the issuing authority, and it is also related to the above legal loopholes. Although according to Article 3 1 of the Administrative Licensing Law, when applying for a motor vehicle driver's license, Party A shall truthfully report the real situation to the issuing authority and be responsible for the authenticity of the substantive contents of its application materials, there is no provision in the Provisions on the Application and Use of Motor Vehicle Driver's License that Party A declares that he is a traffic accident suspect. And there is no reason to think that A should understand the full meaning of Article 86 1 of the Measures. Therefore, Party A cannot be required to bear the responsibility for failing to fulfill the obligation of telling the truth as stipulated in Article 3 1 of the Administrative Licensing Law.
The traffic administrative department of the public security organ responsible for handling the motor vehicle driver's license should pay attention to the fact that this provision belongs to the situation specified in Item 6 of Article 12 of the Regulations on the Application and Use of Motor Vehicle Driver's License of the Ministry of Public Security. If the issuing authority can't prove that it noticed that the implied provisions in Article 86, paragraph 1 of the Measures are not allowed to apply for a motor vehicle driver's license and asked Party A to explain, it shall compensate Party A for the losses caused by the revocation of the motor vehicle driver's license according to the provisions in Item 4 of Article 69, paragraph 1 of the Administrative Licensing Law.
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[1] This case is adapted from a real case. Thanks to Professor Zhang Jiansheng for his advice, but only the author is responsible for this exercise.
[2] Paragraph 2 of Article 64 of the Code for Handling Traffic Accidents stipulates: "If Article 101 of the Road Traffic Safety Law is applied and the motor vehicle driver's license is revoked if it constitutes a crime, the people's court shall decide to revoke the motor vehicle driver's license after it constitutes a crime, and then make a punishment decision according to the general procedure of road traffic violation punishment."
[3] Article 86 of the Measures for the Implementation of the Road Traffic Safety Law of the People's Republic of China in Zhejiang Province states that if driving a motor vehicle without a motor vehicle driver's license constitutes a crime, it shall not apply for a motor vehicle driver's license within two years from the effective date of the court decision.
If driving a motor vehicle causes a traffic accident to escape, which constitutes a crime, it is forbidden to obtain or re-obtain a motor vehicle driver's license for life.
If a motor vehicle driver drives a motor vehicle outside the road and causes an accident, which constitutes a crime or escape, the traffic management department of the public security organ shall handle it in accordance with Article 101 of the Road Traffic Safety Law and the provisions of the preceding paragraph of this article.
[4][ Germany] Carl? Lorenz. Legal methodology. Trans. Translated by Ai Chen. Beijing: Commercial Press, 2003, p. 246.
[5] Liang Huixing: Civil Law Hermeneutics, Beijing: China University of Political Science and Law Press, 1995, the 25th1page.
[6] Ibid., note [4], p. 25 1.
[7] See note [4] above, page 250-25 1.
[8] See [Taiwan] Yang Renshou: Methodology of Law, Beijing: China University of Political Science and Law Press, 1999, p.1~12.
9. Conflicts between local regulations and laws include that the former is ultra vires and the latter is inconsistent. "Inconsistency" includes that the former increases the matters not stipulated by the latter, expands the scope stipulated by the latter, and limits the rights granted by the latter. As for this negative conflict in the application of the law in this case, it should not be considered as a "conflict". -See Liu Xin's Domestic Conflicts of Laws and Legislative Countermeasures, Beijing: China University of Political Science and Law Press, 2003, p. 12-20.
[10] See note 5 above, pages 269-284.
[1 1] See note [8] above, page 155.
[12] For analogical reasoning, see Steven J. Burton: Introduction to Law and Legal Reasoning, translated by Zhang Zhiming and Xie Xingquan, China University of Political Science and Law Press, pp. 30-49. Transfer to