2018.08.03 ZHANG, Hongbin、YANG, He、ZHAO, Yang
I. Background
Autonomous Vehicles, also referred to as “self-driving cars’’, “driverless cars”, "smart cars" and “intelligent connected vehicles” (“ICVs”) are rapidly developing in China and the government has given serious consideration to the development of the ICV industry. The industry has been listed as one of the ten key areas for development as part of the Made in China 2025 strategy and the Medium and Long Term Development Plan of the Automobile Industry identifies the development of ICVs as providing breakthrough opportunities in the transformation and upgrade of the automobile industry. 1
Road 优德88中国官方网站s play an essential role in the development and application of technology for ICVs. Since December 2017, various guidances, implementation rules and other documents relating to the road 优德88中国官方网站ing of ICVs ("Local Rules") have been successively issued in locations including Beijing, Shanghai, Chongqing. In addition, road 优德88中国官方网站ing facilities for ICVs have been built in Shanghai, Chongqing, Beijing, Zhejiang, Changchun (Jilin), Wuhan (Hubei), Wuxi (Jiangsu) and elsewhere. The legislative and practical insights acquired during the 优德88中国官方网站ing processes addressed in these Local Rules have provided a solid foundation for the issuance of nationwide unified administrative rules relating to ICVs.
On April 12, 2018, the Ministry of Industry and Information Technology, the Ministry of Public Security and the Ministry of Transportation jointly issued the Administrative Rules of Road 优德88中国官方网站ing of Intelligent Connected Vehicles (for Trial Implementation) (the "Administrative Rules"), which subsequently came into force on May 1, 2018. The Administrative Rules are the first national level regulatory document on road 优德88中国官方网站ing of ICVs. By standardizing and unifying the Local Rules, the Administrative Rules serve to accelerate the development of road 优德88中国官方网站ing processes for ICVs in China.
While there has undoubtedly been an enthusiastic response to the convenience – and the entertainment value – of ICVs, a recent pedestrian death caused by an Uber autonomous vehicle in Arizona, USA has highlighted the need for safety to always be uppermost in ICV development and road 优德88中国官方网站ing, and the Administrative Rules take the approach that safety should be the overriding concern in the road 优德88中国官方网站ing of ICVs. We provide the following commentary on the issue of ICV safety as it is addressed in the Administrative Rules.
II. Safety Guarantee I: Admission and Management of the 优德88中国官方网站ing Party
The Administrative Rules set out the requirements and conditions for 优德88中国官方网站 vehicles, 优德88中国官方网站 applicants and 优德88中国官方网站 drivers, and include a number of requirements for the management of 优德88中国官方网站s so as to ensure safety during the road 优德88中国官方网站ing of ICVs.
1. 优德88中国官方网站 Vehicles: Six Requirements
The Administrative Rules set out six specific requirements for 优德88中国官方网站 vehicles, relating to their registration, mandatory items for 优德88中国官方网站ing, switching between self-driving and manual modes, data recording and real-time information monitoring, 优德88中国官方网站ing locations, and third-party verification of 优德88中国官方网站ing. Detailed requirements for ICV 优德88中国官方网站 vehicles (“优德88中国官方网站 vehicles”) are as follows:
i. A 优德88中国官方网站 vehicle cannot be registered as a motor vehicle;
ii. Mandatory items for 优德88中国官方网站 vehicles should satisfy relevant requirements for corresponding non-self-drive vehicles, with the exception of durability. If, during 优德88中国官方网站ing, a particular mandatory 优德88中国官方网站ing item is not met due to the self-driving function, it will need to be proved that this has not in any way jeopardized the safety performance of the 优德88中国官方网站 vehicle;
iii. A 优德88中国官方网站 vehicle should be able to be steered both manually and automatically, and it should be able to be switched safely, rapidly and easily between the self-driving and manual driving modes;
iv. A 优德88中国官方网站 vehicle should have the capability to record, store and monitor the status of the vehicle, providing real-time information about the current vehicle control mode and other specified information, and should automatically record and store data for at least 90 seconds prior to any vehicle accident or malfunction, with the data stored for at least three years;
v. Field 优德88中国官方网站s for 优德88中国官方网站 vehicles should be conducted only in locations approved for 优德88中国官方网站ing, such as closed roads or sites;
vi. The self-driving function of 优德88中国官方网站 vehicles should be 优德88中国官方网站ed and verified by a third-party 优德88中国官方网站ing institute with the necessary inspection license as specified in the Administrative Rules.
In addition, in order to ensure safety during 优德88中国官方网站ing, the Administrative Rules stipulate that during a 优德88中国官方网站, a 优德88中国官方网站 vehicle shall not carry any person or freight that is not of relevance to that 优德88中国官方网站. The Administrative Rules further stipulate that the self-driving mode shall not be employed during an ongoing 优德88中国官方网站, except when the 优德88中国官方网站 vehicle is running on roads designated for 优德88中国官方网站ing, and that the 优德88中国官方网站 vehicle shall be driven manually from the parking lot to the road designated for 优德88中国官方网站ing purposes.
In terms of the requirements on 优德88中国官方网站 vehicles, the Administrative Rules appear to draw lessons from the road 优德88中国官方网站 rules issued by various local government authorities, and in particular those of the Shanghai local government authority.
2. 优德88中国官方网站 Applicants: Seven Conditions
The Administrative Rules set out seven conditions for 优德88中国官方网站 applicants relating to the nature of the business entity, the scope of business, the capacity to compensate in the event of an accident, 优德88中国官方网站 evaluation, remote monitoring, event record analysis and conformity with laws and regulations. Detailed requirements are as follows. An applicant for a 优德88中国官方网站 should:
i. Be an independent legal entity registered within the territory of the People's Republic of China;
ii. Have business capacity of relevance to intelligent ICVs, such as automobile and spare parts manufacturing, research and development of technology, and experimentation and 优德88中国官方网站ing;
iii. Have the financial capacity to cover civil compensation for any damages caused to people or property by ICVs during 优德88中国官方网站ing;2
iv. Have its own evaluation rules for the 优德88中国官方网站ing of the self-driving functions of ICVs;
v. Have the capability to conduct real-time, remote monitoring of 优德88中国官方网站 vehicles;
vi. Have the capability to record, analyze and reproduce events performed by 优德88中国官方网站 vehicles;
vii. Comply with other conditions required by laws, regulations and rules.
The Administrative Rules do not set out any special requirements for foreign invested enterprises, with the above provisions applied equally to wholly foreign invested enterprises and to Sino-foreign joint ventures registered in China.
Comparing the Administrative Rules with the rules of road 优德88中国官方网站ing previously issued by Beijing, Shanghai and other cities suggests that the Administrative Rules have for the most part taken as their basis the Shanghai rules relating to the conditions for the 优德88中国官方网站ing applicant.
3. 优德88中国官方网站 Drivers: Eight Requirements
Based on the rules of road 优德88中国官方网站ing issued in Beijing and Shanghai, the Administrative Rules include eight requirements for 优德88中国官方网站 drivers addressing items including employment and labor service contracts, self-driving training, and major traffic violation records. Specifically, 优德88中国官方网站 drivers should:
i. Have an employment contract or a labor service contract with the 优德88中国官方网站 applicant;3
ii. Have held a driving license for driving the corresponding type of vehicle and have driving experience of at least three years;
iii. Have not received twelve points under the demerit point system In the three most recent demerit periods;
iv. In the past year, have no record of serious traffic violations, for example driving at a speed exceeding 50% of the upper limit, or violating traffic light rules;
v. Have no record of drink-driving or taking State-controlled psychotropic or narcotic drugs;
vi. Have no record of traffic accidents causing death or serious personal injuries;
vii. Have familiarity with the 优德88中国官方网站ing rules and operation of self-driving vehicles following self-driving training sessions provided by the 优德88中国官方网站 applicant, and be capable of responding to emergencies; and
viii. Comply with other requirements specified in laws, regulations and rules.
In addition, in order to ensure safety, and on the basis of insights gained from the accident caused by Uber’s self-driving vehicles, the Administrative Rules specify that a 优德88中国官方网站 driver must always be seated in the driver’s seat of the 优德88中国官方网站 vehicle, must observe the driving status of the 优德88中国官方网站 vehicle and the surrounding environment during the entire 优德88中国官方网站 process, and be ready at all times to take control of the vehicle.
III. Safety Guarantee II: Revocation of 优德88中国官方网站ing Notice
The Administrative Rules set out various requirements on 优德88中国官方网站 vehicles, 优德88中国官方网站 applicants and 优德88中国官方网站 drivers in order to ensure safety during the 优德88中国官方网站ing. At the same time, the Administrative Rules refer to the road 优德88中国官方网站ing rules issued in Beijing and Shanghai, and especially the rules in Shanghai, and empower the competent authorities to revoke a 优德88中国官方网站ing notice under certain conditions. The Administrative Rules stipulate that the competent authorities can revoke the 优德88中国官方网站ing notice and suspend the 优德88中国官方网站, should any of the following safety issues arise during the 优德88中国官方网站ing period:
1. The relevant competent authorities of the provincial or municipal government believe that the 优德88中国官方网站ing activities carry major safety risks;
2. The 优德88中国官方网站 vehicle is involved in a serious violation of traffic rules, such as violating traffic light rules, driving in the wrong direction, or other serious traffic violations for which the penalty under traffic law may be to temporarily detain or to revoke the driving license or to hold the violator in custody;
3. The party owning the 优德88中国官方网站 vehicle has the main responsibility in a serious traffic accident, which, for example results in serious personal injury, death or significant damage to a vehicle.
There is currently no specific provision in Administrative Rules as to what subsequent impact the revocation of a 优德88中国官方网站ing notice might have on the 优德88中国官方网站ing applicant, such as whether the 优德88中国官方网站ing applicant can re-apply for a 优德88中国官方网站, and if so how long it would need to wait to re-apply for such 优德88中国官方网站. These details await further definition in future Local Rules.
IV. Safety Guarantee III: Assumption of Liability for Accident
In order to assign responsibility to the violating parties involved in traffic violations or accidents during an ongoing 优德88中国官方网站, the Administrative Rules provide a specific section, entitled "Handling of Traffic Violations and Accidents", in which they clarify how to handle traffic violations, identify the liability of the parties involved, and specify the relevant departments responsible for handling accidents and imposing punishment. The Administrative Rules also stipulate the obligations of the concerned parties and the reporting requirements on the 优德88中国官方网站 applicants and provincial and municipal competent authorities following any accident. Details are as follows:
1. In the event of a traffic violation being committed during an ongoing 优德88中国官方网站, the traffic administrative department of the public security authority shall deal with the 优德88中国官方网站 driver according to the existing laws and regulations regarding road traffic safety;
2. In the event of a traffic accident occurring during an ongoing 优德88中国官方网站, the liability of the concerned party shall be determined according to existing road traffic safety laws and regulations, and the liability for damages shall be determined in accordance with relevant laws, regulations and judicial interpretations. Where a crime has been committed, criminal liability shall be pursued according to law.
In summary, in the event of any traffic violation, the liability should be assumed by the 优德88中国官方网站 driver, and in the case of traffic accidents, the party assuming the liability for the accident and damages should be determined according to the law. The Administrative Rules do not specify in any detail the liability of the 优德88中国官方网站 applicant. Whether the 优德88中国官方网站 applicant, as an employer, should assume overall liability for compensation, whether they should assume joint liability with the employee, or whether the producer and/or seller of the 优德88中国官方网站 vehicle should assume product liability may require determination from subsequent legislation or judicial practice.
V. Conclusion
The promulgation of the Administrative Rules goes a long way to meet the urgent demand for direction in the development of the ICV industry, providing unified rules for road 优德88中国官方网站ing of ICVs, and guaranteeing the legal basis for road 优德88中国官方网站ing of ICVs at a national level. Key questions for participants in the ICV industry are likely to include how to satisfy the safety requirements as set out in Administrative Rules, and how each party might assume liability for any accident.
With the evolution of road 优德88中国官方网站ing practice in an ever-increasing number of cities, we will continue to pay heed to issues such as how the Local Rules may be amended according to the requirements of Administrative Rules, and how various local governments may interpret and specify the safety requirements and assumptions of liability as set out in the Administrative Rules.
1. See the records of the joint press conference on Administrative Rules of Road 优德88中国官方网站ing of Intelligent Connected Vehicles (for Trial Implementation) held by the Ministry of Industry and Information Technology, the Ministry of Public Security and the Ministry of Transportation on April 12, 2018: http://www.miit.gov.cn/n1146290/n1146397/c6128823/content.html.
2. The Administrative Rules require the 优德88中国官方网站 appliant to purchase compulsory accident liability insurance, as well as accident liability insurance of no less than RMB 5 million or self-driving road 优德88中国官方网站ing accident indemnity of not less than RMB 5 million for each 优德88中国官方网站 vehicle.
3. This provision refers to the Beijing rules on road 优德88中国官方网站ing, and adds the requirement of “or entering into labor service contract” in addition to the Beijing rule of “entering into employment contracts.”
