A case of administrative law and administrative litigation law

The case1Introduction:
Plaintiff: Tian Yong, male, students of 94 grade in Physics Department of chemistry of University of Science and Technology Beijing College of applied science.
Defendant: University of Science and Technology Beijing.
The plaintiff Tian Yong that they meet the statutory conditions for university graduates, the University of Science and Technology Beijing refused to give the issue the diploma, degree certificate is illegal, and bring an administrative lawsuit to the people's Court of Haidian District, Beijing.
The plaintiff said: all the activities I have been to the student identity in the University of Science and Technology Beijing to learn and organized by the school, the school teaching plan, and learning achievement and graduation thesis has reached the college graduate level. However, upon graduation, the defendant will notice in my department, I do not have to register on the grounds, refused to give me to issue the diploma, degree certificate and apply for graduation dispatch formalities. This practice violates the legal provisions of the defendant.
Requests that the defendant:
1 for I award the diploma, degree certificate;
2 timely and effectively for graduation dispatch formalities for me;
3 compensation for economic loss of 3000 yuan;
4 in the newspaper publicly apologized to me, for my rehab;
5 bear the litigation fee.
The defendant argued that: Tian Yong's violation of the school "on the strict examination management of the emergency notice" (hereinafter referred to as specified in the notice 068), in the make-up during entrainment have notes written electromagnetism formula is after the teacher found, the school decided to Tian Yongan quit, notify the school authorities to Tian Yong check-out procedures. Notice to Tian permanent himself, also have through their mail sent to Tian Yong college. : so far, Tian permanent registration has been cancelled. Because the field never fit for the relevant procedures, some departments on campus is not in place, coupled with some staff do not understand the situation and other reasons, causing Tian Yong to continue to stay in school learning facts in drop out. However, in some departments and some teachers allowed Tian Yong to stay in school learning behavior, not on behalf of the school will not prove, Tian Yong school has been restored. No student does not have the higher college graduation, the school didn't give Tian Yong awarded graduation certificate, degree certificate and do not apply for graduation dispatch formalities, is correct. The court dismissed the claim shall be in accordance with the Tian yong.
Beijing Haidian District people's court found: 1994 September, the College of Applied Science, physical chemistry department of University of Science and Technology Beijing was admitted to the defendant Tian Yong subordinates, obtain undergraduate student. In February 29, 1996, Tian Yong participated in the electromagnetics course examination process, carry have notes written electromagnetism formula, half-way to the toilet, note fell out, be after the teacher found. The teacher is not found at Tian have forever note behavior, but according to the examination discipline, immediately stop the Tian Yong test. University of Science and Technology Beijing in March 5th of the same year in accordance with the "068 notice" third on Fifth "entrainment, including hand written in provisions of cheating actors", identified the Tian Yong behavior is cheating on exams, according to the first "for cheating in the exam, according to quit" rules, Tian Yongan decided to drop out of school, in April 10th the issuance of the student status change notification. However, not directly to the University of Science and Technology Beijing Tianyong announced the punishment decision and to change status notification, also did not give Tian Yong the check-out procedures. Tian Yong continues in the school to college students to participate in normal learning and school activities.
In 1996 March, the plaintiff Tian Yong student ID card is lost, not 1995 to 1996 school year second semester registration. In September the same year, the University of Science and Technology Beijing Tianyong submit the student ID card. Then, each year for University of Science and Technology Beijing Tianyong pay education expenses, and grant subsidies for college students to register, Tian Yong, also arranged for Tian Yong to participate in the design of graduation internship students, and by the instructor for the issue of school graduation graduation fee. Nominal Tianyong also to college students to participate in the examination, has made the university English four levels, the computer application level BASIC language test scores qualified certificate. Tian Yong studied in this school for 4 years, scores of all qualified, through the graduation practice, design and thesis defense, obtain excellent graduation thesis and graduation total ninth in his class. The University of Science and Technology Beijing does not dispute the fact above.
Some teachers accused of University of Science and Technology Beijing has to register the plaintiff Tian Yong to the former State Education Commission complaint, the former State Education Commission Secretary for college students in the May 18, 1998 letter to the University of Science and Technology Beijing, thinks the proofreading Tian Yong violates the examination discipline. Treatment of overweight, the proposed review. In June 5th the same year, the University of Science and Technology Beijing review, still insist on the original treatment conclusion.
In 1998 June, the relevant departments of the University of Science and Technology Beijing to the plaintiff Tian Yongbu has the school grounds, refused to issue the diploma, and not to the administrative departments of education reporting graduation dispatch qualification table. Institute of applied field and permanent place of physical chemistry, think, Tian Yong meets university graduation and Bachelor degree condition, because the system is dealt with school, Tian Yong, the school submitted to Tian Yong's class awarded a bachelor's degree table, temporarily not to Tian Yong signature, solve the problem of permanent preparation status Tian after the sign, the school also therefore not included Tian Yong in the academic degree evaluation committee audit into the school awarded a bachelor's degree qualification list.
The University of Science and Technology Beijing for the case to submit to the court evidence: the written testimony 1 plaintiffs Tian Yong written in February 29, 1996, written examination and two examiners teachers, the evidence to prove that the paper Tian Yong in the examination to carry the written examination subjects and content, the peek but found no emergency Notice 2; the former State Education Commission "on strengthening the examination management", school (94) No. sixty-eighth "on the strict examination management of the emergency notice", the former State Education Commission related to the leadership of the speech, these three materials do not belong to the "administrative procedure law of the people's Republic of China stipulates that the fifty-third people's court administrative cases can refer to regulations category; 3 University of Science and Technology Beijing Dean of the Tian Yong, three people in the process of examination cheating by dropping out of school, work, briefing for final exam the student change notification, the above documentary evidence to prove the University of Science and Technology Beijing in April 10, 1996 made the Tian Yongan out the handling of the decision, but can not prove that the decision has already served directly to Tian Yong, also cannot prove this decision has been the actual implementation of the former State Education Commission; 4 college students, our letter of North Beijing University of science and technology of the Tian Yong cheating a reexamination result report, the documentary evidence to prove the former State Education Commission, University of Science and Technology Beijing teachers college students of Tian Yong be punished. Our opinions and attitudes, University of Science and Technology Beijing in that opinion of these two aspects of University of Science and Technology Beijing; 5 "about giving University of Science and Technology Beijing student Wang Bin expelled dispose of the decision" a, "the final exam briefing" in 7 copies, the above documentary evidence is not necessarily linked with the case, can not become the evidence in this case. In addition, University of Science and Technology Beijing during the proceedings, without court agreed to take the Tang Youlan teacher's testimony, test report, the 1998 students graduate and bachelor's degree examination table, student registration card, student records registration, school security department office, the student status changes account book license notice the fourth and fifth, inorganic class 94 count as single documentary evidence to the court, which proved that the inconsistent with the administrative litigation law thirty-third article on "in the course of legal proceedings, the defendant shall not to the provisions of the plaintiff and witnesses to collect evidence", not for affirming the facts of this case according to the.
The plaintiff evidence Tian Yong submitted: September 1.1996 the University of Science and Technology Beijing as Tian Yong began student card (ID 9411026), can prove that the University of Science and Technology Beijing not only from 1996 September for Tian Yong to re submit the student ID card, and also by semester registration for Tian Yong, the University of Science and Technology Beijing undergraduate student in 2, rebuilt the blood donation certificate; card, ticket, receipts and charge bill, English level Four certificate, certificate of computer language BASIC, a classmate of Tian Yong two, documentary evidence, testimony practice unit graduated payment certificate, the above evidence to prove that Tian Yong at the University of Science and Technology Beijing's management, the relevant facts to the students learning and life, qualification examination; 3 transcripts of students, to prove that Tian Yong in the university four years learning achievement; 4 University of Science and Technology Beijing Department of the seal of Beijing area college graduates employment recommendation form, can prove that the University of Science and Technology Beijing has admitted that Tian Yong has the qualifications to prove 5 graduates; University of Science and Technology Beijing School of Applied Science, confirmed that Tian Yong has passed all the examinations and thesis defense, the master the Knowledge and skills have graduate qualifications, solve student problems to Tianyong after the authorized degree table fact.
In the trial, the evidence submitted to the court the parties were the quality of evidence.
Beijing Haidian District people's court that: the current situation in our country, some institutions, social groups, although does not have the qualification of administrative authorities, but are entitled to certain administrative functions and powers. There is no equal civil relationship between these units, organizations and management relative person, but the special relationship of administrative management. Between them because of the management behavior and the dispute, but not civil litigation, administrative litigation. Although "refers to twenty-fifth of the administrative procedure law of the people's Republic of China" the defendant is the administrative organ, but in order to safeguard the legitimate rights and interests of the relative person of management, supervision institutions, social groups to exercise state given administrative functions according to law, as the defendant in administrative litigation, administrative procedure law to resolve administrative dispute between relative people with their management, will help to resolve social contradictions, maintaining social stability. "Education Law of the people's Republic of China" twenty-first stipulates: "the State applies a system of education certificates." "By the state approved or approved schools and other institutions of education in accordance with state regulations, issued certificates or other education certificate." Article twenty-second stipulates: "the State applies a system of academic degree." "The degree conferring unit to reach a certain academic or professional and technical level of personnel awarded the degree, degree certificate issued by." "The people's Republic of Ancient Chinese Literature Search regulations" eighth article: "the bachelor's degree, awarded by the department authorized by the State Council of higher school". The defendant, University of Science and Technology Beijing is a corporation engaged in higher education, the plaintiff Tian Yongsu please to issue the diploma, degree certificate, it is because of the exercise of administrative disputes on behalf of the state issued certificate, degree certificate administrative powers of the educated, can be applied to solve the administrative litigation law.
The plaintiff Tian Yong have not been accused by University of Science and Technology Beijing graduation certificate, degree certificate, the cause is that Tian Yong has been at the University of Science and Technology Beijing school, no school. The exercise of education law the provisions of article twenty-eighth of schools and other institutions of education rights, article (four) expressly provides: "a student status management of the educated, the implementation of reward and punishment". A special administrative status management is that school according to the education of persons. Therefore, the review Tian Yong is the school, is the key to this case.
The Tian Yong upon passing the examination, the defendant admitted to University of Science and Technology Beijing, which enjoy the status of the school in the school study, obtained the qualification, and shall accept the school management. Educators in the implementation and management of the educated, although there is a corresponding educational sovereignty, but shall not contravene the provisions of state laws, regulations and rules. Tian Yong in the make-up while carrying the written examination content and related note, but not its read note evidence, its behavior is not cheating, should belong to violates the examination discipline. University of Science and Technology Beijing can deal with Tian Yong violates the examination discipline behavior according to the provisions of this school, but this treatment shall comply with the provisions of laws, regulations, rules and spirit, at least not stipulated in laws, regulations, rules and regulations. The State Education Commission in January 20, 1990 issued the "ordinary college student management regulations" provisions of article twelfth: "any unauthorized absence or cheating in the exam, the course grade of 0, no normal make-up, if it really repentant, by the educational administration department for approval, in the graduation can give a chance to make up. Cheating in examinations, shall be disciplined." The provisions of article twenty-ninth shall be dropped out of the ten cases, did not abide by the examination discipline or cheating in the exam is required to be dropped out of school. University of Science and Technology Beijing's "068 notice", not only to expand the scope of "cheating" determination, but also on the process method of "cheating" significantly heavier than the "rules" of student management in higher school, the provisions of article twelfth, school conditions in accordance with Article twenty-ninth conflict, should belong to invalid. On the other hand, by dropping out of school, involving the right to education has been prepared, starting from the full protection of the interests of the parties of the decision principle, the units should be the treatment decision directly to be announced, I served, allowed himself put forward arguments processing. University of Science and Technology Beijing does not according to this principle to handle, ignoring the rights of pleadings of the parties concerned, the administrative behavior that does not have legitimacy. University of Science and Technology Beijing has never actually to Tian Yong for the cancellation of registration, transfer of registration, filing procedures. Especially the Tian Yong Lost Student ID card, the school in 1996 September for its re submit the student ID and registered, it shall be regarded as the school automatically cancelled the original to make according to Tian Yong quit decision. After Tian Yong in the school four years study, also participated in the school to arrange examination, practice and graduation design, the thesis also obtained by the fact, proved by expulsion decision in law never happened due effect, Tian Yong still has the University of Science and Technology Beijing student. University of Science and Technology Beijing argued that, Tian Yong can continue to study in school, is the school some departments and some teachers' behavior, can not represent our school will. In view of these departments and some teachers' behavior, is the act of duty of University of Science and Technology Beijing, University of Science and Technology Beijing of the duty behavior should bear the legal liabilities.
The State applies a system of education certificates. The plaintiff Tian Yong now has a place at the University of Science and Technology Beijing, in Tian Yong's formal education ended, learning and reach a certain education level and requirements, higher school of University of Science and Technology Beijing as the state approved, shall be in accordance with the education law article twenty-eighth paragraph first fifth "and" Regulations of student management in higher school, the provisions of article thirty-fifth, Choda Naga awarded the corresponding academic certificate to admit, the equivalent of.
The State applies a system of academic degree. The plaintiff Tian Yong is university students after graduation, in which, in accordance with the "Regulations of the people's Republic of Ancient Chinese Literature Search regulations" in article fourth, can be awarded a bachelor's degree. Bachelor degree in the University of Science and Technology Beijing as authorized by the state authority, should be in accordance with the "fifth of the people's Republic of Ancient Chinese Literature Search implementation of the provisional measures" article fourth, the provisions of procedure, organize relevant personnel to the Tian Yong of graduation, graduation appraisal and other materials examined, to decide whether to grant the bachelor's degree. Send questions about graduates from institutions of higher learning. "Graduate employment dispatch report card", the provinces, autonomous regions, is the deployment of competent graduates municipalities directly under the central government departments in accordance with the administrative department of Education issued the employment plan issued. Ordinary higher school according to the "Interim Provisions" the employment of college graduates to the provisions of article ninth, shall perform the administrative department in charge of education information graduates reported the location of the duty, for the education administrative department of the local examination and issuance of graduate management certificate. The plaintiff Tian Yong has graduated from university qualifications, the defendant should perform the duty of University of Science and Technology Beijing.
"The people's Republic of China National Compensation Law" article third, the provisions of article fourth of the scope of administrative compensation, includes only actual against illegal administrative acts cause property on the right of the person or the victim.
At present, the graduation allocation of the implementation of two-way choice of employment policy of the state, not the students after graduation to find work, earn. Therefore, the defendant refused to issue the certificate of University of Science and Technology Beijing, just make the plaintiff Tian Yong lost employment opportunities and students over the same period, not to the Tian Yong of the personal rights and property rights causes actual harm. Therefore, the Tian Yong University of Science and Technology Beijing fails to graduation certificates the vested interest grounds of damage compensation for economic loss claims, could not be established. The plaintiff Tian Yong violates the examination discipline behavior in the examination, the University of Science and Technology Beijing in fact made to Tian Yong by dropping out of school's decision is not established, but did not damage the reputation of the Tian yong. Therefore, Tian Yong prosecution request the court to order the University of Science and Technology Beijing in the paper make an apology to its, to restore the reputation, not support.
To sum up, Beijing Haidian District people's court in February 14, 1999Sentence:
The 1 defendants in University of Science and Technology Beijing from the effective date of this decision within 30 days of the plaintiff Tian Yong issued bachelor's degree diploma 2 defendants to University of Science and Technology Beijing in the entry into force of this decision within 60 days from the date of the academic degree evaluation committee of the University convened for the plaintiff Tian Yong bachelor's degree qualification audit;
Carry out relevant procedures to the local education administrative departments reported to the plaintiff the Tian Yong graduated sent within 30 days of Duty 3 defendants University of Science and Technology Beijing come into effect from the date of judgement;
4 rejected the plaintiff Tian Yong's other claims. The first instance verdict, the appeal of University of Science and Technology Beijing.
The reason is: 1: Tian Yong has been canceled school, originally identified my school changed to Tian Yong treatment decisions, restored its status, is that the error of fact; 2 my school according to law, rules and the rules according to the regulations, rules and make for the students, which belongs to the category of the autonomy of running a school, any organizations and individuals shall not be any reason to intervene; extracted from the teaching files in 3 my school to a trial evidence submitted, do not belong to the illegal evidence, the court shall be adopted. Request cassation rejected the second instance, Tian Yong litigation request.
The Beijing first intermediate people's court think, finds that the facts are clear, the evidence is sufficient, correctly applies the law, legal proceedings, shall be maintained. The University of Science and Technology Beijing that the respondent Tian Yong have nothing to do with the school enrollment, inconsistent with the facts, and shall not be adopted. Schools in accordance with national authorization, had the power to formulate regulations, rules, and have the right to make the teaching management of school students and violation of discipline, but the teaching management and disciplinary rules, discipline, and accordingly, must conform to the provisions of laws, regulations and rules, to protect the legitimate rights and interests of parties. Tian Yongan dropped out of University of Science and Technology Beijing to processing, there are provisions against the law, regulations and rules, is invalid. Obtaining from the teaching archives of University of Science and Technology Beijing in the litigation evidence submitted, although not belonging to the administrative litigation law thirty-third stipulation was not in the litigation process to collect evidence from the plaintiff and witnesses of the situation, but could not prove that the evidence was made according to drop out of treatment decisions when formed, the court shall not be recognized. Accordingly, the Beijing first intermediate people's court in accordance with the administrative procedure law article sixty-first (a) of the Convention, decided in April 26, 1999:
Dismiss the appeal, upheld the.

Case1Comment.Here to comment on whether schools can become the main problem.
In China, and abroad, the administrative subject generally served by the administrative organ, the administrative organ is the main carrier of administrative subject. It is because they are state administrative organs, it is because the state legislature usually take administrative powers given to the administrative organ of the state, rather than administrative organ.
As mentioned above, determining whether an organization is the administrative body, the key is to see whether it is legal to some administrative authority. The school is public institution legal person units, are usually not the administrative subject. But if the school by law directly granted administrative authority, which in the exercise of the administrative functions and powers, the administrative subject is of course; then, the administrative relative person to the people's court sued the school exercise the administrative authority, administrative litigation and not necessarily constitute civil litigation.
In this case, the relative person Tianyong against the school (refuse) to issue the diploma, degree certificate behavior; whether the University of Science and Technology Beijing belongs to the administrative subject in this legal relationship, administrative behavior depends on the school awarded graduation certificate, degree certificate behavior whether to belong to the exercise of administrative powers.
As noted on the court, "Education Law of the people's Republic of China" twenty-first stipulates: "the State applies a system of education certificates." "By the state approved or approved schools and other institutions of education in accordance with state regulations, issued certificates or other education certificate." Article twenty-second stipulates: "the State applies a system of academic degree." "The degree conferring unit to reach a certain academic or professional and technical level of personnel awarded the degree, degree certificate issued by." "The people's Republic of Ancient Chinese Literature Search regulations" eighth article: "the bachelor's degree, awarded by the department authorized by the State Council of higher school". To add, "Education Law of the people's Republic of China" the fourteenth stipulation: "the State Council and the local people's governments at various levels according to the classification management, the division responsible for the principle, leadership and management education. Medium and the secondary education under the leadership of the State Council, the local people's government management. Higher education by the State Council and the province, autonomous region, municipality directly under the Central People's government administration." Article fifteenth also provides that: "the education administrative department in charge of national education, overall planning, coordination and management of the national education. The education administrative departments of the local people's governments at or above the county level education work within their respective administrative areas. All levels of people's governments at or above the county level and other relevant departments within their respective functions and duties, be responsible for the related educational work." This shows that:
1 academic certificate and degree certificate belongs to the state system, rather than the school unit system;
The 2 countries are responsible for this department is the administrative organ, rather than a legislative or judicial organ, so it belongs to the national administrative system;
3 as the defendant in the case of University of Science and Technology Beijing is legally entitled to issue the academic certificate and degree certificate issued by the school, exercise the academic certificate and degree certificate conferred by law to the exercise of administrative powers (Education Administration) administration;
Therefore, when the University of Science and Technology Beijing's exercise of the powers, their legal status is the administrative main body instead of civil subject.

 

 

 

The case2Introduction:

A Public Security Bureau police Lee, drive the execution of business. In return the unit to pass by the way, kids are reading school, temporary decided to take the child home, then back to the unit. On the way home with the children, Lee illegal driving, hit an old lady.
The old lady is going to go to court action for damages, but she should take Lee individual defendants compensation of civil action, or to the public security organ Lee is the administrative compensation lawsuit? Therefore, she came to a lawyer's advice.
In a law firm lawyers have two different opinions in the discussion:
A kind of opinion, should be the police Lee belongs to the administrative compensation litigation. The reason is: 1 Lee is the police, which belongs to the national civil service; 2 li crash when using the car's official car, instead of private cars; 3 although picks up his children are not official, but it occurs at the time the whole service within (i.e., returned to the unit before but not after).
Another opinion, should be based on Lee individual defendants compensation in civil litigation. The reason is: your child is private rather than official behavior, so it doesn't matter and belongs to the public security organ.
I would like to ask: how do you comment?

Case2Comment.Here to comment on the case in police Lee belongs to administrative law enforcement personnel problems.
Before that, the administrative law enforcement personnel system refers to the administrative subject in the name of representative and administrative implementation of duty behavior of individual; administrative law enforcement personnel's behavior effect externally, belonging to the administrative subject and the rather than the individual.
In this case, to solve the old lady to Lee individual defendants compensation of civil action, or to the public security organ Lee is the administrative compensation lawsuit, the key depends on the police Lee at that time in the context of legal identity: if Lee Law identity that belongs to a natural person, then it should be to Lee individual defendants compensation in civil action; if Lee legal identity that belongs to administrative law enforcement personnel, it should certainly to the public security organ Lee is the administrative compensation lawsuit.
It should be noted that: in our country, between civil servants and administrative law enforcement personnel cannot be equated. Because: the administrative law enforcement personnel generally assumed by the servants of the state, but the administrative law enforcement personnel is not limited to civil servants, non official members entrusted by an administrative organ may also be engaged in official acts of administrative law enforcement personnel; on the contrary, civil servants are not necessarily, unconditionally, all the time as the administrative law enforcement personnel identity. The national civil service in different behavior in different legal relationship, legal status, can be different: when he represented the main implementation of act of duty, the legal status of his is the administrative law enforcement personnel; when he engaged in their own civil action representative, his legal identity is a natural person; when he is in the relationship of administrative management is management when his party, legal status and the administrative relative person.
In this case, we agree with the second idea.                              

      

 

The case3Introduction:

He Fulin refuses to accept the Public Security Bureau, Nanning area confiscated their car

In 1994 October, Guangdong cloud stone factory to buy a car without the import formalities Nissan Toyota car. In use, the Public Security Bureau of Yunfu City Guangdong Province, were seized and confiscated smuggled on to car. Soon, Yue cloud stone factory from the vehicle administration of Yunfu Municipal Public Security Bureau will be the car to buy, and in the car for the car formalities, a motor vehicle license and license plate number (Guangdong W - 427190). In July 20, 1996, Guangdong cloud stone factory with 345000 yuan price of the car sold to He Fulin, together with the license plate number to be how to use, but not for transfer procedures. On May 12, 1997, He Fulin driving Mingxiu road Nanning City, the car passing by when being inspected, Nanning area public security bureau, found that the vehicle registration certificate for the 1994 November date, issuing date is September 9, 1996, due to a major suspected of smuggling, decided to temporarily and asked what the forint provide relevant documents. He Fulin failed to provide. In April 8, 1998, Public Security Bureau, Nanning area to make the South male criminal investigation (1998) decision No. 41 punishment, what constitutes a Nissan car belongs to Toyota forint use smuggling car. According to the Ministry of public security, the General Administration of customs, the State Administration for Industry and commerce public (1993) No. 7 documents prescribed in article second, decision on the confiscation of the vehicle. He Fulin, Yue cloud stone factory refuses to accept the punishment decision were confiscated, lodge an administrative lawsuit in Nanning area intermediate people's court. He Fulin claims, the car is registered in the Department, has the driving license and license plate, not smuggling car. The defendant as smuggling car in addition to the confiscation of, have no basis in fact. Moreover, decide the punishment procedures, no organization in the implementation of administrative penalty hearing. Request the people's court to revoke the defendant punishment decision, the car returned to the plaintiff. Yue Yun stone factory claims, the car is my factory to buy in the South China Sea town of Jiujiang County in October 20, 1994, soon after by the Yunfu Municipal Public Security Bureau seized and sentenced to confiscation, after representations purchased the car, in the city of Yunfu vehicle administration a formalities, get the driving license. In July 20, 1996 the transfer to He Fulin. This car formalities legally, license complete, not smuggling car. The defendant as smuggling car in addition to the confiscation of obviously wrong, decided to request the court to order to revoke the defendant punishment, return vehicle to the plaintiff, and the plaintiff compensation for economic losses.

The Nanning area public security bureau said in reply: the car was sent to the Guangxi import and Export Commodity Inspection Technology Research Institute for identification, the Toyota Auto Body Co of Japan in 1996 made Camry GL class car. The plaintiff can not provide Customs issued "certificate of importation", also cannot provide the relevant materials of proof the car legally confiscated processing. Therefore, the car belongs to the smuggling of cars. I board in accordance with the relevant provisions by confiscating the legitimate. The punishment strictly in accordance with statutory procedures, there is no program illegal facts. Requested the court to maintain my bureau of the punishment decision.

In view of the plaintiff's prosecution against the same specific administrative act is against the Public Security Bureau, Nanning area confiscated cars punishment decision, Nanning intermediate people's Court of two v. the merger trial. The court held that: the case by the Guangxi commodity inspection department inspection car, the Department in 1996, but the car in 1994 November has been registered, registered in the production before, after, going into the households procedures are not in conformity with the relevant provisions. And the two plaintiffs always do not provide a valid proof materials of the car. Therefore, the car belongs to the smuggling of cars. The defendant decided to Public Security Bureau Nanning area penalty finds that the facts are clear, the evidence is sufficient, the applicable law is correct, in compliance with the statutory procedures. In accordance with the "administrative procedure law of the people's Republic of China" fifty-fourth paragraph 1, the Institute in November 23, 1998 to make decisions:

Maintain the Nanning area public security bureau of administrative office in April 8, 1998 to the south the criminal investigation (1998) No. 41 penalty decision.

The 300 yuan of case acceptance fee, by He Fulin, Guangdong Province Yunfu City Guangdong granite stone factory burden.

After the verdicts, Yue cloud stone factory no appeal. He Fulin refuses to accept a judgment, and appealed to the the Guangxi Zhuang Autonomous Region Higher People's court. The claims, a trial in Guangxi commodity inspection and the inspection results, that the car is in nine six years, so that the vehicle registration in the former, in production, belong to smuggling car. The Appellant maintains, single vehicle styles can not prove that the date of manufacture of the car, car manufacturers will be required to the styles of cars in the market. Therefore, the test results cannot be used as the basis for a final decision. The trial also found, the car is imported cars, the plaintiff could not prove that the car legal materials. The Appellant maintains, this does not accord with the facts. The appellant in the first instance has been submitted to the court of Yunfu City Public Security Bureau impound award, proved the car has been the public security organs to confiscate punishment. Vehicle management Yunfu City Public Security Bureau is the award for car confiscated for going into the households procedures, issued to the vehicle license and license plate. The car driving license and license plate is proved powerful vouchers vehicle ownership and vehicles. Accordingly, requested the court of the second instance verdict revoked, safeguard the legitimate rights and interests of the people.

The appellee Nanning area public security bureau said in reply: the case for Nissan cars imported cars, He Fulin always do not provide a "certificate of import goods" and other related materials, this shows that the car belongs to the smuggling of cars. For smuggling cars, must legally confiscated, handed over to the state department appointed sales, handle the relevant formalities, issuing license, can legally use. But the appellant He Fulin do not provide a valid confiscated materials, therefore, the car is still smuggled cars. I board in accordance with the relevant provisions of the smuggling cars confiscated is correct. A judgment maintains our administration punishment decision objective, justice, requested the court of second instance court upheld the original verdict, dismissed the appellant appeal.

The the Guangxi Zhuang Autonomous Region Higher People's court that: Office of the State Council issued in August 30, 1993 "on strengthening the import car license management notice" (that is issued (1993) No. 55, hereinafter referred to as the "notice") is an important legal basis for handling this case. The "notice" provisions of article second: "the customs, industry and commerce departments of public security, seized smuggling cars and no certificate of import cars should be confiscated. The confiscation of the vehicle to the state department appointed sales, public security traffic department with the sales department sales invoice and anti smuggling Department confiscated certificate issuing license procedures." According to the "notice" fifth authority, the Ministry of public security, the General Administration of customs, the State Administration for Industry and Commerce on September 18, 1993 issued the "notice on implementing '' office of the State Council on strengthening the car license management related issues notice" (Gong fa (1993) No. 7) second clearly stipulates: "the public security organs, the customs and the administrative department for Industry and commerce should seriously investigate and deal with cases of smuggling cars, motorcycles, vehicle seized smuggling and no certificate of import vehicle shall be confiscated, by the ground, municipal (including) over the public security organ or the customs, the administrative department for Industry and Commerce forfeiture formalities in accordance with legal procedures, and issued a nationwide" confiscation of smuggled cars, motorcycle certificate ". The confiscation of the vehicle must be sent to the China import automobile trade center unified sales, confiscate the certificate with the car over to the sales department. The national unified issued by the Public Security Department of transportation by sales invoice and certificate issuance of license plate license confiscated, handle the formalities." According to the "notice" provisions, import car must be approved by the customs, the Customs issued "certificate of importation", or else to smuggling car. For smuggling cars, must legally confiscated, fulfill the formalities as household, issuing license before using. This controversy is Nissan car Camry GL class car, Yue cloud stone factory buy without any formalities, did not obtain the "certificate of importation", which shows the car without customs supervision in China, illegal smuggling car. On this smuggling cars shall be confiscated according to law. But the Yunfu City Public Security Bureau on the confiscation of treatment, only issued fines award, did not issue a unified use "confiscation of smuggled automobiles, motorcycle certificate", the confiscation of behavior does not comply with the State Council (1993) the provisions of circular 55, is not legally binding. Vehicle management Yunfu City Public Security Bureau according to the Bureau of the penalty Award for the car for going into the households procedures, issuing license, and direct foreign sales, its practices in violation of state regulations, issued by a card, card can not change the nature of the smuggling of cars. Public Security Bureau, Nanning area according to the smuggling cars confiscated is correct. The bureau to take on the car, to He Fulin issued a "seized items list". Decided to confiscate punishment, investigation and evidence collection, the car to give statutory accreditation body identification. The specific administrative act in compliance with the statutory procedures. As for the hearing, because the law to confiscate punishment is hearing is not specified, the appellant failed to hold a hearing is not wrong. The appellant can not be established, the appeal to the court shall not support. Court finds that the facts are clear, the applicable law is correct, the trial procedures in accordance with the law the legitimate, shall be maintained. In accordance with the "administrative procedure law of the people's Republic of China" article sixty-first (a) the provisions of item, the Institute in April 29, 1999 made the following decision:

Dismiss the appeal, upheld the.

The second case acceptance fee 300 yuan by the appellant He Fulin bear.

Discussion questions:

About 1 of the procedure of administrative punishment, the law is provided?

2 smuggling cars through the procedures which can be legally belong to the vehicle?

Public Security Bureau 3 Nanning area before making the decision of punishment confiscated cars no hearings held, whether or not in violation of the statutory procedures?

 

Case 3 comments:

The focus of this controversy is the law of administrative penalty procedure and the smuggling of cars through the procedures which can be legally belong to the vehicle.

Car in this case has been confiscated, and into people's homes, a driving license and license plate, but does not belong to the legal vehicles. The real problem is that the defendants confiscated car behavior is legal. Generally speaking, domestic car handling the formalities, shall pay the relevant taxes, issuing the certificate, it belongs to the legitimate vehicles, can be driven on the road. While the car is illegally Nissan Toyota car. According to the State Council (1993) No. 55 notification and public (1993) the provisions of circular 7, for this smuggling car must perform the following procedures and obtain the relevant license, permit to legally use: one is must be confiscated legitimate, namely, the municipal (including) over the public security organs or the customs, industry and commerce administrative departments for forfeiture formalities in accordance with legal procedures, and issued a nationwide "confiscation of smuggled automobiles, motorcycle certificate". The two was confiscated after must pay sales by the designated sales department in Guangdong Province, Guangdong Province, the designated sales department is the Automotive Industry Trading Corporation, Shantou Special Economic Zone electromechanical equipment company and Zhanjiang City Mechanical and electrical equipment company. Three is the proper procedures into people's homes, the unified national issue that public security traffic department with the sales department invoice and certificate issuing license confiscated, handle the formalities, but the Bureau failed to issue a unified national "confiscation of smuggled automobiles, motorcycle certificate". The car was confiscated after, Yunfu City Public Security Bureau did not pay the specified sales, but by the Bureau vehicle management directly to the distribution, the Guangdong cloud stone factory purchased the car. Vehicle administration of Yunfu Municipal Public Security Bureau for the car where the household registration, issued by neither anti smuggling Department confiscated certificate, no unified national invoices issued by the designated sales department, but by the Bureau of the penalty award in the car for issuing the license procedures. Because of the Yunfu municipal public security traffic departments in handling the car away, sales and going into the households procedures are serious violations of the State Council notice, therefore, the car has been into people's homes and issued to the license, but had not changed its smuggling car, still belongs to the smuggling of vehicles. For smuggling vehicles, is punishable by forfeiture. Provisions of Nanning area public security bureau according to the state regulations to confiscate punishment decision is correct, legitimate.

The Public Security Bureau in this case Nanning area before making the decision of punishment confiscated cars no hearings held, no violation of legal procedure. The hearing, is refers to the administrative organ in the administrative penalty decision, listen to the statements of the parties, defend, cross examination procedure. The hearing procedure, to ensure the fairness of administrative penalty, the objectivity and validity of. But the hearing procedure compared with the ordinary procedures more stringent, specification, application is relatively costly, therefore, the legislation of the countries which are strictly limited. China in the formulation of "administrative punishment law," the people's Republic of China, some useful ways of using foreign hearing procedure, the provisions in the law, made clear to the hearing procedure, the application was strictly limited. According to the stipulation of "administrative punishment law", at present our country administrative penalty hearing procedure only in order to suspend production or business, revoke the permit or license, the larger the amount of fines and other administrative punishment. For the confiscation of property, the administrative punishment is to hold a hearing, the law does not require. In the case of confiscated car worth about 300000 yuan, belonging to the larger amount confiscated, but because the law does not expressly provided, the defendant did not hold a hearing is not wrong. The Plaintiff alleged that the defendant seized car not to hold a hearing, in violation of the statutory procedures, the decision to withdraw the decision of punishment shall be. Because of its no legal basis, the court shall not be accepted is correct.

In this case, the Public Security Bureau confiscated the Nanning area car decision of punishment is legal, a court of second instance judgment, to maintain the decision of punishment is also correct, appropriate.

Appendix:

Problems should be noticed in this case

1 administrative penalties established conditions

The establishment of the administrative punishment shall meet the following six conditions:

(1) the parties are clear.

(2) the administrative punishment to the specific content of the sanctions.

(3) inform the parties to an administrative penalty the facts, reasons and basis. Thirty-first administrative penalties law stipulates: "the administrative organ before making the decision on administrative penalty, shall inform the parties make the facts, reasons and basis for the administrative punishment decision, and notify the parties shall enjoy rights." This provision, to the administrative organ, assume the procedural obligations, while the parties, enjoy the procedural right, the right or obligation in administrative punishment is essential, it accords with the basic spirit of the principle of administrative openness, is under the administrative punishment law "administrative punishment to follow a fair, open principle" concrete embodiment. At the same time, the administrative punishment law article forty-first provisions, administrative organs and their staff before making the decision on administrative penalty, the facts, reasons and basis for failing to inform the parties to an administrative penalty, administrative punishment decision cannot be established. Accordingly, the facts, reasons and basis to inform the parties to an administrative penalty is one of the conditions for the establishment of administrative punishment.

(4) listen to the statements and arguments of the parties. Sixth administrative penalties law stipulates: "citizens, legal persons or other organizations to administrative penalty is imposed by administrative organs, shall have the right to state their rights, the right of defence". The administrative punishment law article thirty-second not only reaffirmed the right of the parties, and the provisions of the administrative procedures in the corresponding obligations and the basic requirements of the executive: "the parties shall have the right to make a statement and defense. The administrative organ shall fully listen to the opinions of the facts, reasons and evidence, put forward by the parties concerned, shall review; if the facts, reasons or evidence are established, the administrative organs shall adopt. The administrative organs shall not by the parties themselves and aggravated punishment". The administrative organ refuses to listen to the statements of the parties, the right to defend themselves, according to the provisions of the forty-first administrative punishment law, the administrative punishment decision cannot be established.

(5) the book should have the seal of the administrative organ of administrative penalty decision. Administrative penalty is wants the type administrative behavior, administrative authorities shall give the administrative penalty, shall make a written decision on the administrative penalty.

(6) to the written decision on the administrative penalty. Administrative penalty is the administrative organ to violate administration order the sanctions, its legal effect is mainly reflected in the binding on the parties, the parties pending receipt of the written decision on the administrative penalty, not bound by the decision of administrative punishment, namely not produce legal effect.

2 hearing procedures and scope of application

   The hearing procedure, is refers to the administrative main body before making the decision on administrative penalty, hear the statements and explanations, the facts and the application of the law by the parties and debate activities investigation investigators.

The administrative punishment law established the hearing system, set up the fifth section of the third chapter the provisions of the hearing system. Forty-second the provisions of which, "the administrative organ to make decision, shall be ordered to suspend production or business license or license, the larger the amount of fines and other administrative penalties, it shall inform the parties have the right to request a hearing; if the party requests a hearing, the administrative organ shall organize a hearing." Not all the administrative punishment hearing procedures, laws on administrative punishment hearing may be held, namely administrative main body to make the order to suspend production or business, revoke the permit or license, the larger the amount of fines and other administrative punishment, the hearing may be held. In addition, "administrative punishment law" also stipulates the parties shall have the right to a hearing, that can be asked to hold a hearing on the administrative punishment, can also give up the right to request the hearing.

This case involves the legislative information

1 "administrative punishment law"

(1) forty-first administrative organs and the law enforcement officers before making a decision on administrative penalty, the facts, reasons and basis to inform the party concerned is not in accordance with the administrative penalties, or refuse to listen to the statements of the parties, defend, administrative penalty cannot be established.

(2) forty-secondThe administrative organ to make the order to suspend production or business, revoke the permit or license, decided to a larger amount of fines and other administrative penalties, shall inform the parties have the right to request a hearing; if the party requests a hearing, the administrative organ shall organize a hearing.

2 "administrative procedure law"

(1) the fifty-fourth people's court after the trial, according to different circumstances, make the following judgments:

(a) the specific administrative act irrefutable evidence, the applicable law, regulations, compliance with the statutory procedures, maintenance of judgment.

(2) sixty-first where a people's court, in the light of the following situations, respectively:

(a) in the original judgment, applicable laws, regulations and correct, dismissed the appeal upheld the decision. 　

 

 

 

The case4Introduction:

Plaintiff: Yanfang photo gallery. Defendant: a district administration for Industry and commerce.
Yanfang studio from 1985 to 1986 June, with the "Fuji", "cherry", "Kodak" photographic film trademark logo color film waste magazine 13000, sold for $0.20 each to the price of 0.30 yuan, a total of 3761 yuan. A district administration for Industry and commerce that film box mass Yanfang photo gallery sales with logo, belonging to the infringement of registered trademark rights act, so on the basis of "suicide" trademark law of the people's Republic of China and the State Economic Commission, the Ministry of light industry, the State Administration for Industry and Commerce (1985) No. 440 documents prescribed in article fifth: "units and individuals waste identification of unauthorized sale with a registered trademark of another person, in addition to compensation for the encroached right by the loss, the illegal income confiscated illegal income, impose a fine of equivalence", make a decision: (a) recovered the illegal income of 3761 yuan; (two) impose a fine of 700 yuan.
Yanfang studio refuses to accept the administrative organs of industry and commerce administration punishment, then to the people's court. It claimed: cassette sold waste scraps of photographic film, with commercial bureau "on food, food service industry, waste recycling work Trial Measures" provisions, not regarded as sales trademark identification, decided to request the people's court to revoke the administrative authorities for Industry and commerce.
The people's court after hearing that: Yanfang Photo Gallery sold with logo Photographic Magazine, which belongs to the unauthorized sale of other registered trademark infringement "; according to the provisions of the Trademark Law of the people's Republic of China" in article thirty-ninth, shall be liable for the loss of the infringer, and impose a fine; but there is no "illegal income." provisions. Take the State Economic Commission, the Ministry of light industry, the State Administration for Industry and Commerce (1985) No. 440 document is the supplementary provisions on the law of trademarks, can refer to the case. Accordingly, the court of first instance verdict: maintaining the decision administration punishment.
Yanfang studio judgment, appeal to the intermediate people's court.
The people's Court of second instance think: "trademark law of the people's Republic of China" and "Trademark Law Implementing Rules" unauthorized sale of others trademark logo, only provides compensation for the losses, and may be fined, but not "pursue illegal income" provisions. The 440 article of the tort provisions shall confiscate the illegal income, conflict with the "trademark law" and "Trademark Law Implementing Rules"; therefore, it cannot be used as the basis for the trial of the case. So, the people's Court of second instance verdict: undo a judgment maintains such illegal income of 3761 yuan of punishment; decided to maintain a fine of 700 yuan of punishment.

Case4CommentAbstract: here to comment: document the following rules and regulations of the relevant administrative organs in what position in administrative litigation?
The people's courts shall, in the trial basis, is the applicable law, regulations, according to rules and regulations. Rules must be consistent with the laws, regulations, rules and laws; regulations are not consistent, not applicable regulations. Abstract file following the administrative regulations, cannot become the basis of administrative trial.
In this case, take the State Economic Commission, the Ministry of light industry, the State Administration for Industry and Commerce (1985) No. 440 document, belongs to the State Council department rules and regulations, legal order it in law and regulations, it shall not contravene the laws and regulations, otherwise have no binding force. The present situation is, "trademark law of the people's Republic of China" and "Implementing Regulations of the Trademark Law" unauthorized sale of others trademark logo, only provides compensation for the losses, and may be fined, but not "pursue illegal income" provisions. The 440 article of the tort provisions shall confiscate the illegal income, apparently inconsistent with the "trademark law" and "Trademark Law Implementing Rules", and therefore can not be used to determine whether the administrative behavior legal basis.
As for making business bureau, the province "on waste recovery work, diet, food service industry pilot scheme", do not belong to the administrative rules and regulations, is below the regulation administrative provisions, it can not be used as the basis for trial.
So, the people's Court of second instance is the right to the people's Court of first instance verdict on the correct.

 

 

 

The case5Introduction:

Plaintiff: Ge Jun, Eastern Trading Company sales. Defendant: a district public security bureau.
City Public Security Bureau Traffic order for rectification, in 1990 October issued a notice, request various motor driver at the end of 1990 years of full name of the traffic rules and pass the exam of driving, and physical examination; qualified driver's license renewal, unqualified persons not a driving license. The Eastern Trading Company salesman Ge Jun (male, 24 years old, height 1.74 meters), the same year in early 11 has participated in the Municipal Public Security Bureau organized traffic rules and moped driving technology test, achieved outstanding results. In mid November to the Municipal Public Security Bureau designated the city first people's Hospital for physical examination, the left and the right eye eyesight 1.5, five color blind, hearing, without any illness and body defects. The physical examination conclusion: health, consistent with the conditions of motor vehicle driver. In November 22, 1990, Ge Jun hold the examination results and physical examination form to the outskirts of the City Public Security Bureau for the moped driver's license, the District Public Security Bureau in accordance with the provisions of the District People's government, require Ge Jun to pay risk margin 240 yuan, to replace the moped driver's license. Ge Jun in November 24th of the same year with "their compliance with the statutory conditions, the District Public Security Bureau not to give the driver's license renewal" on the grounds, bring a lawsuit to the people's court, for any District Public Security Bureau to the change not to change its moped driver's license is illegal. Therefore, on the basis of "administrative procedure law of the people's Republic of China" article fifty-fourth (four) of the Convention, the decision as follows: order the District Public Security Bureau within seven days after the entry into force of the decision, give Ge Jun a moped driver's license.

Case5Comment.Here to comment: the legal property of administrative licensing act and condition lawfully exercise.
In this case, the State Council issued in March 9, 1988 "the people's Republic of China road traffic regulations" authorized public security organs in charge of traffic management, and shall issue a motor vehicle driving license responsibilities. This shows that, the public security organ is governed by laws, regulations and rules set by the administrative licensing subject. It have the right and obligation to comply with the statutory conditions of vehicle drivers, motor vehicle driver's license issued to the.
The city government regulations, "the provisions of article fifth Interim Provisions" city light motorcycle and moped driver management: "driving mopeds person, must have reached the age of 16, more than 1.45 meters tall, binocular vision (or correction) for 0, 7 above, no red, green color blindness, hearing, no hinder safe driving disease or physical defect, the hospital physical examination and the public security organs examination traffic regulations, driving technology of qualified, issued a moped driver's license." This is legal, administrative license conditions.
Ge Jun body to the hospital, meet the moped driver's condition, and the Municipal Public Security Bureau organized traffic rules and driving skill test. That is to say, Ge Jun meet the statutory conditions to be a moped driver's license, the District Public Security Bureau shall give the moped driver's license renewal.
The District People's Government in this case, in the absence of relevant laws, regulations or rules to the driver's license renewal of a risk margin situation, issued a document, the provisions of "the replacement must pay the risk margin 240 yuan", conflict with the laws, regulations and rules, is invalid, so it can not be used as the statutory conditions driver's license renewal. The District Public Security Bureau to ge Jun did not issue a driver's license.
The people's court review of that: the relevant laws, regulations and rules are not "must pay the risk margin, provisions to replace the moped driver's license"; District People's government documents related to "pay the risk margin, provisions to a motorcycle driver's license", conflict with the laws and regulations, do not have the force of law; GE Jun "Interim Provisions" shall meet the city light motorcycle and moped driver management of the renewal of the moped driver's license conditions; District Public Security sub nano risk margin, not to give the driver's license renewal belongs to the non performance of statutory duties.
In conclusion, the people's court within the District Public Security Bureau to ge Jun coruscate the moped driver's license is correct.

 

 

 

The case6Introduction:

Plaintiff: Yichang Maternal and Child Health-Care Hospital of Hubei province.
Defendant: Hubei province Yichang City Administration of industry and commerce.
The Hubei province Yichang City Administration of industry and Commerce (hereinafter referred to as the trade and Industry Bureau of industry and Commerce Department in February 11, 2000) should be made (2000) No. 027 administrative punishment decision book: the cognizance of Yichang Maternal and Child Health-Care Hospital of Hubei province (hereinafter referred to as the health hospital) in drug procurement activities, has received the money, physical distribution enterprise payment of the Yichang city Medicines Co 10 drug altogether 26, plan 58721.58 yuan, their actions violated the "PRC Anti Unfair Competition Law" (hereinafter referred to as the anti unfair competition law provisions of the first paragraph of article eighth) and the State Administration of industry and commerce "Interim Provisions" on the prohibition of commercial bribery in the first paragraph of article second, article fourth, is not fair competition act. According to the Anti Unfair Competition Law of the provisions of article twenty-second, the decision of the Institute is liable to a fine of 10000 yuan.
The health hospital is not the administrative punishment decision accused the administration of industry and commerce, lodge an administrative lawsuit in Hubei province Yichang city Xiling District People's court. The plaintiffs:
Administrative penalty decision, the existence of the facts and the law: (1) the defendant found errors in our hospital from 26 payments, totaling 58721.58 yuan, identified in our hospital from An Qi bio pharmaceutical companies operating the Department of the sum of error. My courtyard in July 9, 1999 to accept An Qi bio pharmaceutical companies operating the Department of donated 15900 yuan, already in December 17th the same year back to the operation of the 7846.39 yuan, the refund shall be from the total number of receive deductions. Therefore the actual donation amount should be 50875.19 yuan, not 58721.58 yuan; (2) donated all the money, have been included in the financial account in accordance with the law in our hospital, this is a kind of express discount behavior, does not belong to commercial bribery. Even if the problem of improper or wrong discount recorded subjects do exist, not by the administrative department for Industry and Commerce investigation; (3) in our hospital is the public institutions under ownership by the whole people, financial allocation, not able to as operators of market main body, does not belong to the Anti Unfair Competition Law to adjust when the range.
Two administrative penalty decision, the existence of illegal procedure problems: (1) the defendant in the "inspection notice" to inform the inspected unit is "Yichang maternal and child health hospital, Yichang Maternal and Child Health-Care Hospital," not us "". The defendant holds such "inspection notice" in our hospital were investigated, the investigation object is wrong; (2) the defendant of administrative punishment decision book only record the total amount of donations, not according to identify the carrying amount of evidence.
It requests the administrative punishment according to law to revoke the defendant's decision, and ordered the defendant to bear in this case all the costs of the plaintiff to submit the following documents health institute:
1 health care Institute for public institution legal person registration certificate;
The 2 Central Committee of the CPC, the State Council issued in January 15, 1997 "decision on health reform and development";
3 health hospital accepting the payment receipt, the bank cash deposit a group ticket;
4 health hospital accepting the money, material list;
5 Yichang City Red Cross certificate relating to the health hospital donated drugs;
The 6 Yichang Red Cross for the corporate registration certificate;
7 "in Hubei province to implement the" the people's Republic of China Red Cross Society > way ".
The defendant argued that: A, the plaintiff in 1998 November to 1999 August purchasing activities from the 58721.58 yuan of money, material, although the financial accounts of the unit, but the human subjects cannot be accurately accurately reflect the purchase cost, its behavior is essentially hidden secret kickbacks. Two, the plaintiff purchased units as the drug distribution in itself, not consumers, the purchase of drugs sold to patients. The plaintiff is the full allocation of medical and health institutions, but their daily business activities are paid, the drug purchasing behavior is a kind of commodity management behavior, belonging to the anti unfair competition law adjustment object. According to the State Administration of industry and commerce "on the prohibition of commercial bribery in the Interim Provisions" of article fourth and the State Administration of industry and commerce, the Ministry of health, the State Pharmaceutical Administration, the State Administration of traditional Chinese medicine, State Council office and commercial public word (1996) 127th document spirit, for the medical and health institutions kickbacks and other commercial bribery in the activity the purchase and sale of drugs act, the administrative department for Industry and Commerce has the right to investigate and deal with according to the provisions of the anti unfair competition law. Therefore, I Bureau of the administrative punishment decision made, finds that the facts are clear, correct application of the law, the people's court shall sustain.
The trade and Industry Bureau to submit the following documents:
1 suitable city industrial and commercial office word (2000) and the receipt of the administrative punishment decision No. 027;
2.2000 years in February 1st to make "administrative punishment decision book" and the receipt;
In November 3rd 3.1999, report forms for approval;
4.1999 years in November 16th to "end investigation about Yichang Maternal and Child Health-Care Hospital commercial bribery case report" (report of Health Hospital accepting money, material list);
5.1999 years in November 2nd, November 8th, November 9th respectively record of inquiry on health hospital Wu Qinge, Zhang Pei, Cao Min, Wang Yongqing each one;
In 1998 1999 6 health hospital, other income account;
7 health hospital accepting money, material accounting vouchers and receipts of ticket;
8 Yichang city of the Three Gorges pharmaceutical factory operating the Department of pharmaceutical sales invoice format;
9 "the people's Republic of China on Anti Unfair Competition Law";
10 "Hubei anti unfair competition act";
Interim provisions of the State Administration of industry and commerce "11 on the prohibition of commercial bribery";
12 Hubei Province Bureau of industry and Commerce in October 19, 1998 on the "reply" about the hospital is for "Anti Unfair Competition Law > adjust subject;
13 The State Administration for Industry and commerce, the Ministry of health, the State Pharmaceutical Administration, State Administration of traditional Chinese medicine, correct industry under the State Council jointly issued by the industrial and commercial office unwholesome tendencies Gong Zi (1996) No. 127th, industrial and commercial Gong Zi (1997) No. ninety-first paper, industrial and commercial Gong Zi (1998) No. sixty-sixth;
14 the general office of the State Council's way (1999) No. 75.
Hubei province Yichang city Xiling District People's court found:
The health care hospital for full funding system of ownership by the whole people health institutions, service object oriented society, set up inside and outside, women, children, skin, beauty care, oral and other medical subjects. From 1998 November to 1999 August, health hospital in drug procurement activities, has received Yichang city Medicines Co 10 drug distribution enterprises to pay 25 money 54921.58 yuan, from 3800 yuan worth of air conditioning units, two total 58721.58 yuan. Paragraph, more accepting, respectively. Other income accounts and fixed assets subject to the hospital in the financial accounts. In 1999 November, found that the problem was the commerce and Industry Bureau Inspection in drug distribution of Health Institute, by filing, investigation in 2000 February, to health care service "to inform the written decision on the administrative penalty". Health hospital within the statutory time limit does not exercise Chen Shu, the right of defence. In February 11th, the trade and Industry Bureau to make appropriate business office word (2000) No. 027 administrative punishment decision, to health hospital accepting paragraph, in violation of the Anti Unfair Competition Law Article eighth paragraph first, the State Administration for Industry and Commerce (1996) No. sixtieth "on the prohibition of commercial bribery" Interim provisions of the first paragraph of article second the provisions of article fourth, the grounds, according to the Anti Unfair Competition Law of the provisions of article twenty-second, decisions about health care hospital to a fine of 10000 yuan.
In February 13th, the administrative punishment decision book service health hospital. Health care not, filed a lawsuit.
Hubei province Yichang city Xiling District People's court that:
The plaintiff Health Institute said in a 15900 yuan from An Qi bio pharmaceutical companies operating the Department of post and returned to 7846.39 yuan, the refund shall be from the total number of receive deductions. Therefore, the total received payment should be 50875.19 yuan, not 58721.58 yuan. This proposition Health Hospital, not only inconsistent with their accounting records, nor provide relevant evidence, cannot be established. The industrial and Commercial Bureau Health Hospital accepting money, amounted to 58721.58 yuan, is correct.
Anti Unfair Competition Law of the provisions of the third paragraph of article second: "operators as mentioned in this law, refers to is engaged in the commodity business or profit-making services (hereinafter called goods including services) of the legal persons, other economic organizations and individuals." The provisions of this Corporation, will be engaged in the trading of goods or services for profit and other economic organizations and individuals are collectively referred to as the operator, not the economic nature of the operator to distinguish. Public health full funding institutions is the health hospital, but from its business activities, the provision of medical services and sales of drugs are paid, the purchase and sale of drugs is commodity management behavior. In addition, the Anti Unfair Competition Act eighth provisions of the first paragraph: "operators shall not adopt any property or other means of bribery to the sale or purchase of goods. Give a secret kickbacks in other units or individuals outside the account, to bribery; other units or individuals in the hidden secret kickbacks, bribes on to." Other units or individuals among them, but not to the operator, including all in public procurement activities in secret kickbacks from units and individuals rebate. Purchase of medicines health institute, is engaged in business activities of. Engaged in the activities of the health hospital, is the operator of anti unfair competition act. Health Institute said it does not belong to the adjustment object of the anti unfair competition law, reason cannot be established.
Anti Unfair Competition Law of the provisions of the second paragraph of article eighth: "operators to sell or buy goods, can offer discounts to others in public, you can pay a commission to the middleman. The operator gives a discount to the other party, pays a commission to the middleman, must truthfully record. An operator accepting a discount, commission must truthfully record." The so-called rebate, is the result of buying and selling in the account, secretly give or accept cash, in kind. The so-called discount, refers to the buying and selling of goods, give or take an express and truthfully record the way the price. Although both are providing or accepting certain economic interests in the business activities, but the difference is that the rebate is off, secretly, the rebate and business activities, party take evasive attitude in public; and the discount is to express and truthfully record the way between the parties, without avoiding discount and business contact. Here said the account, is established in accordance with accounting system, can reflect the business activities of the accounts, not to other accounts in addition to the. Although the health hospital in drug procurement activities from section, physical distribution enterprise pay drug account, but the man does not reflect the drug distribution business accounts, but other accounts. This account, cannot reflect the acceptance, and procurement of pharmaceuticals, the actual cost can not reflect the purchase of drugs, may not reflect the business activities between the two sides. Therefore, in this way, people accept payment account, for pharmaceutical trading activities, secretly or account. The trade and Industry Bureau Health Hospital accepting section, the act belongs to the account secret kickbacks, is correct. Health care claim this is a kind of express discount behavior, reason cannot be established. Anti unfair competition law twenty-second stipulates: "operators using property or other means of bribery to the sale or purchase goods, which constitutes a crime, shall be investigated for criminal responsibility according to law; if no crime is constituted, the supervision and inspection department may impose a 10000 yuan to 200000 yuan shall be imposed, and any illegal income shall be confiscated." The Bureau of industry and commerce according to impose a fine of 10000 yuan on health care, according to law.
The industrial and commercial bureau issued the "inspection notice" on the list of the inspected unit is "Yichang maternal and child health hospital", the name and the health hospital unit is a word. The trade and Industry Bureau to investigate and punish the fact, do occur in the health hospital. The industrial and commercial bureau investigation and punishment in fact, Health Institute in the absence of evidence that has given An Qi bio pharmaceutical companies operating the Department of refund of 7864.39 yuan, does not deny the facts concerned themselves with the other. Therefore, there is no survey error problem. "Inspection notice" on the list of the seized the unit name, it is a slip of the pen.
The written decision on the administrative penalty to make the trade and Industry Bureau, although only contain the illegal facts, not in accordance with the provisions of the administrative punishment law, "" the people's Republic of China contain these facts of evidence, the evidence already exists in punishment, and qualitative plaintiff health hospital only facts have objections, do not deny the fact itself. There. This shows, the written decision on the administrative penalty exists is not standardized, the content not complete problem.
To sum up, should make the city administration of industry and Commerce of word at the commerce and Industry Bureau (2000) No. 027 administrative punishment decision, finds that the facts are clear, the applicable law is correct, although there are irregular production problem, but do not constitute a violation of the statutory procedures, should be maintained. Accordingly, the Hubei province Yichang city Xiling District People's court decided in July 7, 2000: to maintain the commerce and Industry Bureau of industry and commerce at the appropriate word (2000) decision No. 027 administrative punishment; the case costs 200 yuan, the burden of health care institute.
Health Institute of the verdict of the first trial, appeal to the Hubei province Yichang City Intermediate People's court. The reason is: the appellant is health full funding institutions, is to provide health care services for the society and the use of drugs, not sell drugs. The appellant is engaged in non-profit public welfare undertakings, the proceeds used to compensate for lack of funding. The donations, the appellant received, according to the provisions do not remember one drug account, there is no account secret kickbacks problem. The judgment that the appellant is anti unfair competition law, secret kickbacks received kickbacks, is wrong to apply the law. The hand that administrative punishment decision making is not standard, content is not complete, on the one hand and the written decision on the administrative penalty is not in violation of the statutory procedures, is stultify oneself. In addition, the appellee on administrative punishment, not hearing procedures, in violation of the provisions of the law on administrative punishments. Request to withdraw the first instance judgment, to revoke the decision of administrative punishment by the appellant to.
That the appellant Health Institute in the second instance submit the:
1 the Ministry of health, State Administration of traditional Chinese medicine, the Ministry of finance, the State Development Planning Commission in July 18, 2000 issued "on the classification management of medical institutions in cities and towns of the implementation opinions";
In July 18th 2.2000 health hospital to the Yichang Municipal Bureau of Finance submitted "on the drug discount (donation) for" revenue accounting and Finance Bureau of Yichang on August 11, 2000 for the reply;
3 the Ministry of finance, the Ministry of Health issued the "hospital accounting system", "hospital financial system";
4 the Ministry of Finance issued the "enterprise accounting system", "rules of financial institutions";
In March 10th 5.1999 of Health Department of Hubei province finance hall, issued "on the medical and health units for the implementation of relevant provisions of the notification of new accounting system";
6 the health department of Hubei Province in October 19, 1999 issued "on the strengthening of medical fees and medicine purchase and sale management work of the notice";
In August 24th 7.1999, the Yichang Municipal Price Bureau issued the "Yichang City drug price management regulations";
Signed 8.1999 years January 1st Health Institute and Yichang Three Gorges pharmaceutical factory operating the Department of drug distribution enterprises supply agreement samples (6 copies).
The artificial board said in reply: the purchase and sale of drugs are paid, is actually the commodity management behavior. Anti Unfair Competition Law of eighth "prescribed in the first paragraph of the other units or individuals", does not exclude the legal institutions. The appellant received money, drug distribution enterprises, not offset the purchase cost, but in other income and fixed assets subject, their behavior has lost discount true colours, who takes into account commercial bribery rebate. The appellee on the appellant the fines are l million, without the application of hearing procedure. Court finds that the facts are clear, the applicable law is correct, should be maintained.
The appellee to the court of second instance supplementary documents submitted with:
Signed 1.1999 years January 1st Health Institute and Yichang Three Gorges pharmaceutical factory operating the Department of drug distribution enterprises supply agreement samples (5 copies);
The practice license of medical institution 2 health institute;
Unwholesome tendencies correct pharmaceutical sales in October 20th 3.1999 Health Institute of self-examination and self correction report;
4 health hospital reported August 30, 1999 "since 1998 purchase discount instruments of self-examination and self correction registration form"; the evidence is in the first instance after cross examination, but not to the court of first instance shall be submitted, the court of second instance requirements to submit supplementary.
Interim Rules on the hearing of the administrative organs of industry and commerce administrative penalties set 5 the State Administration for Industry and commerce "".
Hubei province Yichang City Intermediate People's court after trial, the appellant confirmed Health Institute in the first instance with fifth, 6, 7, the evidence is irrelevant to the case, can not be identified as the facts of the case based on; besides care centers and other evidence submitted by the respondent the commerce and Industry Bureau, made the program and collection legal, can be identified as the facts of the case according to the. According to the case of second instance effective evidence the fact that, as with the first instance. Also find out, the court of first instance trial of legal procedures, the parties to the court of first instance proceedings not dissent.
Hubei province Yichang City Intermediate People's court that:
The law of Anti Unfair Competition Law of second provided for in the third paragraph, including not only the operator holds a business license approval, registration, also includes other engaged in business or profit-making services related to market competition activities 99 legal person, other economic organizations and individuals. The appellant health hospital is financial full funding of the non-profit public health institutions, but their daily business activities are profit, this kind of activity is related to business behavior and market competition, should be in accordance with the anti unfair competition law to regulate. Standardized operation Health Institute in accordance with the law, does not affect the health hospital will be in the business of profit for its alleged make up the insufficiency of financial allocation. Health Hospital Appeal said its non-profit belongs to the full allocation of financial institutions, the proceeds used to make up the insufficiency of financial allocation, so it should not be anti unfair competition law of reason, can not be established.
The appellant health hospital to submit in the second trial evidence, that the receiving section, one account is consistent with these financial provisions. According to investigation, the evidence that health care should be how to balance the donation, material acceptance, not to accept the commission or discount should be how to balance. While the donation and rebates or discounts are different concepts. Donation can occur at any time, donations are free, not by the donor to donor activities make return as the premise. Rebates or discounts are happened in the business activities, is the operator to facilitate business use of means, accept commissions or discount a party must be made trading and operators, in order to obtain rebates or discounts. Although health care Institute of the paragraph, accepts as "donation" name, but can not cover the health hospital is accepting these paragraphs, the truth because made drug trade. If health care hospital and drug distribution enterprises not made drug trade, these enterprises will not give health hospital "donation". Therefore, the section, physical health hospital received donations, matter, not. Health Institute in accordance with the provisions of donations, one account to assert their right to receive payment is involved, things are not tenable. Due to a health institute, received although into account, but not as people account, do not meet the discount "express and truthfully people account" requirement, so the health hospital appeal claims these articles is disguised discounts or high discount, reason is not true.
The artificial board as the supervision and inspection department specialized in making punishment on health care, the appellant, was filing, investigation and evidence collection, and served the penalty notice, account statements and defenses of the right, the procedure of punishment in accordance with the law. Industrial and commercial administration make decisions of punishment in no specific load according to identify the existence of Health Hospital evidence of illegal name, make the punishment decision book content is not complete, is the slight defective administrative act. The administrative flaw of industrial and commercial bureau did not reach the violation of the legitimate rights and interests of the administrative relative degree, does not affect the validity of the punishment decision, therefore cannot be recognized that the procedure of Administrative Bureau of industry and Commerce of the illegal behavior.
"Administrative punishment law," the people's Republic of China stipulates that the forty-second: "the administrative organ to make decision to suspend production or business, shall be ordered to revoke the permit or license, the larger the amount of fines and other administrative penalties, it shall inform the parties have the right to request a hearing; if the party requests a hearing, the administrative organ shall organize a hearing." According to the National Administration for Industry and commerce to develop "the administrative organs of industry and commerce administrative punishment hearing the provisional rules" sixth article third provisions, the administrative department for Industry and Commerce impose a fine of 50000 yuan to a legal person or any other organization, shall inform the parties have the right to request a hearing. The appellee Bureau of industry and commerce to care the appellant the fines for 10000 yuan, did not meet the provisions on "the larger the amount of fines" administrative punishment law, can not apply the hearing procedures in accordance with the law. Health Institute of industrial and commercial bureau does not apply for the hearing procedures in violation of the provisions of the law on administrative punishments, the reason is still not established.
The appellee industrial and commercial bureau according to the verified facts, in accordance with the provisions of the anti unfair competition law in article twenty-second, the Health Hospital of the appellant sentenced to a fine of 10000 yuan, the applicable law is correct, the amount of the fine within the statutory range. A trial of administrative penalty decision decision to maintain the industrial and commercial bureau made, finds that the facts are clear, the evidence is sufficient, correctly applies the law, legal procedures. Accordingly, the Hubei province Yichang City Intermediate People's court in November 21, 2000 ruled:
Dismiss the appeal, upheld the.
The second case acceptance fee 200 yuan, the burden of the appellant by health care hospital.

Case6Comment.Here to comment: the industrial and commercial authorities whether the punishment of Health Institute in "program illegal"?
According to the "administrative litigation law of the people's Republic of China" in the first paragraph of article fifty-fourth (two) regulation, the specific administrative act "by administrative organs in violation of legal procedures," by the people's court to revoke the "". This shows that China legislation changed the past "heavy entity, light procedure phenomenon", began to legitimacy also attach importance to procedure.
In this case, the plaintiff two referred to the Hubei province Yichang City Administration for Industry and Commerce Act "program illegal": one is to make the punishment, in front of the survey, respondents are "Yichang Maternal and Child Health-Care Hospital", but "inspection notice" on the list of the seized the unit is "Yichang maternal and child health hospital," the name more than one word; two, Chang City Administration for Industry and Commerce on the penalty process, did not provide the hearing.
This involves how to identify "program illegal" the administrative jurisprudence.
In a broad sense, the step and the time limit of administrative action "program" not only refers to the behavior that must be followed, but also includes the behavior must reach the standard. So, the defects of this case "inspection notice" on may be included in the "program" category. But from the administrative law, not as long as the program (including form) a problem, make illegal procedure, which must be revoked. The illegal procedure should distinguish the main procedure illegal illegal and secondary procedures, and "major" and "minor" standard distinction lies in whether the program, the problem will lead to the adverse litigant entity right. If a procedural flaws will lead to the adverse litigant entity right, it belongs to the main illegal procedure, shall be revoked in accordance with the law; on the contrary, it is not withdrawn, but the problem of correcting. For example, a punishment for people from 50 years of age as 51 years old, will not affect the decision of his; but if a person subject to punishment from 13 years of age as 14 years old, it may affect his security punishment responsibility exempt. Because "the people's Republic of China Public Security Management Punishment Ordinance" the ninth stipulation: "the light punishment has over 14 years of age under 18 years of age who violates the administration of public security; dissatisfaction, exemption from punishment fourteen years old who violates the administration of public security, however, may be admonished, and ordered the guardian strict disciplining."
In this case, Yichang City Administration of industry and Commerce Bureau issued a "Notice of inspection", the "written" Yichang Maternal and Child Health-Care Hospital, Yichang Maternal and Child Health-Care Hospital, "" this is a sum of error, because industrial and commercial authorities in the real examination no wrong object. So, this is not constitutive and illegal procedure, only the form defects; administrative authority has the obligation and the defect, but does not affect the decision of the administrative penalty.
Hearing is an important procedure system established China's "administrative punishment law", its purpose is to give the parties to provide sufficient opportunity, to ensure accuracy of administrative decision. Hearing is an important procedure system, the administrative organ must comply with. So, if the administrative organ for the parties according to the law must provide the opportunity for hearing and does not provide, undoubtedly belongs to the illegal procedure, the people's court shall revoke.
China's "administrative punishment law" forty-second stipulates: "the administrative organ shall decide to suspend production or business, revoke the permit or license, the larger the amount of fines and other administrative penalties, it shall inform the parties have the right to request a hearing; if the party requests a hearing, the administrative organ shall organize a hearing." The State Administration for Industry and Commerce formulated "the administrative organs of industry and commerce administrative punishment hearing the provisional rules" article sixth (three) of the Convention, the administrative department for Industry and Commerce impose a fine of 50000 yuan to a legal person or any other organization, shall inform the parties have the right to request a hearing.
To control the specific situation of the case, the commerce and Industry Bureau of Health Institute is liable to a fine of 10000 yuan, did not meet the provisions on "the larger the amount of fines" administrative punishment law, can not apply the hearing procedures in accordance with the law. Therefore, industrial and commercial authorities not to be punished to provide opportunity for hearing does not constitute a violation of procedure.

   

 

 

The case7Introduction:

Plaintiff: Wang, male, driver
Plaintiff: Liu, female, unemployed
Defendant: County Public Security Bureau
The plaintiff Wang in a certain period of a day 20 when, driving Jiefang goods line to a four in the village, when a woman Liu (i.e. another plaintiff) request. The plaintiff Wang agreed to Liu. In the process of moving vehicle, the driver surnamed Wang not to another plaintiff the Hitcher Liu ask for money. Day and night at twenty-two forty, the car to a small town 2 km, is the County Public Security Bureau patrol officers intercepted. Because a woman Liu had a prostitution, in two years ago has been the County Public Security Bureau seized. So, that the County Public Security Bureau, Wang and Liu night long time in the same car, their behavior constitutes a whoring and prostitution, and in a certain period of a day in order to Wang somewhere a fine of 5000 yuan, Liu Mouchu to order a fine of 500 yuan. Wang Mou, Liu Mou refuses to accept the penalty notice ", from" the date of thirtieth days, bring an administrative lawsuit to the local people's court. The court to tell the parties concerned shall first apply for reconsideration to the public security organ. Then, two applicants who turned to the Legal Affairs Office of the City Public Security Bureau to apply for administrative reconsideration.
The Legal Affairs Office of the City Public Security Bureau initially thought the applicant filed an application for review has exceeded the "Regulations of the people's Republic of China thirty-ninth the regulations on administrative penalties for public security" period (5 days), it will not be accepted. If not, then again to the local people's court, the people's court to accept the case according to law.
The people's Court of the County Public Security Bureau of the specific administrative act (public security penalty decision) were reviewed, think: prostitution and whoring is two expressions of the same behavior of men and women, are inseparable. No prostitution, there can be no whoring behaviour. In this case, Liu although in three years ago, prostitution, however, does not prove that she is in this case also prostitution. Moreover, from the applicant and the respondent provided the materials of the case, in the subjective, Liu no prostitution intentionally, namely: not for profit purposes, in an attempt to acquire money from prostitution, Wang; deliberately, Wang is also no prostitution namely: pay Liu money, prostitution was attempted. From an objective point of view, Wang and no prostitution Liu Mou between the facts. Therefore, the people's court according to the relevant provisions of the administrative procedure law, the main facts of the plaintiff in the prostitution prostitution qualitative case is not clear and the evidence is insufficient, decided to cancel the County Public Security Bureau decided to Wang Mou, Liu Mou of administrative punishment.

Case7CommentDiscussion: here is limited to: 1 two the plaintiff applies for administrative reconsideration to the public security organs have not exceeded the time limit of? 2 people's court first rejected, second had received two of the plaintiff, correct?
County Public Security Bureau of the punishment is two, with two of the plaintiff "whoring and prostitution" on the grounds, according to security regulations for punishment, which belongs to the public security punishment. This is the premise of the case analysis.
"The people's Republic of China Public Security Management Punishment Ordinance" (1986) the thirty-ninth stipulation: "was ruled by the public security management punishment of the offender or victim refuses to accept the public security organ or the township (town) people's Government Award, in five days after receiving notification, can appeal to a higher public security organs, by a public security organ at the higher level after receiving the appeal within five days after the verdict; not a ruling of the public security organ may file a lawsuit, local people's court within five days after receiving the notice." This shows that, if a party refuses to accept the punishment for reconsideration within 5 days. But "the people's Republic of China Administrative Reconsideration Law" (1999) the ninth stipulation: "the citizen, legal person or other organization believes that the specific administrative acts infringe upon their lawful rights and interests, can apply for administrative reconsideration within sixty days starting from the date of the specific administrative act; except where the law application period more than sixty days. Due to force majeure or other legitimate reasons to delay the legal time limit for application, the application deadline from the day when the obstacle is removed to calculate." This shows that, for reconsideration Administrative Reconsideration Law stipulates the period is 60 days, is not consistent with the provisions in the regulations on administrative penalties for public. But because of the administrative reconsideration law "basic law" of China's administrative reconsideration, it's time to make a new "Public Security Management Punishment Ordinance", therefore, the public security punishment application for the reconsideration period should be 60 days, rather than 5 days. So in this case, the plaintiff applies for reconsideration in two received a penalty notice thirtieth days from the date of the application for reconsideration, and did not exceed the time limit.
"Administrative procedure law of the people's Republic of China" thirty-seventh stipulates: "the people's court to which the case scope of administrative cases, citizens, legal persons or other organizations may apply for reconsideration to the administrative organ at the next higher level or the provisions of laws, regulations and administrative organs, the reconsideration, bring a suit in a people's court; or file a lawsuit to the people's court. Legal, regulations shall first apply to the administrative organ for reconsideration, the reconsideration filed a lawsuit to the people's court, in accordance with the provisions of laws, rules and regulations." Combined with the "Regulations on administrative penalties for public security" the provisions of article thirty-ninth, certainly, the parties accept the decision of the public security organs punishment, should apply for reconsideration, the reconsideration only after the people's court, but not to the people's court. That is to say, this is a "reconsideration" administrative cases. Therefore, the parties without appeal directly to the people's court, the people's court shall not accept the.
For "prepositive reconsideration", if the administrative reconsideration organ refuses to deal with how to do? "Administrative procedure law" thirty-eighth stipulates: "citizens, legal persons or other organizations to apply to the administrative organ for reconsideration, the reconsideration organ shall, after receiving the application, make a decision within two months. Except the provisions of the laws, rules and regulations provide otherwise. Anyone who refuses to accept the reconsideration decision, bring a suit in a people's court in within fifteen days from the day of the receipt of the reconsideration decision. The reconsideration organ fails to make a decision, the applicant can be in after the expiration bring a lawsuit to a people's court within fifteen days. Except as otherwise stipulated by law." That is to say, for "prepositive reconsideration", if the administrative reconsideration organ fails to make processing, the parties may bring a suit directly to a people's court. So, the second people's court directly accept the prosecution is correct.

 

 

 

Case 8 introduction:

Qiao Zhanxiang v. Ministry of railway transport during the Spring Festival during some passenger train fare rise[1]

   The State Planning Commission on the basis of the Ministry of Railways submitted "on the part of the government guided prices for passenger train plan letter" (iron property function (2000) No. 253), in 2000 11 issued a "reply on issues concerning the government guided prices for partial passenger train" (total price (2000) No. 1960) (hereinafter referred to as "approved"), approved the implementation of government guidance price of some passenger train freight, allowing large passenger flow line and transport during the Spring Festival, summer, "five one", "eleven" and other major holidays, busy line passenger railway passenger train fare appropriate broke surface; allow part and the highway parallel, competition and other passenger less line train fare perennial to float downward, downward float on group passenger tickets, advance tickets passengers, at the same time the floating range, the examination and approval authority. And agreed to by the Ministry of Railways awarded railway passenger fares in 2000 December, as a passenger train floating fare (ex plan about the price (2000) No. 931).

The Ministry of Railways on the basis of the State Planning Commission issued "approved", "about the 2001 transport during the Spring Festival during part of the passenger train fare rise notification" (hereinafter referred to as the "notice" provisions, the Ministry of Railways): before (January 13th to 22) from Guangzhou (Group) company, Beijing, Shanghai Iron Railway Administration (from January 26th to February 17th, the Festival origin) for Chengdu, Zhengzhou, Nanchang, Shanghai Railway Bureau of predicate part of through passenger train fare rise, the new air conditioning train broke surface 20%, 30% above the other train. New year's Eve, the first lunar January, second is not broke surface. Children, students, active servicemen, disabled revolutionary servicemen fares do not go.

In December 21, 2000, the Ministry of Railways issued "notice on 2001 during the transport during the Spring Festival some passenger train fare executes floating". The notice stipulates ten days before the Spring Festival in 2001, 23 days after the Spring Festival in Beijing, Shanghai Railway Bureau, Guangzhou Railway (Group) Corporation predicate part of the through train fare rise from 20% to 30%.

Because the fare rise, Hebei lawyer Qiao Zhanxiang two time a total of more than 9 yuan to pay the. Qiao Zhanxiang bought in January 17, 2001 2069 from Shijiazhuang to Cixian ticket, in January 22, 2001 2069 times from Shijiazhuang to Handan ticket. The first ticket prices more than before spending 5 yuan fare, second ticket prices more than before spending 4 yuan fare. Qiao Zhanxiang believes that the Ministry of Railways this price behavior without the approval of the State Council, the State Planning Commission "on the part of passenger train fare executes replied" government guide price of no legal basis, in 2001 the Ministry of railway transport during the Spring Festival during part of the train fare rise behavior is not the price after hearing, not in accordance with law, violated the legitimate rights and interests the Ministry of railways, to lodge an administrative reconsideration, and then, in the Ministry of Railways to maintain the reconsideration decision, and bring an administrative lawsuit to the Beijing first intermediate people's court. The Beijing first intermediate people's Court of first instance by a public hearing, the judgment against Qiao Zhanxiang. Joe refuses to accept, appealed to the Beijing Higher People's court. Beijing Higher People's court think, notify the Ministry of Railways is reported to the authorities a specific notification and get done after approval. In the introduction of price measures, railway ministry floating behavior of price not inappropriate, and in accordance with the law rejected Qiao Zhanxiang's appeal, maintain the first instance judgment.

(a) the application for reconsideration case

1 the parties

(1) the reconsideration applicant: Qiao Zhanxiang, Department of Hebei Sanhe Shidai law firm.

(2) the respondent: the Ministry of railways.

(3) Third: the Beijing Railway Bureau, Guangzhou Railway Bureau, Shanghai railway bureau.

2 the request for reconsideration

(1) revoke the administrative act the applicant announced in January 4, 2001 2001 during the transport during the Spring Festival some passenger train fare rise;

(2) review by the applicant to make the administrative behaviors -- approved State Planning Commission on the passenger train fare part of implementing government guiding questions relating to the illegal, and revoked.

The 3 main reasons

(1) the train fare is not the market prices, but the government pricing, the applicant has no right to rise fare;

(2) in accordance with the "price law" provisions of article eighteenth, train fares are important public utilities and an important public service price, belong to the scope of government pricing. On the basis of "railroad law" provisions of article twentieth, train fares shall be approved by the State Council in accordance with the provisions of. Without the approval of the State Council, the respondent to a price rise is illegal;

(3) according to the "price law" provisions of article twenty-third, making the vital interests of the masses of public service prices, utility prices and government guidance pricing, government pricing, hearing system should be established, chaired by the competent department of price of the government, to solicit views from consumers, business operators and other aspects, demonstrates its necessity, feasibility. And the respondent failed to hold a hearing.

(two) the reconsideration decision situation

1 the facts and reasons

(1) the applicant did not provide by Shanghai Railway Bureau, Guangzhou railway in 2001 during the transport during the Spring Festival (Group) Company fare rise train evidence;

(2) the State Development Planning Commission has reported to the State Council, only issued reply;

(3) according to the provisions of the Ministry of Railways "price law" in article twenty-second, made a research and demonstration work, listen to the social from all walks of life and the opinions and suggestions of consumers.

2 the reconsideration decision content

Maintenance of railway ministry "notice on 2001 during the transport during the Spring Festival some passenger train fare rise".

(three) the litigation cases

The 1 parties

(1) the plaintiff: Qiao Zhanxiang, Department of Hebei Sanhe Shidai law firm.

(2) the defendant for the Ministry of railways;

(3) third for Beijing Railway Bureau, Shanghai Railway Bureau, Guangzhou Railway (Group) corporation.

The 2 claim

(1) the reconsideration decision to revoke the defendant made of iron (2000) No. 1 administrative reconsideration decision, and ordered the defendant to perform the administrative reconsideration law the twenty-sixth regulation review and transferring the statutory duties;

(2) decision to revoke the defendant made "about the 2001 transport during the Spring Festival during part of the passenger train fare rise notice".

3 facts and reasons

(1) notify the defendant issued to third people, the Railway Bureau of infringement of the legitimate rights and interests of I and the vast number of visitors;

(2) the defendant notice the lack of legal basis, not only the content of misconduct, and illegal procedure: A. according to the provisions of article twenty-fifth, the railway price law twentieth, making the train fare shall be approved by the State Council, but the defendant decided in 2001 to transport during the Spring Festival during part of passenger train fare floating without the approval of the State Council, the State Planning Commission has approved only B. according to the provisions of the price law; Article twenty-third, the State Development Planning Commission shall convene the train fare rise the price of the hearing, but the defendant fails to provide the fare rise hearing relevant document, data and facts.

(3) the application for administrative reconsideration, together with the State Development Planning Commission approved the lack of legitimacy, the request shall be subject to the examination, but the written reconsideration decision is not review, which do not perform their statutory duties.

4 the verdict

(1) the Beijing first intermediate people's Court of first instance by a public hearing, the judgment against Qiao Zhanxiang.

(2) Joe refuses to accept, appealed to the Beijing Higher People's court. Beijing Higher People's court think, notify the Ministry of Railways is reported to the authorities a specific notification and get done after approval. In the introduction of price measures, railway ministry floating behavior of price not inappropriate, and in accordance with the law rejected Qiao Zhanxiang's appeal, maintain the first instance judgment.

Discussion questions:

1 about the administrative reconsideration and the administrative litigation law is provided?

2 the Ministry of Railways "about the 2001 transport during the Spring Festival during part of the passenger train fare rise notice" is the abstract administrative act is a specific administrative act?

3 whether Qiao Zhanxiang has the qualification of applicant and the plaintiff qualification? The reconsideration organ to maintain the original specific administrative act, whether the plaintiff sued the reconsideration organ?

 

Case 8 comments:    The case is the court within the scope of accepting administrative cases of first level administrative organs for adjusting the behavior of government pricing, the government guidance price by citizens think tort is a lawsuit. Although the plaintiff in the case of lost, but the positive significance of this case should not be underestimated. In this case still is in the second period in January 12, 2002, the State Development Planning Commission on 2002 railway transport during the Spring Festival fare adjustment held the first national public price hearings in history. The case has promoted the formulation of hearing system of legal norms, improve the price hearing system of China, to promote the implementation of the price law, to promote administration according to law, is of great significance to safeguard the fundamental interests of the broad masses of the people.

   The case also involves some important theoretical problems: such as government pricing unspecific human subjects is a specific administrative act or the abstract administrative action as a result of the act; damage to the consumers have the qualification of the plaintiff; administrative behavior and the original specific administrative acts as a behavior at the same time trial. With regard to the nature of behavior, the court believed that railway issued "on the 2001 transport during the Spring Festival during part of passenger train fare executes floating notice" behavior is a kind of administrative law enforcement behavior, but not universally binding administrative legislation act. The target is not the not specific objects, but for the railway enterprise specific. And this behaviour is sustained implementation, not repeated application, therefore, this behavior is a kind of concrete administrative behavior. About ticket people have the qualification of the plaintiff, the court according to the Supreme People's court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China" in article twelfth of the interpretation of the "legal interest relations with the specific administrative act of the citizens, legal persons or other organizations of the act, shall be filed" in accordance with the law, notify the purchaser fare rise to pay fares, the relevant rights and interests are affected, this kind of influence is the "the fact that the legal interest" exists between purchasers and action. On the behavior and the original specific administrative act as a behavior at the same time trial, the court believed that according to the "section second" administrative litigation law of the people's Republic of China and the Supreme People's Court of the twenty-fifth judicial legislation purpose specified in the first paragraph of article fifty-third explanation, to maintain the original administrative act, should be based on the original administrative act as litigation the subject, the behavior and the original specific administrative act, not as a behavior at the same time trial.

Now China has joined the WTO, people's awareness of the law has improved markedly, the thought of "Three Represents" and Marx Lenin, Mao Zedong thought, Deng Xiaoping theory together has been written into the constitution, government departments at all levels should firmly establish the important thought of "Three Represents", to keep pace with the times, always tighten the string of administration according to law. This is the thorough implementation of the basic strategy of governing the country according to law, but also the requirements of building a well-off society. 

Appendix:

Problems should be noticed in this case

The legal dispute and related materials in this case has four aspects, should be noted in the case of using the:

1 the scope of administrative litigation

"Administrative procedure law" second stipulates: "citizens, legal persons or other organizations hold that a specific administrative act of administrative organ or its personnel infringe upon their lawful rights and interests, have the right to bring a lawsuit to the people's court in accordance with this law." But if not for all the specific administrative act, it may bring an administrative lawsuit? In the first paragraph of this method to enumerate eleventh provisions in the form of eight kinds of acceptance by the people's court cases, and in the second paragraph, "except the provisions of the preceding paragraph, the people's court accepts the laws, regulations and other administrative suits which may be brought." The law twelfth also clearly stipulates: "the people's court shall not accept the citizen, legal person or other organization filed on the following matters: (a) the lawsuit behavior of national defense, diplomacy etc.; (two) administrative regulations, rules or making of the administrative agency, released universally binding decisions, orders; (three) administrative organs the functionaries of the administrative organ of reward and punishment, or decisions; (four) the law by the specific administrative acts of the final decision."

2 on the concrete and abstract administrative acts distinction.

　The specific administrative act, refers to the specific object of administrative main body, made the decision on specific matters. Specific administrative behavior compared with the abstract administrative behavior, with a specific and direct, for a specific object of rights and obligations directly affect.

On the abstract administrative behavior, is a generally binding normative documents formulated by administrative organs. The Supreme People's Court of the new judicial interpretation of the abstract administrative act is defined as "administrative normative documents of administrative organs for non specified objects release can be applied repeatedly". Visible, the basic characteristics of abstract administrative act is, "the object is not specific," "applicability", "normative".

Standard distinction between concrete and abstract administrative acts are the following four:

First, the adjustment range. Abstract administrative act is generally adjusted unspecific majority and many things, however, the specific administrative act only to certain people and things.

Second, whether the repeated application of different. Abstract administrative act is generally in the form of normative documents show, implementation of normative documents not only once, in the same conditions, repeatedly used, namely normative documents in the validity period, there have been adjusted and binding the specific administrative act; just for the handling of the matters are not effective, applicable to other matters.

Third, influence the relative person rights and obligations in different ways. The specific administrative act for the relative person's rights and obligations directly make a decision, directly affect the rights and obligations of relative person; abstract administrative act for the general performance of the specification, does not directly lead to changes in the relative person rights and obligations, only through the implementation of specific administrative conduct activities, and to achieve the abstract administrative act.

Fourth different procedures, behavior. Abstract administrative action and the concrete administration action follow different rules and procedures, influenced by different rules of procedure. Abstract administrative action program close to the legislative process, generally require a consultation procedure and published procedures; the specific administrative act emphasizes the investigation procedure, hearing procedure.

Fifth, different way of relief. The specific administrative action, the abstract administrative act is not actionable. Abstract administrative act may apply for administrative reconsideration; specific administrative acts can be directly recognized by the reconsideration organ or the people's court, maintenance or revocation.

 Notice of the Ministry of Railways belonging to 3 whether the specific administrative act

The Ministry of Railways of the "notice" in accordance with the specific administrative act legal characteristics:

(1) "notice" of the specific object. As mentioned before, the concrete and abstract administrative acts have specific objects, in a broad sense, their objects are specific, are characterized with "specific object". However, the abstract administrative act is specified for a class of social relations, the object is a type of social relations instead of a particular person, this not a specific person is difficult to determine; and the specific administrative act is decided to a social relationship, the object is a social relationship and specific man, this particular person may give his name, also may not give his name, but their range is able to determine the. In this case, the Ministry of Railways of the "notice" is for the railway transport enterprise to make, "notice" is the object that the railway transport enterprise, therefore, the object is specific.

(2) "notice" has not applied repeatedly. "Notice" clearly stated in the railway transport enterprise specific train in specific period of price increases. "Notice" provisions allowing the price of railway transport enterprises can only in specific period specific train prices. The railway transport enterprise did not allow the price may not rise; any particular period time shall not rise; non designated train shall not rise. Especially the "notice" pointed out the 2001 price during transport during the Spring Festival, other years will not rise in price in accordance with the provisions of this "notice".

(3) "notice" has no standard. "Notice" provisions, not just a kind of social relationship to make so, it's very specific provisions, clear.

4 Qiao Zhanxiang's eligibility and qualification of the plaintiff

According to the above analysis, the railway ministry "notice" of the specific administrative act, but also relates to property damage, which belongs to the range of "acceptance of the administrative review law" and "administrative procedure law," the scope of accepting cases. "Notice" to allow the three Railway Bureau under the train in transport during the Spring Festival during floating, damage to ride the three Railway Bureau under the train passengers interests, is one, in the law of the Ministry of Railways Qiao Zhanxiang if the "notice" disaffected, can apply for administrative reconsideration or bring an administrative lawsuit.

This case involves the legislative information

1 "administrative procedure law"

(1) fifthPeople's courts in the trial of administrative cases is to review the legality of concrete administrative behavior.

(2) Eleventh People's court accepts the citizens, legal persons and other organizations may initiate litigation to the following specific administrative acts:

(eight) that the administrative organ infringe other personal rights, property rights.

2 "price law"

(1) establish the vital interests of the masses the provisions of article twenty-third of the price of public utilities, public service prices, natural monopoly of commodity prices and government guidance pricing, government pricing, should establish the hearing system, hosted by the government department in charge of prices, for consumers, business operators and other aspects of the opinion, demonstrates its necessity, feasibility.

(2) "railroad law" the twenty-fifth stipulation: the national railway passenger fares...... Drafted by the railway administrative department of the State Council, submitted to the State Council for approval.

 

 

 

 

 

Case 9 introduction:

Song Zhikun, the people's Government of Xiangzhou District, Zhuhai City, the Song Zhiqiang brothers v. Zhuhai Municipal People's government housing units

One, the parties
Plaintiff: Song Zhikun, East Guangdong Province in Zhuhai Xiangzhou District No. 158
Plaintiff: Song Zhiqiang, lived in Chittagong Zhuhai Hotel room.
Defendant: Xiangzhou District of Zhuhai City People's government.
Defendant: Zhuhai Municipal People's government.
Third: the Zhuhai Special Economic Zone Red Sea Real Estate Co. ltd..

Two, the case
Xiangzhou District of Zhuhai city and 12 houses before God (God before the three lane 3 West House) built for the plaintiff. October 20, 1987, the plaintiff "obtain a land use certificate credentials", Xiangzhou District of Zhuhai City, clean non plaintiff in China before the village before God 120 square meters of land on the construction of private housing approved agricultural land office. February 24, 1988 issued a "residential buildings, building repair reply book" approved by the Xiangzhou District, Zhuhai City Construction Committee, approved the plaintiff and Liang Dayou built a house of three storeys, Qian Cun Wei, Xiangzhou District, China will by Suiko Street office, China before outside the village economic cooperatives together before God to prove the construction area of 353.52 square meters of housing has been Wei Hui, please examine and verify, the city housing authority to apply for housing registration procedures. In June 13, 1989 and 17, Zhuhai City Land Bureau two times to the illegal construction and not hang construction land use permit on the grounds, to the housing and connected residential (Song Zhiqiang house) to a fine of 16200 yuan. In May 29, 1991, Zhuhai City, Xiangzhou land management to the plaintiff issued a notice, inform the plaintiff by the land use certificate credentials original and purchase invoices for the land use certificate. But the plaintiff did not apply for the registration of real estate, has not yet been built for the Zhuhai city Xiangzhou District Hua Qian Cun outside before God 12 of the housing property certificate.

In October 26, 2001, Zhuhai city Xiangzhou District Office issued demolition pearl incense and Gong (2001) No. ninth "city housing units notice", as agreed to the third people of Zhuhai Special Economic Zone Real Estate Company Limited is responsible for external Dan sea god before implementation of the village old village alteration, foreign god of the village of housing for residents, the village rebuilding the red line all were all housing and affixed to buildings (Escrow) or use in the announcement of the date within 30 days, contact the effective documents with the removal of people to handle the relevant matters relating to the demolition. The outer gods before the 12 housing is located above the alteration within the red line. Zhuhai city Xiangzhou District City Old Village transformation of civilized community construction leading group office (referred to as the city rebuild Office) to "Zhuhai city Xiangzhou District City Old Village real estate property and affixed to real compensation approved list" in December 12, 2001, the approval of God No. 12 building illegal construction area of 554.07 square meters, should be compensation for the demolition area of property rights for 240 square meters, should be paid to the price of 222560 yuan (160 x 1300 74180), shall pay a fine of 3600 yuan, has a fine of 16200 yuan. The plaintiff was with third people on demolition compensation can't agree, third people on the grounds of the plaintiff refused compensation contract, to the Xiangzhou district residents office an application for arbitration. In January 23, 2002, Zhuhai city Xiangzhou district office buildings to make pearl incense housing demolition cutting word (2001) No. seventh "minimum Award", that the plaintiff failed to provide evidence of the relevant lawful and effective, mainly the lack of evidence, the request will illegal buildings housing area is not established as a legitimate area. Award: 1, Xiangzhou District of Zhuhai City, former outside the village before the gods of No. 12 building of legal construction area in Zhuhai District of Xiangzhou city old village transformation of civilized community construction leading group office of housing is the right set of data as the standard, that is 240 square meters. 2, the respondent (the plaintiff) after receiving the award books within 5 days before God out of the outside No. 12, delivery of the applicant (third people) to implement the relocation. Provided by the applicant temporary resettlement housing or rental housing turnover. The plaintiff Song Zhikun refuses to accept the award in 2002 20 April, the trial court administrative proceedings.

Three, the trial
Trial court that: a according to "estate management law" provisions of the people's Republic of China City Housing fifty-ninth, China's implementation of the right to use the land and housing ownership registration system; Guangdong Province "urban real estate registration regulations" stipulates that the fourth only to real estate management department issued by the real estate warrants only is the property of the person exercising the property right certificate. The plaintiff in the Xiangzhou District of Zhuhai City, built outside the village god before 10 years ago 12 houses, not for property registration, has not obtained the property rights certificates in the housing, city reconstruction in real compensation "approved list" approval of the housing construction area of 554.07 square meters of illegal construction area, not in violation of provisions the relevant laws, rules and regulations. The housing has been part of the construction area of construction approval and relevant for the property credentials, but has not achieved the "land use permit" or a "land use right content of real estate". According to the "Zhuhai city Xiangzhou District transformation of the old city old village building civilized communities supporting policies and implementation measures" provisions of paragraph (two) of first to fifth, land expropriated farmers or collective purchase homestead building, did not apply for transfer procedures and obtain the "use of land" or with land use rights content of the "real estate warrants", in 160 square meters per household within the section, to pay the premium (Hua Qian Cun, according to 741 yuan / square meters standard) shall handle the relevant formalities, shall impose a fine of 15 yuan per square metre after compensation according to the proportion of 1:1, more than 160 square meters per household by existing commercial housing leasing price standard (Hua Qian Cun, 1300 yuan / square meters) to pay the premium. But the "notice" on the supplementary provisions of measures for the implementation of Zhuhai District of Xiangzhou city old village transformation construction of civilized community supporting policy each parcel property compensation is highest do not exceed 240 square meters. The calculation standard of city rebuilding do make "demolition compensation area real compensation plaintiff housing approved" the determination table and the amount of compensation, in full compliance with the normative documents and the spirit of the policy. (two) the "Regulations" City Housing Units management provisions of article sixteenth, residents were taken with no minimum compensation settlement agreement, the client application, the housing units management decisions. Xiangzhou district office as the demolition of Housing Units management  shall make decisions taken, in accordance with the above provisions. According to the city into a ban made real compensation "approved list", the plaintiff in the premium payment and pay the fine, 240 square meters of building area according to legal construction area of compensation, so Xiangzhou district to do the demolition ruling that the housing construction area and the real Shi Chaiqian the house demolition compensation of the delivery period, the full facts applicable laws, regulations, correct, consistent with the statutory procedures, should be maintained. Three "city planning law" stipulates that the fortieth content for violation of city planning construction behavior treatment principle, no illegal buildings approved by the planning departments of the punishment must be made legitimate title content, the housing has been my authorities fined, but still did not obtain the property right certificates of the house, the plaintiff to the provisions in the housing that can go through the formalities after obtaining legal construction compensation standard, belong to distort the legal provisions, the court shall not support. (four) the plaintiff submitted "compensation approved list" the city without alterations do confirm, not as a final basis, the school only to the city rebuild office stamped confirmation of "real compensation approved review table"; and the compensation for the outsider is legal and is the same as the plaintiff, also do not belong to this case scope of review. The plaintiff in the city without alterations do confirm the "demolition compensation standard compensation approved list" and the outsider, that illegal construction area should be 114 yuan / square meters to pay the premium, the lack of factual and legal basis, the court shall not support. To sum up, Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group office to make "real estate and appendages in Xiangzhou District of Zhuhai City Old Village Housing real compensation approved list" and Xiangzhou district office buildings to make pearl incense housing demolition (2001) No. seventh "minimum Award" the full facts, applicable laws, regulations right, legal procedures, in accordance with the law shall be maintained. In accordance with the "administrative procedure law of the people's Republic of China" article fifty-fourth (a) the provisions of item, decision: Zhuhai city Xiangzhou District City Old Village real estate and belongs to the material, to maintain Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group office in December 12, 2001 to make "real compensation approved list"; two, to maintain the Zhuhai city Xiangzhou district office buildings made in January 23, 2002 pearl incense housing demolition cutting word 2001 No. seventh "minimum award". First trial cases accepted 100 yuan from Song Zhikun burden.

Song Zhikun refuses to accept the original judgment to the provincial court of Appeal said: by the appellant to the specific administrative act and the original judgment improper application of the law, judgment is not allowed, in violation of state law and the fundamental principles of law of the fair. The appellee on himself and third housing units compensation issues, the housing for the illegal construction in addition to a fine, not to compensate, so I caused huge economic losses, I violated the legitimate rights and interests, the court was ruling in order to maintain is wrong. The specific administrative act requested the court of second instance 1 to withdraw the first instance judgment and the two defendant; 2 to two by the appellant to confirm the removal compensation price compensation and deserve the appellant.

The district government reply said: according to the Zhuhai Municipal Planning Bureau "about urban housing registration certification Provisions Supplementary Notice", where after 1 August 1985 the newly built houses, must hold the city planning bureau or its dispatched institutions approved the "construction planning permits" and "repair buildings, license" and the city planning bureau or any of its dispatched institutions approved "re construction certificate", in order to handle housing property registration certification. Zhuhai City Planning Bureau "Regulations on private illegal building began construction and private housing provision" basis, all private illegal building began construction, must go to the city real estate sector was measured, then submit two copies of the measured plane graph, together with other application materials to the City Planning Bureau of villages and towns management to apply for retroactive application formalities. But the respondent did not apply for re submit the application formalities. "City real estate management law" and the "Zhuhai real estate registration regulations" are clearly defined, the property right certificate is the legal certificate of the right of people to enjoy and exercise the rights of real estate. By the respondent did not submit application formalities, apply for the registration of real estate and obtain a certificate of real estate, but also by the respondent in 1989, June and August two times by the relevant departments of the government shall be fined by the respondent  obviously, all of the housing (554.07 square meters) of illegal buildings. In accordance with the provisions of the "Regulations" City Housing Units management twenty-second, the illegal demolition of buildings without compensation. Zhuhai municipal Party committee, City Hall considering the actual situation of the transformation of villages in the city, to develop "about Xiangzhou city old village transformation construction of civilized community supporting policy implementation. (a), (two) Notice", City Hall alterations do according to the above preferential policies, the respondent's 554.07 square meters of illegal buildings made "City Old Village real estate property and affixed compensation approved list" (11.2.87 two) is correct, by the respondent that their houses have been departments fine too, should be given compensation according to the legal construction, its claim there is no legal basis. The decision is correct and should be maintained, requested the court of the second instance shall dismiss the respondent's claim.

Zhuhai City People's Government defense opinions and the appellee Xiangzhou District People's Government defense opinions are basically the same, the request is upheld, rejected the appellant's claim.

The second instance court that, "planning" the people's Republic of China City ninth provisions of the second paragraph: "above the County Department of the local people's Government in charge of the city within the administrative area of city planning" provisions of article fortieth, "effect of city planning, but can still be remedied, by the local people's governments above county level city planning administrative department shall order it to correct, and impose a fine." According to the above provisions, the city housing is considered illegal construction and illegal construction fine processing, should belong to the local people's governments above county level city planning departments of the duties in accordance with the law. The appellant Zhuhai City Hall consists of the Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group office  belongs to the Zhuhai Municipal People's government temporary internal office, Zhuhai Municipal People's government failed to provide the relevant normative documents to prove that the office has the right to recognition and treatment  the office before God outside No. 12 housing before God House Lane three West No. 3 is identified by an illegal construction and processing fine on the appellant is located in Xiangzhou District of Zhuhai city on illegal construction, that the appellant housing 554.07 square construction is illegal, should pay a fine of 3600 yuan, shall pay the premium of 222560 yuan, the lack of legal basis. By the people's Government of Zhuhai City, the appellant in the Pearl's Office (2000) No. 63 "on the establishment of Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group notice" also does not specify the Zhuhai District of Xiangzhou city old village transformation of civilized community construction leading group office has the right to deal with illegal structures, therefore  is the appellant to Leading Group Office of the name of an approved table, the lack of legal basis, in accordance with the law shall be revoked. The provisional institutions of Zhuhai City Hall consists of the Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group office to make real compensation approved list of two to cancel the appellee quilt, Xiangzhou District of Zhuhai City office buildings to the approved list of two) as the basis, make pearl incense housing demolition cutting word 2001 seventh No. the minimum award, the lack of factual and legal basis, should also be to be revoked according to law. The trial court finds that the facts are clear, but the erroneous application of the law, judgment is improper. According to the "administrative litigation law of the people's Republic of China" sixty-first second and fifty-fourth second in second eyes, the decision to withdraw Zhuhai City Intermediate People's Court (2002) bead method for early word no. tenth administrative judgment; revocation of the Zhuhai District of Xiangzhou city old village transformation of urban civilization construction leading group office in 2001 date in December 12th made "Zhuhai city Xiangzhou District City Old Village real estate property and affixed to real compensation approved list"; to revoke the defendant Zhuhai city Xiangzhou district office buildings made in January 23, 2002 pearl incense and cut the word 2001 No. seventh "minimum award". A second case acceptance fee, a total of 200 yuan, by the Zhuhai Municipal People's government, Zhuhai city Xiangzhou District People's government.

Analysis of case 9:
With the accelerated pace of city construction, city housing demolition hot administrative cases has become the administrative trial. Housing demolition disputes, in the final analysis is how to solve the problem of compensation and resettlement, relocation of people at present, because the relevant laws and regulations are not perfect, all compensation standards, administrative power intervention component is too large, resulting in the court administrative trial faces many difficulties.

This case mainly involves the following questions:

(a) of the defendant qualification of administrative subject.

On the qualification of administrative subject area residents do, according to the "Regulations" City Housing Units management sixth "estate administrative departments of the local people's governments at or above the county level people's government housing or the departments authorized by the provisions, in charge of the administrative districts of the city housing units work" and no objection. This case is mainly to the Urban Construction Office of the qualification of administrative subject are controversial, because the district residents do differ is in the City Urban Construction Office approved real compensation approved list as the basis, the city urban construction do have the qualification of administrative subject, directly affect the demolition ruling the legal validity of administrative acts. A kind of opinion thinks, the city urban construction office of Zhuhai City Hall established, responsible for city old village construction of civilized community coordination, have the right to deal with illegal construction, the legal consequences borne by the City Hall, has the qualification of administrative subject. Another view is that the characteristics of city construction, do not have the administrative main body, does not have the qualification of administrative subject. The administrative subject, refers to the establishment of independent administrative action of administrative behavior, and make the results of independent responsibility of national administrative organ or organization authorized by laws and regulations. Administrative organ, the administrative organ of authority obtains the main body qualifications, must have several conditions: 1 the establishment has been approved by relevant authorities; 2 articles of association or organization, responsibilities, authority; 3 existing legal system, equipped with personnel; 4 have independent administrative budget. In this case, according to the Zhuhai Municipal People's government with Pearl's Office (2000) No. 63 "on the establishment of Zhuhai District of Xiangzhou city old village transformation of the old city civilized community construction leading group of the notice", and there is no clear provisions in the Zhuhai District of Xiangzhou city old village transformation of civilized community construction leading group office has identified and fine illegal construction authority  urban construction do just temporary agencies from each department personnel, responsible for the coordination of the old village building civilization community reconstruction work, neither fixed positions, no independent budget, in addition, also has not entrusted, clear authority authorized by law and administrative therefore, city construction office does not have the administrative subject qualification, administrative behavior do not have the force of law, district residents do to the City Urban Construction Office approved does not have legal effectiveness of real compensation approved list as the basis of adjudication, the lack of legal basis.

(two) the defendant of administrative act is ultra vires questions.

According to the principles of administrative law, administrative management, administrative organs to implement is a kind of state power, which belongs to the category of public power, in order to prevent the abuse of public power, in the country under the rule of law, the public power is determined by the Constitution and the law, that is to say, each administrative authority are produced in the laws, the law explicitly granted to the power, the administrative power off before they can exercise, the law does not grant the power, the administrative organ can not exercise, the administrative organ to exercise the power in the power law behavior outside the scope, it shall be invalid. Ultra vires, this is a legal principles of administrative law in china. In this case, involving punishment administrative recognition and illegal construction of City Housing Authority, the law is defined. "Planning" of the people's Republic of China City ninth provisions of the second paragraph, "above the County Department of the local people's Government in charge of the city within the administrative area of city planning", the provisions of article fortieth, "the effects of city planning, but can still be remedied, the local people's government at or above the county level city planning administrative department shall order within a time limit to correct, and impose a fine." According to the above provisions, the city housing is considered illegal buildings and fine processing, should belong to the local people's governments above county level city planning departments of the duties in accordance with the law. City Construction Office as a temporary government institutions, does not have the qualification of administrative subject, not authorized by law, that has no right to make illegal construction of city housing and to the fine, belong to the invalid administrative act. According to the "Regulations" City Housing Units management, city housing demolition work is to do the demolition of the statutory duties, but the law does not give the residents do have to make the right conviction and punishment of illegal construction of the housing of city, district residents do to urban construction do to make real compensation approved list as a basis for judgment rule, is the essence of the exercise of the right cognizance and punishment of illegal construction of city housing, also belong to more than the statutory duties, is ultra vires.

(three) the defendant of administrative behavior of public power problem.

The case involved two different administrative body, the specific administrative act different, both the legal relations of administrative punishment, and the demolition of housing legal relationship of administrative act, after a previous administrative acts as a basis for judgment, they interweave each other, rely on each other, so the cases complicated. A view of the case of housing demolition administrative dispute, the relative people mainly brings an administrative litigation Award for the demolition of housing, urban construction do to make real compensation approved list, if the city urban construction do not have administrative main qualifications, can not to hear, review the legality and for district residents do administrative adjudication. Legal and maintain, not legitimate to revoke. Another view is that the administrative behavior, the case left the city construction office, no trial, also involves the problem of how to treat the presumptive legality of administrative act. The presumptive legality of administrative act, refers to the established, whether or not legitimate, which has a law is presumed to be legitimate and all organs, organizations or individuals shall respect the effectiveness. That is to say, public power is a presumption or assumed by the legal effect of administrative action, unless significant, major illegal, in the legal procedures by legal authorities before the failure, should the legal presumption. Therefore, public power does not mean that the administrative act is legal or not. In the administrative law, is to make such a presumption of administrative behavior, because the status and function of administrative subject shall be fully trust and respect, and thus the stability of the relationship of rights and obligations. Public power is a kind of obligation of respect. It requires the administrative authority, organizations and individuals have made to the administrative main body respect, can not be denied. In this case, the city urban construction do to make real compensation approved list, third people to the Real Estate Company as a bargaining chip, that the plaintiff housing construction is illegal, only agreed to compensate the half; district residents do as the basis, to confirm the plaintiff housing construction is illegal, in support of the third Real Estate Company requests. Administrative city construction office has undoubtedly has the sense of administrative law of the public power, can not be denied, only through legal procedures by the legal authority to review and revoked, its behavior before they lose their legal effect. Therefore, it relates to the city urban construction office administrative conduct the review of legal review on administrative adjudication to district residents do at the same time, also only review the legality of administrative acts, urban construction office, to the district residents do make the house dismantlement administrative ruling by judge. The author thinks, the second instance court in the case of the cognizance and judgment is correct.

 

 

 

 

 

 

 

 

Case 10 introduction:

The township government "investigation and handling opinions" is legal[2]

The plaintiff Wang Gen, male, born in November 4, 1944, Han nationality, culture of junior high school, Luoyang high tech Zone sun Qi Tun Xiang Hou Wu Long Gou Cun, two groups of farmers, live in the village.

   The Luoyang high tech Industrial Development Zone, sun Qi Tun Xiang People's government, the domicile of Luoyang high tech Zone Luo Yi Road No. 39.

   Third an Zhang, male, born in June 2, 1945, Han nationality, culture of junior high school, Luoyang high tech Zone sun Qi Tun Xiang Hou Wu Long Gou Cun, three groups of farmers, live in the village.

   Sun Qi Tun Xiang Hou Wu Long Gou Cun, belonging to the outskirts of the city of Luoyang (the original was placed under the Jianxi area after, now transferred to high tech Zone), in 1995, the people's government issued an chapter to suburbs "Luo Jiao Ji Jian Zi No. 4000th collective land use permits", determine an Zhang homestead area: 25.87 meters from east to west, North South width of 10.62 m, the total area of 274.7 square meters; four: East Road, West Road, South to open, North for the An Shuming homestead. The existing evidence showed that: the chapter house south is two group of land, the plaintiff Wang root on the panel agreed, farming the land from the year 1990 , but the specific number is unknown. Chapter house and the adjacent plots.

   At the beginning of 1998, an Zhang South Housing expansion, according to Wang Genshang, an Zhang residential expansion encroached on their own responsibilities, to stop invalid, namely, to reflect the sun Qi Tun Xiang People's government petition. In April 27, 1998, sun Qi Tun Xiang People's government land office staff organization Wulong Gou Cun Cun Wei, director, secretary, two group, three group leader, village land administrators in making three groups, "an Zhang and two groups of villagers Wang Genshang dispute case, Xiang to the relevant personnel investigation record" records: a, "1, an Zhang Zhai Nan into two groups of wasteland, the king put forward by the 1990 on the roots of farming, the actual pile shortage. In 1990 2, the village roads were occupied land acreage unequal, then adjust, two groups should be adjusted to the three group, the land is transferred to the three group. The 3 chapter, an extension of two group occupied building about 0.1 acres of land, has been transferred to the three group, by an Zhang Jian Zhai "etc.. In July 15, 1998, the people's Government of "Sun Qi Tun Xiang made about Wang root reflect responsibility farmland occupied about the investigation and handling of opinions", content is: "1, on the basis of investigation, an Zhang Jian Zhai occupied land is composed of two groups to three groups, use right should belong to the three group. The 2 chapter house building, there is no infringement problems. 3, an Zhang Zhai Nan is planning area farming curtilage (land). 4, two, three two group of land up to a village, opinions. The two group still owe three group 0.3 acres, three groups no longer have to "etc.. Sun Qi Tun Xiang People's government official seal. In August 24, 1998, sun Qi Tun Xiang People's government sent to the "survey and treatment advice to Wang Genshang". Wang root on 9 2000 26 to the Jianxi District People's government administrative reconsideration, November 21, 2000, Luo Jian Zheng referendum word (2000) No. 5 administrative reconsideration decision, maintenance of the township government processing opinion.

   The plaintiff Wang root administrative proceedings, request to withdraw the "investigation and handling opinions", and compensation for economic losses.

   The township government argued that: 1, the respondent is entitled in accordance with the "land management law" sixteenth paragraph second "between individuals, between individuals and units of the dispute, shall be stipulated by the people's governments at the township level people's governments at or above the county level or processing", between the king and the root part of land use rights disputes, make comments. 2, "opinions" investigation and handling of the facts: an Zhang Jian Zhai hold residence permit, an Zhang also in its housing within the housing, do not infringe the right to use; the plaintiff said "responsibility fields" as the wasteland, piled up shortage. The specific administrative act shall be maintained.

   The third chapter for an action: I have a certificate of land use right, housing does not occupy other people's land, the township government right opinion etc..

    Luoyang city Jianxi District People's court that, township government "investigation and handling opinions" unfounded, inadequacy of essential evidence, and beyond the authority, the judgment shall be revoked. The parties were judgments.

Discussion questions:

Whether the 1 township government belongs to the administrative subject?

2 the township government "investigation and treatment opinions" whether to belong to a specific administrative act?

What are the 3 basic principles of administrative law?

 

Case 10 comments:

   In this case mainly relates to the township government administrative subject qualification and township government "investigation and treatment opinions" whether to belong to a specific administrative act and the basic principles of administrative law law.

As a grass-roots government agencies, the township government in the implementation of the policy, implement, to solve the rural problems, plays an irreplaceable role in maintaining stability in the rural areas, but the township government is an administrative organization, administrative law enforcement organs of the state, so the township government must be in accordance with the law, administration according to law, in the work or otherwise, the abuse of rights or the big dispute on, belong to and are not does not belong to the scope of responsibility, there is no legal basis to do, want what to do, not only can not play its role, will make the contradiction or expansion.

   In the case of the township government "investigation and handling opinions" with the specific administrative act of nature: (1) on the chapter building southward expansion of land ownership make the determination of the specific administrative act, the right to land. (2) to "that Ann Zhang Jian Zhai nonaggression Wang root Tian responsibility", belongs to administrative behavior on the dispute of land between individuals. (3) of two groups, three groups of mutual up land to make confirmation of Wang Genshang, the land property rights of others that is enough to affect the exercise of administrative act.

   Wang Genshang in the case that an Zhang expansion of housing, violated their responsibilities, to the township government petitions reflect, the township government administrative authority is, have the right to an Zhang built housing is field survey in compliance with the credit load range, such as housing more than permit load range by Wang root on the land, the township government have the right in accordance with the "land management law" the relevant provisions of the deal, or inform the dispute to the people's court, or other complaints. The township government is the processing opinion to have legal effect of administrative adjudication, actionable.

   The township government to "investigate and deal with the views of" specific administrative act violates the principle of legality of administrative law.

(1) on the carrier in Chapter land permits building covers an area of the legality of administrative evaluation and treatment of the specific administrative act, are beyond the authority of the. (2) the township government for the king on the roots of petition, went to two groups, three groups of history for the issues of administrative confirmation and make the suggestion, which not only beyond the petitioners request scope, beyond the scope of the administrative authority, the administrative results such as the legitimate exercise of force and King root. Chapter two, ANN, group, three groups or other land rights of land rights and interests. Administrative behavior beyond authority, processing results also unfounded. (3) the township government in making an Zhang not tort administrative confirmation before, not on the security chapter built housing exceeds the card carrying area, whether occupied two land survey, land registration information is not collected or planning data, verify the properties of Wang Genshang land, only the relevant personnel memories recognized as wasteland the administrative behavior, is not based on facts. (4) proceedings in the township government submitted administrative files are copies, referred to as the "history of agencies in archives lost", but failed to explain the copy from where the copy and the copy, to explain the contradiction can not, can not explain the cannot provide evidence reason not is not range resistance cannot be the burden of proof, the specific administrative act is insufficient evidence.

Appendix:

Problems should be noticed in this case

The 1 principle of administrative legality

The principle of administrative legality are established, the administrative power must be exercised in accordance with the law, comply with the legal requirements, not conflict with the Constitution and laws; administrative subject must strictly follow the norms of the administrative law requirements, beyond the statutory authority of the act is invalid; the administrative subject to administrative illegal act shall bear corresponding legal liabilities. The principle of administrative legality including legal entity and legal procedures two requirements.

2 the principle of administrative rationality

The principle of administrative rationality refers to the administrative main body behavior not only should be made in accordance with the statutory conditions, the types and range, and its behavior should be consistent with the intent of the legislation and the spirit of fairness and justice, in accordance with legal rationality, social justice in line with the common behavior of all social norms. The principle of administrative rationality requirements of administrative acts shall conform to the legislative purpose, for proper consideration, reasonable morality, relationship coordination, or should bear the consequences.

Administrative rationality principle content:

(1) equal treatment

The principle is the administrative body for more people to implement the administrative acts should follow the rule of equal treatment. In the quantization case, the principle of equal treatment is easy to master and use. However, in the field of administrative law, many problems are often difficult to quantify. Equal treatment includes three kinds of situation, namely equal, different conditions, proportional to.

Equal treatment in one of two ways: first, the administrative body at the same time in the face of multiple relative person equally. The same rule is a forward thinking, and make no exception. If you do the reverse thinking, this rule is also called non discriminatory rules, anti discrimination rules. Second, the administrative subject has to face several relative person equally. The administrative body for different time stages of the relative person rights and obligations of the setting, modification or destruction, should be consistent with the previous similar relative person, unless the law has changed. This rule can also be called follow the administrative practices and rules, consistent rules or opposition to play fast and loose rules. Different situations require the distinction. If the given equal treatment for different situations, it is not equal.

Discriminate rules, the main requirements in the implementation of administrative behavior serious differences between the specific circumstances of each relative person.

The proportion of administrative subject to rules according to the different situation to set up the relative person's rights and obligations. In the same case or legal facts, this proportion is consistent with the relative size, the role of the seriousness of.

(2) the principle of proportion

The proportion principle of the administrative law refers to the administrative power has legal basis, but must choose the relative person the minimal damage to the exercise of the principle of. In Germany the administrative law, the principles include three contents, namely the appropriate principle, necessity principle and narrowly defined principle of proportion. Appropriate principle refers to the administrative behavior should be legal purpose. The principle of necessity is the exercise of the administrative power should be as far as possible to make the relative damage is kept to a minimum range. The principle of proportionality in narrow sense refers to the administrative subject intervention on the relative person legitimate rights and interests shall not be more than the pursuit of administrative objective value.

(3) the normal judgment

On an administrative behavior is rational or irrational, it is difficult to establish a quantitative standard. Even if we can help the equal treatment and the proportion principle to judge whether there is still, "equality", is "necessary" problem. Thus, the administrative body whether to follow the equality and the principle of proportionality and the need for new standards to judge. According to the practice at home and abroad, only to the majority judgement for judging, which give high IQ (jurist, judge) and low IQ (illiterate, patients with psychosis) judgment, the values of both normal people, the general judgment for judging.

3 the principle of administrative emergency

The principle of administrative emergency refers to the administrative main body for the protection of vital public interests and the fundamental interests of citizens, maintain social and economic order, the coordinated development of social stability, in the face of major emergencies and other emergency situations can be the implementation of administrative emergency measures, which includes not only has the specific provisions of administrative law on the behavior, also including some not specific legal norms and even stop some constitutional rights and legal rights, constitutional and legal provisions interrupt some action. In order to prevent the administrative arbitrariness and abuse of power, modern administrative law also made reality, specificity, procedural, appropriate requirements on the administrative emergency behavior, using the principle of administrative emergency needs the corresponding legal relief mechanism.

This case involves the legislative information

1 "administrative procedure law"

(1) the Fifth People's court trial of administrative cases, to examine the legality of specific administrative acts. 　

2 "the Supreme People's Court on the implementation of 'of the people's Republic of China administrative procedure law interpretation of several issues"'

(1) against a citizen, a legal person or any other organization with the national administrative power organs and organizations and their staff of administrative behavior, to initiate proceedings, which belongs to the administrative case by the people's court range. 3 "land management law"

Sixteenth (3) the provisions of the second paragraph of "between individuals, between individuals and units of the dispute, the people's governments at the township level people's governments at or above the county level or processing

 

 

 

 

 

 

 

[3]

Case 11 introduction:

The restaurant was threatening to report the public security organs are not as

Yang since 1987 since the restaurant business, profitable. In December 3, 1991, Yang received a threatening letter, the 7 days of the 10000 yuan to the designated locations, or set fire to the house. Yang Xinzhong fear, immediately report to the Public Security Bureau for protection, however, the Public Security Bureau reception staff are not to regard it as right, that threaten people but make an empty show of strength, not put into action, and therefore not timely organize public security investigation. In December 22nd, Yang's house to be burned. Subsequently, the public security organ organization investigation, but failed to arrest. In 1992 June, Yang request the public security organ damages, after being rejected, to the court.

Two kinds of opinions are formed in a court hearing. A kind of opinion thinks, the public security organs have not perform their statutory duties too, but Yang loss directly caused by crime, the public security organ can not bear the responsibility for compensation; another view, the plaintiff Yang received a threatening letter, means that the property is at risk of being criminals. Yang ask the public security organ for protection, formed the administrative legal relationship between the protected between Yang and the Public Security Bureau, public security organs to protect the rights and interests of the legal responsibility. It does not fulfill this role, is the Yang rights infringement, shall bear the liability for compensation of certain. Second kinds of opinions is a collegial panel majority opinion, finally, the judgment of the court by the public security organ damages Yang economic loss of 12000 yuan.

　　Discussion questions:

1 the establishment of administrative omission should have what conditions? In this case, the public security organ is administrative omission?

2 if you are in this case the trial judge, how should the decision?

 

Case 11 comments:

The focus of legal issues of dispute in this case is the public security organ is administrative omission and the damage of administrative omission by whom compensation.

Administrative omission is the administrative organs fail to perform their statutory duties. In this case, the public security organs after receiving the report that scare people but make an empty show of strength, not put into action, and therefore not timely organize the police investigation, which belongs to the administrative organs fail to perform their statutory duties behavior. The public security organ has a statutory duty to the plaintiff in the case. Yang to the public security organ for protection, between Yang and the Public Security Bureau formed the administrative legal relationship protected, the public security organ shall have the legal duty of protecting the rights and interests of. The non performance of this responsibility should belong to the administrative omission.

In this case, the public security administrative omission in Yang's legitimate rights and interests are damaged, the public security organs should compensate. "Damage to have compensation", the relative damage is also not as elements of administrative compensation. Relative damage to the object should be the legitimate rights and interests, otherwise, the administrative organ shall not bear the liability of administrative compensation. China's relevant laws and regulations to damage the legitimate rights and interests of the content is limited to actual loss, but does not include profit loss, damage the legitimate rights and interests of form limited to material damage, but does not include mental injury. Yang Hotel profitable, due to the direct loss caused by the house to be burned, court is estimated to be 12000 yuan, basically is reasonable.

Based on the above reasons, the collegial panel has second kinds of views, is right, legal judgment

Appendix:

Problems should be noticed in this case

The administrative organ is not as elements of administrative compensation has the following three: administrative omission, the relative people's legitimate rights and interests of a causal relationship between damage, administrative omission and the harm result.

1 administrative omission

The establishment of administrative omission should meet the following three conditions:

(1) the administrative organ has a statutory duty to the relative person. This is the first condition that administrative omission, do not have this element of administrative omission is not established, not to mention the administrative compensation liability. The statutory responsibilities can be clearly defined by the specific legal norms, but also by the principle and spirit of law derived.

(2) should be taken as a way to the administrative organ to perform its statutory responsibility, namely in a positive way to do a specific act.

(3) the administrative organ did not make specific behavior. Judge whether the agency to make certain behavior should not result as the standard, and should be based on appearance as the standard.

2 the legitimate interests of the relative damage

"Damage to have compensation", the relative damage is also not as elements of administrative compensation. Relative damage to the object should be the legitimate rights and interests, otherwise, the administrative organ shall not bear the liability of administrative compensation. The legitimate rights and interests of the range is very wide, whether any lawful rights and interests of the administrative omission infringement can get compensation? Considering the economic development level of our country is still at the primary stage, the capacity is limited, the legal foundation is weak and other factors, the legitimate rights and interests and damage on the definition of the existence of the following three weight limit:

(1) the scope of the legitimate rights and interests are confined to the personal rights and property rights. In accordance with the provisions on the scope of administrative compensation of the state compensation law, the legitimate rights and interests of compensation is limited to property right and personal right two, other rights such as political rights, the right to education by the administrative omission infringement, can not cause administrative liability.

(2) and must be the actual loss includes the personal rights, property rights and interests of the damage to the existing damage legal fully protected property rights. For example, due to the victim deformity in the future is bound to lose wages is must have the legal guarantee of property rights and interests of the damage. Acquirable interest refers to though protected by law but still need the help of other conditions of the interests of its implementation, does not belong to the scope of administrative compensation liability of omission. For example, the victim because of administrative omission is unable to perform the contract between third people, the lost interest is not claim the administrative compensation.

(3) the legitimate rights and interests of damage morphology is limited to physical damage, but does not include mental injury.

The causal relationship between the 3 administrative omission and the damage

Causality in administrative compensation responsibility not as elements of the elements, the most prone to disagreement, therefore, administrative not as criteria for determining the causal relationship between the victim and the harm consequence, has a special significance in the practice of judicial review.

(1) to determine the causal relationship is not as administrative compensation responsibility principle is the causal relationship

Basic principles for determining the causal relationship between the causal relations in China's administrative compensation law, also known as the appropriate conditions. This said, the defendant's conduct caused some damage to the actual outcome, not enough to the determination of causality, in addition, this behavior leads to damage the fact that must also be predictable. Causal relationship is limited conditions, and appropriate to relax the standard reasons, it is generally accepted in the academic circles, said Tong in theoretical circles also become. As the administrative liability uncertain causal relationship also adopted a causal relationship.

(2) determine the standard of causality

Using standard A. conditions

Conditional relation is the most basic administrative no correlation between behavior and the damage the legitimate rights and interests as, namely the administrative omission is a substantial factor leading to the plaintiff damages. Conditional relation function is excluded and the damage results nothing matters. So, how to judge the condition whether there? Generally, the standard procedures for eliminating hypothesis (from civil tort law), its content is: first, if the administrative organ to perform its statutory responsibility, the damaging event does not occur, the establishment of conditions. The damaging event "will not happen" does not mean "will not happen", but said "may avoid the damaging event". Second, if the administrative organ to perform its statutory responsibility must not stop damage occurs, then the condition is not set up.

The use of B. predictability standard

Foresight refers to the relationship of administrative omission and the damage to workers between the administrative organs according to the experience of ordinary people or inferred. The predictability of the judge is divided into the following two steps: first, most people can anticipate the administrative omission may cause harm consequence, if we can foresee, the predictability was established; second, if people can not see, and the functionaries of the administrative organ to foresee or should be able to predict, is predictable and the establishment of.

This case involves the legislative information

1 "administrative procedure law"

Eleventh People's court accepts the citizens, legal persons and other organizations may initiate litigation to the following specific administrative acts:

(five) the administrative organ to protect personal rights, property rights legal duty application, an administrative organ refuses to perform or fails to respond to the;

2 "State Compensation Law"

(1) sixth victimized citizens, legal persons and other organizations shall have the right to demand.

(2) twenty-eighth of citizens, legal persons and other organizations of the property damage, treatment in accordance with the following provisions:

(seven) other damages caused to the property, compensation in accordance with the direct loss.

 

 

 

 

 

Case 12 introduction

A Shanghai company and the city of salt administration compulsory administrative measures[4]

Shanghai Fengxiang Trade Co., Ltd. (hereinafter referred to as Fung Cheung company) from salt saltworks Hanting District first, Yang Zi Zhen Shandong province Weifang city Anhui province Dingyuan County into industrial salt 302 tons, in May 16, 2001 at the Shanghai Railway Bureau, Jinshan railway station. Shanghai Salt Authority (hereinafter referred to as the salt bureau) identified Fengxiang in does not have the operation of industrial salt of qualifications, or from the other provinces and cities in industrial salt to the city, in violation of the relevant provisions of "Regulations" of Shanghai salt industry management, and in May 21, 2001 the Fengxiang company to make salt illegal items seized the compulsory measures. Fung Cheung company refuses to accept the administrative reconsideration, brought to the Shanghai Municipal Commerce committee. Shanghai Municipal Commerce Commission on August 21, 2001 to make a decision of administrative reconsideration, maintain salt bureau of seizure. Fung Cheung company sued to the Shanghai Jingan District people's court.

Shanghai Jingan District people's Court of first instance trial in public, "the relevant provisions of that salt bureau for several provisions of Shanghai salt industry management" and "salt" administrative law enforcement measures to make administrative processing, belonging to the correct application of the law, law enforcement procedures in accordance with the provisions, and keep the salt bureau decision made on May 21, 2001 (Shanghai) salt (2001) ninth number of salt illegal items seized compulsory measures. Feng Xiang company refuses to accept a judgment of first instance, appeal to the Shanghai second intermediate people's court.

Shanghai second intermediate people's Court of the second instance trial think, salt bureau does not have law enforcement main body sequestration, seizure of the qualification of industrial salt, and failed to provide evidence that the Fung Cheung company in violation of the provisions of the relevant salt management, the specific administrative act which made compulsory measures is not valid, then the decision to withdraw the first instance; revocation of salt bureau made in May 21, 2001 (Shanghai) salt (2001) No. ninth salt illegal items seized compulsory measures.

Discussion questions:

1 concerning administrative enforcement, administrative law is provided?

2 refuses to accept the administrative enforcement, how to carry on the legal relief?

3 administrative compulsory execution and civil execution differ?

 

Case 12 comments:

The first trial, second instance court in the exercise of powers in the administrative organ for confirmation, the specific administrative act as the legal basis for identification of differences, not one, and thus to make two different judgments.

Management authority of Fengxiang business industrial salt. Fung Cheung company business license business scope includes industrial salt business, belong to the local level salt company, according to the State Council "Salt Management Ordinance", Feng Xiang company has the right to operate the industrial salt.

A salt bureau have law enforcement entity problem. According to the "Regulations" of Shanghai salt industry management, Shanghai salt administrative departments for the Shanghai Municipal Commerce Commission, rather than salt bureau. Salt bureau can only be responsible for the management of salt monopoly work, there is no authority for business and industrial salt.

About whether published without government document with legal effect. According to the rules of WTO, unpublished government documents, foreign has no legal effect. Salt bureau will not publish documents (National Light Industry Bureau salt management office was No. 2000109 "on the Shanghai Salt Authority 'about the request explanation" salt wholesale business from all levels of salt company unified management "from' letter reply") as the law enforcement basis, and the document issued subject to National Light Industry Bureau of salt industry management office shall have no right to "salt management regulations" to explain the applicable laws, regulations, and belongs to the improper.

The court of second instance in the correct identification for the above three problems, revoked in accordance with the law in the specific administrative act Salt Bureau illegal, not only conducive to the protection of the legitimate rights and interests, maintaining the salt market stability, promote the healthy and orderly development of market economy, but also for the administrative organs especially the salt administrative departments normative legitimacy, future strengthen law enforcement behavior has played a positive role in promoting.

At the same time, the case shall be a fair trial, also tells us: in the new historical period, the people's court in the case will encounter some new situations and new problems, new challenges in the trial, only by constantly improve their professional quality, can have the ability to control complex case, also can handle the case through practice and history test.

Appendix:

Problems should be noticed in this case

1, the legal system of administrative enforcement

Administrative compulsion is a compulsory administrative measures and administrative enforcement are two systems.

Administrative Compulsory Measures refers to the administrative organ for the person who is the object of suppression, prevention of illegal acts or to take in an emergency situation, property and freedom of action to be temporary limitation, various ways and means to maintain a certain state. Administrative compulsory measures have the following characteristics:

(1) the compulsory administrative measures aimed at prevention, prevent or control harmful social behavior. Administrative compulsory measures with preventive, deterrent obvious.

(2) the administrative compulsory measures is often the administrative organ to make the final decision of the prelude and ready. In many cases, is to make the investigation stage before the administrative decision, taken to the preservation of evidence or to maintain a certain state measures. Sometimes it is mandatory the prelude and preparation, therefore, administrative compulsory measures with the temporary and intermediate obvious.

(3) the administrative compulsory measures is the use of state machine's power to take on the individual, organization strong behavior. Therefore, the administrative compulsory measures must be very cautious; administrative organs have the right to take administrative compulsory measures, must have the legal authorization, and strictly in accordance with the statutory procedure.

2 administrative compulsory execution and civil execution

Administrative compulsory execution and civil execution, as enforcement, have a lot in common, for some countries, administrative enforcement and civil enforcement no substantial difference, they are all a part of judicial power, such as America. For other countries, although the administrative compulsory execution and civil execution is separate, but administrative enforcement in content and style are also from the civil compulsory execution and to follow, such as the german. From the specific circumstances in China, the administrative enforcement of civil enforcement is the difference and:

(1) from the implementation of the subject, the subject of our administrative compulsory execution in the general case for the people's court; but in the law, also is the administrative organ. This subject only to civil enforcement is the judicial organs of different.

(2) from the execution basis, administrative enforcement is the basis of administrative punishment decisions, even in the enforced by the court, the enforcement basis is also the administrative processing. The civil enforcement is the basis of the entry into force of the people's court or arbitral bodies judgment, ruling or mediation and other legal documents.

(3) from the implementation of the object, the object of administrative enforcement is relatively wide, can be material, can also be a behavior and personal. But the object of civil compulsory only.

(4) from the execution results, administrative enforcement does not exist the execution reconciliation, forced obligor to perform the obligations; civil compulsory execution is the execution reconciliation. 　

This case involves the legislative information

Eleventh People's court accepts the citizens, legal persons and other organizations may initiate litigation to the following specific administrative acts:

(two) restricting freedom of the person or the seizure, seizure, freezing of assets against compulsory administrative measures;