Discussion on problems of reeducation through labor litigation

Shanghai Shichang law firmChen Qingping lawyer

   Reeducation through labor system in China in 1957. In August 1, 1957, the Seventy-eighth meeting of the Standing Committee of the first National People's Congress approved the "decision" of the State Council Concerning reeducation through labour; in November 29, 1979, the Twelfth Meeting of the Standing Committee of the Fifth National People's Congress approved the "Supplementary Provisions" of the State Council on the reeducation through labor; in January 21, 1982, the State Council to the [1982] 17 document transmitted the Ministry of public security of the Trial Measures "reeducation through labor". These constitute the basic framework of the system of reeducation through labor in china. But the academic circles has been in the system of reeducation through labor in violation of "legislative law" and other laws, proposed abolishing the system of reeducation through labor. The National People's Congress apparently also pay attention to the problem, as early as in 2005, will replace the system of reeducation through labor "rehabilitation law" into the legislative agenda, at the beginning of 2007, the National People's Congress was planned in October after the first trial, cancelled. And then also not heard any news legislation. The author thinks, as an effective means of social management, in the face of the current social security, maintain social stability of the difficult situation, the abolition of the system of reeducation through labor is unlikely, the correction of illegal acts instead of reeducation through labor is probably a good idea.

The starting point of time the reeducation through labor for more than a year, up to a maximum of four years, rather than a criminal sentenced to three years in prison, detention and other penalties more severe. "Reeducation through labor management approach" the provisions of article nineteenth, personnel of reeducation through labor in the labor period stop exercising their right to vote and to be elected, deprived of political rights. From the application level, the reeducation through labor to simple compared to criminal liability. The author has been acting a lot of reeducation through labor cases. To make a simple analysis of some problems the author of such cases encountered in the process of:

A, refuses to accept the decision of reeducation through labor on the pre procedure of administrative proceedings

   In the case of the reeducation through labor, a problem often encountered in the court case is pre litigation procedure. To this problem, the author thinks that refuses to accept the decision of reeducation through labor may bring an administrative lawsuit directly, the reconsideration is not a necessary procedure, for the following reasons:

   First, according to the provisions of China's "administrative review law" in article second, 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 to an administrative organ. The so-called administrative reconsideration, is refers to the citizen, legal person or other organization believes that the specific administrative acts infringe upon their lawful rights and interests, in accordance with legal procedures and conditions, to apply to the specific administrative act of an administrative organ or the competent authority, and legal and appropriate by the organs of the specific administrative action review and to make a reconsideration decision activity. According to the provisions of China's "administrative review law" article, setting the administrative reconsideration procedure of the main purpose is to prevent and correct the illegal acts in the specific administrative action and inappropriate behavior, to ensure that a specific administrative act of the legitimacy and rationality, to achieve the ultimate protection of citizens, legal persons and other organizations of the legitimate rights and interests, to safeguard and supervise the administrative organs exercise their functions and powers according to law. From the specific provisions can be seen, the duties of administrative review organ, shall be made of the specific administrative act of an administrative organ or other statutory authorities, rather than a specific administrative action taken by the authorities to review. If the administrative reconsideration organ is still made the specific administrative act of administrative reconsideration organs, so to lose the meaning of existence. Trial Measures "reeducation through labor" Twelfth paragraph second: "by the decision of reeducation through labor, refuses to accept the main fact, the examination and approval authorities shall organize and recheck." The provisions of the "examination and approval authority" is to make the decision of reeducation through labor agency; here the provisions of the "review" is different from "reconsideration", but refers to the original examination and approval authority for review. Therefore, the requirement is made by the authorities to review the decision of reeducation through labor, not by make a decision of reeducation through labor that a specific administrative act of an administrative organ or other statutory authority for administrative reconsideration.

   Second, China's "administrative procedure law" thirty-seventh stipulates: "the people's court to belong to the scope of accepting cases 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." According to this provision, the citizen, legal person or other organization believes that the specific administrative acts infringe upon their lawful rights and interests, in addition to the law, and regulations specified shall first apply to the administrative organ for reconsideration, the reconsideration and then bring a suit to the people's court outside, can choose to apply for administrative reconsideration or bring an administrative lawsuit to the people's court. The decision of reeducation through labor person is not satisfied with the decision of reeducation through labor, the existing laws, rules and regulations in our country does not have clear regulation must first to make the decision of reeducation through labor system of an administrative organ or other legal organ for reconsideration, the reconsideration to file a lawsuit to the people's court, which is not expressly must have administrative reconsideration the program. Therefore, by the decision of reeducation through labor person is not satisfied with the decision of reeducation through labor, to make the decision of reeducation through labor system of an administrative organ or the law, regulations of the administrative organ for reconsideration, it may bring a lawsuit directly to the people's court; bring an administrative lawsuit to the people's court, the people's court shall accept.

Two, about the jurisdiction issues

   Selection processing jurisdiction and the case has a great relationship, sometimes will decide the success or failure of the case. China's "administrative procedure law" eighteenth stipulates: "a suit against compulsory administrative measures to restrict personal freedom, where the defendant or the plaintiff is the jurisdiction of the people's court." And the administrative procedure law interpretation of the provisions of article ninth, "the country of the claimant" including the plaintiff's domicile, habitual residence and restriction of personal freedom.

   It can be seen from the above, the plaintiff's domicile, habitual residence and restriction of personal freedom and the location of the courts have jurisdiction. Therefore, lawsuit plaintiffs can be selected in a court of competent jurisdiction. However, the court has jurisdiction over the case, will appear in court mutually making excuses. In such cases the agency had such a case. As the agent should actively communicate with the relevant personnel to court, the clear choice of jurisdiction of court, since the plaintiff has the right to choose, the court shall protect the rights of the parties.

Three, about the scope of the object of reeducation through labor problems

   On which people can be re education through labor, or being reeducated through labor object scope, the problems in the education through labor administrative litigation is a more prominent issue. At present, from the following two rules to be clear. One is the State Council transmitted in January 21, 1982, the Ministry of public security "reeducation through labor" Trial Measures ". The "measures" Ninth stipulates: "reeducation through labor for Home Furnishing medium-sized city need reeducation through labor people. The Home Furnishing rural and fled to the city, along the railway and the large-scale enterprise crime, in line with the conditions of reeducation through labor, can also be asylum reeducation through labor". Two is the "decision of the State Council Concerning reeducation through labour". The first rule of the "decision": for the following types of people should be a re education through labor: (1) work, a rogue behavior or theft, fraud and other acts not subject to criminal liability, in violation of public security management, incorrigible; (2) minor offences, does not pursue the counter revolutionaries, and anti socialist criminal responsibility of the reactionaries, by the organs, groups, enterprises, schools and other units of the dismissal, no way of life; (3) organs, groups, enterprises, schools and other units, labor, but the long-term to refuse to work or breach of discipline, disturb public order, is expelled, no life of the outlet (4;) don't obey the distribution of work and employment job placement, or does not accept the persuasion in labor production, continue to make trouble out of nothing, obstruction of official, incorrigible".

Many cases the author agent, is identified by the plaintiff does not belong to the scope of the reeducation through labor, the court reversed the decision of reeducation through labor system.

Four, about making the decision of reeducation through labor program is legal issues

   The program is a cornerstone of democracy, is the bridge to the right, also is the guarantee for the realization of substantive justice. The phenomenon of illegal procedure in the process of receiving approval of reeducation through labor is very serious, the main performance is: 1, investigation and evidence collection is not valid. As in the summons shall use the communications card did not use; no production dispatch (consultation) ask transcripts; evidence collection is not objective and comprehensive, collect only prove criminal acts or evidence of crime, ignored or not collect no crime or punishment evidence; First impressions are strongest, according to subjective or set in advance frame to mining license; some to torture to extract confessions or threat, inducement, fraud and other illegal methods to collect evidence; 2, do not fulfil this obligation. The notification procedure is specific reflect fair, justice, open the program. Rule of law in the implementation, building a socialist country ruled by law under the background of the times, strengthen the notification procedure is particularly important. But in the camp in the approval process, the informing procedure is often ignored; 3, "three meeting" in violation of provisions. "Three meeting" is a necessary procedure or approval, namely "the need for reeducation through labor, the organizer must ascertain the facts, seeking my unit or neighborhood organization's opinion, be approved by the labor education management committee review, make a decision of reeducation through labor, announced the decision according to the time limit and reeducation through labor to themselves and their families, to be the signature of the person in the notice of reeducation through labor reeducation through labor". This provision is mainly operating rules of current administrative organs handling cases of reeducation through labor, and apply this rule and the penalty phase comparison, no provisions of the criminal procedure law after investigation, prosecution and trial before delivery procedure strictly, and reeducation through labor decision was made to perform the delivery immediately; compared with the public security punishment no provisions of regulations on administrative penalties for public security, the person penalized may suspend the execution to provide a guarantor or to pay the security deposit after the procedure, not to be members of reeducation through labour service provision decision of reeducation through labor, no more to be required to inform the personnel of reeducation through labor right and the right to sue, it formed a strong contrast with the concrete the punishment of the administrative punishment law strictly required.

   The controversy - "program is bigger problems for my unit or neighborhood organizations opinion" to do the following analysis. On the current situation, the reeducation through labor units and personnel, in handling cases of reeducation through labor process, this program has not fulfilled basically, the reason is quoted the relevant approval of the Ministry of public security of Public Security Bureau of Shandong Province, is intended to explain its make the detention decision without consultation with relevant units, its administrative behavior in the procedure legal. The author thinks, the provisions are lower, and in conflict with the law, so it can not be used as administrative procedure legal basis.

Five, about the administrative punishment "non bis in idem" problem

    The author in the agent case for reeducation through labor litigation, there are many such cases, it is decided by the personnel of reeducation through labor in a lot of people because of the implementation of the act has made the administrative punishment, the decision of reeducation through labor is contraryThe administrative punishment "non bis in idem" principle. Before discussing this problem, first make the following analysis of the nature of reeducation through labor.

   A kind of reeducation through labor is a kind of administrative enforcement measures, the qualitative less controversial, laws and regulations have been clearly defined. In 1957 August the State Council announced the "Regulations of the State Council decision on education through labor": "reeducation through labor, is a measure of the reeducation through labor people compulsory education reform, but also on the way their placement employment." In 1982 the State Council forwarded the Ministry of public security "reeducation through labor Trial Measures" article second also states: "reeducation through labor, the labor education and rehabilitation of people compulsory education and reform of administrative measures, is a method of handling contradictions among the people." These are clearly defined in the reeducation through labor is a kind of administrative compulsory measure.

   The reeducation through labor Is it right? Belongs to administrative punishment? The legal nature of the problem, directly related to a part of the reeducation through labor administrative cases "non bis in idem" principle, in this regard, the views of various scholars are not the same. Some believe that the reeducation through labor belongs to administrative penalties, such as Ying Songnian editor of the "administrative procedure law" China tutorial book, that "there is a special form of administrative punishment, namely the reeducation through labor". Luo Haocai editor of the "administrative law" China tutorial book, also believe that "in addition to warning, fines, confiscation of illegal income, the confiscation of illegal property, shall be ordered to suspend production or business, suspend or revoke the license, or revoke the business license, the administrative detention of above six kinds of punishment, and there is a more severe punishment in the form of administrative punishment the reeducation through labor, i.e.". But some scholars believe that the reeducation through labor is not compulsory administrative measures administrative punishment. I support the first view, the reasons are as follows: first, in February 8, 1995 the "State Council on Further Strengthening the prison management and reeducation through labour work notice" (of the [1995]4) article second expressly provides: "reeducation through labor is the national public security administrative punishment enforcement, to implement the education, probation, save policy. To lay stress on education, personnel of reeducation through labor based save the reeducation through labor, education, special schools do save their......." Since the reeducation through labor is the executive organ of state public security administrative punishment of reeducation through labor, so behoove should be administrative punishment? Second, 1991 November, the State Council issued a "white paper on the situation of human rights in China" to the world, the fourth chapter "security" human rights China justice in the Seventh Festival "reeducation through labor and reeducation through labor rights" clearly stated: "Chinese reeducation through labor work is performed, according to the approval of the NPC Standing Committee in 1957" about the problem of re education through labour "and other laws and regulations. Education through labor is not a criminal punishment, but the administrative punishment. The people's governments of provinces, autonomous regions, municipalities directly under the central government and large and medium-sized city shall establish a management committee of reeducation through labor, by the people's Procuratorate to supervise work of reeducation through labor......." As everyone knows, the white paper is government or parliament formally published by other important documents white cover or report. The white paper as an official document, the government's position, characterized by formality, authority. In the white paper stated the reeducation through labor belongs to administrative punishment, which is a serious, formal representation.

   Therefore, the author thinks that the administrative punishment of reeducation through labor is the personal freedom of a compulsory measure to limit human. According to this conclusion, there are a lot of decision of reeducation through labor, was decided before the implementation of reeducation through labor has been on the parties to the public security administrative punishment punishment, in violation of the "non bis in idem" principle. In the author undertakes cases, there are many such cases, the court reversed the decision of reeducation through labor and so.

The substantive issues, the reeducation through labor in six cases

   The precondition of reeducation through labor decision must be personnel of reeducation through labor violations, and this behavior is to re education through labor behavior. The cognizance of the behavior is a process of handling cases of reeducation through labor is the most important, is the priority among priorities. In 2012 April, with the reeducation through labor cases the agent, the Management Committee of reeducation through labor in the implementation of Wang provocative acts on the decision of reeducation through labor. The agent of this case, through the meeting, marking that is carrying out the reeducation through labor personnel behavior does not constitute a stir up trouble, the court reversed the decision of reeducation through labor. Through the case of the agent, the author thinks that the specific case, cognizance of illegal facts to contrast the "measures" reeducation through labor, whether the line carefully screened, seriously study the illegal acts to strictly control the standards, to ensure that the reeducation through labor, the case handling quality from the entity.

   To sum up, many of the above procedure, the author found the agent entity problem in the case, but also depends on the National People's Congress legislation in the future in order to advance, and the "Public Security Management Punishment Law", "Criminal Procedure Law" with each other, forming the punishment system, to maintain social stability.