The second agent

The presiding judge, judge:

Beijing Huicheng Law firm commissioned by Zhao Lingye, appointed himself as its v. Beijing City Public Security Bureau Haidian branch Shangdi police station in administrative litigation to the second case agent. Modern people according to the second instance court organization conversation, and the relevant evidence materials, published the following views:

The appellant belongs to administrative matters the prosecution case by the people's court, the people's court shall conduct physical examination to the administrative action by the appellant.

A,       The appellee issued the "registration form" not accepting that it is "a clear mandate of the criminal procedure law behavior".

First of all, the "registration form" by the case is that the public security organs received the report, did not start the "criminal procedural law" the regulation of criminal procedure. If the preliminary investigation that does constitute a criminal offense, will be a criminal case, in the criminal procedure. If does not constitute a crime, is in accordance with the relevant provisions of administrative cases. As the public security organs of criminal investigation power, the implementation of the criminal investigation behavior in addition to all authority behavior, belongs to the administrative behavior. Therefore, the public security organ accepts the report to the criminal behavior before, all belong to the administrative court to review administrative litigation.

Secondly, "the registration form" record "system" is not "Criminal Procedure Law" explicitly authorized behavior. The Supreme People's court "administrative procedure law" Article 1 of the judicial interpretation provisions do not belong to the scope of administrative litigation is "the implementation of public security, national security organs in accordance with the explicit authorization of the criminal procedure law behavior". Behavior of the power source only a -- law of criminal procedure, which suggests that, the public security organs in accordance with the "only is the implementation of the criminal procedure law" expressly authorized the behavior, rather than do other departments according to other laws or judicial interpretation of the authorization act, no administrative litigation case scope. And the so-called "investigation" in the "Criminal Procedure Law" is not specified in the public security organs, even about "criminal procedural law" the relevant detailed explanations are not clearly defined.

Therefore, be expressly authorized the appellant's so-called "investigation" is not a criminal act, it shall belong to the scope of administrative litigation.

Two,       The appellant to matters appellee report really belong to public order cases, not a criminal case.

The appellant in2011Years6Month16Day wasIBMThe employee of the company and Wuhan Qingshan District Visits Bureau staff illegal restriction of personal freedom8An hour or so.

At present, the judicial practice in the "crime of illegal detention" conviction standards, only "the Supreme People's Procuratorate on filing standards malfeasance crime provisions" illegal detention behavior of state functionary carry were clearly defined, "illegal deprivation of liberty of24Should hours "to be a criminal case. For the general subject of this crime, there is no clear provisions, judicial practice is to scale operation is not lower than the standard office. The Appellant was illegal detention time8An hour or so, not up to the standard of criminal case filing.

Although the appeal person implementation of illegal detention of the appellant of Wuhan Qingshan District Visits Bureau staff. But the Complaints Bureau as dealing with petitions to state organs, including the functions and powers of the petitions centralized authority, the classification of petitions to the relevant department for authority, and ruling authorities and check the lower or the Department of petition work on a complaint reporting matter without any powers, functions and the personal freedom of citizens of any association, don't even say the restrictions on the territory outside of the personal freedom of citizens. Therefore, Wuhan Qingshan District petition office staff in the area outside the city of Beijing on the implementation of the illegal detention behavior, belongs to the illegal detention of illegal detention of general subjects, the work of state organs are not "Criminal Procedure Law" provisions of the terms of use ban behavior, not in accordance with the standard of criminal case filing investigation, nor the people's Procuratorate investigation of criminal cases under the jurisdiction.

Recording evidence also shows that the appellant submitted, the appellee has repeatedly told the appeal, the appellant reported illegal detention case does not constitute a criminal case.

Three,       The report has been10Months, the appellee has completed case investigation and evidence collection work, still not a criminal case also shows that the case is not a criminal case.

In the second instance in the conversation, the appellant submitted the complaint Office of Haidian Public Security Bureau recorded conversations. The officer in the reception with the appellee's commissar telephone communication, has been confirmed by the appellant, the case has been completed the relevant responsible person (including Qingshan Visits Bureau of personnel) the record of inquiry, and retrieval of surveillance video of the scene, a survey work has been basically completed. If in accordance with the standard of criminal case, respondent and the Haidian Public Security Bureau categorically not the nor in the appellate report after ten months is not a criminal case, and do not issue any written documents to the appellant. It also shows that, the case is not a criminal case.

Four,       The appellee excuse criminal investigation for delaying the implementation of legal administrative duties, avoid judicial supervision of the people's courts.

When the appellant again and again to the appellee to understand the progress of the case, the appellee always answer says the case does not constitute a criminal case, cannot put on record. When the people use it as a case of public security to the people's court by the appellant did not perform their statutory duties, appellees and said in reply is a criminal investigation. On the surface, the appellee that "everything" attitude of dexterity, the people's Procuratorate cannot in criminal cases to public security organs for legal supervision, the people's court is unable to carry on the legal supervision of administrative cases. A clear violation of the appellant by right of the person, also be hurt two public security organs without remedy. When the freedom of the person by illegal infringement people, the appellant also firmly believe that to safeguard their rights through legal weapons, investigate the liabilities of the other party, find justice, hurt, basically or physically; when the time is nearly a year after the infringement, no men over the age of sixty around the call to be repeated appeals prevarication, maximum damage is not physical pain, but hard to find just despair.

But should it? This problem cannot be solved? Absolutely not.

The Supreme People's Court on the judicial interpretation not to expand the scope of administrative litigation is legal regardless, "administrative procedure law" legislative intent will never allow the people's court review form only for the defence of the public security organ. The people's court shall carefully examine the public security organs called "definite evidence of criminal procedural law behavior" is in accordance with the following requirements: clear whether the authorization is the criminal procedure law; whether does the implementation of the behavior; whether it should be disposed of in accordance with the law of criminal procedure. If the public security organ cannot prove the above requirements, the people's court has the right to the examination and supervision of administrative litigation. Otherwise, the public security organs administrative power can easily through simple excuse to avoid judicial supervision and become no constraint, the formation of civil rights violations.

What makes the appellant andIBMStaff and visits bureau Party distinguish right from wrong interests contest, the appellee so inclined to the latter, so clear and simple case has not be treated? Public security organs as the capital city of Beijing, why for foreign staff, field visits personnel so exercise? "The prince is illegal, and common people with the crime" is just a beautiful lie?

Ask the people's court to uphold the agent "administrative procedure law" of the legislative purpose, adhere to the system of value of administrative litigation, revocation decision to a higher court and remanded, a careful review of whether the public security organs to perform their administrative functions according to law, safeguard the legitimate rights and interests of the people.

The above views, please consider carefully the court of the second instance!

                                              The appellant Zhao Lingye agents: Wang Xing  Lawyer