[Abstract]In this paper, in recent years, lost the case often fire control institutions in administrative litigation cases caused by fire investigation, according to the "administrative procedure law" and relevant information, the causes of lost focuses on the analysis of the administrative body in the fire in a lawsuit and countermeasures, and contact the relevant case of fire investigation work to propose some ideas, for reference.
　　[Key word]Administrative lawsuit against the cause of fire investigation
　　1Preface
Treating the fire case is to investigate the causes of fire cases the public security fire control institutions, and in violation of relevant laws and regulations basis in fact, the fire administrative punishment to the responsible units and individuals. Between the public security fire control institutions in the implementation of responsibility for fire process and responsibility of individuals or units of the responsibility belongs to the fire administrative disputes and disputes. For solving this kind of dispute, there are two main methods: one is the public security administrative reconsideration procedure to solve the dispute. The two is the judicial organ to solve disputes administrative proceedings. Study of fire cases administrative reconsideration procedure belongs to the new subject in the fire and political circles, and the fire protection work is indeed there are many issues worthy of our in-depth study, in order to make the fire administrative reconsideration case handling work better expansion. This paper focuses on the case on the causes and Countermeasures of fire cases are discussed.
　　2For several reasons, at present our country lawsuit against fire
　　2．1The fire reason recognition is an administrative behavior
　　2．1．1The basic facts of the case
　　2000Years10Month30On the afternoon of2When the home county of Xuyong Province, Sichuan to Lin Xiang Yue Tai Cun, Qinglong mouth5Years old children from Home Liu, his two boxes of matches, the neighbors of Yang's private mill play. He walked into the factory gate he met neighbor Zhao (5Years old). Zhao found Liu has the match, hurried to tell the mill owners Yang, Yang told the daughter Lan Lan (10Old Liu) to match the. But Liu said match is own, determined not to LAN lan. Yang x is called Liu to go home, Liu did not go home, but went straight to the mill walk, Zhao also followed. Two people came to the paper mill where clothes papyrus, papyrus pleasure lit with a match. After they walk about ten minutes, drying paper plant burns. Factory workers and rushed to the villagers dozens of people make concerted efforts to put out the fire. But because the mills not around the block wall, and no fire extinguisher, resulting in three houses,20Tons of toilet paper all burned, pulping equipment, host, motor damage fire loss total72446Element.10Month31Day, the Xuyong County police fire brigade received a report, immediately rushed to the scene of the exploration, and to the relevant informant interview survey, in the same year11Month1Were made public and consumer (Syria2000) article05The fire reasons, confirmation and the elimination of responsibility (Syria2000) article07No. and No.10Responsibility of fire accidents. Determination of the cause of the fire department, Liu Zhao two children playing with fire caused by his guardian, Liu, Zhao to cause fire loss directly responsible, owners of Yang negative secondary responsibility. Zhao x, Liu is such and such the Xuyong county public security fire brigade to the cause of the fire and the responsibility, to its superior departments of Luzhou city police fire brigade for re establishment. Luzhou city police fire brigade to2000Years11Month30Make (Lu) (male elimination2000) article05Causes of fire accidents, number of determining the responsibility book, maintained that Xuyong county public security fire brigade. Zhao x, Liu is such and such chooses Xuyong county public security fire brigade for the defendant, to2001Years1Month10Bring an administrative lawsuit to the people's Court of Xuyong county.
Xuyong County courthouse after repeated research and public trial that the defendant: Xuyong County Fire Brigade according to provisions of the fire law article fourth and "Sichuan Province fire regulations" in article forty-ninth, has the qualification of administrative subject, has the power to make the cause of the fire in the region, accident responsibility identification. The identified in the law does not expressly excluded or prohibit the judicial review, also had a real impact on the civil rights and obligations, is actionable behavior, belong to the scope of jurisdiction of courts. The defendant in the indictment copy and received notice, not in law10Submit to the cause of the fire accident responsibility identification, evidence of days, the court in accordance with the provisions of the Supreme People's court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China" the interpretation of article twenty-sixth, the administrative behavior that no evidence. In the hospital2001Years3Month29Day of judgement: reason to withdraw Xuyong county public security fire brigade to make fire certificate and fire accident responsibility book, by which to make the fire reason recognition and responsibility of fire accidents. After the first instance verdict, the defendant in the original, did not appeal within the statutory time limit.
　　2．1．2The fire reason recognition, fire accident is not that the responsibility appraisal conclusion, but the specific administrative act
Fire protection law the fourth regulation, fire protection mechanism is the only have the right to investigate the cause of the fire, as approved by the loss, identify the responsibilities of departments, whose behavior is the legal duty, has the strict region and specificity, and identification of general conclusions are institutions and individuals qualified can be made, not only has, diversity subject qualification, non regional, but also not statutory duties, do not need to take the initiative to make. Fire authorities in making responsibility cognizance process, can entrust technical agencies to identify specific problems, the appraisal conclusion need not appraisal agency to entrust other institutions were identified, it is public security fire control institutions identified one of the causes of fire evidence. According to the provisions of the fire accident investigation thirty-first paragraph second, conviction of fire control institutions with administrative behavior, identification conclusion does not exist to maintain, change, cancel the problem. So that, the reason of public security fire control institutions that the fire accident is not the appraisal conclusion, but the specific administrative act--Administrative act.
　　2．1．3Administrative act is actionable
Administrative act is the administrative organ legally recognized and publicly announced some legal facts or legal relationship exists behavior. Administrative act is not directly change the legal status of citizens, legal persons or other organizations, only through administrative confirmation clear rights and obligations of relative person, become the decision of the relative person rights and obligations the prerequisite. The cause of the fire, responsibility of public security fire control institutions produce legal effects on the rights and obligations of the parties, the victim may request compensation for the loss of the responsible person, public security fire control institutions can be the basis for punishment, the court also can according to judgment. Administrative act is not enforceable directly, but have a direct impact on the rights and obligations of the parties. According to the law, administrative act is actionable behavior.
Administrative procedure law of the first paragraph of article eleventh lists the seven acts of administrative litigation, and generally make the scope stipulated in the eighth item, that an administrative organ has infringed upon other personal rights, property rights can bring an administrative lawsuit. These acts include: administrative confirmation, administrative adjudication, administrative benefit and administrative evidential act. The cause of the fire, responsibility cognizance is administrative act, is a specific administrative act, belonging to the provisions of the scope of accepting cases. Supreme People's court"Interpretation"The first point, administrative act, legal persons or other organizations to make citizens to the administrative subject, except the exclusion rules6Not belonging to the scope of the cases, can bring an administrative lawsuit, the fire reason recognition and responsibility of fire accidents are not included in the scope of accepting cases of exclusion.
　　2．1．4The fire reason recognition recognition and responsibility should be actionable range
Although the fire accident investigation provides the provisions of article thirty-first, re identify fire accident responsibility for the final confirmation, but judicial explanation about some problems in the implementation of the administrative procedural law of the Supreme People's court makes clear a regulation, only the National People's Congress and its Standing Committee, through the normative documents can be provided the final ruling, which belongs to the ultra vires. Due to that fire agency is the administrative act, therefore, a fire control institutions to recognize the behavior, is essentially an administrative reconsideration. According to the provisions of the administrative reconsideration law, who refuses to accept the decision of administrative reconsideration, behoove can bring an administrative lawsuit according to law.
According to the administrative procedure law, the provisions of article fifty-second and fifty-third, the administrative court cases on the laws, administrative regulations and local regulations as the basis, the rules may refer to Sichuan, Sichuan Province People's Congress Standing Committee promulgated the "Regulations" stipulates that the sixty-third fire:"If a party refuses to accept the specific administrative acts of administrative organs in accordance with the provisions of this Ordinance, may apply for administrative reconsideration according to law, refuses to accept the reconsideration decision or the reconsideration organ fails to reply, can bring an administrative lawsuit."The fire reason recognition fire control institutions belonging to the provisions of the provisions of the forty-ninth statutory duties, which also shows that the cause of the fire and the responsibility cognizance. Moreover, the regulations for the local laws and regulations, shall be as a court case trial. Since the Ministry of public security is neither the legislature, not the judiciary, which has no right to make judicial interpretation. The Ministry of Public Security (public compound word2000)3Replied belonging to ministries regulations, and restrictions on the scope and conflicted with the relevant laws and regulations, the court can not apply.
　　2．2The fire reason recognition is not accurate, timely
　　2．2．1The specific case
　　2000Years10Month27On the evening of7PM, a county-level city is located in the town of South of the Yangtze River Road11No.303Room fire, fire destroyed part of indoor and outdoor supplies, air conditioning, the floor is burning, the direct economic losses of less than a million. The fire brigade in the fire and then fire investigation, that the fire was arson, notify the police criminal investigation department together exploration scene, investigation about the personnel as well as witnesses. After the scene investigation, found303The northwest side room door room have broken trace, a stolen wallet, a being4000Yuan passbook and a few pieces of women's clothes. According to303Room rent more than female workers reflect, after half a year, had a psychopath often harassed the women, and the day no one to prove that the person or others at the scene. Therefore, the Public Security Department of criminal investigation is only the case as general theft, arson, but not confirmed. The city fire brigade in the fire reason recognition will be the cause of the fire is qualitative the crime burglary after arson, the inconsistency between the two also led to the subsequent disputes. Because the house is a Le Grand Large Hotel in the city residents housing loan Ma as staff accommodation used, therefore, causes both sides support of public security fire control institutions identified as fire compensation dispute processing of civil evidence. The city fire brigade2001Years2Month10Make the fire reason recognition, only served to lease. The legal representative of rental and lawyer by this thought, the cause of the fire as arson, that is also a victim of its own, shall, in the investigation of criminal cases, and home ownership to talk about economic compensation or restitution. But the criminal investigation department were not included in the arson, impossible to put a lot of manpower, material resources investigation. Housing ownership Ma and rental several times after unsuccessful negotiations, which bring a civil lawsuit to the people's court for lease, Wang restitution or compensation for economic losses. When the court accept the case, Ma Mou to remember the need to fire cause and responsibility of public security fire control institutions confirmation, to safeguard their legitimate rights and interests.2001Years8In August, when Ma got the responsibility, the city fire brigade fire that book, see reason and responsibility so that results, viewed with suspicion, to the city's fire brigade for reconsideration. However, fire brigade by certiorari and spot inquiry, found it very difficult. Because the fire has gone, report the day of the fire was not found to be suspect arson evidence investigation records and field investigation, the fire reason recognition is taken to exclude law,"Arson"Is unique. But when the investigation department is not the case for arson. This will determine the fire accident into a dilemma, to maintain the original conclusion basis insufficiency, change and the lack of evidence. That is to say, if the fire brigade should not be a requirement to make the horse to that application, the result can only sit in court on the dock a loser. If the specific administrative act to make, because there is no evidence, the result still become the defendant and the losing. Finally, fire forces only active mediation, preventing the fire circle is a typical case of losing. It is understood, similar cases are not uncommon in practice, very representative
　　2．2．2That is not scientific
(1) investigate the cause of the fire, the majority of local regulations index, some local act on responsible government and people's spirit, imposes a high index: heavy, fire cause investigate rate must reach one hundred percent, the general cause of the fire investigation rate reached eighty-five percent, and written into the "fire department standard good inspection standards". In fact, the cause of the fire investigation provides high levels of motivation, desire is good, but there is no scientific basis, a grass fire, no matter from the human, material and financial resources, or from the level of ability, are difficult or impossible to complete its high index. The right to identify the cause is one can imagine.
(2) public security fire control institutions identified the cause of the fire, the"Elimination method"Is one of the common methods. Elimination method or indirect determination method, is refers to the public security fire control institutions, the reason may cause fire in fire lined out, according to the scene one by one and negative exclusion, reasons for the one remaining the most likely, then use the experience and the knowledge of science, the leaving traces and other evidence, to determine the cause of the fire by comparison,,,, comprehensive analysis hypothesis reasoning, etc.. This method is the first question: disaster if the original end? If exhausted, the science on the basis of what?
　　2．2．3Disaster cause determination and aging problem
In this case, in accordance with the "provisions of the fire accident investigation" twenty-fourth article "the fire reason recognition book" made since the date of delivery to the parties within seven days. Can fire brigade but missing another major parties of a horse, "the fire reason recognition to book" has not been served, until the parties for after the show, his behavior constituted administrative omission, if the parties to bring an administrative lawsuit to the court directly, the result can only be lost. The grass-roots public security fire control institutions situation, some legal documents not to make and deliver the phenomenon is quite universal.
　　2．3Evidence collection is not comprehensive
　　2．3．1The basic facts of the case
　　1991Years11Month27Day at zero forty in the morning, in the Tianshan Hotel opposite a row of simple real fire. Through field investigation and visit, the cause of the fire investigation team found this fire is ma (braised noodle shop workers) in indoor candle use undeserved, caused by negligence, hit with the adjacent building materials store, general store, direct economic loss34421Element. According to the "Regulations on administrative penalties for public security" twenty-sixth stipulation, to Ma made the detention Xigong District Public Security Bureau10Daily penalty. Ma Mou are not satisfied with the decision, apply for reconsideration. City Public Security Bureau to maintain the original ruling, Ma is still not satisfied, a lawsuit in a people's court within the statutory time limit.
According to the transcripts of the scene, the fire site is a simple room three block east of the west. A Nantou department store building materials, South roof wooden bearing components there are certain support ability, and on the north wall of the roof was burnt down. In contrast, piling up on the wall building materials than the north wall near the building burned a lesser degree. Intermediate between the Department of the plaintiff Ma room, the room had been burnt down. Near the east room bed and container, leaving soot, carbon residue is more, the entire interior molding articles residue less, on the East1Meters placed aluminium steamer, bicycles were burned by fire, aluminium steamer melt into a block. North head a department store on the south wall, the roof was burnt down by the south wall, indoor placed Riyongbaihuo, firecrackers and other goods were burned, by the north wall near a lot still not be burnt integer commodity. Three is no spontaneous combustion.
According to the record of inquiry, the plaintiff Ma said since morning7When to start, has been stewed noodle shop workers, night23When the30So back to the living room. As usual, with matches the candle on the wooden bed light, easy to clean up the bed, then blow out the candles.27Morning, he was awakened by the sound of firecrackers, find a fire, indoor hurried to Hand-Pulled Noodle Museum, near Yangji put fire two buckets of water. The witness Yang (male,53Years old, Yang's Hand-Pulled Noodle shop owner) said, that night, Ma Mou to Hand-Pulled Noodle Museum carrying water, asked him what he make an ambiguous statement, Ma, did not say what, to go out to look, see center to live in that room filled with smoke, flame straight upwards. Just know originally is on fire. And after a little while, the sound of firecrackers, increasing the fire.
According to the meteorological departments to prove:11Month26On the evening of24When the wind1Level, the west northwest at wind1When the wind1Level, the southwest wind.
According to fire investigators have obvious of these materials, fire"V"Glyph marks, Ma Mou confession also conflict with the testimony of a witness, evident in the evasion of responsibility, that Ma Wenyou causing fire by negligence should be based on the. In the court debate intense process of the plaintiff, for all kinds of questions are a good use of the materials at hand, reasonably refute. However, at the critical moment of the trial, the plaintiff lawyer suddenly to show to the court and read the testimony of witnesses yang. Yang said:"I can't read, the last Public Security Bureau asked me, I didn't say which the first fire, all their scribblings."This is completely overturned his original testimony of key evidence against, for. Although the defendant immediately refuted, Wenyou agents ad litem, the uncle is director of the District People's Congress, aunt cadres for Industry and commerce. The witness Yang Hand-Pulled Noodle museum is open its jurisdiction, Yang in the house roof live, if offended, must consider the consequences, please consider the credibility of court plaintiff lawyers issued by the evidence. The case finally hearing the situation is: the court to"The main evidence Ma causing fire by negligence of insufficient evidence, not comprehensive and objective"The grounds, the decision to withdraw the public security bureau to Ma detention10On the public security penalty award, by the public security organ to make a determination.
　　2．3．2Evidence collection, review is not comprehensive and detailed
The fire caused the fire administrative court cases, the judicial impartiality and we won't talk about the trial process. Read the case all the files, it should be said that the public security organs and the case is more timely, comprehensive investigation and evidence collection, evidence is sufficient. The applicable law is accurate, the legal procedure, better use the material combustion, traces of fire science and other professional fire technology. It should be said Yang first testimony of a less affected by various factors, believable degree. But the cause of the fire investigation work as the basic processing fire case work, growing in the concept of law today, from the case would have the court thought preparation. Investigation of evidence must be timely, comprehensive, objective, did not miss any traces, the main evidence to have multiple related evidence. The investigation process, the masses: when the fire occurs, there are two foreign travelers just pass by the scene of the fire, more know the situation, but has the work unit, name. But they had to leave the city for the day, the investigators did not go to forensics. Later want to supplement the evidence, without court permission, lost a valuable evidence. If at the time to fully forensics, the main evidence of fire site has multiple relevant evidence, legal effectiveness Yang confession is little, do not give the plaintiff has provided the possibility. For oral evidence key best in interview. At the same time, attached with voice, video and other means, to various forms of evidence, to prevent some people from certain factors. Thus, for the fire case evidence, we can never let down, must seek truth from facts, collect objective, comprehensive, thorough, review.
　　2．3．3Fire unit and individual interference
"Fire Law" of the people's Republic of China stipulates that the thirty-ninth:"After a fire is extinguished, public security fire control institutions have the right to seal a fire site, be responsible for investigation, found the cause of the fire, and fire loss, identify the responsibility of fire accidents". This is the law of fire supervision rights, however, the fire department in the exercise of rights according to law, fire investigation, but often encounter fire units and individuals. After the fire, some units administrative leadership because of fear of treatment, indicating the personnel of perjury, deliberately evade responsibility, do not actively cooperate with the fire department to find out the reasons, lessons learned, and even some refused to investigate fire department. These acts seriously interferes with the investigation and enforcement of fire protection agencies. In this case, the Yang's confession, largely because of the noodle shop in the Ma uncle jurisdiction, under pressure.
　　2．4The individual personnel working poor sense of responsibility, power
Fire investigators is with the hands of fire case responsibility processing power of law enforcement, however others responsibility heart is not strong, encountered a small fire, see a little loss, careless, random processing; met a big fire, see the great responsibility, too much trouble regardless of the consequence will be the cause of the fire, as the electrical fire, thereby reducing the penalty for the responsible units and responsible person, or charges, also gave human himself, in a negative way to escape from the business not possible"Sequela".
　　3Countermeasures of strengthening the fire case work
　　3．1Improving the fire laws and regulations
With the development of reform and opening-up, and gradually establish a socialist market economy, gradually improve the national quality, and other organizations of citizens and corporate legal consciousness obvious enhancement. The cause of the fire investigation division, due to its conclusion may affect the civil liability or even criminal liability, its role has become more and more important, more and more difficult, which is the cause of the fire investigation in legislation put forward higher requirements, we must hold good method, first of all must be there. By improving and perfecting the regulations, make fire investigation, with clear responsibility, a clear division of labor, forensic standardization, legal procedures, improve the fire investigation, the efficiency and quality of work.
　　3．2The reason that must be timely, accurate
(1) investigation involving a wide range, timeliness strong, demanding, difficult and complicated work. So you want to seize the fire soon, people still remember, state of mind is excited, not affected by the outside world, the favorable opportunity concerns small, rushed to the scene, timely investigation and evidence collection, otherwise, When the incident., evidence was destroyed, the forgotten or fire the parties mutual collusion, conceal facts, brought great difficulties to the investigation work, even causing case not the results of the survey. Investigation and more timely, the situation is relatively accurate and timely.
(2To seek truth from facts) investigation, take an objective attitude, can never First impressions are strongest, listen to only one side, with the rules to the investigation, more not subjective to analyze and judge the case, otherwise it will make investigations into the wrong.
(3Public security fire control institutions make) cause of the fire must be responsibility cognizance. The scene of the fire is very complex, and no specific fixed, technology is also very strong, for the questionable evidence, should be entrusted to the authority or expert technical identification. In addition, for some serious damage, does not confirm the cause of the fire, can also be identified as"The cause of the fire is unknown". The arson case, need to please the criminal investigation departments involved in the investigation, such as there is no evidence of a crime suspect arson, or the criminal investigation department does not stand for arson, must not be recognized as arson.
　　3．3Evidence must be legal, accurate, comprehensive
　　3．3．1Types of evidence
Combined with the fire case, we usually set the fire case evidence as evidence, documentary evidence, testimony of witnesses, victims' statements, statement of the criminal suspect and justification, appraisal conclusion, investigation records, audio-visual materials seven. A variety of evidence collection must be legitimate.
　　3．3．2Objective evidence of fire cases and comprehensive
Fire case evidence as the fire administrative law enforcement"The three elements"(clear facts, irrefutable evidence, the applicable law is correct) key elements, is identified, confirmed the supporting point of a case, also a prerequisite for the correct application of the law. Any a good fire workers, we must seek truth from facts, carefully collect various kinds of evidence. Needs to be pointed out is, objectivity is the primary attribute of evidence. Everything is not after investigation and verification of the materials are not as evidence. Collecting evidence must be faithful to the facts, are not allowed to join a personal subjective emotions, can not let the subjective desire to dominate the forensics activities, excluding First impressions are strongest opinion, not listen to only one side, to the objective evaluation, careful analysis, impartial, fair. Collect, no modification to the evidence, not missing evidence, not because the fire scene changes, forensics difficult and fire work timeliness strong, heavy task and other factors, intentionally or not to collect certain evidence collection. The influence of the external factors that effect and lead to contradictory evidence, fire investigators should be combined with the case, scientific judgment, review, remove the surface appearance, make reasonable explanations, correctly judging and handling of the case, can not be arbitrarily discarded some evidence.
　　3．4The exclusion of external factors, safeguard the authority of fire supervision mechanism
Fire supervision mechanism is the implementation of legal subject fire investigation processing, the exercise of fire investigation authority according to law, the investigation and the investigation conclusion has the force of law, citizens, legal persons and other organizations have the obligation to provide the relevant information and clues to the fire supervision mechanism, assist the fire cause investigation, if self or otherwise make the investigation, collect evidence, these are the behavior is invalid, the conclusion does not have legal effectiveness. "Fire control law of the people's Republic of China" the fifth regulation, after the fire, to hide, hide the cause of the fire, to shirk responsibility, vandalism scene or falsifies the scene, do not constitute a crime, a warning, a fine or detention for fifteen days. Units with the conduct of this article, shall be given disciplinary warning or penalty, and the person in charge directly responsible and other liable persons shall be punished in accordance with the provisions of the preceding paragraph. As the fire supervisory staff for publicity and education work, so that we know the investigation supervision organization of fire is a kind of law enforcement behavior, should be the social from all walks of life and the people's support and support. For that kind of interference survey, to clean up the scene of the fire or damage the wrong behavior of criticism and education, resulting in serious consequences, should be investigated for their legal responsibility according to law.
　　3．5To improve the quality of their fire investigators
　　3．5．1Efforts to improve the professional quality of fire
To make the fire investigation work, first of all need to fire investigators with the social progress and development to improve the quality of their business, expand their knowledge, and constantly update their knowledge. Fire investigators usually should strengthen the service theory learning, diligent study, actively accumulate experience, and to grasp the method of using fire reconnaissance equipment, prepare for each fire investigation.
　　3．5．2Strengthen the responsibility of fire
Fire investigators as the administrative law enforcement, should actively with President Jiang"The Three Represents"Armed themselves, taking facts as the basis, adhere to strict law enforcement, enthusiastic service, meticulous work. Resolutely stop the disorderly jump to conclusions, arbitrary responsibility, the destruction by fire of the reputation of the institution. Fire investigators should also be mutual supervision, prevent the occurrence of the phenomenon of illegal.
　　4Summary
Through the above case is not difficult to see, only to speed up the pace of legislation and perfect fire protection fire investigation, legal system, strengthen the fire investigation team construction, timely, accurately investigate fire cause and responsibility of fire accidents, fire accident to punish crime, maintaining the fire accident of the legitimate rights and interests, to safeguard the economic construction.