In Qujing, Yunnan, a cake shop run by a woman received many flower baskets from friends on the opening day. However, after the urban management staff found out, they made an administrative penalty decision of fining the woman 200 yuan on the grounds of occupying the road. The woman objected on the spot, but the other party said that it was okay to report in advance.
*: Hou Lang**, Poster News).
Ms. Fu rented a shop in a relatively large location, and then renovated it into her favorite style and opened a cake shop.
On the morning of December 11, Ms. Fu's cake shop opened as scheduled, and relatives and friends sent flower baskets to the florist to congratulate her.
After Ms. Foo received the flower baskets, she placed them on both sides of the store's entrance. But who would have thought that not long after it was placed, the urban management staff came to the door and said that Ms. Fu was occupying the road and operating an illegal act.
Ms. Fu explained that according to local customs, flower baskets are placed when new stores open, which she had never heard of before, which is illegal.
However, the chengguan staff explained that according to the latest regulations, this is an illegal act, and issued a fine of 200 yuan to Ms. Fu.
Ms. Fu said that if the fine was not paid, the law enforcement officers would confiscate and take away the flower baskets, which were given by friends for a few hundred yuan. She couldn't live up to her friend's wishes, and in the end she had to pay the fine.
Afterwards, the local urban management department responded that if there was no advance reporting, and the flower basket was indeed placed outside the store, which affected the passage of citizens and the appearance of the city, the urban management was normal law enforcement, and there was no problem.
But netizens don't seem to buy this explanation: "If you are fined 200 yuan and pay the fine, you can put it!."That means fines are the goal!Not everyone knows the new regulations, it should be publicized, otherwise it will be fined directly, and the punishment is not commensurate!”
So from a legal point of view, how to evaluate this matter?
First of all, Article 21 of the Qujing Urban Management Regulations of Yunnan Province stipulates that temporary buildings and other facilities that affect the city's appearance and environmental sanitation shall not be erected on both sides of urban roads and other public placesIt is forbidden to pile up materials, occupy roads, set up stalls and mobile peddling operations on urban roads and public places without authorization;It is not allowed to set up stalls beyond the doors, windows and exterior walls.
It is forbidden to hang, dry and stack items that affect the appearance of the city on the balconies, doors, windows, roofs and other public places and public facilities of the buildings facing the main roads in the urban area and in the landscape area.
Temporary occupation of urban roads and other public places to hold activities, shall be approved by the competent administrative department of construction, involving road traffic safety shall be approved by the public security traffic management department at the same time.
Article 23 also stipulates that the following behaviors that affect the city's appearance and environmental sanitation are prohibited: (7) Other behaviors that are detrimental to the city's appearance and environmental hygiene.
Article 46 stipulates that those who commit the above-mentioned illegal acts shall be ordered to make corrections, and the illegal goods may be confiscated or the illegal means of transport may be temporarily detained, and a fine of not less than 50 yuan but not more than 500 yuan may be imposed on the individual.
In other words, if it is a road occupation operation, it is indeed illegal. In addition, if the flower basket is placed on the sidewalk, even if it is not a business activity, it will still be classified as illegal because it is harmful to the city's appearance.
However, the penalty also includes the option of ordering corrections.
Second, Article 5 of the Administrative Punishment Law stipulates that the establishment and implementation of administrative penalties must be based on facts and be commensurate with the facts, nature, circumstances and degree of social harm of the illegal act.
Article 6 also stipulates that in the implementation of administrative penalties and correction of illegal acts, the combination of punishment and education shall be adhered to, and citizens, legal persons or other organizations shall be educated to consciously abide by the law.
In other words, administrative penalties are not the ultimate goal of the law.
The ultimate purpose of the law is to regulate and guide the society, so that everyone abides by the law, and the principle of guidance and education should be adhered to in the process of law enforcement, rather than directly imposing fines.
Of course, if Ms. Fu is not satisfied with this administrative penalty decision, even if she has already paid the fine, she can still go to court and let the court evaluate the decision!
Finally, article 34 of the Administrative Litigation Law stipulates that the defendant shall provide the corresponding evidence and the corresponding normative legal documents to prove that the specific administrative acts it has taken are in accordance with the provisions of the law.
In other words, if the party is dissatisfied with the administrative penalty decision, the party only needs to go to court to raise a challenge, and the burden of proof and explanation lies with the defendant. The reason why the law provides for this is to ensure that public power operates normally in the cage of the system and that punishment decisions are in accordance with the law.
Some netizens believe that it is indeed illegal to place flower baskets on the sidewalk and affect pedestrian traffic. However, some netizens believe that they can be ordered to make corrections, instead of directly fining them and confiscating them if they don't pay the fine. So do you think it is reasonable to confiscate the flower basket without paying the fine?
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