1. Cases
A Provincial High People's Court.
Administrative Judgments.
The complainant (plaintiff in the first instance, appellant in the second instance) is Liu, female, living in District C, City B, Province A.
The appellee (the defendant of the first instance, the appellee of the second instance) B Municipal Public Security Bureau C District Branch. Place of residence: District C, City B, Province A.
The appellant in the original trial Liu X sued the appellee in the original trial, the appellee in the original trial, the administrative judgment of the Intermediate People's Court of City B and City A has taken legal effect. Dissatisfied, Liu applied to this court for a retrial, and this court issued a notice of rejection of the appeal. Still dissatisfied, Liu appealed again to the Supreme People's Court, and the Supreme People's Court made an administrative ruling on January 19, 2015, ordering this court to conduct a retrial of the case. This court formed a collegial panel in accordance with the law and heard the case, and the trial has now been concluded.
After trial, the court of first instance ascertained: At about 17:30 on August 19, 2011, when Liu, Wang and Ren were playing mahjong in a private room on the second floor of the tea house on B City Road, they were seized by the C Public Security Bureau, and at the same time 575 yuan of gambling money was seized, and 205 yuan of gambling money involved in Liu's case was seized on the spot. Later, the C Public Security Bureau summoned Liu to the bureau for questioning and verification, and the seized gambling funds were confiscated on the same day. On the next day, a "Public Security Administrative Punishment Decision" was made against Liu, and in accordance with the provisions of Article 70 of the "Public Security Administration Punishment Law of the People's Republic of China" (hereinafter referred to as the "Public Security Administration Punishment Law"), it was decided to detain Liu for 12 days and impose a fine of 500 yuan. Before the punishment decision was made, the public security bureau informed Liu of the facts, reasons and basis for the administrative punishment decision, and informed him that he had the right to make a statement and a defense in accordance with the law. Later, the C Public Security Bureau sent Liu to the detention center in the early morning of August 20, and promptly informed his family of the punishment of Liu.
This court held that according to Article 5 of the Law on Administrative Penalties for Public Security, "the punishment for the administration of public security must be based on facts and be commensurate with the nature, circumstances and degree of harm to society of the violation of the administration of public security." The implementation of public security administrative punishments shall be open and fair, respect and protect human rights, and protect citizens' personal dignity. The principle of combining education and punishment shall be adhered to in handling public security cases" and Article 70: "Anyone who provides conditions for gambling for the purpose of making profits, or who participates in gambling with a relatively large amount of money, shall be detained for up to five days or fined up to 500 yuan;where the circumstances are serious, they are to be detained for between 10 and 15 days and fined between 500 and 3,000 RMB".When public security organs impose administrative punishments on administrative counterparts in accordance with law, they shall exercise discretion in accordance with the principle of proportionality of excessive punishments, and the implementation of administrative punishments must be based on facts, and be commensurate with the facts, nature, circumstances, and degree of harm to society of the illegal conduct; The type and range of punishment should be commensurate with the degree of the offender's illegal fault, and where the principle of proportionality of punishment is violated, resulting in a serious and unreasonable result of the administrative punishment, it shall be corrected in accordance with law.
In this case, at 17:30 on August 19, 2011, the C Public Security Bureau seized Liu, Wang, and Ren playing mahjong in a private room on the 2nd floor of the tea house on B City Road in Province A, and seized a total of 575 yuan for gambling by 3 people, of which Liu was 2** yuan. When the Public Security Bureau dealt with Liu's participation in playing mahjongThe principle of proportionality of punishment should be followed, and punishment should be imposed in accordance with lawIn accordance with the provisions of Article 70 of the "Public Security Administration Punishment Law", the Public Security Bureau decided to detain Liu for 12 days and impose a fine of 500 yuan, which is unusually heavy and is an error in the application of law, and should be revoked in accordance with law.
In summary, the original judgment erred in applying the law, and the judgment should be changed in accordance with law. In accordance with the provisions of Article 89, Paragraph 1 (2) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:
1. Revoke the administrative judgment rendered on March 14, 2012 by the Intermediate People's Court of Province A and City B;
2. Revoke the administrative judgment rendered by the People's Court of District C of City B of Province A on December 1, 2011;
3. Revoke the "Public Security Administrative Punishment Decision" issued by the C District Branch of the Public Security Bureau of the B Municipal Public Security Bureau.
2. Relevant provisions
Law of the People's Republic of China on Public Security Administration Punishments
Article 5Public security administrative punishments must be based on facts and be commensurate with the nature, circumstances, and degree of harm to society of the violation of public security administration.
The implementation of public security administrative punishments shall be open and fair, respect and protect human rights, and protect citizens' personal dignity.
The handling of public security cases shall adhere to the principle of combining education and punishment.
Administrative Punishment Law of the People's Republic of China
Article 5: Administrative punishments follow the principles of fairness and openness.
The establishment and implementation of administrative punishments must be based on facts, and be commensurate with the facts, nature, circumstances, and degree of harm to society of the violation.
Provisions for imposing administrative penalties for violations of the law must be made public; Where it has not been announced, it must not be the basis for administrative punishments.
3. If the penalty is too severe, it will be revoked
According to the above-mentioned provisions, the administrative punishment imposed by the public security organs on the perpetrator of the violation of the administration of public security must be commensurate with the facts, nature, circumstances and degree of harm to society of the violation of the administration of public security. If the punishment of the offender is excessive, the principle of proportionality of the penalty is violated, and the administrative penalty decision will be revoked.
About the Author:
Lawyer Guo Xiaohang
Position: Director and Senior Partner of the Criminal Defense Center of Chongqing Jinmu Jinyang Law Firm.
Education experience: Bachelor of Laws from Southwest University, Master of Investigation from Chinese People's Public Security University.
Work experience: More than 10 years of experience in handling and reviewing criminal, public security and traffic cases in public security organs.
Areas of expertise: Criminal defense, drunk driving defense, pornography, gambling and drug public security punishment, temporary seizure and revocation of driver's license, administrative reconsideration of traffic penalties, and administrative litigation.
Performance: bail in criminal cases, non-prosecution, probation; **Administrative penalties such as gambling and revocation of driver's licenses have been revoked or the range of penalties has been reduced.
February** Dynamic Incentive Program