The top ten typical administrative procuratorial cases in 2023 were announced in Beijing on January 26, and 10 cases, including "Ma v. the People's ** Compulsory Demolition Procuratorial Supervision Case of a Town" and "Heiliao Procuratorate Urging the Revocation of Fang's Fraudulent Marriage Registration Procuratorial Supervision Case" were evaluated. The content of the evaluated cases covers the supervision of the procuratorial organs on the administrative departments for the fraudulent use of other people's identities for marriage registration, illegal handling of real estate property certificates, etc., and the administrative procuratorial departments of the relevant places fully perform their supervisory functions, safeguard the legitimate rights and interests of the masses, and coordinate and promote the social problems exposed by the ** case, which has a strong typicality and representativenessShi Xining, chief lawyer of Beijing Jingkang Law FirmI would like to summarize some of the key points worth paying attention to in these ten cases.
Case 1, Ma v. the people of a town ** compulsory demolition procuratorial supervision case
[Brief facts of the case].
In September 2000, Ma leased collective land in a village and built a house on the leased land. On November 7, 2019, the planning, construction and environmental protection office of a town and the village committee of a village jointly issued a "Notice of Demolition within a Time Limit" to Ma on the grounds that the house involved in the case was illegally constructed, and demolished the house involved in the case by itself within a time limit. On November 19, the house involved in the case was forcibly demolished. On December 2, Ma applied to the public security organs for an investigation and handling of the demolition of his house. Because he did not receive the processing result, Ma applied to the district ** for administrative reconsideration. In the process of administrative reconsideration, the public security organ submitted a reply material, indicating that "it is understood that the demolition of illegal buildings carried out by a certain town **". On May 28, 2020, District ** rejected Ma's application for reconsideration on the grounds that "the police informed the applicant on the spot that the demolition of the illegal construction work was an act of the town, and the losses caused by this behavior to the applicant could be reported and resolved by the relevant departments".
[The court held that].
Ma sued the court, requesting that the forced demolition of the town ** and the district urban management law enforcement bureau be confirmed in accordance with the law. Ma submitted evidence such as the "Decision on Rejecting the Application for Administrative Reconsideration" of District ** to prove that Zhen ** and others carried out the forced demolition. During the first instance,Town ** submitted the "Explanation on the Demolition of Ma's Illegal Land Use" issued by the village committee of Ma's village, and the village committee "self-admitted" that it carried out the forced demolition of the house involved in the case. The court of first instance held thatThe existing evidence cannot prove that the sued demolition was carried out by a certain town ** and others, so Ma's lawsuit against a certain town ** and others has no factual basis, and the lawsuit is dismissed. The second-instance trial and retrial also ruled to reject the case on the same grounds. Ma applied to the procuratorate for supervision.
[The procuratorate thinks].
The town ** carried out the act of determining that the house involved in the case was illegally constructed and making a "Notice of Demolition within a Time Limit".The official documents submitted by Ma and prepared by the state organ ex officio also clearly pointed out that the town ** actually demolished the house involved in the case, and it should be deemed that Ma had provided preliminary evidence and fulfilled the burden of proof. And after investigation and verification, the "Explanation of the Situation" of the village committee was issued under the instruction of the town **, which was inconsistent with the actual situation, so a protest was raised. In the end, the court retried the procuratorate's protest opinions and the evidence obtained from the investigation, and the judgment confirmed that the forced demolition of a certain town was illegal. At the same time, the procuratorate screened out 8 similar cases in the process and submitted a procuratorial counter-appeal and retrial procuratorial suggestions to the court in accordance with the law.
[Director Shi's point of view].
It is completely possible to pierce the "veil" of the villagers' committee's self-recognition and accurately identify the subject of the forced demolition by "admitting" the act of forced demolition and evading administrative responsibility in the name of "villager autonomy".
Case 2, the Heiliao procuratorate urged the revocation of Fang's case of procuratorial supervision of impersonated marriage registration
[Brief facts of the case].
In June 2012, Xiu fraudulently used the identity of "Fang" to register his marriage with Yang in Liaoning, and the two parties agreed to divorce in October 2013. In October 2016, Xiu fraudulently used the identity of "Fang" to register his marriage with Wang in Heilongjiang, and the court ruled divorce in absentia in 2019. Xiu had a son in each of the above marriages. From August to November 2017, Xiu repeatedly fraudulently used the identity of "Fang" to apply for loans, and after Fang discovered that his identity information was fraudulently used, he reported the case to the public security organs. In March 2021, the public security police took Xiu and Wang to apply for marriage registration again under the identity of "Fang", but the application for divorce registration on the same day was unsuccessful. In April of the same year, after Fang found out that he was married again, many petitions were not resolved. In December of the same year, Xiu was sentenced to fixed-term imprisonment and fined for the crimes of stealing identity documents and fraud. In addition, Xiu fraudulently used the identity of "Fang" to be given an administrative punishment by the public security organs in many places for fighting.
[Procuratorate's involvement].
In 2022, the procuratorate of a county in Harbin City found clues on Xiu's fake marriage registration in the case of abuse of power by public security officers, and because the clues involved many places in two provinces, the Heilongjiang Provincial Procuratorate transferred some of the supervision clues to the Liaoning Provincial Procuratorate. In order to effectively protect the legitimate rights and interests of the parties,The Heilongjiang Provincial People's Court and the Liaoning Provincial People's Court decided to cooperate across provinces and conduct supervision ex officio. The provincial court will make overall planning and dispatch to formulate a plan, and form an integrated case-handling team of the procuratorate according to the jurisdiction area, and carry out administrative dispute resolution work in two ways. The case-handling team employs methods such as investigation and verification, explanation of the law and reasoning, public hearings, and public announcement of service, respectively, to formulate and issue procuratorial recommendations to the civil affairs department of the place where the fake marriage is registered, and the civil affairs department revokes the marriage registration involved in the case in accordance with law; Coordinate with the public security organs to eliminate Fang's impersonated administrative punishment record. The Heilongjiang procuratorate coordinated with the Health Commission to invalidate the publication of the birth medical certificate involved in Xiu's fake birth; A procuratorial recommendation for retrial was issued to the court, and the civil judgment of divorce in absentia was revoked. In the course of handling the case, the Liaoning procuratorate learned that Yang had died unexpectedly and that the old mother and young son in the family were living in difficulty, and issued judicial relief funds to the "old and young" in accordance with the law, and promoted the change of the legal guardian of the minor. In the special supervision activity of "escorting people's livelihood and interests", the procuratorial organs of the two provinces handled a total of 49 cases involving false marriage registration, and formulated and issued 1 procuratorial recommendation on social governance. The Harbin Municipal People's Court and the Dalian Municipal People's Court will also establish a coordination and cooperation mechanism with relevant departments in handling false marriage registration cases.
[Director Shi's point of view].
The fraudulent use of other people's identity information for marriage registration not only interferes with the normal order of marriage registration, but also brings a series of negative impacts on the physical, mental and life of citizens. If we encounter a similar situation, we, as a party, can take the initiative to apply for the procuratorate to intervene.
Case 3, Qian v. a village committee, a case of procuratorial supervision requiring the performance of statutory duties
[Brief facts of the case].
Qian submitted a written application for building a house to a village committee, and a village committee issued a "Statement of Circumstances" informing Qian that his application for building a house was contrary to the policy. Qian was dissatisfied and sued to the courtA village committee is required to perform the statutory duties of publishing an application for building a house, signing opinions, and submitting it to a certain town in accordance with the law. Previously, Qian had filed an administrative lawsuit against a town ** as a defendant and requested a judgment to perform the duty of building approval. In the previous case, the court held that Qian did not submit a written application to the village committee for building a house, nor did the village committee approve and publish the opinions, and the town ** did not have the conditions to start the follow-up procedures, so the judgment rejected Qian's litigation claim.
[The court held that].
The court of first instance held thatThe relevant functions exercised by the villagers' committee on the villagers' application for building houses are review procedures within the collective economic organization, which are acts of villagers' autonomy, not administrative acts carried out by administrative entities, and have not had an actual impact on Qian's rights and obligations under administrative law, and do not fall within the scope of administrative litigation. Accordingly, the ruling dismissed Qian's lawsuit. Qian's appeal and application for retrial were not supported. Qian applied to the procuratorate for supervision.
[The procuratorate thinks].
After review, a procuratorial branch court held thatVillage committees may be defendants in administrative litigation as authorized by laws and regulations；The publication of the villagers' housing construction application by the village committee, the signing of opinions, and the submission for examination and approval are necessary stages for the approval of homestead building and are procedural acts in administrative licensing; The "Explanation of the Situation" made by a certain village committee against Qian X is a procedural administrative act, but it has led to de facto termination, produced a final result, and has a substantial impact on Qian's rights and obligations, and is within the scope of administrative litigation. Accordingly, a procuratorial branch submitted a procuratorial suggestion for retrial to an intermediate court. On June 28, 2023, an intermediate court issued a ruling to revoke the original.
The first- and second-instance rulings ordered a certain basic level court to continue the trial.
[Director Shi's point of view].
When villagers' committees, as mass autonomous organizations, perform duties authorized by laws, regulations, or rules, they shall be found to be qualified defendants in administrative litigation. The approval of homestead building is an administrative licensing act, and the village committee performs the duties of posting a list, signing opinions, and submitting it to the town for approval in accordance with the provisions of laws and regulations, which is a procedural administrative act in the administrative licensing. Therefore, the acts of the villagers' committee fall within the scope of administrative litigation accepted by the people's courts, and the villagers' committee also has the qualification of a defendant.
Case 4, a village joint-stock economic cooperative sued a town ** for the revocation of the administrative agreement and the case of procuratorial supervision
[Brief facts of the case].
On December 30, 2007, a village signed a "Contracting Contract" with a villager, Mr. Hu, agreeing to contract the right to operate the brick and tile factory of the village collective enterprise to Mr. Hu. On October 10, 2017, the County Housing and Urban-Rural Development Bureau issued the "Closure Notice", which stated: "...If the sintered brick enterprises dismantle the kiln body, chimney and equipment before November 30, 2017, each enterprise will be rewarded with 3.5 million yuan ......On November 14 of the same year, a town did not solicit the collective opinions of a village, and signed a "shutdown agreement" with the brick and tile factory and Hu, agreeing to subsidize the loss of 2.86 million yuan in the door kiln of the brick and tile factory, and reward Hu with 3.5 million yuan. Villagers in a village believed that the reward of 3.5 million yuan should belong to the brick and tile factory, and repeatedly reported to the county housing and urban-rural development bureau. The County Housing and Urban-Rural Development Bureau replied that the 3.5 million yuan was used to compensate the operator.
[The court held that].
On March 26, 2019, a village joint-stock economic cooperative (hereinafter referred to as the "cooperative") filed a lawsuit with the court, requesting the revocation of the Shutdown Agreement. The court held in the first instance that the County Housing and Urban-Rural Development Bureau clearly stated that 3.5 million yuan would be used to compensate the operator, and ruled to reject the lawsuit. The cooperative appealed, and the second-instance judgment was revoked and the Shutdown Agreement was revoked. After the judgment came into effect, the cooperative distributed part of the reward money to more than 1,400 villagers. Hu applied for a retrial, and the retrial revoked the second-instance judgment and upheld the first-instance judgment.
[The procuratorate thinks].
The cooperative applies for supervision by the procuratorate. After accepting the case, the Zhejiang Provincial Procuratorate found out through investigation and verification that the reward money involved in the case was indeed compensation to the operator Hu, and the retrial judgment was not improper, and the decision not to support the supervision application was made in accordance with the law. However, the "Closure Notice" of a county Housing and Urban-Rural Development Bureau and the "Petition Opinion" issued thereafter were not clear about the attribution of the 3.5 million yuan reward to the "operator", and a certain town ** signed a shutdown agreement with Hu without consulting the opinions of a certain village, which caused controversy. This case involves more than 1,400 villagers receiving the reward money involved in the case and returning the money, which has caused many collective petitions, and improper handling will become a hidden danger affecting social stability. The provincial, municipal, and county** procuratorates promote the resolution of administrative disputes as a whole, and consider the civil disputes involved in the case and the administrative disputes involved in the case that have entered the compulsory enforcement link as a whole, and promote reconciliation. The procuratorate of a certain county led the county court, the county public security bureau, and a town to hold many consultations, and the joint town ** used platforms such as "villagers to talk about things" that practiced the "Fengqiao experience" to promote a village to hold a villager congress to reach a solution, and the administrative dispute resolution lasted for 6 years. In response to the problems discovered, a county procuratorate, together with the court, issued judicial recommendations and procuratorial suggestions to the county housing and urban-rural development bureau and a town in accordance with the law to prevent the recurrence of similar problems.
[Director Shi's point of view].
In cases where the target of the incentive policy is not clear, improper handling may affect social stability, and the interests of rural peasant groups shall be given priority.
Case 5: A company sued a county human resources and social security bureau for the prosecution and supervision of the payment of insurance benefits
[Brief facts of the case].
In April 2018, a construction and installation engineering limited liability company (hereinafter referred to as Jian'an Company) undertook the construction of a real estate project. On May 2, the company participated in work-related injury insurance at a county human resources and social security bureau according to the project and submitted a roster of migrant workers, and Zhong was not among them. On October 3 of the same year, Zhong was accidentally injured while working on the project. On November 4, 2019, a county human resources and social security bureau determined that Zhong's injury was a work-related injury; Later, it was determined that Zhong's degree of labor dysfunction was level I, and he was completely unable to take care of himself. On August 11, 2020, Jian'an Company applied to the county human resources and social security bureau to pay Zhong's work-related injury insurance benefits, but the county human resources and social security bureau issued a "Notice" on the grounds that Zhong was not on the list of migrant workers on the record, refusing to pay the corresponding work-related injury insurance benefits.
[The court held that].
Dissatisfied, Jian'an Company filed a lawsuit with a county court on November 3, 2020, requesting that the Notice be revoked and that work-related injury insurance benefits be issued to Zhong. The court of first instance rejected Jian'an's claim. Jian'an Company appealed and applied for a retrial, but it was not supported. Jian'an Company applied to the procuratorate for supervision. After a city procuratorate raised a prosecutorial counter-appeal, the original judgment was upheld in the retrial. The Anhui Provincial Procuratorate followed up and supervised.
[The procuratorate thinks].
The Anhui Provincial Procuratorate believes thatThe filing and registration of insured persons is only a management measure and does not belong to the conditions for the payment of work-related injury insurance benefits. If the employer fails to file the insured personnel in a timely manner, it shall not affect the work-related injury employee's receipt of work-related injury insurance benefits from the social security department. The original judgment erred in the application of law, and a protest was filed in accordance with law. The Anhui Provincial High People's Court brought the case to trial, adopted the protest opinion, revoked the original judgment, and supported Jian'an Company's claim.
Through the search of similar cases, it was found that the Anhui Provincial Human Resources and Social Security Department had triggered a number of lawsuits due to the refusal to pay work-related injury insurance benefits due to the failure of the insured persons to file and register, and the provincial procuratorate had raised protests against three cases of the same type. In order to promote the management of litigation sources, the Provincial Procuratorate took the lead in holding special consultations with the Provincial High Court and the Provincial Department of Human Resources and Social Security, and facilitated the Provincial Department of Human Resources and Social Security to issue the "Work-related Injury Insurance Policy Handling Caliber", which clarified that if the project is not registered in real name, the unit shall go through the registration procedures for it, and then the work-related injury insurance shall pay the work-related injury insurance benefits according to the regulations. At present, this problem has been resolved throughout the province, and the other two cases protested by the provincial procuratorate have been settled and withdrawn, and the work-related injury insurance benefits involved in the three cases have been fully paid.
[Director Shi's point of view].
If the employer fails to file the insured personnel in a timely manner, it shall not affect the work-related injury employee's receipt of work-related injury insurance benefits from the social security department. It also calls on relevant departments to pay attention to the problem of high mobility in the construction industry and the inability to participate in insurance for migrant workers on time, and optimize the registration process for insured personnel.
Case 6, Wang Moupeng's illegal purchase of ** national protected wildlife execution reversal case
[Brief facts of the case].
In August 2020, Wang Moupeng purchased an artificially bred Herman tortoise from Zhang, a middle school teacher in County B, for 1,100 yuan** through the Internet, and then gave it to Wang Mouyong for 1,300 yuan***; In the same month, Wang Moupeng bought a four-clawed tortoise from a place in City A for breeding at 750 yuan** through the Internet. It has been identified: Herman tortoise is a national second-class protected wild animal; The four-clawed tortoise is a national first-class protected wild animal. On July 25, 2023, because the circumstances of Wang Moupeng and An's crimes were minor, and they had the circumstances of confessing and admitting guilt and accepting punishment, the county procuratorate made a relative decision not to prosecute the two, and made an absolute non-prosecution decision against Zhang because the amount of his violation was small.
[The procuratorate thinks].
The behavior of the three violated the relevant provisions of the "Wildlife Protection of the People's Republic of China".After not being prosecuted, criminal responsibility is not pursued, but administrative punishment is required. The procuratorate of a certain county issued a procuratorial opinion to the natural resources department of a certain county, city A, and county BIt is recommended that the offenders be dealt with in accordance with the first paragraph of Article 52 of the "Wildlife Protection of the People's Republic of China", the "Administrative Punishment Law of the People's Republic of China", the "Discretionary Standards for Administrative Punishment of Natural Resources in Shandong Province" and other relevant laws and regulations. In order to ensure the reciprocity of supervision levels, a county procuratorate reported to the procuratorate of city A to serve a procuratorial opinion to the natural resources bureau of city A on its behalf.
On October 8, 2023, the procuratorate of a county followed up and supervised the administrative punishment of the natural resources bureau of a county and the natural resources bureau of city A, and after review, it was found that the administrative punishment of the natural resources bureau of city A was in accordance with the lawA county's Bureau of Natural Resources issued a procuratorial recommendation to a county Bureau of Natural Resources on the basis of the omission of the administrative punishment of "confiscation of illegal gains" in the first paragraph of Article 52 of the "People's Republic of China Wildlife Protection**", and applied the law incorrectly, recommending that it correct it in accordance with law. After receiving the procuratorial suggestion, the natural resources bureau of a certain county revoked the original administrative punishment decision and made a new administrative punishment decision against Wang Moupeng. Because the Natural Resources and Planning Bureau of County B did not reply to the handling situation or the results of the handling within two months, the procuratorate of a certain county followed up and supervised through the procuratorate of County B, and the Natural Resources and Planning Bureau of County B listened to the opinions of the procuratorate of a certain county, obtained the relevant file materials of Zhang from the procuratorate of a certain county, filed the case and conducted an investigation and handling.
[Director Shi's point of view].
Illegal purchase of ** national protected wild animals, criminal responsibility can be exempted, and administrative punishment is inevitable!
Case 7: A state-owned farm v. a county natural resources bureau for the inspection and supervision of house ownership registration
[Brief facts of the case].
Wei is a state-owned farm worker in a county, and since January 2013, he has illegally occupied 10 houses on the land allocated by the farm and built his own houses, and has separately applied for house ownership certificates. In April 2018, Wei used the above-mentioned real estate as collateral to apply for a loan of 8.8 million yuan from the County Rural Commercial Bank, but failed to repay it within the time limit. After winning the lawsuit, the Rural Commercial Bank applied to a county court for an auction of the mortgaged property.
[The court held that].
In March 2022, the county farm filed an administrative lawsuit, requesting the revocation of the housing title certificate issued by the county natural resources bureau for Wei in violation of regulations. The county court found in the first instance that the facts of the certificate of housing right handled by the Bureau of Natural Resources for Wei were unclear and should be revoked in accordance with the law, but because the revocation would damage the mortgage rights and interests of a third party, the judgment was illegal but not revoked. After the first-instance verdict, neither party appealed.
[The procuratorate thinks].
On May 18, 2023, a county procuratorate found that the case might harm national interests during the performance of its administrative procuratorial supervision powers, and decided to accept it ex officio. After review, it was found that the county natural resources bureau issued a real estate property certificate to Wei in violation of regulations when he did not obtain the land use right certificate and the materials submitted were obviously false. According to the Reply of the Supreme People's Court to the Request for Instructions on Whether a Mortgage Acquired in Good Faith by a Third Party Can Prevent the People's Court from Ruling to Revoke the Registration of Housing Ownership, even if the Rural Commercial Bank obtains the mortgage right of the house involved in the case in good faith, it cannot prevent the court from making a judgment to revoke the housing registration. After reporting to the higher courts, an integrated case-handling model was initiated, with the city and county courts simultaneously submitting procuratorial counter-appeals and procuratorial suggestions for retrial. On August 1, 2023, the court conducted a retrial of one of the administrative judgments, revoked the original judgment in accordance with the law, and revoked the issuance of the house ownership certificate by the county natural resources bureau. The county natural resources bureau appealed, and the retrial judgment of the intermediate court of a certain city upheld the above-mentioned first-instance retrial judgment.
[Director Shi's point of view].
The procuratorate may take the initiative to initiate supervision in accordance with its authority, and as a party, it may also apply for the procuratorate to intervene.
Case 8, Yang XX v. a municipal medical security bureau labor security administrative payment inspection and supervision case
[Brief facts of the case].
On November 18, 2013, Yang Moumou sued the court for a medical dispute with a hospital, and the medical expenses involved in the case totaled 98,06161 yuan, the court ruled that the hospital should bear 32,68720 yuan, the rest of the 6537441 yuan is borne by a certain person Yang. Yang Moumou asked the Municipal Medical Insurance Bureau to bear 65374 for his personal responsibility$41 to be compensated. The decision not to compensate was made by the medical insurance bureau of a city, based on: the notice of the Municipal People's Office on printing and distributing the "Implementation Measures for Basic Medical Insurance for Urban and Rural Residents in a City", the notice of a city on further improving the overall compensation plan for new rural cooperative medical care in 2016 and the measures for compensation for accidental medical injuries in a new rural cooperative medical treatment in a city (for trial implementation), the above three normative documents stipulate that "expenses arising from medical accidents and accidental injuries caused by medical disputes" are not within the scope of medical insurance payment.
[The court held that].
On April 19, 2019, Yang sued a municipal court. A municipal court held that the three normative documents relied on by the Municipal Medical Security Bureau were legal and valid, and ruled to reject Yang's litigation claim. Yang Moumou was dissatisfied and applied for a retrial, which was rejected by the court. Yang XX applied to the procuratorate for supervision.
[The procuratorate thinks].
Applicable by a municipal courtThe three normative documents, in violation of the provisions of the Insurance Law, expanded the scope of medical expenses that are not included in the payment of medical insurance premiums, and expanded the medical expenses that are not included in the scope of basic medical insurance payment to "expenses incurred due to medical accidents"., which detracts from the legitimate rights and interests of citizens. This case is a medical malpractice, and Yang is responsible for 6537441 yuan cannot be included in the scope of medical insurance payment. A city procuratorate filed a protest on the grounds that the court erred in applying the law. Considering Yang's practical difficulties, he applied for a relief fund of 5,000 yuan. The higher-level procuratorate filed a protest, and the city's intermediate court changed the judgment on July 17, 2023 in accordance with the law that the medical insurance bureau of a certain city should pay Yang Moumou's medical security benefits. The procuratorial organs actively participated in the traceability and governance, and reported to the municipal people's congress on the issue of normative documents violating the higher-level law. At present, the "Notice on Further Improving the 2016 New Rural Cooperative Medical Compensation Plan of a City" and the "Measures for Hospitalization for Accidental Injuries of a New Rural Cooperative Medical Care in a City (Trial)" have been repealed.
[Director Shi's point of view].
The State has established a basic medical insurance system aimed at guaranteeing citizens' right to receive material assistance from the State and society in accordance with the law in case of illness and other circumstances. Local documents violate the provisions of the Insurance Law and derogate from the legitimate rights and interests of the parties.
Case 9: A case of procuratorial supervision of administrative non-litigation enforcement of fines and administrative penalties imposed by a municipal transportation bureau
[Brief facts of the case].
The procuratorate of a city in Guangdong Province is in accordance with the work deployment of the municipal office of a city governed by law on carrying out the "special rule of law supervision of administrative punishment enforcement".Through the review of the people's court's judgment documents on the administrative non-litigation enforcement cases of the Municipal Transportation Bureau, and the comparison and collision with the data of the Municipal Finance Bureau's unpaid non-tax revenue and the administrative law enforcement data of the Municipal Transportation Bureau, the clues of these cases were discovered. After investigation, the administrative punishment case handled by the Municipal Transportation Bureau was ruled by the people's court not to be allowed to be compulsory due to problems such as wrong determination of facts, insufficient evidence of violations, and wrong punishment targets, but after the bureau received the ruling of disapproval, it did not apply for reconsideration within the statutory time limit, and then did not deal with the administrative punishment decision involved in the case in a timely manner, did not form a closed loop in the law enforcement process, and the administrative counterpart has also been burdened with administrative illegal information records, causing damage to its rights and interests.
The procuratorial organs are to formulate and issue procuratorial suggestions in response to the above issuesThe first recommendation is to improve administrative law enforcement procedures, the second is to improve the working mechanism for applying for compulsory enforcement in administrative non-litigation cases, and the third is to strengthen the connection of work to promote the formation of a closed loop of law enforcement and case handling. At the same time, the procuratorial organs formed the "Report on the Implementation of Administrative Punishment to Carry out Procuratorial Supervision", made a special report to the Municipal Party Committee and the Municipal Office of Governing the City in accordance with the law, and also formed the "Procuratorial Organs to Carry out Special Procuratorial Supervision Suggestions on the Enforcement of Administrative Punishments to Promote the Construction of Administrative Law Enforcement Rule of Law and Standardization from Four Aspects", which was collected and published by the Municipal Party Committee's "Information Express".
After receiving the procuratorial proposal, the Municipal Transportation Bureau adopted the suggestions and revoked 64 cases that were ruled not to be allowed to be enforced in accordance with the law, and revoked the penalty amount of 2270,000 yuan. 16 rectification measures have been formed in terms of improving the procedures related to administrative law enforcement, applying for compulsory enforcement procedures, strengthening closed-loop management of cases, and effectively protecting the legitimate rights and interests of administrative counterparts, and optimizing the implementation of systems and mechanisms one by one. In addition, the two sides have also established a working mechanism of the "Opinions on Strengthening the Convergence of Administrative Procuratorates and Administrative Law Enforcement of Transportation" to promote the standardization of administrative law enforcement of transportation with high-quality legal supervision.
[Director Shi's point of view].
Through the supervision of administrative non-litigation enforcement, in administrative non-litigation cases where the people's court has ruled not to approve enforcement, use procuratorial suggestions to urge the transportation department to revoke the administrative punishment decision, standardize law enforcement in accordance with law, and effectively protect the lawful rights and interests of the parties.
Case 10, an information technology company v. a city food and drug administration, a city ** administrative punishment inspection and supervision case
[The court held that].
In August 2016, an information technology company in Guangxi signed a "CT tube technical maintenance service contract" with a hospital, and the contract stipulated that a company would repair a failed CT X-ray tube assembly (referred to as a tube) for a hospital, and the company provided a temporary substitute tube emergency for a hospital during the maintenance period, and the product was 194227 after the import duty was paid35 yuan. Because the tube did not obtain the medical device registration certificate, the former Municipal Food and Drug Administration (hereinafter referred to as the Municipal Food and Drug Administration) made an administrative penalty decision on a company's suspected illegal operation, and imposed a fine of 10 times on the company in accordance with the "Regulations on the Supervision and Administration of Medical Devices 1942273$5.
[The court held that].
After reconsideration and litigation, the court held that it was not improper for the Municipal Food and Drug Administration to apply a fine of 10 times the statutory minimum, so it ruled to reject the company's litigation claim. Dissatisfied, a company appealed and retried, but the court rejected it on the same grounds. A company applied to the procuratorate for supervision.
[The procuratorate thinks].
The Municipal Food and Drug Administration imposed another administrative penalty on a hospital in the same case, and finally imposed a penalty of 05 times the fine, i.e. a fine of 9711368 yuan. The procuratorate found that:According to Article 5 of the Administrative Punishment Law of the People's Republic of China, the types and ranges of punishments applicable to administrative punishments should be commensurate with the nature, circumstances and degree of social harm of the illegal acts. The subjective purpose of a company was to repair the original tube, and there was no subjective intention, and it also actively cooperated with the investigation, which was consistent with the situation of a hospital in Guangxi in terms of correcting illegal acts and social harm. Comparing the amount of fines imposed by the Municipal Food and Drug Administration on a hospital in the same case, and comprehensively considering the punishment ranges of the two parties, the fines involved in the case were obviously unusually heavy, violating the principle of proportionality and fairness of excessive punishment stipulated in the Administrative Punishment Law of the People's Republic of China, and the administrative acts sued were obviously improper. The procuratorate raised a prosecutorial counter-appeal in accordance with law. The court adopted the supervisory opinion of the procuratorate, changed the judgment in accordance with law, and ordered a new administrative punishment decision. Later, the market supervision and administration bureau of a city decided to reduce the punishment and imposed a fine of 1 times the value of the medical devices illegally operated, that is, 19422735 yuan.
[Director Shi's point of view].
When supervising the litigation of administrative punishment cases, in addition to reviewing the legality of the administrative act, the procuratorial organs should also conduct a reasonableness review of whether the discretion of the administrative punishment complies with the principle of proportionality of excessive punishment. Where the facts are unclear or truly in error in a court ruling, the procuratorate shall supervise in accordance with law and promptly correct the erroneous ruling.
Director Shi reminded
Demolition and relocation is a long-term struggle, which requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and updating, so that he can calmly analyze and make correct judgments in a case. For non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.