1. Cases
The People's Court of Province A and City C.
Administrative Judgments.
After the trial, it was ascertained that on May 1, 2018, the patrol special police brigade of the D County Public Security Bureau received a report from the public that someone had organized ** on the fifth floor of the XX Health Center, and on May 2, the D County Public Security Bureau decided to file and investigate the case of Zhang, Zhao, Wang, Shi, and Hao in accordance with Article 110 of the Criminal Procedure Law of the People's Republic of China. In the investigation, on May 9, the D County Public Security Bureau questioned Yu as a witness, served Yu with a notice of rights and obligations in the administrative case and made a record of the interrogation, and on August 9, the D County Public Security Bureau transferred Zhang, Zhao, Wang, Shi, and Hao to the D County Procuratorate for prosecution on suspicion of organizing **, and on December 27, the D County Procuratorate issued a notice to the D County Public Security Bureau, of which the seventh item requires an administrative punishment of the ** person, and attaches the administrative punishment decision. On January 23, 2019, the Public Security Bureau of County D notified Yu of the administrative punishment and served the "Administrative Punishment Decision", determined that Yu had ** behavior, decided to fine Yu 500 yuan, and entered the relevant information into the case-handling online platform. Yu was dissatisfied and sued to this court.
This court is of the opinion that, aThe registration of cases received and reported is the most important link and necessary procedure for public security organs to handle public security administrative casesIt is a violator of public orderPrerequisites for initiating investigations and administrative penalties for public security。In this case,The defendant D County Public Security Bureau is investigatingZhang, Zhao, Wang, Shi, HaoOrganize the course of a criminal caseOn May 9, 2018The plaintiff Yu was questioned as a witness and found that the plaintiff Yu had ** illegal actsOn January 23, 2019, it was made directly against the plaintiff YuAn administrative penalty of a fine of 500 yuan, but failure to provide a case acceptance registration form or a record of the discovery of the case, and the administrative punishment lacks the conditions to be initiatedThe procedure is illegal,It should be revoked.
In summary, in accordance with Article 70 of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows: revoke the "Administrative Penalty Decision" made by the defendant D County Public Security Bureau against the plaintiff Yu.
2. Relevant provisions
Law of the People's Republic of China on Public Security Administration Punishments
Article 77Public security organs voluntarily surrender to persons who report, accuse, inform, or violate the administration of public securityand other administrative departments or judicial organsCases of violations of the administration of public security shall be promptly accepted and registered
Article 78: Where public security organs find that a case is a violation of the administration of public security after receiving a report, accusation, report, or surrender, they shall immediately conduct an investigation; Where it is found that it is not a violation of the administration of public security, the person making the report, the accuser, the informant, or the person who surrenders shall be notified, and the reasons shall be explained.
Provisions on the Procedures for the Handling of Administrative Cases by Public Security Organs
Article 27, paragraph 1: Public security organs must follow legally-prescribed procedures to collect evidence that can prove whether the suspect violated the law and the severity of the violation.
Article 60: Cases transferred by county-level public security organs and their public security police substations, operational departments of public security organs that have the qualifications of independent law enforcement entities in accordance with law, and entry-exit border inspection stations that report, accuse, report, transfer from the public, or surrender of suspects of violating the law, as well as those transferred by other state organsCases shall be promptly accepted and registered online in accordance with provisions。Where there are duplicate reports, or the case is being handled or has already been completed, an explanation shall be given to the person making the report, accuser, informant, person who turned it in, or the person who surrendered, and it is no longer to be registered.
Article 61: Public security organs shall make the following dispositions of case reports, accusations, reports, public transfers, or surrenders of suspects of violations, and note the disposition in the registration of receiving reports:
1) Cases that are within the jurisdiction of that unitshall immediately investigate and handle it, draft a case acceptance registration form and a receipt for accepting the case, and give the receipt of acceptance to the person making the report, accuser, informant, or transfer
The provisions of the preceding paragraph apply to illegal conduct discovered in the course of routine law enforcement duties.
3. Public security organs handling *** cases must first register the case before they can carry out follow-up investigation and evidence collection; Otherwise, the administrative penalty of ** will be revoked
According to the above provisions, when handling a case, the public security organ must first register the case and make a registration form and a receipt for accepting the case before carrying out the follow-up investigation and evidence collection. If the report is not registered, the investigation of the public security case cannot be initiated, and it is even more illegal to impose administrative penalties.
In this case, the public security organs only discovered Yu's ** behavior in the handling of the criminal case of the organization ** and questioned him as a witness. After the inquiry, the public security organs did not accept Yu's ** case, nor did they start an investigation into Yu's ** case, and then directly imposed an administrative penalty of a fine of 500 yuan on Yu, and the procedure was seriously illegal. Therefore, the court revoked the administrative punishment letter imposed by the public security organ on Yu.
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 DefenseDrunk driving defense, pornography, gambling and drug security punishment, temporary seizure and revocation of driver's license, administrative reconsideration of traffic penalties, and administrative litigation.