Intermediate Court of Province A and B.
Administrative Judgments.
The original judgment found that on February 20, 2014, the defendant served the "Administrative Penalty Decision" to the plaintiff, and the ascertained facts were: since January 2014, Sheng XX and his wife Yao XX used mahjong machines, playing cards and other gambling equipment to play mahjong and pushing the Czech Republic in the D chess and card room opened by Lin XX in Building 15, C Community, Farm Department B of Province A, using chips instead of cash to provide convenient conditions for gambling activities and gambling personnel. In this regard, Sheng Moumou and Yao Moumou both knew about it and illegally profited. During this period, Sheng Moumou participated in illegal gambling activities by playing mahjong.
At about 20 o'clock on February 10, 2014, the Public Security Brigade of the C Public Security Bureau investigated and dealt with the gambling activities in the chess and card room, and in the process of inspecting it in accordance with the law, Sheng Moumou stuffed the gambling money in his left trouser pocket to Lu in order to prevent the police from confiscating the gambling funds, which was a hidden evidence. The applicable laws are Article 11, Paragraph 1, Article 70 and Article 16 of the Law of the People's Republic of China on Public Security Administration Penalties and Article 8, Paragraph 3 of the Administrative Punishment Law of the People's Republic of China. The result of the punishment is: the violator Sheng Moumou's violation of public security administration will be executed together, and the administrative punishment of administrative detention for 20 days and a fine of 900 yuan will be imposed, and the gambling funds of Sheng Moumou will be confiscated and confiscated.
On February 27, 2014, the defendant served the plaintiff with an Administrative Penalty Decision. The facts and punishment results ascertained in the decision are consistent with the Administrative Penalty Decision of the same name served on the plaintiff on February 20, 2014, and the applicable law is adjusted to Articles 70, 11, Paragraph 1, and 60 (2) of the "Public Security Administration Punishment Law of the People's Republic of China" and Article 8 (3) of the "Administrative Punishment Law of the People's Republic of China".
The trial court held thatThe evidence cited by the defendant, such as witness testimony, the plaintiff's self-admission record, and on-site film and television materials, is sufficient to prove the existence of the plaintiff's illegal acts. The defendant's specific administrative act must be clear in facts, credible and sufficient, and lawful in procedure. Where the defendant shall be punished once for the same violation, but the defendant makes two punishment decisions and serves two times for the same violation, and the defendant's specific administrative acts are procedurally illegal and should be revoked in accordance with lawThe defendant is to take a new specific administrative act. In accordance with the provisions of Article 54 (2), Item 3 of the "Administrative Litigation Law of the People's Republic of China", the judgment: 1RevocationThe Administrative Punishment Decision made by the Public Security Bureau of Province A and B on February 20, 2014 and February 27, 2014.
During the second instance, the appellant did not provide new evidence to the court.
After trial, this court confirmed that the facts ascertained in the original judgment were true.
This court held that the Appellee's determination of the fact that the Appellant Sheng XX had violated the law was sufficient to make a determination. The appellant's grounds for appeal asserted that the punishment procedure of Appellee C Public Security Bureau was seriously illegal, and that the original judgment had found that the specific administrative act of the administrative penalty decision made by Appellee C Public Security Bureau was procedurally unlawful, and that the Appellee's specific administrative act did violate legal procedures, and this court upheld the determination of the original judgment. When an administrative organ takes a specific administrative act, it is not only required that the facts are clear, the evidence is credible and sufficient, and the law is correctly applied, but it must also ensure that it complies with legal procedures.
On February 20, 2014 and February 27, 2014, the Appellee B's Public Security Bureau made two specific administrative acts of the Administrative Penalty Decision with different laws and regulations on the same facts and the same case number, and violated legal procedures, and ruled that the specific administrative acts made by the Appellee B were in accordance with the law and should be upheld。The appellant's appeal request for the court of second instance to change the judgment that the appellee's specific administrative act has no facts of violation and no basis for punishment has no factual or legal basis, and this court does not support it. In the course of the trial, the original trial court did not illegally determine the evidence submitted by the Appellee within the time limit, nor did it illegally exceed the time limit for trial. In accordance with the provisions of Article 64 (1) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was affirmed.
Case 2
The People's Court of District B of City A.
Administrative Judgments.
Based on the above-mentioned valid evidence and the parties' cross-examination opinions, this court found the following facts: At about 21 o'clock on August 14, 2012, after receiving the report, the C police station of the Public Security Bureau of District B immediately arranged for law enforcement personnel to investigate and deal with the teahouse 3-4 of Building D, C Street, District B, and brought all the personnel of the teahouse to the XX police station for investigation, and the plaintiff was also placed on file for investigation on suspicion of playing cards and gambling, and after investigation by the law enforcement officers of the defendant District B Public Security Bureau, it was determined that the plaintiff Zhang was invited by a friend to go to the teahouse at No. 3-4, Building D, C Street, District B, and Li, Zheng, Yang and others, through the way of playing mahjong, with a bet of 1,500 yuan each, "upside down Hu" to add bars and break through the level to gamble.
This court believes that Article 7 of the Law of the People's Republic of China on Public Security Penalties stipulates that the public security department is responsible for the management of public security throughout the country. Local people's public security organs at or above the county level are responsible for the administration of public security within their respective administrative regions. The defendant District B Public Security Bureau has the statutory duty to investigate and deal with violations of the administration of public security in accordance with the law within its administrative region.
The defendant imposed an administrative penalty on the plaintiff on the grounds that he played cards and gambled, and later revoked the Public Security Administrative Punishment Decision on the grounds that there were procedural flaws. Subsequently, the defendant re-fulfilled its obligation to inform the plaintiff, and after the plaintiff submitted his defense, the defendant also made a review opinion. Thereafter,The defendant also served the plaintiff with two copies of the Public Security Administrative Punishment Decision at different times but with the same content, causing the plaintiff to believe that the legal document was made by the defendant in order not to exceed the time limit for handling the case, and the defendant argued that it was caused by a clerical error. As the main body of investigation and handling of public security cases, defendants should strictly follow the provisions of laws and regulations to handle violations of the administration of public security in accordance with law. The legal documents made by the defendant should be serious and rigorous, and the punishment imposed by the defendant against the plaintiff is a procedural violation and should be revoked in accordance with the law。Therefore, in accordance with the provisions of Article 54, Paragraph 2, Item 3 of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:
RevocationThe "Public Security Administrative Punishment Decision" made by the defendant B District Public Security Bureau.
2. Gambling violations can only be punished once, but not twice
After the public security organs have ascertained the illegal gambling acts of the gambling personnel, they can only impose one punishment on the illegal gambling acts, but cannot impose the same punishment twice. Otherwise, the gambling administrative penalty will be revoked.
In the above case, the public security organ imposed two penalties on the gambling personnel for their gambling behavior, which violated the regulations, so the court revoked the gambling administrative penalty decision.
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: He has handled and reviewed criminal cases, public security cases, and traffic cases in public security organs for more than 10 years.
Areas of expertise: Criminal Defense, Drunk Driving Defense,Pornography, gambling, drugs, public security penalties, temporary seizure, revocation of driver's licenses, traffic penalties, administrative reconsideration, administrative litigation
Performance: bail in criminal cases, non-prosecution, probation; **, gambling, revocation of driver's license and other administrative penalties have been revoked or the range of penalties has been reduced
