(i)
【Brief Introduction of the Case】
In Putian, Fujian Province, the man Wu Mou is a regular customer of a bar, and he often goes to the bar to watch the women's catwalk performance.
On the night of the incident, when he was watching the performance, he took a fancy to the woman Yu, so he paid 5,000 yuan to buy a garland through the bar staff Yang Mou, as a gift to the woman Yu Mou, and then took it away to open the house.
According to the regulations of the bar, after the customer takes a fancy to a woman, he pays the price of 200 yuan to 5000 yuan to buy a wreath to the bar, and after giving it to the woman as a gift, he can take it out of the bar, called the introduction, and then the bar and the woman are divided according to a certain proportion.
5 days later, the man Wu was arrested by the public security organs on suspicion of prostitution, and after arriving at the case, the man Wu refused to admit to prostitution, saying that he had opened a room with the woman Yu that night, but did not have sexual relations.
5,000 yuan is not a prostitute, it is paid to the bar staff Yang, for the cost of buying a wreath, after the bar staff Yang mou according to the agreement to give the woman Yu a share of 3,000 yuan, can not be regarded as prostitution, because it is not Wu himself to pay.
The public security organs did not adopt his defense, believing that his conduct constituted prostitution, and imposed an administrative punishment of 10 days of administrative detention and a fine of 5,000 yuan.
After Wu was not satisfied, after the administrative reconsideration and the first instance were upheld, an appeal was filed, and the court of second instance held that the public security organ found that the evidence of his prostitution was insufficient and revoked the administrative punishment decision against Wu. (Source of the case, Putian Intermediate People's Court)
【Lawyer's Opinion】
I. According to the relevant laws of the mainland, administrative penalties should be conclusive and "the burden of proof is reversed."
According to the provisions of the Mainland's Administrative Procedure Law, the defendant bears the burden of proof for the administrative act made, and shall provide evidence for the administrative act and the normative documents on which it is based.
Administrative litigation, commonly known as "civil sue official", the defendant party is an administrative organ, when administrative punishment is imposed on citizens, according to the above provisions, the rule of proof is "reversal of the burden of proof", that is, the organ that made the administrative punishment has the obligation to provide evidence and legal basis.
In this case, the public security organ, as the defendant, should adduce evidence to prove that its punishment decision has a real and sufficient factual basis and legal basis.
In this case, the defendant public security organ found that the bar involved was suspected of being involved in pornography and prostitution, but for the behavior of the party Wu X 5 days ago, it was not caught on the spot, and no evidence of prostitution with the woman Yu X was obtained, and Wu also insisted on denying it.
Therefore, the court of second instance revoked the administrative punishment, which is legal and reasonable.
II. The defendant's public security organ's determination of prostitution in this case is also unreasonable.
Prostitution, according to the provisions of the Public Security Administration Punishment Law, is an illegal act of sexual relations between the parties suspected of prostitution and prostitution, which is called prostitution.
In this case, the initial 5,000 yuan was paid by Wu to the bar staff, and its purpose was to buy garlands.
Afterwards, the bar staff divided 3,000 yuan into the woman Yu according to the agreement of the bar, which belonged to her labor income, not paid by Wu, and should not be identified as prostitution.
Third, according to the provisions of the Mainland's Public Security Administration Punishment Law, the behavior of the man in this case, Wu Mou, did not conform to the provisions of prostitution.
According to the provisions of the Mainland's Law on Punishment for the Administration of Public Security, prostitution, under normal circumstances, should have the following three circumstances:
(1) The parties reach an agreement on prostitution;
2. Have negotiated the price or paid money and property;
3. Implementation has begun.
In this case, there is no evidence that Wu and the woman Yu have negotiated on prostitution, and at the same time, the determination of prostitution cannot be established.
More importantly, for the third item, the act of prostitution has been initiated, this case occurred 5 days ago, no on-site evidence was obtained, and Wu himself firmly denied that sexual relations had occurred, so the administrative punishment in this case could not be established.
In this regard, according to the relevant provisions of the Mainland's Administrative Procedure Law, if the main evidence of the specific administrative act made by the defendant is insufficient, the people's court shall revoke it.
The rule of law and procedural justice are the guarantees of citizens' legitimate rights, and only by putting public power into the "iron cage" of the system and strictly standardizing administration can we ensure that the legitimate and legitimate rights of every citizen are not infringed upon.
In the process of paying attention to procedural justice, it is possible to spare individual lawbreakers, but this is the price that the rule of law should pay, and "preferring to indulge rather than waste" is worthwhile for the realization of procedural justice.
Finally, Wu in this case took the woman Yu to open a room, and the two really didn't do anything? Presumably everyone knows it, but as an administrative organ, it is necessary to explain the evidence for administrative punishment for illegal acts.
(ii)
@315 National Action
In Foshan, Guangdong Province, a man Tang once went out, parked his car in a roadside parking space, got out of the car to do business, however, when he returned from his business, he received a ticket from the traffic police team: illegal parking, fined 200 yuan.
The main reasons for the traffic police to punish him are:
1. Illegal parking, the prohibition sign set up at the entrance of the road section involved, clearly prompting: "Except for parking spaces in the whole section, parking is prohibited";
2. At the time of the crime, Tang parked the car in the special parking space for motorcycles, and the rear wheel and tail of his vehicle exposed the road, which seriously affected the passage of other vehicles and pedestrians.
Tang Mou was not satisfied, he believes that first, the special parking spaces for motorcycles set up by the traffic police department are unscientific and do not clearly indicate that they are only for motorcycles; second, cars and motorcycles, like motorcycles, are all motor vehicles, can be parked, and do not violate the law.
To this end, when Tang went to the traffic police team to accept the punishment, he deliberately recorded the whole process and recorded the whole process in its entirety.
Tang found that the punishment decision of the traffic police team recorded: "Before the punishment, the offender has been verbally informed of the facts, reasons and basis for the punishment, and the offender has been informed that he has the right to make a statement and the right to defend in accordance with the law." ”
However, the whole process, the traffic police department did not perform this procedure at all.
Therefore, Tang filed a paper complaint and sued the traffic police team in court, and his request was:
1. Confirm that the administrative punishment of the traffic police team is illegal and revoke it according to law;
2. Return the fine of 200 yuan and pay interest of 0.5 yuan;
3. Compensate 1,007 yuan for case acceptance fees, transportation costs, printing costs, etc.
After trial, the court held that in this case, Tang Mou parked his car on a special parking space for motorcycles in the forbidden section of the road, which seriously obstructed the passage of other vehicles and pedestrians, which was illegal parking.
As the functional department of road traffic safety management clearly stipulated by law, the traffic police team has the law enforcement power and the right to impose penalties in this case.
However, in this case, there is no evidence to prove that the traffic police team performed the notification procedure for Tang Mou in accordance with the law before implementing the punishment, which is a procedural violation.
Subsequently, the court made a first-instance judgment, confirming that the punishment procedure of the traffic police team was illegal, revoking its punishment decision, and ordering the return of Tang Mou's fine of 200 yuan.
Regarding Tang's request for interest payment of 0.5 yuan and compensation for other expenses of 1,007 yuan, the court found that there was no legal basis and rejected it.
After the first-instance judgment was issued, Tang was still not satisfied, he believed that the court confirmed that the traffic police team's punishment decision was illegal, and after revocation, in addition to returning the fine of 200 yuan, it should also pay interest and compensate other losses.
As a result, Tang appealed to the higher court.
After trial, the court of second instance held that: 1. Tang's claim for compensation for other expenses of 1,007 yuan in this case was an indirect loss, did not conform to the provisions of the Mainland's State Compensation Law, and was not supported;
2. Tang's request for compensation for interest is reasonable and supported.
Finally, the court of second instance changed the judgment of the case: in addition to returning Tang's 200 yuan fine, the traffic police team also calculated interest according to the bank's interest rate for the same period and similar loans, and compensated Tang, and the deadline was the date of payment. (Source of the case, Intermediate People's Court of Foshan City, Guangdong Province.) ）
I. "Clear facts, sufficient evidence, lawful procedures, and correct application of law" is the basic requirement of the law for administrative punishment, and where the administrative punishment procedure is illegal, the people's court may revoke it in accordance with law.
According to the provisions of the Mainland's Administrative Procedure Law, where an administrative punishment violates legally prescribed procedures, the people's court shall make a judgment to revoke or partially revoke it, and may order the defendant to make a new administrative act.
Under normal circumstances, administrative organs imposing administrative penalties on parties shall have clear facts, sufficient evidence, lawful procedures, and correct application of law. This is actually the basic requirement of the law for administrative punishment.
In this case, it is obvious that the traffic police team did not perform the notification procedure in accordance with the regulations before punishing Tang Mou.
Mainland China's Administrative Punishment Law clearly stipulates: "Before making an administrative punishment decision, an administrative organ shall inform the parties of the content, facts, reasons, and basis of the administrative punishment to be imposed, and inform the parties of their rights to make statements, defenses, and requests for a hearing in accordance with law." ”
Administrative law enforcement, the law can not be done without authorization, at the same time, according to the law, the law must be enforced according to law, in accordance with the procedures prescribed by law.
In this case, the traffic police team did not strictly follow the statutory procedures to enforce the law, and did not perform the notification procedures in accordance with the regulations, and the people's court may revoke it according to law.
Therefore, the court finally made a judgment to revoke the administrative punishment decision, which is in accordance with the law.
2. Tang X in this case has the right to receive administrative compensation.
Mainland China's Administrative Punishment Law stipulates that citizens, legal persons or other organizations who have suffered damages due to administrative punishments illegally granted by administrative organs have the right to submit compensation claims in accordance with law.
At the same time, the mainland's State Compensation Law stipulates that if an administrative organ and its staff violate one of the following circumstances of property rights when exercising administrative functions and powers, the victim has the right to obtain state compensation: "Fines for violations of the law..."
In this case, the traffic police team imposed an administrative penalty decision of a fine of 200 yuan on Tang, which was confirmed by the people's court to be illegal, and after the judgment was revoked, Tang had the right to apply for state compensation, requesting the return of the fine of 200 yuan, and claiming the corresponding interest loss.
Third, according to the provisions of the Mainland's State Compensation Law, the state compensates only for direct losses, not indirect losses, and there is no legal basis for Tang's other losses of 1,007 yuan in this case.
According to the provisions of the Mainland's State Compensation Law, the loss of 1,007 yuan proposed by Tang in this case is an indirect loss, not a direct loss caused by the administrative punishment behavior of the traffic police team, and Tang's litigation claim lacks legal basis and will not be supported by the court.
Theoretically, in the state compensation, indirect loss compensation is not supported, mainly for two reasons, one is that the state property can bear limited capacity and may not be able to afford it.
Second, indirect losses, in actual operation, it is difficult to determine and calculate, such as the loss of suspension of production and business, not only difficult to calculate accurately in actual operation, but also a huge workload.
However, for State compensation, the legislative call for indirect losses should be taken into account and has always existed.
Fourth, "to strike iron also needs to be hard", administrative organs in the process of law enforcement, strictly regulate law enforcement, abide by the legal procedures, is the due meaning of the rule of law.
Public security organs traffic police law enforcement, "to strike iron also need to be hard", law enforcement organs in administrative law enforcement, must strictly regulate law enforcement, according to law enforcement.
Putting power into the "cage" of the system is an important measure to ensure that citizens' legitimate rights are not infringed.
The rule of law and administration according to law are important guarantees for citizens' legitimate rights, and only by putting public power into the "iron cage" of the system and strictly standardizing law enforcement can we ensure that the legitimate and lawful rights of every citizen are not infringed upon.
The man in this case, Tang Mou, is not fighting for a mere 200 yuan, but to safeguard his legitimate rights and interests and personal dignity.
When one's legal rights are violated, bravely say "no", take up the legal weapon, and defend one's legitimate rights and interests, which is also a legitimate right granted to citizens by law.
In fact, on the road of the rule of law, it is inseparable from this "more real" spirit, and it is this "more true" spirit that promotes the prudent use of power by law enforcement organs and the law according to law.
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