The Supreme People's Procuratorate has a theme of supervision of administrative procuratorial cases
Publish Guiding Cases
A combination of case supervision and similar case supervision
Do a deep and solid job of litigation source governance
On April 18, the Supreme People's Procuratorate issued the 36th batch of Guiding Cases, summarizing and refining the types, methods, and case-handling rules for supervision of administrative procuratorial cases, and guiding the practice of supervision of similar cases. This is the first time that the Supreme People's Procuratorate has issued Guiding Cases with the supervision of administrative procuratorial cases as the theme.
There are 4 guiding cases in this batch, namely Lu X v. Fujian Province Municipal Public Security Bureau Traffic Police Detachment Road Traffic Administrative Punishment Procuratorial Supervision Case, Hunan Province Municipal People's Procuratorate Procuratorial Supervision Case on the Administrative Litigation Enforcement Activities of a Municipal People's Court, Anhui Province Natural Resources and Planning Bureau Application for Compulsory Demolition of Buildings illegally Occupied Land Administrative Punishment Decision Procuratorial Supervision Case, Mi X v. Zhejiang Province Housing and Urban-Rural Development Bureau, a Municipal People's Government Information Disclosure and Administrative Reconsideration Procuratorial Supervision Case.
Yang Chunlei, member of the Supreme People's Procuratorate Party Group and deputy procurator general, said that this batch of Guiding Cases highlights the role of supervision of similar cases in promoting fair administration of justice and administration according to law, follows the internal laws of administrative procuratorates, reflects the initiative of administrative procuratorial supervision, and fully embodies the higher quality and effectiveness of administrative procuratorial supervision. Supervision of administrative procuratorial cases gives play to the role of administrative procuratorates in "one hand and two families", upholds the concept of penetrating supervision, dynamic supervision, and systematic supervision, takes individual cases as the incision point, and forms a consensus with judicial organs and administrative organs on common problems such as similar errors or inconsistent application of law in judicial and law enforcement activities, or for common problems that exist in administrative law enforcement and social governance.
Taking Lu X v. a public security bureau in Fujian Province, a traffic police detachment, for example, the procuratorial organ corrected the case through a protest and reached a consensus with relevant units on the handling of such cases in view of the common problem that there was an inconsistency between the law enforcement decision to revoke the driver's license of a motor vehicle and the administrative judgment.
Yang Chunlei said that in the next step, the administrative procuratorate will, as always, deeply implement Xi Jinping Thought on the Rule of Law, adhere to the people-centered approach, take the implementation of the "Opinions of the CPC Central Committee on Strengthening the Legal Supervision of Procuratorial Organs in the New Era" as the main line, take high-quality development as the theme, pay more attention to the concept of system, and effectively enhance the awareness of supervision of similar cases; pay more attention to the combination of individual case supervision and supervision of similar cases, ensure that the same type of cases are handled equally under the same conditions, standardize law enforcement judicial behavior, and ensure the unified and correct implementation of the law Pay more attention to the governance of the source, do the governance of the source of litigation in depth and in detail, be able to perform duties according to law, more consciously "see the small things" from specific cases, promote the solution of prominent problems in a place, an industry, and a field, and achieve good results in handling a case, governing a piece, and benefiting one party.
On printing and distributing to the Supreme People's Procuratorate
Notice of the 36th Batch of Guiding Cases
The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government, the military procuratorates of the People's Liberation Army, and the people's procuratorates of the Xinjiang Production and Construction Corps:
As decided at the 87th meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on January 19, 2022, four cases , including Lu X v. A Public Security Bureau of Fujian Province Traffic Police Detachment Road Traffic Administrative Punishment Procuratorial Supervision Case (Procuratorate Case No. 146-149), are hereby released as the 36th batch of Guiding Cases (Administrative Procuratorial Case Supervision Themes) for reference and application.
The highest people's procuratorate
March 3, 2022
Case 1
Lu sued a traffic police detachment of a public security bureau in Fujian Province
Road traffic administrative punishment procuratorial supervision case
(Prosecution Case No. 146)
【Keywords】
Supervision of administrative procuratorates, convictions, sentencing, revocation of motor vehicle driver's licenses, protests, and unified law enforcement judicial standards
【Abstract】
Where the judicial organs pursue criminal responsibility for driving a motor vehicle while drunk, the traffic management department of the public security organ shall revoke all quasi-driving type motor vehicle driving licenses held by the perpetrator in accordance with law. People's procuratorates handling administrative litigation supervision cases, where there are common problems of inconsistent application of law enforcement and judicial adjudication, may employ a combination of case-by-case supervision and supervision of similar cases, and while supervising and correcting individual cases, promote the relevant organs' unified law enforcement judicial standards, and ensure the correct and uniform implementation of the law.
【Basic Facts】
At about 21:00 on May 1, 2013, Lu Mou drove a two-wheeled motorcycle without a license plate after drinking and collided with a roadside pedestrian Wu Mouzhen, causing minor injuries. After appraisal, Lu's blood alcohol concentration is 255mg/100ml, which has reached the standard of drunk driving; after a traffic accident of a large brigade of the traffic police detachment of a municipal public security bureau (hereinafter referred to as the municipal traffic police detachment), Lu is fully responsible for the accident. According to Article 99 of the Road Traffic Safety Law of the People's Republic of China, a brigade of the Municipal Traffic Police Detachment fined Lu Mou 300 yuan for driving a motorcycle without a number plate without a license. A district people's court in the city sentenced Lu to three months' detention for dangerous driving and fined him RMB3,000 (the judgment has taken effect and the 300 yuan fine has been offset). Subsequently, the Municipal Traffic Police Detachment made an administrative punishment decision to revoke the driver's license of a motor vehicle against Lu in accordance with the second paragraph of Article 91 of the Road Traffic Safety Law of the People's Republic of China, and Lu was not satisfied with the penalty decision and filed an administrative lawsuit with a district people's court on the grounds that the small car driving license he held had nothing to do with the traffic accident involved in the case.
On September 24, 2013, the District People's Court rendered a first-instance judgment upholding the administrative punishment decision made by the Municipal Traffic Police Detachment. Lu was not satisfied and appealed to the Municipal Intermediate People's Court. After trial, the Municipal Intermediate People's Court held that Lu had been criminally punished for driving drunk without a license in the same traffic accident, and had also been fined an administrative penalty for driving a motorcycle without a license plate. The current municipal traffic police detachment then revoked Lu's small car driving license for drunken driving, which contradicted the criminal punishment and administrative fine punishment that Lu had already received, so on December 11, 2013, a second-instance judgment was made: first, revoke the first-instance administrative judgment made by the district people's court; second, revoke the administrative punishment decision made by the municipal traffic police detachment to revoke Lu's motor vehicle driver's license.
【Procuratorial Organs' Performance of Duties】
Source of the case. The Municipal Traffic Police Detachment was not satisfied with the second-instance judgment and applied to the Municipal People's Procuratorate for supervision. After review in accordance with law, the Municipal People's Procuratorate found that the second-instance judgment was wrong in applying the law, so it issued a retrial procuratorial recommendation to the Municipal Intermediate People's Court. The Municipal Intermediate People's Court replied that it would not retry. The Municipal People's Procuratorate submitted a protest from the Fujian Provincial People's Procuratorate.
Oversight opinions. After review, the Fujian Provincial People's Procuratorate found that Lu Mou was drunk and driving a two-wheeled motorcycle without a number plate, violating the provisions of the Road Traffic Safety Law of the People's Republic of China, and was punished with criminal punishments and administrative penalties of revocation of driver's license and fines, respectively, and there was no contradiction between the three. The revocation of a motor vehicle driver's license under the Road Traffic Safety Law of the People's Republic of China is a penalty that deprives the holder of the qualification to drive on the road of various types of motor vehicles, not just the qualification to drive a certain quasi-driving type. The administrative penalty decision complained of is based on the perpetrator committing an illegal act that seriously endangers road traffic safety, believing that allowing him to continue to drive a motor vehicle or endangering public safety, thereby making a decision to terminate his driving permit. This is a negative evaluation of the offender's road traffic safety and legal awareness, which has nothing to do with the quasi-driving type of the offender actually holding a driver's license, nor with the type of motor vehicle he actually drove when committing the illegal act. The second-instance judgment did make an error in the application of the law.
After investigation, the Fujian Provincial People's Procuratorate found that in 2019, 32 cases of administrative punishments for the revocation of driver's licenses by public security organs in fujian province were revoked by court rulings. In these cases, the public security organs held that the revocation of the driver's license refers to the revocation of the driving qualifications of all quasi-driving types of the offender; the court believes that the revocation is not based on sufficient basis and does not meet the principle of proportionality of excessive punishment, and usually orders to revoke the administrative punishment decision of revoking the driver's license of the motor vehicle, and the understanding and application of the law are inconsistent in law enforcement and justice.
Supervise the results. On September 30, 2019, the Fujian Provincial People's Procuratorate filed a protest with the Fujian Provincial High People's Court, holding that the second paragraph of Article 91 of the Road Traffic Safety Law of the People's Republic of China stipulates that "if a person drives a motor vehicle drunk, he shall be restrained by the traffic department of the public security organ until he is drunk, revoke the driver's license of the motor vehicle, and pursue criminal responsibility in accordance with law; he shall not re-obtain a motor vehicle driving license within five years", of which "revoking the driver's license of a motor vehicle and pursuing criminal responsibility according to law" is not an optional punishment measure; according to the " The second paragraph of article 4 of the Administrative Punishment Law of the People's Republic of China (2009) stipulates that "the establishment and implementation of administrative penalties must be based on facts, and are commensurate with the facts, nature, circumstances and degree of social harm of the illegal act", Lu Mou's drunken driving of a motor vehicle on the road is an act that endangers public safety, and the municipal traffic police detachment imposed a penalty of revoking all quasi-driving qualifications after Lu was investigated for criminal responsibility in accordance with the law. On May 21, 2020, the Fujian Provincial High People's Court adopted the procuratorial organ's counter-appeal opinion and rendered a retrial judgment: 1. Revoke the second-instance judgment made by the Municipal Intermediate People's Court; 2. Uphold the first-instance judgment made by the District People's Court.
Supervision of similar cases. In view of the relatively large social impact of similar cases and their certain representativeness, and the differences in understanding and application of the law between administrative law enforcement and judicial adjudication, which affect the credibility of law enforcement and the authority of the judiciary, the Fujian Provincial People's Procuratorate took the initiative to strengthen communication and coordination with the Provincial High People's Court and the Provincial Public Security Department, conducted discussions and discussions on the issue of revoking motor vehicle driver's licenses, and reached a consensus on the adjudication scale and law enforcement standards for administrative litigation cases of revoking motor vehicle driver's licenses. On March 19, 2021, the Fujian Provincial Public Security Department issued the Notice on Further Regulating the Handling of Administrative Cases of Revocation of Motor Vehicle Driver's Licenses, requiring strengthening source management and incorporating the relevant provisions of the revocation of motor vehicle driver's licenses into the question bank of the safe and civilized driving knowledge examination for applying for motor vehicle driving licenses; at the same time, in view of the fact that the administrative punishment for revoking a motor vehicle driving license detracts from the rights and interests of the punished person, it is required to standardize the case handling procedures, strictly determine the facts, and comprehensively consider the illegal facts and nature of the illegal driver. The circumstances and the degree of social harm reflect the proportionality of excessive punishment. On April 30, 2021, the Fujian Provincial People's Procuratorate and the Provincial High People's Court issued meeting minutes, putting forward specific requirements for procuratorial organs and people's courts to correctly implement the Road Traffic Safety Law of the People's Republic of China and handle administrative cases of revocation of motor vehicle driver's licenses, and unify the standards of judicial adjudication. Up to now, there is no longer a problem of inconsistent judicial standards for law enforcement in administrative cases involving the revocation of driver's licenses in the province.
【Guiding Significance】
(1) Where violations of laws and regulations on road traffic safety constitute a crime such as drunk driving, the driver's driver's license for the motor vehicle held by the driver shall be revoked in accordance with law. For those constituting a crime, the criminal punishment and the administrative punishment of revoking the driver's license are not mutually exclusive, and the judicial organs pursue the criminal responsibility of the driver in accordance with the law, and do not affect the administrative punishment of the administrative organ for revoking the driver's license of the motor vehicle in accordance with the law. In view of the fact that the revocation of a motor vehicle driver's license is an administrative punishment that detracts from the legal capacity of the person being punished, the illegal act of revoking the driver's license of a motor vehicle that is required by laws and regulations must comply with the statutory circumstances and strictly abide by the statutory procedures. For illegal acts that laws and regulations provide that a motor vehicle driver's license can be revoked, it is necessary to comprehensively consider factors such as the facts, nature, circumstances of the violation, and the degree of social harm to decide whether to revoke it, and ensure that the penalty is equal.
(b) The administrative penalty of revocation of a motor vehicle driver's license is a qualification penalty aimed at depriving the holder of the right to drive any type of motor vehicle on the road. The law provides for the implementation of an administrative licensing system for the driving of motor vehicles, requiring a license to drive, with the purpose of ensuring public safety in road traffic. The revocation of a motor vehicle driving license provided for in the Road Traffic Safety Law of the People's Republic of China is the revocation of the driver's license of all permitted driving types of the holder, not the revocation of a certain quasi-driving type of driving license. Administrative law enforcement and judicial activities must correctly understand and implement laws and regulations, conform to legislative purposes and social management objectives, and realize the governance function of the administrative punishment system in maintaining social order and ensuring public safety.
(3) Where people's procuratorates handle administrative litigation supervision cases and discover that there are common problems of inconsistent application of law in administrative judgments and law enforcement decisions, they shall carry out supervision of similar cases. While supervising and correcting individual case errors in accordance with law, procuratorial organs shall conduct consultations with administrative organs and people's courts to promote the formation of consensus, resolve common problems such as inconsistent understanding and inconsistent standards in law enforcement and judicial case handling, promote unified law enforcement judicial standards, and correctly enforce laws.
【Regulations】
Article 91 and Article 93, Paragraph 2 of the Administrative Procedure Law of the People's Republic of China (amended in 2017).
Paragraph 2 of Article 4 of the Administrative Punishment Law of the People's Republic of China (amended in 2009) (now the second paragraph of Article 5 after the revision in 2021)
Paragraph 2 of Article 91 and Article 99 of the Road Traffic Safety Law of the People's Republic of China (amended in 2011) (now Article 91, Paragraph 2 and Article 99 after the amendment in 2021)
Article 48 of the Provisions of the Ministry of Public Security on Procedures for Handling Road Traffic Safety Violations (revised in 2008) (now Article 50 after the revision in 2020)
Case 2
The people's procuratorate of a city in Hunan Province confronts the municipal people's court
Procuratorial supervision of administrative litigation enforcement activities
(Prosecution Case No. 147)
【Keywords】
Administrative Procuratorial Supervision of Administrative Litigation Enforcement Activities Procedural Violations Jurisdiction in Different Places
【Abstract】
People's procuratorates carrying out legal supervision of the people's courts' administrative litigation enforcement activities shall supervise the entire process of enforcement of case filing, adoption of enforcement measures, and enforcement of case closure, and promote the timely realization of the content determined in administrative judgments in accordance with law. Where it is discovered that there are similar illegal problems in the people's courts' administrative litigation enforcement activities, procuratorial suggestions may be submitted to the people's courts on correcting similar problems, and continue to follow up and supervise implementation, promoting lawful enforcement. In administrative cases where the people's courts have centralized jurisdiction across administrative regions, in principle, the people's procuratorate corresponding to the same level where the court accepting the case is located has jurisdiction over and performs the corresponding legal supervision duties.
【Basic Facts】
In July 2020, in the course of performing its legal supervision duties, the people's procuratorate of a city in Hunan Province discovered that after the administrative judgment made by the people's court of a city with cross-regional centralized jurisdiction took legal effect in a case of Li X's application for the return of compulsorily seized property by a county public security bureau, and the court ruled to grant compulsory enforcement. Subsequently, the court issued a ruling on the termination of enforcement, but the ruling did not state in accordance with the law the right and time limit for the parties to raise objections to the termination of enforcement within 60 days from the date of receipt of the ruling.
In the course of supervising and handling the case, the Municipal People's Procuratorate also found that in two cases, another applicant, Su XX, applied to a town government to perform the administrative judgment, and the applicant Jiang XX applied for a county human resources and social security bureau to perform the administrative judgment, the Municipal People's Court made a ruling to terminate the enforcement, and did not specify the content of the parties' rights and remedies such as the objection and the time limit for objection to the people's court.
【Procuratorial Organs' Performance of Duties】
Source of the case. In the course of performing its duties, the Municipal People's Procuratorate discovered that the irregularities in the administrative litigation enforcement activities of the people's courts were not isolated in the locality, affecting the parties' legitimate rights in accordance with the law and harming the fairness of judicial adjudication, and decided to carry out special supervision of the administrative litigation enforcement cases of the Municipal People's Court from 2017 to 2020.
Review and verification. After reviewing, investigating, and comparing the 20 administrative litigation enforcement cases of the Municipal People's Court, the Municipal People's Procuratorate found that there were the following illegal situations in the administrative litigation enforcement activities of the Municipal People's Court: First, the case filing procedures were not standardized. Thirteen of the 20 cases were not filed within seven days, and there was a problem of overdue filing. Second, procedures such as service, notification, and enforcement of settlement are not standardized. In 7 cases, there were problems such as non-service, late service, or non-compliance with the provisions of the service of retention; in 11 cases, the ruling on the termination of service did not inform the parties of the right and time limit to raise objections; and in 1 case of enforcement settlement, the person subject to enforcement did not sign the settlement agreement. Third, the procedures for closing the case are not standardized. In one case, the provisions on terminating this enforcement are not applicable in non-property enforcement cases, and if the judgment orders the administrative organ to make a new administrative act, the judgment shall be terminated on the grounds that the person subject to enforcement has no property available for enforcement. In the two cases in which the administrative judgment ordered the administrative organ to make a new administrative act, the administrative organ only issued a suspension explanation and did not actually perform it, but instead closed the case by terminating the enforcement and completing the enforcement.
Supervision of similar cases. In view of the problems found in the special supervision, the Municipal People's Procuratorate researched and believed that many of the 20 cases had the same illegal situation, and the content of the supervision of each case was repetitive and inefficient, and similar case supervision should be carried out. On September 10, 2020, the Municipal People's Procuratorate issued a procuratorial recommendation to the Municipal People's Court, proposing to improve the enforcement of administrative litigation: First, strictly implement the case filing and registration system, and accept the administrative litigation enforcement cases applied for by the parties within the statutory time limit. The second is to standardize procedures such as service, notification, and enforcement of settlements, and the service of legal documents shall be delivered in strict accordance with the legally prescribed methods and time limits, and the rights and time limits for relief shall be informed in accordance with law; for enforcement of settlement cases, the enforcement of the settlement agreement shall be strictly reviewed, and the applicant for enforcement and the person subject to enforcement must sign and confirm the settlement agreement. The third is to standardize the procedures for closing the case, and the preconditions stipulated in the judicial interpretation are required to make a ruling to terminate enforcement or terminate this enforcement ruling.
Supervise the results. After receiving the procuratorial suggestions, the Municipal People's Court strengthens and improves its work from five aspects, and replies to the Municipal People's Procuratorate: 1. Strictly implement the case filing and registration system, speed up the review of application materials for filing a case, standardize the enforcement of case filing and registration behavior, and ensure that the case filing is completed within seven days after receiving the materials. 2. Arrange for a special person to be responsible for service, and immediately after receiving the case materials, serve the enforcement notice and report the property order and other materials to the person subject to enforcement through the Hunan Provincial Government Affairs Extranet SMS platform and the court express mail, and after the relevant enforcement measures are made, the legal documents are served within the time limit prescribed by law. 3. In strict accordance with the relevant requirements of the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of the People's Courts (for Trial Implementation) and the Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement of Settlement Agreements, where the parties reach a settlement, a written settlement agreement shall be signed and stored in the file; where an oral settlement agreement is reached, the enforcement personnel shall record it in the record and sign or seal it by both parties. 4. Rectify the problem of irregularities in the conclusion of enforcement cases, and standardize the application of different enforcement methods on the basis of different applicable conditions such as the termination of enforcement, the termination of this enforcement, and the conclusion of enforcement cases provided for by laws and judicial interpretations, and on the basis of the actual results of enforcement. 5. For cases of termination of enforcement, inform the parties of the right to raise objections in accordance with law, attach the notification situation to the file, and standardize the notification procedures for the parties' enforcement of the right to oppose.
For cases discovered in the special supervision that the termination of this enforcement does not meet the conditions and the flexible conclusion of the case, the Municipal People's Procuratorate follows up and urges the people's court to promptly take statutory measures to enforce the case in place.
【Guiding Significance】
(1) People's procuratorates shall strengthen supervision of the enforcement of administrative litigation, and promote the people's courts' timely enforcement of effective administrative judgments in accordance with law. The enforcement of administrative litigation is directly related to the realization of the lawful rights and interests of the parties. Where the people's procuratorate discovers that the people's court has not accepted an application for enforcement in accordance with law, failed to make an enforcement ruling in accordance with law, failed to adopt enforcement measures in accordance with law, incorrectly applied circumstances in which enforcement is terminated or terminated, or other circumstances in which enforcement is not performed or neglected to perform enforcement duties, it shall submit a procuratorial recommendation to the people's court.
(2) Where in the course of performing legal supervision duties, people's procuratorates discover that there are multiple violations of the same kind in the enforcement of administrative litigation, and may conduct supervision of similar cases. Where through comparing the handling of similar cases in people's courts, it is found that there are similar errors or illegal conduct in multiple cases, and the content of the implementation of supervision of individual cases is repetitive and the efficiency is not high, the problems reflected in the same type of case may be summarized, sorted out, and classified, the common problems reflected in the case may be analyzed and judged, and targeted supervision and procuratorial suggestions for similar cases are put forward in accordance with law, tracking and supervising implementation, promoting the centralized resolution of one type of problem, and improving the quality and effectiveness of supervision.
(3) People's procuratorates handling administrative cases in which people's courts have centralized jurisdiction across administrative regions shall practice the concept of convenience for the people, with the principle of corresponding supervision and jurisdiction as a guideline, supplemented by designated jurisdiction that is conducive to the substantive resolution of administrative disputes. In principle, administrative cases accepted by courts with centralized jurisdiction are to be under the jurisdiction of the procuratorate at the same level corresponding to the location of the court accepting the case and perform the corresponding legal supervision duties. Higher level people's procuratorates may designate lower level people's procuratorates to handle them on the basis of needs such as substantive resolution of administrative disputes. Where procuratorial organs carry out legal supervision work in other places, the procuratorial organs at the location of the administrative organ involved in the lawsuit shall provide assistance. Where parties apply for administrative litigation supervision to the procuratorate of the administrative organ involved in the litigation, the procuratorate of the administrative organ involved in the litigation shall promptly inform them to apply for supervision to the procuratorial organ corresponding to the place of centralized jurisdiction, and when necessary, may directly transfer the relevant materials to the procuratorial organ with jurisdiction.
【Regulations】
Articles 11 and 101 of the Administrative Procedure Law of the People's Republic of China (amended in 2017).
Articles 86, 230, 240 and 258 of the Civil Procedure Law of the People's Republic of China (amended in 2017) (now Articles 89, 237, 240 and 265 after the amendment in 2021)
Articles 482 and 519 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (effective in 2015) (now Articles 482 and 519 as amended in 2020)
Reply of the Supreme People's Court on the Time Limit for Raising Enforcement Objections to the Termination of Enforcement By the People's Courts (implemented in 2016)
Article 15 of the Opinions of the Supreme People's Court on Several Issues Concerning the Filing and Conclusion of Enforcement Cases (to be implemented in 2015)
Article 5 of the Provisions of the Supreme People's Court on Strictly Regulating the Termination of the Enforcement Procedure (Trial Implementation) (implemented in 2016).
Case 3
A county natural resources and planning bureau in Anhui Province applied
Carry out compulsory demolition of illegally occupied land
Building administrative punishment decision procuratorial supervision case
(Prosecution Case No. 148)
【Keywords】
Administrative Procuratorate Supervision of Illegal Occupation of Land Non-litigation Enforcement Inadmissibility Errors in the application of law
【Abstract】
Where in the course of supervision of administrative non-litigation enforcement, the people's procuratorate applies to the people's court for compulsory enforcement in accordance with law for an administrative organ that does not have the power of administrative compulsory enforcement, and the people's court does not accept it, it shall supervise it in accordance with law. Where it is discovered that the people's courts have errors in the application of the same kind of law in multiple administrative non-litigation enforcement cases, they may resolve the issue of the application of law in one-type cases by supervising typical cases that are representative of them, promote the establishment of long-term mechanisms, and ensure the effectiveness of legal supervision.
【Basic Facts】
From 2018 to 2020, after the Natural Resources and Planning Bureau of a county in Anhui Province (formerly the Land and Resources Bureau of a county) investigated the illegal acts of occupying land for construction without approval in its jurisdiction in accordance with the Land Administration Law of the People's Republic of China, it made a number of penalty decisions including ordering the demolition of illegal buildings within a time limit. Some administrative counterparts did not apply for administrative reconsideration or initiate administrative litigation within the statutory time limit, nor did they dismantle the illegal buildings themselves, and the County Natural Resources and Planning Bureau, in accordance with Article 51 of the Administrative Punishment Law of the People's Republic of China (2017), applied to the county people's court for compulsory demolition of the illegal buildings by directly submitting or mailing the application form, and the county people's court did not accept it.
【Procuratorial Organs' Performance of Duties】
Source of the case. In December 2018, a county people's procuratorate discovered clues in such cases in the special activities of the national procuratorial organs' administrative non-litigation enforcement supervision, and initiated supervision procedures for 3 typical cases.
Investigate and verify. According to the circumstances of the case, the procuratorial organs focused on the following investigation and verification work: to learn from the local land management department about the automatic performance of administrative punishment decisions for demolishing illegal buildings in recent years and to apply for compulsory enforcement by the court; The procuratorial organs found that the county natural resources and planning bureau's application for compulsory enforcement by the court is in accordance with the law, and the county people's court has not accepted such enforcement applications since 2018.
Oversight opinions. The county people's procuratorate reviewed and held that the court neither accepted nor made a ruling of inadmissibility to the application for compulsory enforcement by the Natural Resources and Planning Bureau, and that the county natural resources and planning bureau, without administrative enforcement power, could neither apply to the people's court for compulsory enforcement nor apply for reconsideration to the people's court at the level above for relief, the case was shelved, the illegally occupied land could not be restored, and the order of land management could not be effectively maintained. After discussion and decision by the procuratorial committee, in December 2018, a procuratorial recommendation was submitted to the county people's court, recommending that it accept and review the administrative organ's application for enforcement in accordance with law.
Reply to comments. After receiving the procuratorial suggestions, the county people's court replied to the county people's procuratorate after discussion by the adjudication committee: Article 44 of the Administrative Compulsion Law of the People's Republic of China and the Reply of the Supreme People's Court on the Compulsory Demolition of Illegal Buildings, Structures, Facilities, etc. (FaShi [2013] No. 5) give the Natural Resources and Planning Bureau the power to enforce, and if there is a conflict between the Land Management Law and the Administrative Compulsion Law, the Administrative Compulsion Law shall be applied. The people's court does not accept the application for compulsory enforcement by the county natural resources and planning bureau in accordance with the law; it is consulting with the county government and the land department to properly solve the problem of forced demolition of illegal buildings, and the procuratorial suggestions are not adopted.
Follow-up supervision. The county people's procuratorate requested the municipal people's procuratorate to follow up and supervise. The Municipal People's Procuratorate reviewed and held that, according to the provisions of mainland law, the enforcement of compulsory enforcement by administrative organs on their own should be clearly authorized by the law, and if the law does not clearly stipulate that the administrative organs shall enforce enforcement by themselves, the administrative organs shall apply to the court for compulsory enforcement. The Administrative Compulsory Enforcement Law of the People's Republic of China stipulates that the "compulsory enforcement procedures for administrative organs" and "application to the people's courts for compulsory enforcement" are divided into two chapters. Article 44 of the Law stipulates that "where illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative organ shall make a public announcement and the parties concerned shall dismantle them themselves within a time limit." Where a party does not apply for administrative reconsideration or raise an administrative lawsuit within the legally prescribed time limit, and does not dismantle it, the administrative organ may compel the demolition in accordance with law. The provisions of this article in the chapter "Compulsory Enforcement Procedures for Administrative Organs" are procedural provisions for the compulsory demolition of "administrative organs with administrative enforcement powers", not legal authorization for an administrative organ with administrative enforcement powers. The administrative punishment decisions involved in the case were all made by the competent department of natural resources in accordance with the Land Administration Law of the People's Republic of China, which did not grant the competent department of natural resources the enforcement right to forcibly demolish the illegal building. Article 83 of the Law stipulates that "in accordance with the provisions of this Law, order the demolition of newly built buildings and other facilities on illegally occupied land within a specified period of time ... The organ that made the punishment decision shall apply to the people's court for compulsory enforcement in accordance with law." Where the competent department of natural resources makes a penalty decision ordering compulsory demolition in response to violations of the Land Management Law, and the administrative counterpart does not prosecute at the end of the period and does not dismantle it on its own, the administrative organ shall apply to the people's court for compulsory enforcement in accordance with law. The Reply of the Supreme People's Court on the Compulsory Demolition of Illegal Buildings, Structures, Facilities, etc. is a judicial interpretation on the compulsory demolition of illegal construction in the field of urban and rural planning, that is, according to the Urban and Rural Planning Law, the township people's government has the right to forcibly demolish illegal buildings that violate rural planning, and the people's governments at or above the county level make a decision on the demolition of the competent departments of urban and rural planning within a time limit, and if the parties do not dismantle within the time limit, they have the right to instruct the relevant departments to force the demolition. The administrative punishment decisions applied for enforcement by the competent department of natural resources in this case were all made in accordance with the Land Management Law, and should be applied to the people's court for compulsory enforcement in accordance with law, and the people's court did not accept the violation of the law.
In June 2019, the Municipal People's Procuratorate submitted procuratorial recommendations to the Municipal Intermediate People's Court on the above three cases, recommending that it supervise the county people's court to correct the illegal conduct. The Municipal Intermediate People's Court replied within the prescribed time limit and suggested that the county people's court make corrections on its own. The county people's court accepted and made a ruling granting compulsory enforcement in accordance with law, and all of them have been enforced.
Establish a long-term mechanism. The county people's procuratorate reported to the standing committee of the county people's congress on the issues involved in the case and held discussions and exchanges with the county government. With the joint promotion of all parties, in May 2020, the county people's government issued the Opinions on Further Establishing and Improving the Long-term Mechanism for the Prevention and Control of Illegal Land Use, which clarified that the administrative law enforcement department applied to the court for compulsory enforcement on the demolition of illegally occupied illegal buildings, and after the court ruled that compulsory enforcement was granted, the county government would arrange for the implementation of the local township government. Since then, the county people's court has accepted and ruled that the county natural resources and planning bureau has accepted the application for compulsory enforcement in such cases. At the same time, in accordance with the principle of "unified leadership, territorial management, equal emphasis on dismantling and control, and comprehensive management", the governments and administrative departments at the county and township levels have established and improved eight working mechanisms such as grid inspection, rapid response, joint implementation, and joint meetings, to ensure that the implementation of illegal land use is in place and effectively curb land violations.
【Guiding Significance】
(1) Where people's procuratorates handle cases of supervision of administrative non-litigation enforcement, and where an administrative organ that does not have administrative enforcement powers applies to the people's court for compulsory enforcement in accordance with law, and the people's court does not accept it, the people's procuratorate shall supervise in accordance with law. Administrative enforcement is set by law. Where the law does not authorize administrative organs to enforce enforcement, the administrative organ that made the administrative decision shall apply to the people's court for compulsory enforcement, and the people's court shall accept, review, and lawfully make a ruling on whether to approve enforcement. The administrative objectives achieved by the Land Administration Law and the Urban and Rural Planning Law are different, as are the specific provisions on legal liability. The Land Management Law mainly targets illegal land occupation, while the Urban and Rural Planning Law mainly targets the illegal act of "not obtaining a construction project planning permit or not carrying out construction in accordance with the construction project planning permit". The Land Management Law does not authorize the competent department of natural resources to forcibly dismantle the enforcement power of illegally occupied buildings, so after the competent department of natural resources applies the Land Management Law to make a penalty decision to order the compulsory demolition of illegally occupied buildings, if the perpetrator of illegal construction of land occupation does not sue within the time limit and does not dismantle it on its own, the administrative organ shall apply to the people's court for compulsory enforcement, but has no right to enforce it on its own. Where the people's procuratorate discovers that the people's court is not accepting an application for compulsory enforcement that should be accepted, it shall supervise and make corrections in accordance with law.
(2) Where people's procuratorates discover errors in the application of law in similar cases in the course of performing their legal supervision duties, they may select several typical cases to conduct similar case supervision, promote the correct application of the law in the same type of case, and establish long-term mechanisms for difficult issues affecting the application of law. People's procuratorates carrying out legal supervision shall, on the basis of the principles of the application of law and methods of legal interpretation, accurately identify the true meaning of legal norms, clarify disputes over the application of law, and urge correction of errors in the application of law by submitting procuratorial suggestions. Where a certain number of cases of the same nature and the same application of law have similar errors, several typical cases may be selected as breakthrough points for supervision; where supervision opinions are not adopted, they may be requested to follow up supervision by the procuratorial organ at a higher level, and by correcting the errors in typical cases, the standards for correcting errors in the same type of cases are to be determined, so as to improve the effectiveness and efficiency of supervision. Strengthen the use of the results of supervision of similar cases, take the initiative to report to the party committee and the people's congress, win the support of the government, put forward opinions and suggestions on solving problems, promote the consensus of all parties, and form a long-term working mechanism.
【Regulations】
Article 51 of the Administrative Punishment Law of the People's Republic of China (amended in 2017) (now Article 72 after the revision in 2021)
Articles 34 and 44 of the Administrative Compulsory Enforcement Law of the People's Republic of China (implemented in 2012).
Article 83 of the Land Administration Law of the People's Republic of China (amended in 2019).
Reply of the Supreme People's Court on compulsory demolition of illegal buildings, structures, facilities, etc. (implemented in 2013)
Articles 9 and 31 of the Rules for the Supervision of Administrative Litigation of the People's Procuratorates (for Trial Implementation) (implemented in 2016) (Articles 36 and 111 of the Rules for the Supervision of Administrative Litigation of the People's Procuratorates, which are now to be implemented in 2021)
Case 4
Mi x v. Housing and housing in a city in Zhejiang Province
Urban and Rural Development Bureau, a municipal people's government
Information disclosure and administrative reconsideration procuratorial supervision cases
(Prosecution Case No. 149)
【Keywords】
Administrative Procuratorate Supervision of Similar Cases Date of Service Effective Service Litigation Source Governance
【Abstract】
When people's procuratorates handle administrative litigation supervision cases arising from disputes over the date of service, and find that the service of legal documents is irregular, affecting the parties' claims of rights in accordance with law, while supervising and correcting individual cases, urge the people's courts to standardize service procedures, prompting postal agencies to strengthen management and ensure effective service.
【Basic Facts】
On January 11, 2017, Mi applied to a municipal Housing and Urban-Rural Development Bureau (hereinafter referred to as the Municipal Housing and Urban-Rural Development Bureau) to inquire about the original registration certificate of a Chinese-style bungalow real estate located in a certain section of the city. On February 9, 2017, the Municipal Bureau of Housing and Urban-Rural Development issued the Notice of Disclosure of Government Information by Application, and provided Mi with a copy of the real estate ownership certificate he applied for disclosure. On February 16, Mi applied to the Municipal People's Government for administrative reconsideration. The Municipal People's Government believes that, except for one of them that does not fall within the scope of government information disclosure, the Municipal Housing and Urban-Rural Development Bureau has provided Mi with the information he applied for disclosure, performed his duties within the statutory time limit, and made an administrative reconsideration decision to maintain the original administrative act on April 16, and handed over to a city branch of China Post Express Logistics Co., Ltd. (hereinafter referred to as a postal company) for special delivery in accordance with the × room of building × Yuan × in a certain city. On April 18 of the same year, the courier of a postal company failed to contact Mi by telephone, so he handed over the mail to a certain food store at the ordinary express delivery point in the community where Mi reserved the delivery address, and informed Mi by text message, but did not confirm that Mi had received a notification text message. Because Mi did not view the notification information in the sms, he actually received the email on May 10 of the same year.
On May 12, 2017, Mi filed an administrative lawsuit with the people's court of a district of a city, requesting the revocation of the Notice of Disclosure of Government Information by Application made by the Municipal Housing and Urban-Rural Development Bureau and the Administrative Reconsideration Decision made by the Municipal People's Government. The court of first instance held that Mi received the administrative reconsideration decision on April 18, 2017, and filed an administrative lawsuit on May 12, which exceeded the statutory 15-day litigation period, and ruled not to file the case. Mi appealed to the Municipal Intermediate People's Court, and the court of second instance ruled to reject the appeal on the grounds that Mi had not provided effective evidence to prove that he had delayed the prosecution period due to force majeure or other reasons that were not his own. Mi's application for retrial was also rejected.
【Procuratorial Organs' Performance of Duties】
Source of the case. In May 2018, Mi applied to the procuratorate for supervision, claiming that the statutory prosecution period had not exceeded the statutory period for prosecution, counting from the date on which he actually received the administrative reconsideration decision.
Investigate and verify. Based on the situation reflected by Mi, the Municipal People's Procuratorate conducted an investigation and verification on the basis of reviewing the case file: first, it collected evidence related to the time of receipt from postal companies, food stores and other units; second, it investigated and understood whether Mi had designated a collector. It was ascertained: The tracking inquiry form for the special delivery of the legal documents involved in the case showed that the handling of the mail was: on April 18, 2017, it was properly invested (received by others), proving that Mi himself did not sign for the mail; the grocery store was not the designated collector of Mi X, and the store operator Zhong X was not Mi X's adult family member or litigation agent living with Mi X, and he did not have the authority to collect it; the date of Mi X's actual receipt of the email was indeed May 10, 2017.
Oversight opinions. Upon review, the Municipal People's Procuratorate found that the court's first- and second-instance administrative rulings found that the facts were erroneous. First, in the absence of evidence to prove that the grocery store was Mi's designated collector or that Zhong was Mi's adult family member or agent ad litem, the court of first instance found that Mi received the administrative reconsideration decision on April 18, 2017 without sufficient evidence. The postal company will deliver the reconsideration decision to the grocery store, and the store will sign for it, which cannot be regarded as valid delivery. Second, the relevant materials issued by Mr. Zhong and the postal company can prove that Mr. Mi received the reconsideration decision on May 10, 2017. Third, according to Article 45 of the Administrative Procedure Law of the People's Republic of China, the time limit for citizens, legal persons or other organizations to file a lawsuit with the people's court against the reconsideration decision is 15 days from the date of receipt of the reconsideration decision, and Mi actually received the administrative reconsideration decision on May 10, and he filed a lawsuit with the district people's court on May 12, which did not exceed the time limit for filing a lawsuit. On December 4, 2018, the Zhejiang Provincial People's Procuratorate filed a protest with the Zhejiang Provincial High People's Court in accordance with law.
Supervise the results. The Higher People's Court of Zhejiang Province adopted the procuratorial organs' counter-appeal opinions and made an administrative ruling on retrial in accordance with law on September 5, 2019, revoking the original first- and second-instance rulings of inadmissibility, and instructing the district people's court to file and accept the case. On October 15 of the same year, the District People's Court accepted the case and rendered a first-instance judgment on April 3, 2020 after trial in accordance with law.
Supervision of similar cases. In response to the problem that the standards for the court's determination of service in similar cases are not uniform, the Municipal People's Procuratorate, through consultation with the Municipal Intermediate People's Court, urged the court to further clarify the criteria for reviewing and determining service by mail, strictly grasp the determination of service on behalf of the designated collection, and prevent the parties' litigation rights from being harmed by the fact that the standard of service is not allowed to be compromised. The Municipal Intermediate People's Court issued the Eight Measures on Implementing the Case Filing and Registration System and Standardizing Service Procedures to standardize the procedures for the service of documents.
After handling this case, the Municipal People's Procuratorate conducted a special investigation and study on the special delivery of legal documents, listened to the opinions of administrative organs, people's courts and postal departments, and found that during the service of legal documents, some couriers of postal companies had situations where the delivery procedures did not conform to the provisions such as arbitrarily handing over the mail to shops, property companies or rural grass-roots organizations that did not have the authority to collect on behalf of the parties, resulting in damage to the litigation rights of the parties. Accordingly, the Municipal People's Procuratorate issued procuratorial suggestions to the postal company, suggesting that the training of delivery personnel should be strengthened, and the processing process of legal documents and mail delivery business should be standardized to effectively protect the litigation rights of the parties. After receiving the procuratorial suggestions, the postal company carried out special rectification under the impetus of the procuratorial organs, carried out legal document delivery business training for 1399 delivery personnel in 115 postal outlets in the city, and at the same time set up a special investment team for government mail, implemented the reward and punishment system, improved work methods, improved process supervision, and effectively improved the level of legal document delivery.
【Guiding Significance】
(1) Service of legal documents is an important legal act, and law enforcement and judicial organs shall ensure that legal documents are effectively served. Service has the dual role of guaranteeing rights and promoting procedures. The date of service is an important time node for the parties to exercise their rights and perform their obligations. Irregular service leads to parties not receiving or not receiving legal documents in a timely manner, which not only affects the parties' timely exercise of rights and performance of obligations, but may also lead to new contradictions and disputes and even related cases. Law enforcement and judicial organs should implement the people-centered purpose in all aspects of law enforcement and justice, raise awareness of the importance of service work, strengthen awareness of responsibility, comply with statutory requirements, ensure effective service, and truly protect the lawful rights and interests of parties. People's procuratorates carrying out legal supervision and discovering that there are problems in law enforcement and judicial organs that legal documents cannot be effectively served in accordance with law, may promote lawful service through methods such as formulating and issuing procuratorial recommendations. For example, on November 11, 2018, the Supreme People's Procuratorate formulated and issued a "No. 2 Procuratorial Recommendation" to the Supreme People's Court in accordance with law regarding irregularities in the method of service, content of service, and service procedures of the people's courts' civil announcements discovered by the procuratorial organs in the performance of their legal supervision duties, suggesting that the litigation burden of the parties be reduced and the efficiency of the announcement be improved; and make full use of modern scientific and technological means such as big data to strengthen the work of the people's courts in investigating the parties' service addresses ex officio. Realize the electronic push of announcement delivery to improve the delivery rate, etc., and promote the improvement and solution of universal problems.
(2) Where people's procuratorates handle administrative litigation supervision cases, and where the people's courts erroneously determine the date of service of legal documents and rule not to file or dismiss prosecutions on the grounds that the time limit for prosecution has exceeded, they shall conduct supervision in accordance with law. The date of service is directly related to the calculation of the time limit for filing a lawsuit, and if an administrative lawsuit exceeds the time limit for filing a lawsuit without justifiable reasons, the parties lose their right to sue and the court will no longer accept it. Where the people's procuratorate discovers that the people's court has found an error in the date of effective service in the trial of an administrative litigation case, resulting in an error in the starting point for determining the time limit for prosecution, it shall submit a supervision opinion in accordance with law and urge the people's court to correct the error.
(3) Where in the course of performing their legal supervision duties, people's procuratorates discover deep-seated social governance problems in a type of case, they shall promote the governance of the source of litigation through supervision of similar cases. People's procuratorates may handle individual cases as the entry point, carry out special research, analyze the deep-seated reasons behind the case, and discover that the work systems, management methods, and work procedures of relevant units are not perfect, or there are regulatory loopholes or regulatory irregularities in specific industries, and where improvement or improvement is needed, they may formulate and issue procuratorial suggestions, urge relevant responsible entities to improve their work, standardize management, and reduce the occurrence of endogenous and secondary cases from the source.
【Regulations】
Articles 45, 91, 93 and 101 of the Administrative Procedure Law of the People's Republic of China (amended in 2017).
Article 40 of the Administrative Reconsideration Law of the People's Republic of China (amended in 2017).
Article 85 of the Civil Procedure Law of the People's Republic of China (amended in 2017) (now Article 88 after the amendment in 2021)
Article 55 of the Postal Law of the People's Republic of China (amended in 2015).
Article 7 of the Several Provisions of the Supreme People's Court on The Postal Service of Civil Litigation Documents by Court (implemented in 2005).
Article 13 of the Rules for the Supervision of Administrative Litigation of the People's Procuratorate (for Trial Implementation) (implemented in 2016) (Article 58 of the Rules for the Supervision of Administrative Litigation of the People's Procuratorate, which is now to be implemented in 2021)
Articles 3 and 5 of the Provisions on the Work of Procuratorial Suggestions of People's Procuratorates (to be implemented in 2019).
Article 9 of the Measures for the Handling of The Speedpost Business of Legal Documents of the Courts (for Trial Implementation) (implemented in 2005) of the State Post Bureau
(Source: Supreme People's Procuratorate)