[Summary of the trial]
Zhao * Geng and Wu * Ying did not know each other originally, but later met while walking on the road and added WeChat to each other. About half a year later, at about 21 o'clock on September 25, 2020, Zhao *geng took the initiative to forcibly hug Wu *ying under the railway bridge on the north side of the Beijing Grand Mansion on the south side of Lianshi Road in Shijingshan District, Beijing, and reached into Wu *ying's underwear to touch Wu *ying's pubic area, and inserted his fingers into Wu *ying's vagina to twitch indecently.
Comprehensively consider the relationship between the two boyfriends and girlfriends, the body parts where the indecent assault was committed, the methods of indecency, and other serious circumstances to be determined. How can the plaintiff's argument that there was no violation of will, that it falls within the scope of moral evaluation, that the summons was not notified to the family, that the policy education is illegal, that the summons is overdue, and that it is extortion?
It is the legal obligation of the public security organs to promptly notify the summoned person's family of the summons, and it does not depend on the summoned person's own wishes. If the summoned person does not inform the family of their contact information during the procedures for the public security organs to make a "Notice to the Family of the Summoned Person", and the public security organs learn of the family's contact information during the subsequent questioning and verification, they shall also promptly notify the family of the summons.
That is, in order to more fully protect the right of the summoned person's family to know about the summons, the public security organs have the obligation to promptly notify the family of the summons after learning of the family's contact information.
In this case, although Zhao *Geng did not provide the contact information of the family members in the procedure of the Babaoshan Police Station in preparing the "Notice of Family of the Summoned Person", in the first inquiry shortly thereafter, the Babaoshan Police Station had already learned the contact information of the family, and even if Zhao *geng again requested not to notify the family, the Babaoshan Police Station should notify the family of the summons in accordance with the law. In the absence of a statutory circumstance that could not be notified to the family, the Babaoshan Police Station failed to notify the family of the summons at the request of Zhao *geng, and the procedure was unlawful. Zhao *Geng's litigation claim is sustained, and the first-instance judgment is not upheld improperly, and this court should correct it.
Beijing No. 1 Intermediate People's Court
Administrative Judgments
(2021) Jing 01 Xingzhong No. 549
The appellant (plaintiff in the first instance) is Zhao *geng, male, born on November 21, 1952, of Han nationality, living in Shijingshan District, Beijing.
Entrusted agent: Zhu Ming, lawyer of Beijing Lianggao Law Firm.
Entrusted agent: Qin Liyang, trainee lawyer of Beijing Lianggao Law Firm.
The appellee (defendant of the first instance) is the Shijingshan Branch of the Beijing Municipal Public Security Bureau, and its domicile is No. 1, Nanli, Gucheng, Shijingshan District, Beijing.
The person in charge, Kang Jun, is the sub-director.
Entrusted agent Wang Shuliang, staff of Shijingshan Branch of Beijing Municipal Public Security Bureau.
Entrusted agent: Wen Sha, lawyer of Beijing Bingdao Law Firm.
The appellee (defendant in the first instance) is the People's Government of Shijingshan District, Beijing, and its domicile is No. 18, Shijingshan Road, Shijingshan District, Beijing.
Legal representative Li Xin, district head.
Entrusted agent Jia Fuqiang, staff of the People's Government of Shijingshan District, Beijing.
Entrusted agent: Liu Hongli, lawyer of Beijing branch of Dacanghai Law Firm.
Appellee (third party of first instance) Wu *ying, female, born on December 1, 1967, of Han nationality, lives in Shijingshan District, Beijing.
Appellant Zhao *geng appealed to this court against the administrative judgment of Beijing Shijingshan District People's Court (2021) Jing 0107 Xingchu No. 46 due to the administrative detention and administrative reconsideration case. After this court accepted the case, it formed a collegial panel to hear the case in accordance with law. The case is now closed.
The court of first instance ascertained after trial
Zhao * Geng and Wu * Ying did not know each other originally, but later met while walking on the road and added WeChat to each other. About half a year later, at about 21 o'clock on September 25, 2020, Zhao *geng took the initiative to forcibly hug Wu *ying under the railway bridge on the north side of the Beijing Grand Mansion on the south side of Lianshi Road in Shijingshan District, Beijing, and reached into Wu *ying's underwear to touch Wu *ying's pubic area, and inserted his fingers into Wu *ying's vagina to twitch indecently.
Afterwards, Zhao * Geng and Wu * Ying used WeChat to negotiate compensation matters arising from this incident. Later, Zhao * Geng entrusted a lawyer to resolve the matter.
At about 9 o'clock on October 10, 2020, Wu *ying called the police by dialing 110 to report Zhao Geng's indecent behavior against him.
On the same day, the Lugu Police Station of the Shijingshan Branch of the Beijing Municipal Public Security Bureau made a "Case Acceptance Registration Form" for Wu *ying's police report, and issued a "Case Acceptance Receipt" to Wu *Ying. After the office made a "Record of Interrogation" to Wu *ying, it transferred the case to the Babaoshan Police Station of the Shijingshan Branch of the Beijing Municipal Public Security Bureau (hereinafter referred to as the Babaoshan Police Station) for further handling based on the circumstances of the location of the case. At 17:00 on October 10, 2020, the Babaoshan Police Station summoned Zhao *geng to the station for investigation by means of a "summons card". Immediately, the law firm made a "Notice of Family of the Summoned Person" to Zhao *geng's family, but Zhao *geng made it clear to the Babaoshan Police Station that he should not notify the family, and did not provide his family's contact information in this procedure.
During the investigation, the Babaoshan Police Station made a "Record of Interrogation" for Zhao *geng and Wu *ying, retrieved the WeChat chat records of both parties, organized Wu *ying to identify Zhao *geng and make an "identification record", and organized Zhao *geng to identify the scene of the indecency and make an "identification record". Zhao *Geng submitted his statement to the Babaoshan Police Station by writing a "handwritten confession".
At 12:53 on October 11, 2020, the Babaoshan Police Station fulfilled the notification procedure to Zhao *geng, and Zhao *geng made it clear that he would not submit a statement or defense. On the same day, the Shijingshan Branch of the Beijing Municipal Public Security Bureau (hereinafter referred to as the Shijingshan Public Security Bureau) announced and served the Jinggong Shixing Penalty Decision Zi [2020] No. 51617 "Administrative Penalty Decision" (hereinafter referred to as the sued punishment decision) on Zhao *geng. The main content is: the offender Zhao * Geng.
It is now ascertained that at about 21 o'clock on September 25, 2020, the offender Zhao *Geng forcibly hugged Wu *ying and groped Wu *ying's pubic area under the railway bridge on the north side of the Beijing Grand Mansion on the south side of Lianshi Road in Shijingshan District, Beijing.
The above facts are corroborated by evidence such as the report materials, the process of arriving at the case, audio-visual materials, personal statements, electronic data, and identification records. In accordance with the provisions of Article 44 of the "Law of the People's Republic of China on Public Security Administration Punishments" (hereinafter referred to as the "Public Security Punishment Law"), it was decided to give Zhao Geng an administrative punishment of 12 days of administrative detention. Method and time limit for enforcement: Send to Beijing No. 10 Detention Center for enforcement, from October 11, 2020 to October 23, 2020. The alleged punishment decision was also notified to Zhao *geng's family and served on Wu *ying. Later, due to Zhao *geng's own physical health, the Shijingshan Public Security Bureau decided to suspend Zhao *geng's administrative detention as stipulated in the decision on the punishment he was sued for.
On November 25, 2020, Zhao *geng was dissatisfied with the decision to be sued and submitted an application for administrative reconsideration to the People's Government of Shijingshan District, Beijing Municipality (hereinafter referred to as the Shijingshan District Government) by mail. After receiving the administrative reconsideration application materials on November 26, 2020, the Shijingshan District Government issued a Notice of Amendment to the Administrative Reconsideration Application Materials to Zhao *Geng on November 30, 2020. Accordingly, on December 1, 2020, Zhao *geng entrusted his lawyer to resubmit the "Application for Administrative Reconsideration" and the application for supplementation and correction to the Shijingshan District Government by mail, and the reconsideration request was requested to revoke the decision of the Shijingshan Public Security Bureau to be punished. On December 2, 2020, the Shijingshan District Government accepted the Administrative Reconsideration Application submitted by Zhao *Geng after supplementation and correction, and issued the Administrative Reconsideration Reply Notice to the Shijingshan Public Security Bureau on the same day. After receiving the Notice of Reply to Administrative Reconsideration on December 8, 2020, the Shijingshan Public Security Bureau submitted the Opinion on Reply to Administrative Reconsideration and relevant evidentiary materials and legal basis to the Shijingshan District Government on December 18, 2020.
On January 22, 2021, after a written review, the Shijingshan District Government issued the Shi Zhengfu [2020] No. 99 Administrative Reconsideration Decision (hereinafter referred to as the "Reconsideration Decision"), finding that the facts of the penalty decision made by the Shijingshan Public Security Bureau were clear, the basis for application was correct, and the procedures were lawful, and in accordance with the provisions of Article 28, Paragraph 1, Item 1 of the Administrative Reconsideration Law of the People's Republic of China, it decided to uphold the decision on the punishment made by the Shijingshan Public Security Bureau. Later, the Shijingshan District Government served the reconsideration decision on the lawsuit to Zhao Geng and the Shijingshan Public Security Bureau in accordance with the law.
Zhao *geng was still dissatisfied after receiving the reconsideration decision, so he filed an administrative lawsuit with the court within the statutory time limit, requesting: 1. to revoke the punishment decision, 2. to revoke the reconsideration decision, and 3. to bear the litigation costs of this case by the Shijingshan Public Security Bureau and the Shijingshan District Government.
On May 25, 2021, the court of first instance rendered its judgment of first instance. The judgment held that, according to the relevant provisions of the Public Security Punishment Law, the Shijingshan Public Security Bureau has the statutory duty to impose public security administrative penalties for public security violations that occur within its jurisdiction.
In this case, the Shijingshan Public Security Bureau's investigation of Zhao *geng and Wu *ying's "interrogation records", screenshots of their WeChat chats, Zhao *geng's personal statements submitted in the form of "personal confessions", relevant identification records, and other evidence can all prove that Zhao *geng not only subjectively had the intention to commit indecent acts against Wu *ying, but also objectively carried out indecent acts against Wu *ying's independent will, and the above-mentioned evidence can corroborate each other, forming a complete and effective evidence chain.
Article 44 of the Public Security Punishment Law stipulates: "Whoever molests another person, or intentionally exposes his body in a public place, and the circumstances are heinous, shall be detained for not less than 5 days but not more than 10 days; ”
The Shijingshan Public Security Bureau comprehensively considered the relationship between Zhao *Geng and Wu *ying, the body parts and methods of indecent assault by Zhao *geng against Wu *ying, and other specific circumstances, and found that Zhao *geng's indecent conduct was heinous and had other serious circumstances, and that it was not improper to impose a punishment of 12 days of administrative detention within the punishment range of "between 10 days and 15 days".
In this case, after receiving Wu *ying's report, the public security organs promptly handled the registration of accepting the case, and carried out administrative law enforcement acts such as summoning, questioning, collecting evidence, notifying family members, organizing identification, performing notices, hearing statements and defenses, and serving legal documents, all of which complied with the statutory procedures of the Public Security Punishment Law and the Provisions on the Procedures for the Handling of Administrative Cases by Public Security Organs (hereinafter referred to as the "Provisions on Procedures for Handling Administrative Cases").
Therefore, the Shijingshan Public Security Bureau's decision to punish Zhao *geng was conclusive, the law was correctly applied, the punishment was appropriate, and the law enforcement procedures were not improper.
Although Zhao Geng was dissatisfied and had filed an application for administrative reconsideration, the facts, applicable law, and administrative reconsideration procedures of the sued reconsideration decision made by the Shijingshan District Government were not improper, and the results of the administrative reconsideration decision were not improper.
With regard to Zhao Geng's argument that the Shijingshan Public Security Bureau's decision on the punishment of the defendant was unclear in the facts,
Zhao *geng's conduct was carried out by Wu *ying on his own initiative, so it did not go against Wu *ying's will, and it belongs to the litigation opinion that it should be evaluated by morality and does not belong to the illegal act of public security.
Because Zhao *geng did not submit sufficient evidence to the court to substantiate it during the litigation of this case, nor did he provide sufficient counter-evidence to refute the Shijingshan Public Security Bureau's determination that he had committed indecent acts, the court did not accept it.
As for Zhao *geng's litigation opinion that Wu *ying's act of demanding money from Zhao *geng after the fact was suspected of extortion, the court did not recognize this in this case because it did not belong to the same legal relationship as this case.
The court did not accept Zhao Geng's litigation opinion that it was illegal for the Shijingshan Public Security Bureau to conduct policy education for Zhao *geng when making a record of the interrogation of Zhao *geng.
The first paragraph of Article 83 of the Public Security Punishment Law stipulates: "The public security organs shall, after summoning a person who violates the administration of public security, promptly inquire and verify the case, and the time for questioning and verification shall not exceed 8 hours; "Because based on the specific circumstances of this case and the specific circumstances under which the punishment of administrative detention may be applied to Zhao *geng, the time for questioning and verifying Zhao *geng did not exceed 24 hours after the public security organs used the summons warrant to summon Zhao *geng, so it did not violate the above-mentioned legal provisions, so the court did not accept Zhao *geng's litigation opinion that the public security organ's summons and questioning of Zhao *geng exceeded the statutory time limit.
Paragraph 2 of Article 83 of the Public Security Punishment Law stipulates: "The public security organ shall promptly notify the family of the summoned person of the reason and location of the summons. "Because the public security organs immediately made a "Notice of Family of the Summoned Person" to Zhao *geng's family after summoning him, but Zhao *geng himself clearly requested that the family not be notified, and did not provide the contact information of his family members during the procedure, so in this case, the court did not accept Zhao *geng's litigation opinion that the public security organ's failure to notify his family of the summons was a procedural violation.
As for Zhao *geng's litigation opinion that there were many other violations in the law enforcement procedures of the public security organs, the court did not accept Zhao *geng's litigation opinion that there were many other violations in the law enforcement procedures of the public security organs, because Zhao *geng did not submit sufficient evidence to the court to substantiate it during the litigation of this case.
The court did not accept Zhao Geng's argument that the Shijingshan District Government's decision to reconsider the lawsuit was only reviewed by means of written review and no hearing was held, and therefore it was an illegal administrative reconsideration process.
As for Zhao Geng's litigation opinion that the reconsideration result of the reconsideration decision made by the Shijingshan District Government was illegal, the court did not accept it because it did not submit sufficient evidence to the court to substantiate it during the litigation of this case.
To sum up, the court did not support the litigation claim put forward by Zhao *Geng. In accordance with the provisions of Article 69 of the Administrative Litigation Law of the People's Republic of China, the judgment rejected Zhao Geng's litigation claim.
Appellant Zhao * Geng appealed
1. Where the public security organs' case-handling procedures are seriously unlawful, the decision on punishment and reconsideration in accordance with law shall be revoked.
(1) In accordance with article 83 of the Public Security Punishment Law and article 55 of the Provisions on Case-Handling Procedures, the public security organs must immediately notify the family of the summoned person of the summons. In the first interrogation record, Zhao Geng had already provided the phone numbers of his wife and daughter, but the public security organs did not notify the family members in accordance with the law, and the case-handling personnel seriously violated the law.
(2) In accordance with article 83 of the Public Security Punishment Law and article 69 of the Provisions on Case-Handling Procedures, the time for questioning and verification must not exceed 8 hours, and where the situation is complicated, the time for questioning and verification must not exceed 24 hours. This case is not a complicated situation, and the public security organs did not extend the approval procedures for the time limit for questioning, and actually summoned Zhao *geng for 23 hours and 32 minutes, and illegally detained him for 15 hours and 32 minutes, which was a serious violation of the law.
2. The public security organs determined that Zhao *geng forcibly hugged Wu *ying and committed illegal acts, and the main evidence was insufficient.
(1) Zhao *geng's first interrogation record can prove that Wu *ying lured and voluntarily engaged in relevant acts with him;
The "10-minute policy education for the people's police" was verbally persecuted by the police, and the record did not show that he was guaranteed to eat and rest time, and Zhao *geng had to change his confession into a confession that did not match the facts when he had not eaten and rested for a long time and his body was overwhelmed.
The public security organs shall provide video recordings of the interrogation to prove that the evidence was collected; where the third interrogation record and the written confession were illegally obtained by the case-handling personnel under the circumstances of illegally extending the period of detention, they cannot be used as the basis for a verdict.
(2) Wu *ying's interrogation record is not true and credible, according to the content recorded on the WeChat screenshot, Wu *ying said that he went to the hospital to see a doctor, treat him, and spend money, but he could not provide medical records, diagnosis certificates, and invoices for medical expenses, and the bloody underwear had been destroyed by Wu *ying, and whether the underwear was bloodstained could not be verified, and it cannot be ruled out that Wu *ying harmed Zhao *geng and was suspected of extortion. In summary, the main evidence of the facts determined by the public security organs was insufficient, and the personnel in this case exceeded their authority and seriously violated legal procedures, and the first-instance judgment was wrong. The court of second instance was requested to revoke the first-instance judgment and change the judgment to support his first-instance litigation claim.
The appellees, the Shijingshan Public Security Bureau, the Shijingshan District Government, and Wu *Ying, did not state their opinions to this court during the second-instance trial.
Within the statutory time limit for presenting evidence, Zhao *geng, the Shijingshan Public Security Bureau, and the Shijingshan District Government all submitted evidence to the court of first instance.
Zhao * Geng's evidence is as follows:
1. The "Notice of Collection of Evidence" issued by the public security organs and the "Transcript of the Conversation" produced by the relevant law firm, proving that Zhao *Geng and Wu *Ying knew each other, and that Wu *Ying's conduct against Zhao *Geng at the time of the incident was voluntary;
2. Thirty-seven screenshots of WeChat chat records, proving that Zhao *Geng did not commit acts against his personal will against Wu *ying, and Wu *ying was suspected of extortion against Zhao *geng;
3. Two pages of remittance voucher from Industrial and Commercial Bank of China, proving that Zhao * Geng transferred money to Wu * Ying to pay money;
4. The "Summons Certificate" and the decision on the punishment being sued, proving that there are irregularities in the law enforcement procedures of the public security organs and the circumstances of the administrative punishment being sued in this case;
5. The reconsideration decision of the respondent, which proves the circumstances of the administrative reconsideration decision that is the subject of the lawsuit.
The evidence and legal basis of the Shijingshan Public Security Bureau are as follows:
1. The "Case Acceptance Registration Form" and "Case Acceptance Receipt" to prove the circumstances of accepting the case in accordance with law;
2. "Summons Certificate" to prove that Zhao *Geng was summoned to the case in accordance with the law;
3. The "Notice of the Family of the Summoned Person", which proves that Zhao *geng was notified of the circumstances after he was summoned to the case in accordance with the law;
4. Three copies of the "Interrogation Record" produced by Zhao *geng and Zhao *geng's own handwritten confession,
5. Two copies of the "Interrogation Record" produced by Wu *ying,
6. Three pages of screenshots of his WeChat chat with Wu *ying signed by Zhao * Geng,
7. Two photos signed and confirmed by Wu *ying and two pages of WeChat screenshots,
8. "Identification Record" produced by Wu *ying,
9. For the "Identification Record" produced by Zhao *geng, evidence 4-9 all show that after investigation in accordance with law, Zhao *geng had the illegal act of molesting others;
10. "Work Record" to prove the investigation by the public security organs in accordance with law;
11. Two copies of "The Arrival of the Case", proving Zhao *Geng's appearance in the case;
12. "Record of Administrative Punishment Notice", showing that the public security organs lawfully informed Zhao *Geng of his enjoyment of the right to make a statement and defense;
13. The decision on the punishment of the person being sued, as well as the "Receipt of Service" and the "Notice to the Family of the Detainee", showing that the public security organs made the decision on the punishment of the person being sued in accordance with law, and the circumstances of the relevant service and notification to the family of the detainee;
14. "Notice of Recommendation to Suspend Enforcement of Detention" to prove Zhao *Geng's implementation of administrative detention;
15. A CD-ROM to prove that the public security organs are investigating in accordance with the law. Legal basis:
1. "People's Police Law of the People's Republic of China";
2. Public Security Punishment Law;
3. Provisions on case-handling procedures.
The evidence and legal basis of the Shijingshan District Government are as follows: 1. Application for Administrative Reconsideration and Power of Attorney, copy of Zhao *geng's ID card, letter from the law firm, copy of Han Xingji's lawyer's certificate, decision on the punishment being sued, Application for Collection of Evidence, Catalogue of Evidence, Decision on Evidence Preservation, Notice of Collection of Evidence and Summons Warrant produced by the public security organs, remittance vouchers of Industrial and Commercial Bank of China, screenshots of WeChat chats, postal express orders and inquiry records, proving that the Shijingshan District Government received Zhao* 2. Notice of Amendment of Administrative Reconsideration Application Materials, Receipt of Service and Mail Inquiry Records, Application for Administrative Reconsideration, Power of Attorney, Postal Express Bill and Inquiry Records, proving that the Shijingshan District Government has made a notice of supplementation and correction, Zhao * Geng has submitted the supplementary and corrective materials, and the Shijingshan District Government has filed the case; 3. Notice of Administrative Reconsideration Reply, Receipt of Service, Opinion of Administrative Reconsideration Reply, The catalogue of evidence and legal basis submitted by the Shijingshan Public Security Bureau prove that the Shijingshan District Government notified the Shijingshan Public Security Bureau to participate in the administrative reconsideration and the Shijingshan Public Security Bureau submitted relevant reply opinions, evidence and legal basis; The reconsideration decision of the respondent, the "Receipt of Service" and the postal inquiry record prove that the Shijingshan District Government made the reconsideration decision and the relevant service in accordance with the law. Legal basis: 1. Administrative Reconsideration Law of the People's Republic of China, 2. Regulations for the Implementation of the Administrative Reconsideration Law of the People's Republic of China.
Wu *ying did not submit evidence to the court of first instance.
The above evidence was cross-examined at trial, and the court of first instance confirmed the evidence as follows:
The alleged punishment decision and evidence 5 in Exhibit 4 submitted by Zhao *geng are both administrative acts of the defendant in this case and are not evidence.
Zhao *geng's submission of evidence 1 and evidence 2 could not achieve Zhao *geng's assertion that Zhao *geng's conduct did not violate Wu *ying's will, and the court did not accept the purpose of proof that could not be achieved. The "Summons Certificate" in Exhibit 4 submitted by Zhao *Geng could not achieve the purpose of proving that the law enforcement procedures of the Shijingshan Public Security Bureau were not standardized, as advocated by Zhao *Geng, and the court did not accept the purpose of proof that could not be achieved. Evidence 3 submitted by Zhao *Geng was able to achieve the purpose of proving his claim, and the court accepted it. The punishment decision submitted by the Shijingshan Public Security Bureau in the evidence submitted by the Shijingshan Public Security Bureau is an administrative act being sued in this case and is not evidence. The other evidence submitted by the Shijingshan Public Security Bureau all met the formal requirements of evidence and could achieve the purpose of proving its claim, and the court accepted them. The reconsideration decision of the defendant in the evidence submitted by the Shijingshan District Government is an administrative act of the defendant in this case and is not evidence. The other evidence submitted by the Shijingshan District Government all met the formal requirements of evidence and could achieve the purpose of proving its claim, and the court accepted them.
All of the above evidence was transferred to this court with the case file. This court consulted the first-instance trial file, and after reviewing and verifying, agreed with the first-instance court's opinion on the authentication of evidence.
During the second-instance trial, Zhao *geng applied to this court to obtain all the audio and video recordings of the Babaoshan Police Station's interrogation of Zhao *geng in order to verify the facts of the case, especially the fact that the content of "10 minutes of police policy education" in the second interrogation record was not reflected in the record. After review, this court held that Article 7 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" stipulates that the plaintiff or a third party shall provide evidence before the trial or on the date designated by the people's court for the exchange of evidence. Where an application is made for an extension of time to provide evidence for legitimate reasons, it may be provided in the courtroom investigation with the permission of the people's court. Where evidence is provided within the time limit, it is deemed to have waived the right to present evidence. Article 24 stipulates that where a party applies to the people's court to collect evidence, it shall submit an application for collecting evidence within the time limit for presenting evidence.
In this case, Zhao *Geng's application to this court to collect the above-mentioned evidence during the second-instance trial period had exceeded the time limit for presenting evidence, and there was no legitimate reason, and this court did not approve his application for collecting evidence.
On the basis of the above-mentioned valid evidence, the facts ascertained by this court through trial are consistent with the facts ascertained in the first-instance judgment, and this court affirms them.
Also ascertained
At 17:54 on October 10, 2020, the Babaoshan Police Station conducted the first interrogation of Zhao *geng, who stated the family's situation and contact information, but again requested that the family not be notified of the summons.
The Court is of the opinion that
Article 44 of the Public Security Punishment Law stipulates: "Whoever molests another person, or intentionally exposes his body in a public place, and the circumstances are heinous, shall be detained for not less than 5 days but not more than 10 days; ”
In this case, the Shijingshan Public Security Bureau has formed a chain of evidence such as the "Interrogation Record" produced by Zhao *geng and Wu *ying respectively, screenshots of the WeChat chat between the two, and Zhao *geng's handwritten confession.
It can be proved that Zhao *Geng committed the illegal act of indecency against Wu *ying's will, and the Shijingshan Public Security Bureau determined that Zhao *geng's indecent conduct was heinous and had other serious circumstances, and made a decision to punish the defendant based on the specific circumstances of Zhao *geng's indecent body parts, indecent methods, and consequences.
Zhao *geng's appeal assertions that the public security organs verbally coerced him, that the relevant evidence was illegally obtained, and that Wu *ying induced and voluntarily engaged in relevant acts with him lacked factual basis; Zhao *geng's assertion that Wu *ying's act of demanding money from him after the fact was suspected of extortion and extortion did not fall within the scope of the trial of this case.
The first paragraph of Article 83 of the Public Security Punishment Law stipulates: "The public security organs shall, after summoning a person who violates the administration of public security, promptly inquire and verify the case, and the time for questioning and verification shall not exceed 8 hours; "Based on the actual circumstances of this case, the Shijingshan Public Security Bureau's interrogation and verification of Zhao *geng did not exceed 24 hours, and the relevant laws, regulations, and rules did not stipulate that the interrogation and verification of the situation that is complicated and may be subject to administrative detention punishment in accordance with the law needs to be approved, so the summons time in this case is in accordance with the law. Zhao *geng's appeal assertion that the public security organ's summons for more than eight hours was a procedural violation lacks legal basis.
Paragraph 2 of Article 83 of the Public Security Punishment Law stipulates: "The public security organ shall promptly notify the family of the summoned person of the reason and location of the summons. Article 55, paragraph 1, item 5 of the case-handling procedures stipulates: "Where administrative compulsory measures restricting citizens' personal liberty are imposed, the parties' families shall be informed on the spot of the public security organs, reasons, locations, and time limits for carrying out the compulsory measures; The circumstances of notification or notification to family members, or the reasons for not being able to notify family members, shall be noted in the interrogation record. Paragraph 4 of Article 67 stipulates: "Where it is necessary to summon a suspect for investigation, a summons card shall be used to summon him with the approval of the person in charge of the public security police station, the case-handling department of the public security organ at or above the county level, or the exit/entry border inspection organ." ...... The public security organs shall inform the summoned person of the reasons and basis for the summons, and notify their families. The public security organs are to notify the family of the summoned person to apply the provisions of item (5) of paragraph 1 of article 55 of these Provisions. ”
In accordance with the foregoing,
In this case, Zhao *Geng's claim was sustained, and the first-instance judgment was not upheld improperly, and this court should correct it.
In view of the fact that the illegal procedure did not affect the conclusion of the sued penalty decision, nor did it have an actual impact on Zhao *geng's rights, and was a minor procedural violation, this court confirmed the illegality of the sued penalty decision, but did not revoke it. The decision to reconsider the lawsuit shall also be confirmed to be unlawful.
In summary, in accordance with the provisions of Article 74, Paragraph 1, Paragraph 2, Article 79, and Article 89, Paragraph 2 of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:
1. Revoke the (2021) Jing 0107 Xingchu No. 46 Administrative Judgment of the Beijing Shijingshan District People's Court;
2. It is confirmed that the Jinggong Shixing Penalty Decision Zi [2020] No. 51617 made by the Shijingshan Branch of the Beijing Municipal Public Security Bureau on October 11, 2020 is unlawful;
3. It is confirmed that the administrative reconsideration decision of Shi Zhengfu [2020] No. 99 made by the People's Government of Shijingshan District of Beijing Municipality on January 22, 2021 is unlawful.
The acceptance fee for the first and second instance cases is 50 yuan each, to be borne by the appellee, the Shijingshan Branch of the Beijing Municipal Public Security Bureau (to be paid within 7 days of the effective date of this judgment).
This judgment is final.
Presiding Judge: Zhang Diqing
Adjudicator: Yu Shan
Adjudicator: Zhu Yifeng
September 28, 2021
Assistant Judge: Qi Weijuan
Clerk: Hou Kun
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