Source: Sister Mei's statement
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Henan, Xinxiang. The contractor bought 117 cigarettes worth 15,000 yuan from Linxian County, and was seized by the Tobacco Bureau when he passed an intersection not far away, and the cigarettes were confiscated, and the man was fined 6,250 yuan for illegally transporting tobacco monopolies. The man was not convinced: I bought what I smoked, why should I be punished?
1. Details of the case
Su has a flexible mind and is good at observation, and he knew a long time ago that there was no way out by farming, because houses were being built everywhere at that time, so Su saw the opportunity to gather a group of old folks and set up a team of contractors and became the contractor foreman.
(Case source: Fengqiu County Court, Xinxiang, Henan)
Sure enough, taking advantage of that wave of momentum, Su's contractor team became bigger and bigger, he not only contracted the construction of his own house, but gradually took over the big job, and the fellows who worked with Su became bigger and bigger.
The incident was close to the Chinese New Year, which is also the busiest time of the year for Su, he has a lot of entertainment to participate in during the Spring Festival, and he has to ask for money from Party A before the year, so as to settle the wages of the brothers, and he will also contact everyone after the year, so as to confirm that there is work to do in the coming year.
On the day of the incident, Su and his wife drove a car and took their son to Linxian County, where they lived, to prepare for the Chinese New Year and buy a batch of cigarettes. After several hours of running, the couple and their son bought a total of 117 cigarettes of three brands, spending about 15,000 yuan.
After buying it, the son claimed that he didn't want to go back with them because of something, and asked them to go first. Su and his wife did a big thing a year ago very easily, the husband and wife were talking and laughing in the car and were ready to go home, who knew that they had just walked not far, and they met the tobacco bureau when they passed an intersection.
It turned out that the two were reported for buying tobacco on a large scale, and the people from the Tobacco Bureau rushed over after getting the news and just blocked the two.
The people on the other side quickly searched out 117 cigarettes from the trunk, including 78 in the new version of Liqun, 5 in Yexi Lake, and 34 in Nanjing Xuanhemen, worth a total of 15,246.28 yuan.
Subsequently, the two cigarettes were confiscated, and Su and his wife were brought back to the bureau for investigation. After testing, the cigarettes in Su's car were genuine.
Subsequently, the people of the Tobacco Bureau determined that Su did not have a tobacco transportation license, and imposed an administrative penalty on him for illegal operation, and required him to pay 40% of the value of the cigarettes involved in the case, that is, 6,250 yuan, before he could get the cigarettes back.
Su shouted that he was wronged, he said that he was a contractor, and he bought these medicines for his own use, because they usually used these kinds of cigarettes for hospitality at the construction site, and the demand was particularly large, so he would buy a little more.
And it's going to be the New Year soon, and he has a lot of etiquette problems to usher in, so he took the time to buy cigarettes, buying cigarettes for personal use and gifts, not for trading, why is he operating illegally?
In addition, he didn't go to other places to buy cigarettes, they were all purchased at local cigarette hotels, so he didn't belong to the transportation in other places, and he didn't need a transportation permit at all.
However, Su's defense was not accepted by the other party, who insisted that Su was operating illegally, and if Sun did not pay the money, the cigarettes could not be returned to him.
Su Mou has a belly full of fire, it is not easy to buy so many cigarettes, if he doesn't pay the fine, the cigarettes can't be taken back, and it will delay his later affairs. In desperation, Su had to pay a fine of 6,250 yuan, and then took the cigarettes back.
After returning home, the more Su thought about it, the more depressed he became, and he couldn't swallow this breath after thinking about it, and finally, after Su checked the information, he directly sued them on the grounds of procedural violations of the Tobacco Bureau, demanding that the punishment against him be revoked and the fine against him returned.
2. Legal analysis
1. Analysis of the legal nature of Su's cigarette purchase
This means that the sale of tobacco is strictly controlled, and individuals or entities are not allowed to operate without permission.
However, in this case, Su claimed that the purpose of purchasing cigarettes was to entertain and give gifts to the construction site, not to operate or sell, and on the face of it, Su's conduct did not violate the provisions on tobacco monopoly in the Tobacco Monopoly Law.
2. Analysis of the legitimacy of the Tobacco Bureau's law enforcement behavior
The Tobacco Bureau determined that Su did not have a tobacco transportation license and imposed an administrative penalty. But here are a few key points to focus on:
First of all, whether Su did transport cigarettes in other places.
According to Su, he did not go to other places to buy cigarettes, but bought them at local cigarette hotels. This means that he has not violated the rules regarding off-site transportation.
Secondly, even if Su has a non-local transportation behavior, whether he must hold a transportation certificate to carry it out.
This means that if Su does not transport across counties and districts, he does not need to apply for a tobacco transportation permit, and if he crosses districts and counties, he violates the law and should be punished.
In addition, it is also worth exploring whether the tobacco bureau has complied with the relevant provisions of the Administrative Punishment Law in the process of law enforcement. According to the law, any unit or individual has the right to make statements and defenses before receiving an administrative penalty.
Whether the Tobacco Bureau fully listened to Su's statement and defense before making a penalty decision, and whether its enforcement procedures were lawful are all issues worthy of further review.
3. Analysis of the reasonableness of Su's lawsuit against the Tobacco Bureau
After Su had no choice but to pay the fine, he chose to file a lawsuit on the grounds that the Tobacco Bureau's procedures were illegal, demanding that the penalty be revoked and the fine returned.
From a legal point of view, Su's lawsuit is reasonable to a certain extent. If, as Su said, his purchase of cigarettes was not for business or sale, and did not violate the regulations on off-site transportation, then the Tobacco Bureau's penalty decision lacked factual basis.
At the same time, if the Tobacco Bureau does have procedural violations in the process of law enforcement, if Su's statement and defense are not fully heard, the legality of its penalty decision will also be questioned.
3. Verdict
Su was dissatisfied with this punishment and filed an administrative lawsuit against the Tobacco Bureau. Unlike ordinary civil litigation, the defendant has the burden of proof.
During the trial, Su proposed:
First of all
His cigarettes were bought in Fengqiu, and after buying, he was investigated before he left Fengqiu, and his people and cars did not leave Fengqiu, so they are not considered cross-district and cross-county.
Secondly, the cigarettes he bought were not for trading, but for his own use at the construction site and for visiting relatives and friends for the Chinese New Year.
In addition, according to the legal procedure, the tobacco bureau should hold a hearing before punishing him, but it violates the procedural rules by punishing him without such a process after the incident.
Moreover, on the day of the incident, he had just left the cigarette hotel and was found out, and the other party was suspected of fishing law enforcement.
Regarding Su's statement, the Tobacco Bureau produced evidence and defended:
First of all, in response to the first point raised by Su,
Su carried 117 cigarettes, which seriously exceeded the provisions of the "Tobacco Monopoly Law", which is illegal act 1. In addition, although Mr. Su was still sealing the hill with people and cars at that time, his destination was Weihui City, and just because he had not had time to leave, it could not be assumed that he was not transporting tobacco across regions. Therefore, Su's illegal transportation of tobacco across regions was established.
Secondly, for the second article proposed by Su,
Su transported cigarettes without a license, and the number of cigarettes he carried seriously exceeded the regulations, although they did not enter the market, but their nature was relatively bad, and the administrative punishment imposed on him was in accordance with the law.
According to the calculation of the value of the cigarettes transported by it of more than 15,000 yuan, it has the right to exercise its discretion and impose a penalty of 40% of the value of the cigarettes, that is, 6,250 yuan, in accordance with the law.
Finally, for the third article proposed by Su,
The value of the cigarettes illegally transported by Su was more than 15,000 yuan, which did not meet the necessary conditions for a hearing to be held as required by law, and he had already presented his law enforcement certificate when enforcing the law. Therefore, there is no non-compliance in our own enforcement procedures.
What do you think about this case? #春日生活打卡季#