[Key words]:
Disputes over administrative and public security administrative punishments, procedural violations and cancellation
[introduction of the lawyer in this case]
Hu Mingming, senior partner of Liaoning Tongfang law firm. He is good at handling legal affairs in many fields, such as construction projects, enterprise creditor's rights, debt liquidation, investment mergers and acquisitions, corporate governance, contract infringement, criminal defense, etc. He has many years of working experience in handling the company's legal affairs.
[judging points]:
This case belongs to an administrative dispute. First, the authority basis and punishment basis of the administrative organ shall be examined. The facts involved in this case are unclear and the evidence is insufficient. The administrative punishment decision made by the public security organ on this basis violates the legal procedures, and the trial of the case is seriously overdue, which violates the mandatory provisions of the law. The administrative punishment decision shall be revoked.
[basic facts]:
The plaintiff is a doctor of the first hospital of Medical University, and the third persons Yu Jie and Yu Jing are the family members of the patients. On the evening of October 31, 2015, when Zhang Haishan was on duty, Yu Jie and Yu Jing quarreled because they were dissatisfied with Zhang Haishan's reply. When Zhang Haishan wants to leave, Yu Jie and Yu Jing block him and Zhang Haishan pushes them away. In the dispute, Yu Jie and Yu Jing fell to the ground one after another. After calling the police, the Zhonghua police station took Zhang Haishan, Yu Jie, Yu Jing and Wang Hongjian back for questioning and investigation. Among them, Wang Hongjian, as a witness, belongs to the party involved in the dispute. According to the judicial appraisal, Yu Jie and Yu Jing were both slightly injured. After the appraisal opinion was made, the Zhonghua police station did not send the appraisal opinion to Zhang Haishan in writing, but only informed him orally. Zhang Haishan immediately applied for re appraisal, but never re appraised, and the public security organ did not issue a written explanation. This case occurred from 2015 to July 2018, and the punishment decision was made, which was seriously overdue.
[judgment result]:
1. Revoke the decision on administrative punishment (SGH (z) xjzz [2018] No. 1116) made by the Zhonghua police station of Heping Branch of Shenyang Public Security Bureau and the decision on administrative reconsideration (SGH (z) FZ [2018] No. 003) made by Heping Branch of Shenyang Public Security Bureau;
2. The Zhonghua police station of Heping Branch of Shenyang Public Security Bureau shall be ordered to make a new administrative action within 30 days after this judgment becomes legally effective.
[reason for judging]:
1. On the issue of the facts identified in this case: the defendant Zhonghua police station identified the facts based on the interrogation records and personal statements of the third party, and only the interrogation records of the witness Wang Hongjian. However, as a party involved in the dispute, Wang Hongjian could not objectively restore the scene situation, and there was no other objective evidence to support it. The defendant Zhonghua police station identified that "the plaintiff Zhang Haishan pushed the third party Yu Jie down", and the evidence was insufficient.
2. As for the appraisal opinions of this case: the defendant Zhonghua police station did not provide the relevant evidence that he had informed Zhang Haishan in writing of the conclusion of the diagnosis certificate issued by the medical institution as the basis for determining the degree of personal injury, but the audio recording evidence provided by Zhang Haishan can prove that he applied to the case handling unit Zhonghua police station for re appraisal, and the Zhonghua police station did not make a decision on whether to re appraise and the reasons, The legal rights and interests of Zhang Haishan were not fully protected, and the administrative punishment procedure was illegal.
To sum up, the defendant Zhonghua police station found that the facts were unclear, the evidence was insufficient, and the procedure was illegal. The administrative punishment decision made by the defendant shall be revoked.
[relevant provisions]:
Article 70 of the administrative procedure law of the people's Republic of China: "where an administrative act is under any of the following circumstances, the people's court shall make a judgment to revoke or partially revoke it, and may also make a judgment to the defendant to perform the administrative act anew: (1) the main evidence is insufficient; (2) the application of laws and regulations is wrong; (3) the legal procedure is violated; (4) the authority is exceeded; (5) the authority is abused; and (6) it is obviously improper."
[lawyer's opinion]:
This case is a typical administrative dispute case. For the "medical dispute" dispute, the administrative organ should be more cautious and meticulous in making the punishment decision. In this case, from unclear facts and insufficient evidence to procedural violations caused by ineffective delivery of expert opinions and overdue punishment, it can be proved that the facts and decisions made by administrative organs are flawed and do not meet the statutory requirements. The court tried the case in strict accordance with the administrative laws and regulations and made a fair judgment.
Now there are more and more people suing officials, and more and more people win lawsuits. It should be pointed out that this is inseparable from the court's implementation of different jurisdiction over administrative cases. By adjusting the jurisdiction rules, the channels of administrative intervention in the trial were blocked, the judges' worries about handling cases were reduced, and the people's confidence in litigation was enhanced. More and more people seek protection of their rights through administrative litigation, and dare to argue with administrative organs in court. This shows that citizens' awareness of the legal system is increasing, which is social progress. From the national level, it is an important adjustment of government functions and judicial functions, and an important embodiment of the modernization of national governance.