Keywords

Administrative effective judgment, supervision of industrial injury determination, investigation, verification, retrial, procuratorial suggestion for revision

[Case Introduction]

Lv was recruited by a commercial company to work as a parking space sales manager in a community, engaged in parking space management, sales and other work. Later, Lv was hit by a motor vehicle while working in the parking lot of a community. He applied to the Human Resources and Social Security Bureau of a district (hereinafter referred to as the Human Resources and Social Security Bureau of a district) for identification of work-related injuries, and submitted the Lost Time Certificate, Employee Attendance Form, wage WeChat transfer records, traffic accident identification letter and other materials stamped with the seal of a commercial company. The Human Resources and Social Security Bureau of a certain district made a Decision on the Identification of Work Injury, and identified Lv as a work injury.

A commercial company sued the court to revoke the Decision on the Determination of Industrial Injury on the grounds that Mr. Lv was not an employee, and the seal affixed on the Lost Time Certificate and Employee Attendance Form was inconsistent with the company's record seal, which was forged by Mr. Lv. The court of first instance ruled against the claim of a commercial company. A commercial company lodged an appeal and submitted the appraisal opinion of the public security organ on the inconsistency between the seal affixed on the Lost Time Certificate and Employee Attendance Form and the record seal of a commercial company. The court of second instance held that the seal of a commercial company affixed to the Lost Time Certificate and Employee Attendance Form submitted by Mr. Lv when he applied for the determination of industrial injury was forged, and the legality of the evidence was questionable. On this basis, the Human Resources and Social Security Bureau of a certain district determined that the main evidence for the existence of labor relations between Mr. Lv and a commercial company was insufficient, so it decided to revoke the first instance judgment and the Determination of Industrial Injury made by the Human Resources and Social Security Bureau of a certain district. The third person, Mr. Lv, refused to accept the judgment of the second instance and applied to the procuratorial organ for supervision after the application for retrial was rejected.

The procuratorial organ investigated and visited the relevant personnel of the commercial company, retrieved the parking space repurchase agreement signed by a commercial company with other owners and the parking space management announcement issued by the company, and found that the seal used by a commercial company for external purposes was not unique, and other non record seals were repeatedly used in the parking space repurchase agreement, management announcement and other business management activities, It indicates that the company has recognized the effect of non record seal in other civil acts. The existence of factual labor relations can be proved by combining other evidences such as Lv's work card, salary payment, and the legal representative of a commercial company's consent to affix the seal involved in the case. The procuratorial organ proposed a retrial procuratorial proposal to the court on the ground that there was new evidence sufficient to overturn the original trial decision. The court adopted the recommendation of the retrial procurator and decided to annul the original judgment of second instance and uphold the judgment of first instance.

Typical significance

The identification of work-related injuries is related to the protection of workers' rights and interests. When the procuratorial organ handles administrative litigation supervision cases of work-related injury determination, if it is difficult to prove the existence of factual labor relations due to the weak ability of workers to provide evidence, the procuratorial organ can fully use the power of investigation and verification to find out the facts of the case. In this case, the procuratorial organ found out the fact that a commercial company used multiple seals externally, indicating that the company has recognized the effectiveness of non record seals in other civil acts, and the company shall not selectively recognize the effectiveness of non record seals. The procuratorial organ, in combination with other evidence obtained, comprehensively determined that there was a factual labor relationship between the two parties in the case, effectively safeguarding the legitimate rights and interests of workers.

Keywords

Administrative effective judgment, supervision, excessive punishment, retrial and revision of neighborhood disputes

[Case Introduction]

Wang Moujia is related to Wang Mouyi and Chu Mouxx, and they are neighbors. On October 15, 2019, Wang Moujia, Wang Mouyi and Chu Moumou had a dispute over the replacement of land for the road construction in the early stage. Chu Moumou first grabbed Wang Moujia's clothes, causing the two sides to fight each other. According to the second item of the second paragraph of Article 43 of the Law of the People's Republic of China on Administrative Penalties for Public Security, the public security bureau of a county, on the ground that Wang Moujia "beat the disabled Wang Mouyi", imposed an administrative penalty of administrative detention on Wang Moujia for 11 days and a fine of 500 yuan. The bureau also imposed an administrative penalty of 200 yuan on Chu, and imposed an administrative detention of 400 yuan on Wang for seven days. Wang Moujia thought that the punishment was too heavy, and applied to a city public security bureau for reconsideration. After being upheld, he filed an administrative lawsuit. The court of a county decided to reject Wang's claim. After Wang Moujia filed an appeal, because he did not attend the hearing, the intermediate court of a city ruled that the appeal should be withdrawn. Later, Wang's application for retrial was not supported, so he applied to a county procuratorate for administrative procuratorial supervision.

After examination, the procuratorial organ believed that, according to the provisions of Article 20, Section 1, Chapter 1 of the Benchmark of Administrative Penalty Discretionary Power of the Public Security Organs in Anhui Province, if both sides are at fault in the assault caused by a dispute between neighbors, it should be identified as "the circumstances are relatively minor". In addition, Wang Moujia's beating of Wang Mouyi did not succeed and did not cause personal injury. According to the second point of the Interpretation of the Public Security Organs on the Implementation of the Law of the People's Republic of China on Administrative Penalties for Public Security (II), if the perpetrator has started to commit an act against the administration of public security and fails due to reasons other than his own will, he shall be given a lighter punishment Mitigated punishment or no punishment. The county public security bureau did not comprehensively consider the above circumstances of leniency and mitigation, and directly applied the provisions of Item 2, Paragraph 2, Article 43 of the Law of the People's Republic of China on Administrative Penalties for Public Security. It was obviously improper to impose an administrative penalty of 500 yuan on Wang Moujia, who was detained for 11 days on the grounds that he was mentally ill and was disabled. Accordingly, the procuratorate of a county proposed to the court for retrial, and the court of a county adopted the recommendation of the procuratorial organ, started the retrial procedure for the case and changed the sentence, and found that the administrative punishment made by the public security bureau of a county was improper and was revoked.

Typical significance

When imposing administrative penalty, the administrative organ shall, on the basis of facts, comprehensively investigate the facts, nature, circumstances and degree of social harm of the illegal act, and comprehensively consider the circumstances of various lighter, mitigated and heavier punishments, as well as the degree of fault in the infringement act and the extent of punishment of each administrative counterpart, so as to determine the type and extent of administrative penalty and ensure that the excessive punishment is equal. If the people's court wrongly maintains an obviously improper administrative penalty decision in violation of the principle of excessive punishment, the procuratorial organ shall supervise it according to law, promote the administrative organ to be more comprehensive and prudent in exercising its discretion, reduce and avoid the occurrence of obviously improper punishment, so as to achieve the goal of good law and good governance.

Keywords

Administrative non litigation execution supervision Social maintenance fee collection ends Big data empowerment of this execution procedure

[Case Introduction]

On June 26, 2021, the Central Committee of the Communist Party of China and the State Council made the Decision on Optimizing the Fertility Policy to Promote the Balanced Development of the Population, abolishing restrictive measures such as social maintenance fees, cleaning up and abolishing relevant punishment provisions, and properly handling historical problems according to law and regulations. On September 9, 2021, the Administrative Measures for the Collection of Social Maintenance Fees was abolished. On December 24, 2021, the Guiding Opinions on the Specific Application of Relevant Issues in the Implementation of the Regulations of Anhui Province on Population and Family Planning issued by the Anhui Provincial Health Commission clearly stipulates that the collection of social maintenance fees shall be terminated if they are not collected or not collected completely.

Although the state has adjusted and optimized the birth policy and the corresponding laws and policies have been modified, the collection of social maintenance fees left over by history has not been properly handled. In March 2023, the procuratorate of a city found in the special inspection and supervision work of guarding "half the sky" that the city's courts had not yet completed the implementation of 46 cases of non litigation enforcement of social maintenance fees, many people were included in the list of dishonest persons to be executed, and received credit punishment in government procurement, bidding, administrative approval, market access, qualification recognition, selection and employment, etc. Some of the persons under enforcement have been taken measures to limit high consumption, and travel, accommodation, house purchase, car purchase, tourism, vacation and high-speed rail travel are restricted. These cases continue to be implemented or are not closed for a long time, which seriously affects the normal family life of the persons involved.

In view of the fact that there are many such cases, the procuratorate of a city acted quickly and actively used big data thinking to conduct a comprehensive inventory of the city's non litigation enforcement cases of social maintenance fees collection. After checking, it is found that there are still more than 90 people who have been included in the list of dishonest persons to be executed by the court or have been restricted from high consumption because of their failure to pay social maintenance fines.

In order to properly handle the problems left over by history and promote the substantive resolution of administrative disputes, a municipal procuratorate held a public hearing, fully listened to the opinions of the person subjected to enforcement, the municipal health committee and the hearers, and believed that the municipal health committee should take the initiative to apply to the people's court for cancellation of the relevant enforcement application, and on April 4, 2023, Issue procuratorial suggestions on similar cases to the municipal health department without objection, suggesting that they properly handle the historical legacy of social maintenance fee collection according to law and regulations, and apply to the court for suspension of implementation and cancellation of compulsory measures for cases that have made collection decisions but have not yet been implemented by the court.

After receiving the procuratorial recommendation, the Municipal Health Commission immediately combed the cases of the city's outstanding social maintenance fees with the municipal court, and withdrew the application for compulsory enforcement of these cases to the municipal court on May 15, 2023. At present, a city court has terminated the execution of 46 related cases in accordance with the law, and has taken measures such as lifting the order of restricting high consumption and shielding the list of dishonest persons to be executed.

Typical significance

After the adjustment and optimization of the national fertility policy, the relevant laws and policies have made it clear that if the social maintenance fees are not collected or not collected completely, the collection will be terminated. However, due to the lack of supporting detailed provisions, there is much controversy in practice about the procedure for terminating the collection of cases that have been applied for court execution. In this case, the procuratorial organ actively performed its duties, actively responded to social concerns, actively intervened, used big data to empower and strengthen case supervision, urged the administrative organ to perform its duties on its own initiative, promoted the settlement of outstanding social alimony cases and orderly withdrawal from the implementation process, actively promoted the implementation of the national fertility policy, and protected the legitimate rights and interests of the people.

Keywords

Supervision of administrative violations; selective enforcement of administrative punishment; social fairness

[Case Introduction]

Eight companies (hereinafter referred to as the eight companies involved in the case), including an automobile transportation limited company, are responsible for the earthwork transportation of a project. From the evening of August 25, 2022 to the early morning of August 26, 2022, a total of 51 waste trucks were captured and photographed in eight companies involved in the case. A county transportation bureau filed a case against the illegal behavior of 51 waste trucks, but only the transportation company of the 12 waste trucks that were first registered made an administrative penalty decision, and the other 39 waste trucks made a decision not to impose administrative penalty, Only relevant transport enterprises are required to receive legal education and sign a letter of commitment.

The procuratorate of a county received the clue of the case from the superior procuratorial organ, and investigated and found out according to law that when the transportation bureau of a county handled 51 violations and out of limit acts in the same batch, it did not punish according to the circumstances of the violations and the degree of social harm, and colleagues in the same city were punished differently; There are illegal situations in the case handling procedure, such as no collective discussion in accordance with the law, adjudication before evidence collection, legal review and anti signing. On June 21, 2023, a county procuratorate made and issued procuratorial recommendations to a county transportation bureau, urging the bureau to standardize administrative law enforcement activities, unify law enforcement standards, legally and reasonably exercise discretion, and put an end to "different punishments for the same case in the same city"; Strictly abide by the provisions of case handling procedures, strengthen education and training, and strengthen file evaluation and management.

The transportation bureau of a county adopted the procuratorial suggestion, rescinded the decision not to punish 39 vehicles for exceeding the limit, punished them according to the same standard as the 12 vehicles already punished, modified and improved the internal case handling procedures in the area of overload control in the county, carried out special business training, improved the level of law enforcement professionalism, and carried out supervision and inspection of administrative law enforcement.

Typical significance

Freight transport has played a major role in ensuring the smooth flow of goods and the development of people's livelihood. However, overloading of large trucks greatly weakens their own safety and seriously threatens their own and others' personal and property safety. The administrative department in charge of road traffic and transportation shall strictly enforce the law and investigate and deal with one case found. The selective enforcement of laws against some offenders violates the principle of "equality before the law" and seriously damages social fairness. The procuratorial organ should supervise the selective law enforcement according to law, help to rectify the unhealthy tendencies around the masses, and let the masses feel fairness and justice in every administrative law enforcement decision.

Keywords

Supervision of administrative violations "shell companies" revoke their licenses, and source control of business environment

[Case Introduction]

A city procuratorate found that Jiang organized personnel to establish more than 60 "shell companies" in the jurisdiction of a city, and sold the business licenses and corporate accounts of these companies to others for network fraud, gambling and other criminal activities in handling the crime of 13 people buying and selling company business licenses. Through analysis, research and judgment, it is found that more than 60 companies have the characteristics of concentrated establishment time, related persons alternate in the company as legal representatives, shareholders and other positions, and the company's registered business address is false. The social governance problems of such "shell companies" in this region are more prominent.

The procuratorate of a city used big data thinking to establish the idea of searching for clues of "shell companies" with related personnel, created a legal supervision model of "shell companies" governing big data, and screened 679 clues of "shell companies", including 12 registered in the city.

The procuratorate of a city, in conjunction with tax, market supervision, human resources and social security, public security, power, water and other departments, obtained 12 companies' tax, social security payment, water, electricity, business site information, annual reports and other evidence, and found out that the business site of the company involved was false, tax records and social security payment records were abnormal, and water and electricity use records were abnormal, It is a "shell company" with false registration that has not carried out substantive business activities, so it puts forward procuratorial suggestions to the market supervision department and transfers the relevant case clues to the public security organ. The market supervision department adopted the procuratorial suggestion and revoked the business licenses of 12 companies respectively. The procuratorate of a city transferred the clues of "shell companies" registered outside the city to the procuratorial organ of the place where the company was registered according to law.

Taking this case as an opportunity, the procuratorate of a city and the market supervision bureau of the city established a "shell company" governance cooperation mechanism, formed a joint force to govern "shell companies", and achieved the supervision effect of "handling one case, influencing one area, and governing the society".

Typical significance

With the promotion of the national reform of "deregulation, regulation and service", some criminals use the convenient conditions of commercial registration to register "shell companies" for resale, or use "shell companies" to make false invoices to provide transfer facilities for the implementation of criminal activities such as telecommunications network fraud and gambling, which has seriously disrupted the market economic order. By acquiring related data, creating a big data legal supervision model, multi-dimensional analysis and filtering, the procuratorial organ combed out the clues of "shell companies", and then urged functional departments to revoke the license of "shell companies" by means of procuratorial suggestions, so as to curb cyber economic crimes from the source, optimize the business environment, and escort the healthy development of the economy and society.

Keywords

Prosecutors suggest the system governance of false marriage registration and collaborative performance of duties

[Case Introduction]

At the beginning of 2005, Zhang Moumou, a resident of a county, was introduced to a woman who claimed to be "Feng Moumou A". In June of that year, "Feng Moumou A" and Zhang Moumou were registered to marry in the civil affairs bureau of a county, but they did not provide their household registration book and ID card. After living together for less than a month, Feng ran away from home. Since then, there has been no news. Zhang Moumou plans to establish a new marriage relationship, but he can't apply for marriage registration because he has already married "Feng Moumou A". Zhang Moumou filed an administrative lawsuit in March 2023, requesting the civil affairs bureau of a county to cancel the marriage registration of Zhang Moumou and "Fengmeijia" according to law. The court rejected Zhang's lawsuit on the grounds that it exceeded the statutory maximum time limit for prosecution.

On May 8, 2023, Zhang applied to a county procuratorate for supervision because he did not accept the court's decision to reject the prosecution. The procuratorial organ visited the local public security organ and the marriage registration organ, and through the "National Population Information Network Query System" and Zhang's identification, it found out that other people with the name of "Feng XX A" nationwide were not "Feng XX A" registered to marry them. The ID card number used when "Feng XX A" registered for marriage was actually Feng XX B. Zhang identified "Feng XX A" as Feng XX B. In addition, it was found that Feng XX B registered for marriage with others on September 10, 2002. It is now sealed that the whereabouts of Party B is unknown and cannot be contacted. In order to further find out the facts, the procuratorial organ held a hearing, widely listened to the opinions, and finally adopted the opinions of the hearer. It was determined that "Feng XX A" did not provide the household register and ID card, and used a false name to register marriage, lacking the legal elements of marriage registration, and the marriage registration involved in the case should be revoked.

On May 24, 2023, a county procuratorate made and issued procuratorial recommendations to a county civil affairs bureau to urge the cancellation of the marriage registration in accordance with Article 2 of the Guiding Opinions on Properly Handling the Issue of Marriage Registration in the Way of Substitution or Falsification issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Civil Affairs. The Civil Affairs Bureau of a county adopted the procuratorial advice and made a decision on May 30 to cancel the marriage registration of Zhang and "Feng XX A".

When handling the case, a county procuratorate found that there were other cases where the local false marriage registration could not be revoked, which affected remarriage, so it established a cooperation mechanism with the local court, public security and civil affairs departments, urged the local civil affairs departments to revoke five false marriage registrations according to law, and the court corrected one false marriage registration through judicial advice, Civil affairs departments have corrected clerical errors in marriage registration and reissued more than 180 marriage registration certificates through clearance and verification.

Typical significance

Freedom of marriage and willingness to marry are the most basic principles of marriage law. The party who provides false identity information does not have the true intention to enter into marriage, and lacks the basic elements of marriage agreement, which should be revoked according to law. Due to the lack of evidence collection ability of the administrative counterpart, the People's Procuratorate should carefully review the supervision cases of administrative litigation of marriage registration, and fully use investigation, verification, public hearing and other methods to find out the facts of the cases. If it is verified to be "false marriage registration", the marriage registration authority shall be advised to cancel the marriage registration according to law. The procuratorial organ can strengthen communication and coordination with the court, public security organ and civil affairs department, establish a working mechanism of participation, mutual cooperation and close cooperation of all parties, promote common governance, and ensure the "prosecution and protection of people's livelihood".