? There are three viewpoints in "The court has no right to confirm the defendant's administrative violations in criminal cases involving gangsters and evils", 1. Only administrative organs or other organizations authorized by laws and regulations have the right to confirm administrative violations of citizens or legal persons. Confirming administrative violation is the premise of administrative punishment. According to Article 15 of the Administrative Punishment Law: "Administrative punishment shall be implemented by administrative organs with the power of administrative punishment within the scope of statutory functions and powers", we can know that only administrative organs can make administrative punishment decisions in China, which shows that only administrative organs have the right to confirm administrative violations. 2. The people's procuratorate has no right to bring a lawsuit to confirm citizens' administrative violations. According to the provisions of Article 20 of the Organic Law of the People's Procuratorate, there is no provision in the functions and powers of the procuratorate to file a lawsuit against citizens for confirming administrative violations. 3. The people's court has no right to directly confirm whether the defendant has committed administrative violations, and the cases that confirm that citizens have committed illegal acts are not administrative litigation cases. The basis is that there is no such article in the functions and powers of the people's courts as stipulated in Article 2 of the Organic Law of the People's Courts. As far as state organs are concerned, it is forbidden by law without explicit permission, so the court has no right to confirm that the defendant has administrative violations in criminal cases involving black and evil.
? The three arguments in this paper refer to the current legal provisions, but there are logical and cognitive errors, which confuse the relationship between process and result, the relationship between means and purpose, and the relationship between the examination of criminal elements and the examination of illegal acts.
? It is true that it is the responsibility of the administrative punishment organ to make decisions on citizens' administrative violations. But this does not mean that the court has no right to examine and confirm citizens' administrative violations, which belong to the judicial power of the court and the supervision power of the court over administrative organs. The exercise of judicial power and supervision by the courts over administrative organs is often realized through the examination and confirmation of citizens' administrative violations. The author will demonstrate this view from the judicial practice of administrative litigation, criminal litigation and civil litigation.
1. From the perspective of administrative litigation, the court must determine whether citizens have committed administrative violations. This article mentions that the administrative counterpart can only bring an administrative lawsuit if there is an administrative penalty decision, which is obviously wrong. Article 2 of the Administrative Procedure Law clearly stipulates that citizens, legal persons or other organizations have the right to bring a lawsuit to the people's court in accordance with this law if they think that the administrative actions of administrative organs and their staff infringe upon their legitimate rights and interests. It can be seen that the premise for citizens to file an administrative lawsuit is the specific administrative act made by the administrative organ, not the decision on administrative punishment. For example, if a citizen files an administrative lawsuit against the government's demolition procedure, there is no need for an administrative penalty decision. For example, if a citizen's application for information disclosure is rejected by the government and an administrative lawsuit is filed, there is no need for an administrative penalty decision.
The decision of administrative punishment is a kind of social management behavior made by administrative organs based on citizens' behavior, which is only an administrative behavior of administrative organs. If a citizen refuses to bring an administrative lawsuit after accepting administrative punishment, the court has the obligation to evaluate whether the citizen's behavior is legal. The premise of legal administrative punishment is that citizens' behavior does violate relevant administrative laws and regulations. For example, if someone dances in the vegetable market and is punished by the public security organs, the court must first confirm whether someone's dancing behavior is illegal. If someone's dancing behavior is legal and does not harm the interests of others and the public, then the decision of administrative punishment is an infringement of someone's legal rights, which belongs to abuse of power or obvious misconduct. According to the provisions of Article 70 of the Administrative Procedure Law, the people's court may decide to revoke or partially revoke the administrative act, or it may also decide the defendant to conduct the administrative act again. If someone's behavior disturbs the normal order of the vegetable market, or damages the legitimate rights and interests of others, which is a violation of administrative regulations, then the decision of administrative punishment is correct, and the court can decide to reject the plaintiff's claim. Therefore, administrative litigation should not only examine the administrative behavior of administrative organs, but also examine the behavior of citizens. If we don't review the legality of citizens' behavior, we can only review the administrative behavior of administrative organs, then we can only review the administrative behavior procedures of administrative organs. Does the author think that the administrative litigation in China is just a formality, with no substantive content? Furthermore, Article 77 of the Administrative Procedure Law stipulates that if the administrative penalty is obviously improper, or other administrative acts involve the determination and determination of the amount, the people's court may make a judgment to change it. The people's court shall not increase the plaintiff's obligations or damage the plaintiff's rights and interests when changing the judgment. However, all parties concerned are plaintiffs, unless the contrary is claimed. This article directly confirms the court's right to make judicial changes to administrative acts. Doesn't this include the right to examine and confirm citizens' administrative violations? I wonder how the author of this article explains this?
? 2. From the point of view of criminal procedure, the court must examine the behavior of citizens. The behavior of citizens is the only criterion to measure whether it constitutes a crime. The establishment of many crimes is based on citizens' administrative violations, and whether citizens' actions are illegal usually determines whether they constitute crimes. For example, one of the criteria for filing and prosecuting the crime of illegal medical practice is to practice medicine illegally again after being punished twice by the health administrative department. In this case, it is a prerequisite for citizens to be investigated for criminal responsibility twice for illegal medical practice.
When examining such cases of illegal medical practice, procuratorial organs and judicial organs will focus on the legality of the two administrative punishments and the specific behaviors of the citizens punished during the two administrative punishments. For example, if a citizen's psychological consultation through chatting with patients is deemed as illegal medical practice and is subject to administrative punishment, whether the citizen's behavior violates health management regulations is deemed illegal by the administrative organ. If the administrative organ can't provide enough evidence of administrative punishment to prove that the citizen's behavior is illegal, the court will not be able to recognize the punishment decision, let alone take it as an important element of conviction. The determination of road traffic accident responsibility is very important evidence in traffic accident cases, which directly proves the responsibility that vehicle drivers should bear in traffic accidents. The determination of responsibility for road traffic accidents is often expressed in this order: the driver's behavior-violation of traffic regulations-is the main reason or all the reasons for the accident-the driver bears the main responsibility or all the responsibilities. In practice, the court must conduct a substantive review of the determination of responsibility for road traffic accidents in trial activities, that is, whether the driver's behavior violates traffic laws and regulations, and can not directly determine the conclusions made by the traffic police department. In some cases, the author has seen such a situation. According to the facts ascertained in the trial, the court found that the driver did not violate traffic regulations and was irresponsible for the accident. Therefore, it did not believe in the main responsibility of the driver identified in the Road Traffic Accident Liability Letter and found the driver innocent. It can be seen that in criminal proceedings, the court can try and identify citizens' administrative violations based on the need of finding out the facts, conviction and punishment.
3. In civil litigation, the judge must determine whether the civil juristic act of a citizen is an administrative violation, and the civil juristic act of a citizen is a part of the civil act. Article 143 of the General Principles of the Civil Law stipulates that a civil juristic act that meets the following conditions is valid: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (three) does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. For example, in the confirmation lawsuit, citizens demand to confirm the validity of civil legal acts, and the corresponding legal relationship exists. According to Article 143 of the General Principles of the Civil Law, a judge must examine whether a citizen's civil legal act is valid. If a citizen's civil juristic act violates the mandatory provisions of laws and administrative regulations, it shall be deemed invalid, otherwise it will be effective. If we are not sure whether the civil legal acts of citizens belong to administrative violations, then civil litigation activities cannot be carried out. For example, Party A sued Party B to the court, demanding that the signed house sales contract be valid, and Party B should fulfill its contractual obligations. The judge should examine whether the buying and selling behavior of the plaintiff and the defendant violates the administrative law, which also includes examining the buying behavior of the plaintiff and the selling behavior of the defendant respectively.
? Accordingly, if according to the author's point of view, the court has no right to determine whether citizens have committed administrative violations, which will lead to the failure of administrative litigation, criminal litigation and civil litigation activities. Judicial power is essentially a kind of review power, which of course includes the review and identification of citizens' administrative violations. The review of citizens' administrative violations is a part of the means and litigation process, and its purpose is to ensure the fairness of the trial results.
As for the case involving black and evil mentioned in the title of the author's article, it is only one kind of criminal case. The behavioral characteristics of the crime of organizing, leading and participating in underworld organizations stipulated in Article 294 of the Criminal Law refer to organizing and carrying out illegal and criminal activities many times by violence, threats or other means, doing evil, bullying and injuring the masses. It can be seen that the perpetrator's illegal and criminal behavior constitutes an important component of the crime of organizing, leading and participating in underworld organizations. What the court hears is not a simple administrative violation, but an important element of the behavioral characteristics of underworld crimes. There are many similar crimes that need to be dealt with in judicial practice, except the cases of illegal medical practice and traffic accidents listed above. For example, the amount of theft did not meet the standard of filing and prosecution for three times, and the amount did not meet the standard of filing and prosecution for three times. If it is separated again and again, it is an administrative violation, but it is a crime to accumulate together. In the final analysis, trials are all criminal acts, but the constituent elements of some crimes happen to be administrative violations.