Appellant (plaintiff in the original trial) Yang Deming, male, born on 1 965 65438+1October 27th, Han nationality, lives in Wanmin Village, Xiangshui Town, Wanzhou District1Group 3 1, and his ID number is 5122/kloc.
Authorized Agent: Hu, lawyer of Chongqing Jinyang Law Firm.
Authorized Agent: Lang Xuncai, lawyer of Chongqing Jinyang Law Firm.
Appellee (defendant in the original trial): Wanzhou District Road Transportation Management Office (hereinafter referred to as District Transportation Management Office).
Legal Representative: Xie Fei, director.
Authorized Agent: Li Xianming, lawyer of Chongqing Wan Yu Law Firm.
The appellant, Yang Deming, refused to accept the administrative judgment of Wanzhou District People's Court (2007) Wan Chu Hang Zi No.57 for the case of administrative punishment of road traffic and transportation management, and appealed to our court. After the court accepted the case, a collegiate bench was formed according to law to hear the case, and the trial has now ended.
The original trial found that because the plaintiff students from Zongjiao Village and Baohe Village in Xiangshui Town went to Wanzhou Wuqiao Vocational Education Center, Zhang Xianfen, secretary of the Party branch of Zongjiao Village, contacted the plaintiff and asked for the transportation by the plaintiff's vehicle, and the plaintiff agreed to pay the fare of 7 yuan for each person. At 7 o'clock on August 24, 2007, the plaintiff drove his own passenger car, Chongqing F08569 Changan, from Xiangshui to Wuqiao. When driving on the Chongqing-Yichang Expressway (behind the railway station), the defendant inspected it and found that there were seven passengers on board. The defendant ruled that the plaintiff's behavior constituted unlicensed operation, and made a Record of Chongqing Road Transport Cases and a Notice of Violation on the spot, issued a Certificate of Temporary Detention of Vehicles by Chongqing Road Transport Management, and detained the plaintiff's Chongqing F08569 minibus.
On September 4th, 2007, the defendant issued a notice of administrative penalty to the plaintiff. The main contents are as follows: due to the illegal behavior of operating without a license, it is planned to be punished according to the Regulations of the People's Republic of China on Road Transportation and fined 30,000 yuan; The plaintiff has the right to request a hearing. If a hearing is needed, the defendant should be asked within 3 days after being informed whether the plaintiff has made a complaint or defense on the informed matters, and the plaintiff will answerno. On the same day, the defendant made a decision on administrative punishment (Yu Jiao Yun Penalty Zi [2007]No. 10 12), and the plaintiff was fined 30,000 yuan for operating without a license, which was delivered. The plaintiff marked the words "I voluntarily give up the hearing" at the bottom of the penalty decision. The plaintiff paid a fine of 5,000 yuan at that time, and the defendant gave the plaintiff 50 fixed penalty tickets with a face value of 100 yuan. The plaintiff also wrote a written application to the defendant: due to family difficulties, the application was postponed to 25,000 yuan. At the same time, the defendant returned the Chongqing F08569 Changan minibus temporarily detained by the plaintiff.
The original trial held that Article 64 of the Regulations of the People's Republic of China on Road Transport stipulated that those who engaged in road transport business without obtaining a road transport business license shall be ordered by the road transport management institution at or above the county level to stop business; Illegal income, confiscate the illegal income, and impose a fine of more than 2 times the illegal income 10 times; If there is no illegal income or the illegal income is less than 20,000 yuan, a fine ranging from 30,000 yuan to 6,543,800 yuan shall be imposed; "The plaintiff sent the students to school and agreed with the organizer Zhang Xianfen to collect the fare per person, 7 yuan. Although it was not collected when the defendant inspected the car, it was agreed that the plaintiff would collect the fare after the car arrived at its destination. The plaintiff's behavior constitutes unlicensed operation. The plaintiff advocates free delivery, which is inconsistent with the actual situation of this case, and our court does not support it. The plaintiff claimed that the penalty decision should be made three days after the penalty notice, and the defendant made the penalty decision on the same day after the notice, which was illegal. Before the punishment, the defendant made a written notice of administrative punishment to the plaintiff, informing the plaintiff of his right to a hearing, and the plaintiff replied in negative language. The plaintiff also wrote the words "I voluntarily give up the hearing" in the administrative punishment decision. This fact proves that the plaintiff explicitly gave up the right to hearing. In the process of administrative punishment, the defendant informed the plaintiff that he had the right to a hearing, and the plaintiff explicitly gave up. The plaintiff's claim that the defendant made a punishment decision without organizing a hearing and violated legal procedures could not be established, and our court did not support it. According to the provisions of Item (1) of Paragraph 1 of Article 54 of the Administrative Procedure Law of the People's Republic of China, the administrative penalty decision (2007)10/2 made by the Road Transport Management Office of Wanzhou District of Chongqing on September 4, 2007 against the plaintiff Yang Deming was upheld; 50 yuan, the acceptance fee of this case, shall be borne by the plaintiff.
The appellant refused to accept the judgment and appealed to our court, claiming that the court of first instance improperly accepted the evidence, failed to cross-examine the camera materials of key evidence, and found that the main evidence of the facts was insufficient. The appellant did not collect the fare, and his behavior did not constitute illegal operation. When the Appellee made the decision on administrative punishment, it deprived the Appellant of the right to hearing, which violated legal procedures. The Appellee's investigation of the Appellant's behavior and the execution of administrative punishment also violated legal provisions. Request to cancel the administrative penalty decision made by the appellee (Yu Jiao Yun Penalty Zi (2007)No.10/2); First, the second instance litigation costs shall be borne by the appellee.
The appellee argued that in the first instance, the on-site investigation record provided by the appellee proved that the appellant had collected the fare, and that the appellant's behavior constituted illegal operation, which was clear and sufficient evidence. The appellant has given up the right of hearing in the administrative procedure, and it is not against the law that the appellee does not hold a hearing. The appellee's inspection and investigation of the appellant conforms to legal procedures. The appellee's failure to separate punishment from payment does not affect the effectiveness of administrative punishment.
In the first instance, the defendant provided the following evidence about the specific administrative act: 1. On August 24th, 2007, the defendant investigated the case of Zhang Xianfen and Qin, which proved that Yang Deming was operating without a license. 2. On August 24th, 2007, the defendant made the Temporary Detention Certificate of Chongqing Road Transportation Management; 3. On August 24th, 2007, the defendant made a Record of Chongqing Road Transport Cases and a Notice of Violation to the plaintiff; 4. On August 24, 2007, the defendant's law enforcement officers investigated the camera data of the plaintiff's unlicensed operation to prove that the plaintiff's illegal facts were established, and the defendant's law enforcement officers inspected it according to law; 5. On September 4th, 2007, the defendant informed the plaintiff about the administrative punishment of traffic administrative law enforcement in Chongqing; It proves that the defendant informed the plaintiff of the hearing right to be punished according to legal procedures, and it also proves the fact that the plaintiff voluntarily gave up the hearing on the spot; 6. On September 4, 2007, Chongqing Jiaoyun Penalty Zi [2007]No. 10 12 Administrative Punishment Decision and its receipt; The stub of the decision has the words "I voluntarily give up the hearing" written by the plaintiff himself, which once again proves that the plaintiff gave up the right to the hearing; 7. An application written by Yang Deming on September 14, 2007, which reads: "I am the owner of Chongqing F08569 small Changan car, and I applied for a deferred payment of 25,000 yuan due to family difficulties. The plaintiff provided the following evidence: plaintiff Yang Deming's 1, ID card and driver's license; 2. Fine bills: the defendant charged the plaintiff a fine of 5,000 yuan and issued 65,438,000 fixed fine bills with face value of 50 yuan; 3. According to the certificate of Xiangshui Town Government, Zongjiao Village in Xiangshui is a poor mountain village with inconvenient transportation, with 12 poor students. Due to the remoteness of the village and inconvenient transportation, the government and the village Committee organized vehicles (license plates are Chongqing F08569 and Chongqing AF7203). On August 24th, 2007, the vehicle was escorted to Wuqiao Vocational Education Center by Zhang Zhishu, and no fees were charged to the students. 4. Witness Zhang Xianfen's testimony: I am the secretary of the Party branch of Zongjiao Village in Xiangshui Town. Because the parents of the left-behind children went out to work, I asked my cousin (referring to the plaintiff) to help escort them. The plaintiff agreed, just saying that I would pay for the trip. On August 24, 2007, our car reached the intersection of expressways and was stopped by comrades in the Transportation Management Office. The people at the transportation management office asked me if I would charge the fare. I replied that everyone received 7 yuan. 5. Witness Qin's testimony: My family was in financial difficulties, and the plaintiff didn't ask me for money. Zhang Xianfen, secretary of the branch, said that I had no money to pay for travel and living expenses. 6. Witness Zhang Dechao's testimony: On August 24th, I went from Xiangshui to Wuqiao Vocational Education Center to send my children to school, and branch secretary Zhang Xianfen informed me to catch the bus without giving me any money.
The original trial held that the evidence investigated by the defendant on August 24, 2007 was objective, the source and form of the evidence were legal and related to the case, so it was determined. The certificate of Xiangshui Town Government provided by the plaintiff is not enough to counter the fact that the defendant and Yang Deming agreed to collect the fare in advance, which was investigated and confirmed by Zhang Xianfen and Qin according to law. Witness Qin's statement in court is inconsistent with the facts of the on-site investigation at the time of the defendant's crime, so our court accepts the facts proved by the defendant's investigation record; Witness Zhang Xianfen's statement in court that each person charged 7 yuan fare to pay the toll was inconsistent with the defendant's on-site investigation statement, which was not accepted by our court; The testimony of witness Zhang Dechao proves that the plaintiff did not charge him the fare, which is also inconsistent with the facts ascertained by the defendant's investigation, and this court will not accept it.
The above evidence was transferred to our hospital with the case. After examination, the video materials provided by the appellee could not be presented in court due to objective reasons such as imperfect court equipment, but the appellant watched the contents of the original video materials in court. After verification by our court, this evidence objectively reflects the scene of the appellee's inspection and investigation of the appellant, and our court confirms it. The analysis of other evidence in the first instance is correct, and the basic facts identified accordingly are confirmed by our court.
We believe that the focus of the dispute in this case is: 1. Whether the appellant's behavior constitutes illegal business operation; 2. Whether the punishment decision made by the appellee violates legal procedures. In this regard, we confirm the following:
1. The appellant's behavior constitutes the crime of illegal business operation. First of all, the appellant did not obtain a road transport business license. Secondly, according to the ascertained facts, the Appellant and the organizer Zhang Xianfen agreed to charge 7 yuan fees for each passenger who was transported directionally. Although the price of this fee is lower than the normal fare price, that is, it is used to pay the toll and fuel costs, which reflects the appellant's concern for relatives Zhang Xianfen to send "left-behind children" to school, but it cannot be used to deny the illegality of the appellant's behavior. Because it is a risky activity to allow self-use vehicles to engage in road transport activities in the form of collecting fuel and other expenses, which will not only disturb the normal road transport management order, but also be detrimental to strengthening the protection of passengers' personal rights and interests in passenger transport. Therefore, the appellant's carrying out passenger transport and collecting relevant fees without obtaining a road transport business license has constituted illegal operation.
Two, the administrative punishment decision made by the appellee is not an administrative act that should be revoked in violation of legal procedures. First of all, the appellee carried out law enforcement inspection outside the expressway exit toll station, and its inspection and investigation procedures did not violate the legal provisions that vehicles are not allowed to stop and check on the expressway. Secondly, although the appellee did not hold a hearing, the appellee's signature on the decision on administrative punishment indicated that he gave up the hearing. Therefore, the appellee, after informing the appellant of his hearing right, did not wait for the expiration of the three-day period for the appellant to request a hearing, that is, he made a decision on administrative punishment on the day he was informed, which did not belong to depriving the appellant of his hearing right. However, the appellee's behavior did not fully guarantee the appellant to freely exercise his right to request a hearing within the three-day period, which should be an administrative defect. Third, the appellee didn't implement the separation of penalty and payment in the execution of administrative punishment, because it didn't affect the effectiveness of administrative punishment, and it was also a flawed act, which didn't comply with the law.
To sum up, the appellant's appeal grounds cannot be established, and the appeal request is not supported by our court. The decision on administrative punishment made by the Appellee found the facts clear, the applicable law was correct and the procedure was legal. The judgment of the first instance is correct and should be upheld. According to Item (1) of Article 61 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
Reject the appeal and uphold the original judgment.
50 yuan, the acceptance fee of the appeal case, shall be borne by the appellant Deming Yang.
This is the final judgment.
Chief Referee Tu Ping
Examiner Chen
Judge Tang Hua.
Acting Judge Zhang Jianping
Acting Judge Cheng Hongsheng
Press release issued on 4 March 2008
Bookkeeper Zhang