During the two months' work, the author had the honor to participate in the investigation and handling of the case of dumping muck in Dafangying Reservoir and the case of dumping muck in Forest Park. Although I learned that it is difficult to obtain evidence in the process of law enforcement and justice under the current legal environment, I also disagree with it, but I got personal experience in the practice of handling cases. Take the case of stealing muck from Dafangying Reservoir as an example. In the preliminary investigation, although the investigators found the bulldozer driver according to the number of the temporarily detained bulldozer, they also visited the residents around the garbage dump and locked the person in charge of setting up the garbage dump to receive the muck without authorization. However, when the investigators wanted to ask them to investigate and collect evidence, they found that their mobile phones were turned off and their homes were closed. The investigators were very embarrassed and the investigation was once in trouble. After the coordination of relevant leaders and the assistance of Luyang Branch of the Public Security Bureau, the above-mentioned responsible personnel accepted the inquiry and investigation. In the process of inquiry and investigation, some respondents refused to cooperate with the investigation, denied the illegal behavior in every way, even if there were many loopholes, and some simply asked. Suffering from the lack of audio and video recording equipment, the investigators were angry and helpless at the respondents with bad attitudes.
The case of dumping muck in Dafangying Reservoir is not particularly complicated, but the investigation lasted for more than a month. This is not the dereliction of duty of investigators. The key is that it is too difficult to obtain evidence under the current law enforcement environment and system.
In the process of handling the case, I also communicated with many old players. In urban management law enforcement, it is difficult to obtain evidence not only in the process of investigating and dealing with illegal cases of muck. Since the establishment of Hefei City Administration Law Enforcement Bureau for five years, the problem of obtaining evidence for urban management administrative law enforcement has been puzzling the urban management administrative law enforcement team.
The difficulty in obtaining evidence is not only a problem of urban management administrative law enforcement, but also a great difficulty in obtaining evidence in administrative law enforcement departments such as industry and commerce, quality supervision, water affairs, labor and environmental protection. It can be said that the difficulty in obtaining evidence is the same problem faced by administrative law enforcement departments, especially urban management administrative law enforcement departments.
There are many concrete manifestations of the difficulty in obtaining evidence. Some illegal acts targeted by urban management administrative law enforcement, especially those occupying mobile stalls, are relatively minor in nature and the illegal process is short, which requires administrative law enforcement personnel to obtain evidence in time. However, it is extremely difficult to register and keep (detain) evidence in time, and the parties sometimes pull, abuse or even attack law enforcement personnel. In the investigation of muck cases, it is extremely difficult to temporarily detain illegal muck trucks. As far as other illegal acts targeted by urban management administrative law enforcement are concerned, the biggest difficulty in obtaining evidence is that the parties and relevant witnesses do not cooperate. Especially in some cases, when other evidence can't fully and effectively prove the illegal behavior, the transcripts of inquiry and investigation of the parties and the transcripts of inquiry and investigation of relevant witnesses become the key evidence to finalize the case. As long as the parties and relevant witnesses do not cooperate, the case investigation will be deadlocked.
The difficulty of obtaining evidence is very harmful to urban management administrative law enforcement. The direct problem of the difficulty in obtaining evidence is that the administrative law enforcement organs of urban management can't investigate and deal with some illegal acts, and let some illegal acts go unpunished. Moreover, urban management is long-term, repetitive and arduous, especially the objects of law enforcement have group characteristics, such as vendors, muck truck owners, muck truck drivers, etc., and the interests within the groups are consistent. This will lead to the grouping of individual offenders' methods in handling urban management administrative law enforcement and evidence collection, which will aggravate the difficulty of evidence collection. It is impossible to obtain evidence for a certain kind of illegal acts, which will eventually lead to such illegal acts being out of control or even "legalized". This has seriously damaged the intensity and seriousness of urban management administrative law enforcement. It is necessary and urgent to think about reasonable, effective and feasible solutions to the problem of obtaining evidence in urban management administrative law enforcement.
Second, the analysis of the reasons for the difficulty in obtaining evidence
(A) lack of legislative protection
The difficulty of obtaining evidence is a common problem in administrative law enforcement at present, and its reason lies in the lack of procedural law, especially the law that guarantees the procedure of obtaining evidence, which has always emphasized entity over procedure. Looking through the common collection of laws and regulations on urban management administrative law enforcement, we can see that there are few provisions on procedures, and there are only a handful of provisions on urban management administrative law enforcement evidence collection. Article 37 of the Administrative Punishment Law stipulates that the parties concerned or relevant personnel shall truthfully answer inquiries, assist in the investigation or inspection, and shall not obstruct them. In the case that the evidence may be lost or difficult to obtain later, it may be registered and preserved in advance with the approval of the person in charge of the administrative organ, and a decision on handling it shall be made in time within seven days. During this period, the parties concerned or relevant personnel shall not destroy or transfer the evidence. Article 11 of the Measures for the Implementation of the Administrative Punishment Power of Relatively Centralized Cities in Hefei stipulates that law enforcement bureaus may take the following measures when performing official duties: (1) Enter the inspected units or places for investigation or inspection in accordance with the provisions of laws and regulations; (two) to consult, read or copy the information related to the illegal act according to law; (3) Obtaining relevant evidence according to law; (4) withholding tools and articles involved in illegal acts according to law; (5) Forced removal of illegal buildings, structures and other facilities according to law; (six) other measures stipulated by laws, regulations and rules. However, a careful analysis of these two articles reveals that although the measures for obtaining evidence are stipulated in detail, and the cooperation obligations of the counterpart and witnesses are also stipulated, there are no disciplinary measures for violating the obligations, and there is no guarantee for effective compulsory measures. Only illegal tools and business items can be temporarily detained, especially there are no penalties and compulsory measures for the perpetrator to deliberately refuse to cooperate or hinder the pre-registration behavior. Without punishment, there is no obligation, and the orderly and long-term operation of evidence collection and administrative law enforcement cannot be guaranteed only by the conscious cooperation of the relative person and the witness. Perfecting the legal system is the fundamental guarantee to ensure the orderly implementation of the evidence collection procedure of urban management administrative law enforcement.
(B) the lack of evidence collection tools
Since the establishment of Hefei City Administration Law Enforcement Bureau five years ago, the hardware construction of the city administration law enforcement team has made great progress. However, it still cannot meet the needs of the increasingly complex law enforcement situation. In the investigation of the case of dumping muck in Dafangying Reservoir, the driver of a muck truck was first confessed by the owner of the muck truck when asked about the investigation, and the illegal facts of dumping muck were not recognized. In this regard, the investigator patiently asked that the driver of the muck truck was not cautious enough and showed flaws. When the investigators pointed out the flaw and questioned it, the driver of the muck truck under investigation immediately denied this statement. Because there is no recording equipment to collect evidence, the investigators can do nothing about the repeated confession of the driver of the muck truck under investigation. Finally, the investigation of the driver of the muck truck was also dropped.
At present, cameras and video cameras have become the most important evidence collection tools in the process of urban management administrative law enforcement. However, there is a lack of forensic equipment such as recording pens and wireless Internet computers, and the vehicles for law enforcement and forensics in individual units are not guaranteed, which greatly restricts the effectiveness of forensics.
(3) Law enforcement team members' evidence collection skills are not too hard.
Since the establishment of Hefei City Management Administrative Law Enforcement Team for five years, the quality and skills of law enforcement team members have been greatly improved in the practice of urban management administrative law enforcement for more than five years. However, there are still some law enforcement team members, especially newly recruited personnel, whose legal quality and law enforcement skills are not comprehensive enough. Mainly manifested in the lack of comprehensive and in-depth understanding of laws, regulations and rules, especially those on procedural evidence collection. In the process of obtaining evidence, we can't skillfully use the tools and skills of obtaining evidence, and we are not careful and patient with the parties under investigation, but blindly suppress them, which intensifies the contradictions between the two sides. Failure to effectively appease the witnesses involved and eliminate their psychological worries about testifying often makes the investigation and evidence collection work in trouble and artificially increases the difficulty of obtaining evidence.
(D) the constraints of the law enforcement environment
Urban management administrative law enforcement mainly includes street stalls, muck truck owners and muck truck drivers. Most of these groups have a weak legal awareness and their interests are paramount, so they naturally have resistance to urban management administrative law enforcement. It is even more extravagant to ask them to cooperate with law enforcement to collect evidence.
At present, the urban management administrative law enforcement work can not be fully understood in the whole society, and some citizens have prejudice against the urban management work, which also increases the difficulty of obtaining evidence.
At present, the evidence collection system of urban management administrative law enforcement is not perfect, and the related supporting system is even more out of the question. For example, the most important witness protection system, witnesses involved in the case often refuse to testify for fear of retaliation. At present, the witness protection system in criminal justice is not perfect, and it is not surprising that the witness protection system in administrative law enforcement is lacking. But if the witness protection system can be effectively implemented, the dilemma of obtaining evidence will be solved to a great extent.
Third, suggestions to solve the difficulty of obtaining evidence.
(a) improve legislation, and effectively ensure the effective development of urban management administrative law enforcement evidence collection work.
While improving the substantive law system, the legislature should pay more attention to improving the procedural law system. In the legislative process of administrative procedure law, we should insist on ensuring the unity of justice and efficiency in administrative law enforcement. In particular, the lack of legislation in administrative evidence collection should be strengthened, and the rules should be detailed and operable, which can not only ensure the effective implementation of administrative law enforcement evidence collection, but also standardize administrative law enforcement.
In the current administrative procedure law, administrative litigation demands too much evidence collected by administrative organs, which can almost be compared with the elimination of reasonable doubt in criminal proceedings, while the compulsory measures taken by administrative organs in investigation and evidence collection cannot be compared with those taken by judicial organs, which is unfair to administrative organs in legislation. Or give the administrative organ sufficient power to investigate and collect evidence, or lower the requirements for cross-examination. The requirements of court departments for administrative litigation evidence in trial practice should be between criminal litigation and civil litigation. Should not be too strict.
Clear and specific disciplinary measures should be stipulated for acts of malicious failure to cooperate with urban management administrative law enforcement and evidence collection. In the long run, it should be stipulated that urban management administrative law enforcement personnel can exercise the compulsory power of some police, that is, the patrol power of urban management administrative law enforcement team. Fundamentally solve the problem of administrative law enforcement in urban management. At present, it is feasible to set up an urban management security detachment in the public security department to assist the urban management law enforcement team in law enforcement under the coordination of the unified department, which can effectively guarantee the urban management administrative law enforcement work, especially the evidence collection work. Those who maliciously resist the law and do not cooperate with the investigation may take compulsory measures to restrict personal freedom on the spot. Some cities in China are also trying this method and have achieved certain results. It is suggested that Hefei implement it as soon as possible.
(two) to strengthen the hardware construction of urban management administrative law enforcement team, to provide material guarantee for evidence collection.
It is suggested that urban management law enforcement departments at all levels should give priority to strengthening the hardware construction of administrative law enforcement teams as far as possible according to the financial situation. Equip all law enforcement squadrons with complete digital cameras, video cameras and recording pens. Ensure that there will be no difficulty in obtaining evidence due to lack of evidence collection tools in the process of law enforcement and evidence collection.
In the long run, the urban management administrative law enforcement team should also make full use of high-tech achievements to improve the efficiency of law enforcement and reduce the difficulty of law enforcement and evidence collection. For example, by installing a GPS locator on a vehicle transporting muck, the whole process of muck transportation and dumping can be monitored, so that the muck transportation can be effectively supervised, the illegal transportation and dumping can be obtained, and the illegal behavior can be investigated and dealt with at the first time. In the key monitoring areas of the city's city appearance, cameras are set up on road sections to take photos and collect evidence and investigate and deal with illegal acts at the first time.
(three) to strengthen the construction of urban management team, improve the skills of obtaining evidence according to law.
We should further strengthen the training and study of urban management team members, so that urban management administrative law enforcement team members can have a comprehensive and in-depth understanding of the substantive law and procedural law of urban management administrative law enforcement, improve the legal literacy of law enforcement team members, and especially cultivate the skills of law enforcement team members on how to effectively obtain evidence according to law under the current system.
While improving hardware construction, we should also train a group of law enforcement team members who can skillfully use evidence collection tools. Only in this way can we give full play to the role of evidence collection tools.
When inquiring about the investigation parties and witnesses involved in the case, we should learn to accumulate the skills of inquiry and investigation. Mastering some psychological knowledge can fundamentally dispel the doubts of the parties and witnesses, let them eliminate their psychological burden and answer questions truthfully. For extremely uncooperative parties and witnesses, we should be good at exerting pressure to urge them to cooperate with the investigation.
Law enforcement team members should have a clear understanding of the standard of proof. In some cases, if the parties do not cooperate, as long as other evidence collected can effectively prove the illegal behavior and form an effective evidence chain, the illegal facts can also be identified. Grasping the standard of proof means grasping the direction of obtaining evidence, which can avoid detours and unnecessary difficulties in the process of obtaining evidence.
(4) improve the law enforcement environment
The construction of law enforcement environment is a long and arduous task. During the period of law enforcement, law enforcement team members should strengthen the publicity and education of the relative person and enhance their legal awareness. Guide them from resisting law enforcement to cooperating with law enforcement. At the same time, we must strictly enforce the law and maintain the seriousness of law enforcement.
Faced with the incomprehension of some citizens, the urban management administrative law enforcement team should strengthen its own construction, shape a new image of serving the people, and strive for the support and understanding of more and more citizens, so as to get the support and cooperation of the general public in the process of law enforcement and evidence collection.
In order to solve the dilemma of obtaining evidence in law enforcement and judicature, practice should be gradually established and improved.
An effective and operable witness protection system can effectively protect the personal and property safety of witnesses and their relatives when testifying and relieve the burden of witnesses. According to China's practice, we should establish a tainted witness system in line with China's national conditions, reduce the difficulty of obtaining evidence and effectively crack down on various administrative violations.
Fourth, summary.
To sum up, it is a systematic project to solve the problem of obtaining evidence in urban management administrative law enforcement.
Legal system construction, hardware construction, team construction and law enforcement environment construction are indispensable. Legal system construction is the fundamental guarantee, hardware construction is the material foundation, team construction is the basic method, and law enforcement environment construction is the support. The construction of legal system and law enforcement environment is fundamental, long-term and arduous, which is closely related to the current national rule of law process. Many factors are beyond the influence of our urban management administrative law enforcement department, but our urban management administrative law enforcement department should still play an active role and make contributions to promoting the construction of legal system and law enforcement environment. I believe that through the continuous advancement of the national rule of law process, the gradual improvement of relevant laws and regulations, and the increasing optimization of the rule of law environment, the problem of obtaining evidence for urban management administrative law enforcement will be fundamentally solved.
In the short term, strengthening hardware construction and law enforcement team construction is a direct and effective method to solve the problem of law enforcement and evidence collection, and it is also feasible. Increase investment, make full use of existing scientific and technological achievements, and conduct scientific and technological evidence collection for illegal scenes and inquiries and investigations. It is also necessary to train a group of law enforcement team members who are excellent in law enforcement and proficient in evidence collection skills. The ultimate goal of hardware construction and law enforcement team construction is to do a good job in obtaining evidence for urban management administrative law enforcement under the current system and ensure the orderly and smooth operation of urban management administrative law enforcement. In order to fulfill the duties of administrative law enforcement of urban management, better serve urban management and the people.