First, there is no basis for setting civil obligations or depriving citizens of their rights;
Second, in violation of the state administrative punishment law, the content of administrative punishment is set without authorization or the collection method of fines and confiscations is stipulated by itself;
Third, the organs that have no right to set administrative examination and approval set administrative examination and approval items or increase administrative examination and approval links and conditions without authorization;
Fourth, the formulation of normative documents is not standardized in technology;
Fifth, it emphasizes that the management counterpart has more obligations, and stipulates that the management organ has fewer responsibilities and restrictive measures. First, it is necessary to intensify the publicity of laws and regulations regulating the filing and review of documents, and earnestly do a good job in the article "If there is an order, it must be reversed, and if there is a mistake, it must be corrected"; Second, it is necessary to strengthen source governance, effectively restrain and supervise power, and work hard to improve "execution"; Third, we must strengthen accountability. If illegal "red-headed documents" are distributed indiscriminately and "rights" are infringed upon, causing adverse social impact, the main person in charge should be investigated for responsibility. Only in this way can the publication of "red-headed documents" be scientific, standardized, serious and fair, and the image and credibility of the government can be enhanced.
2014165438+10/8, official website, the Commission for Discipline Inspection of the CPC Central Committee, published an article entitled "Correctly Grasping the Relationship between Governing the Country by Law and Governing the Party by Regulations", in which it was proposed that party rules must be consistent with national laws. In practice, a few "red-headed documents" made inappropriate provisions and broke through the legal provisions. For example, some documents illegally stipulate preferential tax policies, some violate the relevant provisions of the Civil Service Law, and some documents are obviously suspected of local protectionism, etc., all of which are corrected according to law through the filing and review mechanism to maintain the unity and authority of the legal system. 20 14,16 On April 6, someone posted on Hunan Red Net that the county party committee and government of Shuangfeng County in Hunan Province "demanded" that Li Dingsheng, a criminal suspect suspected of buying 25 pieces of ivory, be released on bail pending trial.
According to the net post, Li Dingsheng, the business owner of Shuangfeng County, used the relationship to intercede privately after being arrested, and finally let the county government "ask for instructions" from the political and legal Committee of Loudi Municipal Committee in the form of red-headed documents, on the grounds that not letting people go would affect the development of the enterprise.
According to the documents sent to the Political and Legal Committee of Loudi Municipal Committee, on 20165438, the Economic Investigation Detachment of Loudi Public Security Bureau, according to the report, seized 25 pieces of ivory at the home of Li Dingsheng, the chairman of Guofan Industrial and Mining Company, CLP Machinery Company and Xiangzhong Agricultural Company in Shuangfeng County, accounting for172kg. Subsequently, the economic investigation detachment was suspected of illegal operation.
Article 225 of the Criminal Law stipulates that if the crime of illegal business operation is serious, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or only be fined not less than one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times his illegal income or his property shall be confiscated.
However, acts involving illegal acquisition of ivory or ivory products were finally convicted according to the crime of illegal acquisition, transportation and sale of precious and endangered wild animals and precious and endangered wild animal products.
Article 341 of the Criminal Law stipulates that "the crime of illegally purchasing, transporting and selling precious and endangered wild animals and their products" is serious, and shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years and shall also be fined or confiscated.
Obviously, if the case is characterized as "the crime of illegal business operation", the sentence will be lighter.
Shuangfeng County said in the document that Li Dingsheng is the chairman of several enterprises in the county, one of which is a provincial key enterprise. "If Li Dingsheng is detained for a long time, it will inevitably affect the normal production of the project, which in turn will affect the county ..."
In addition, Shuangfeng County also stated in the document that enterprises in Li Dingsheng have long-term capital lending behavior with other enterprises in the county, "if left unchecked, it is very likely to cause major social instability".
In this emergency report entitled "Request for Coordination in Handling Li Dingsheng's Bail Pending Trial", three companies claimed that Li Dingsheng was cheated to buy ivory. "As a peasant entrepreneur, it is a fact that he doesn't understand the law and accidentally broke the law."
Like the documents of Shuangfeng County Party Committee and County Government, this request for instructions also mentioned that many enterprises could not operate normally due to Li Dingsheng's arrest, and the key machinery company of Guofan, a provincial key project, has now stopped working, and corporate loans may also trigger a usury crisis. "If Li Dingsheng cannot be released on bail pending trial today, it will not only deal a fatal blow to this enterprise group, but also cause heavy losses to related enterprises, and have a great impact on the economic development, fiscal revenue and social stability of Shuangfeng and Loudi".
This document drafted in the name of three companies has as many as eight seals. In addition to the seals of the above three companies, there is also an official seal of Shuangfeng County Economic and Information Bureau. The rest of the seal is a little vague, but there is another word that can be seen as "Shuangfeng County people ...".
According to the net post, after the incident, Li Dingsheng found a leader in the county with his accumulated contacts in business. The leader instructed the relevant departments to find ways to "save" Li Dingsheng, because "this kind of thing has not harmed the interests of anyone or enterprises, and we must find ways to protect it." Since then, the leaders have personally taken the report to find the leaders in the city to intercede. Upon instructions from the leaders, Loudi Public Security Bureau handed the case over to Shuangfeng County Public Security Bureau for investigation.
172 kg of ivory, at the black market price, is worth more than one million yuan. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destroying Wildlife Resources, the purchase of more than 200,000 yuan belongs to "the circumstances are particularly serious". According to Article 341 of the Criminal Law, it can be sentenced to fixed-term imprisonment of more than 10 years, with fines or confiscation of property.
Article 79 of the revised Criminal Procedure Law stipulates that anyone who has evidence to prove the existence of criminal facts and may be sentenced to fixed-term imprisonment of more than ten years shall be arrested and shall not be released on bail pending trial.
Hong Daode, a professor at China University of Political Science and Law, believes that the public security organs have discretion on whether they can get bail pending trial, except for certain types that cannot be granted bail as stipulated by law. However, in this case, if there is evidence to prove that the suspect has criminal facts, he can be sentenced to fixed-term imprisonment of more than 10, and the public security organ cannot release the suspect on bail pending trial. Public security organs should not be interfered by the government, and should apply to the procuratorate for approval of arrest according to law. Local procuratorial organs shall supervise public security organs.
Hong Daode said that the revised Criminal Procedure Law has been applied since 20 13 10, and even if the case occurred before 20 13 10, the arrest should be carried out according to the existing regulations.
Wang Xiong, member of the Standing Committee of Loudi Municipal Committee and Secretary General, gave instructions on Shuangfeng County's request for instructions. He said that he just wanted the relevant departments to study Shuangfeng County's application, because he was arrested as an entrepreneur, and the enterprise had a certain scale, and he didn't want to be ruined by this matter.
"We have absolutely no intention of interfering in handling cases." Wang Xiong said that after receiving the instructions, he didn't further understand the follow-up situation.
According to the net post, Li Dingsheng is still "at large". It is understood that the case is still in the judicial process. 20 13, Li Dingsheng was released on bail pending trial. Now more than a year has passed, and the case has been handed over to the procuratorate for prosecution, but it has not yet been opened. 2065438+On April 28th, 2005, the Supreme Law held a press conference to announce the Supreme People's Court's explanation on several issues concerning the application of the Administrative Procedure Law of the People's Republic of China. This judicial interpretation includes ten aspects, such as the registration system, the time limit for prosecution, and the appearance of the person in charge of the administrative organ. Among them, whether the court can directly determine whether the "red-headed document" is legal is particularly concerned. 20 1 4165438+1October1the 11th session of the 12th the National People's Congress Standing Committee (NPCSC) adopted a decision on amending the administrative procedure law. This is the first "overhaul" in the 24 years since the implementation of the Administrative Procedure Law. In view of the new systems and regulations in the new Administrative Procedure Law, the Supreme Court has formulated the Interpretation on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China.
Focus 1 Normative documents that directly identify the legality of "red-headed documents" are illegal, and the people's courts do not regard them as the basis for identifying the legality of administrative acts, and make them clear in the judgment reasons. The people's court that makes an effective judgment shall make suggestions to the organ that formulated the normative document, and may send a copy to the people's government at the same level or the administrative organ at the next higher level. Li Guangyu, vice president of the Supreme People's Court Administrative Tribunal, said that the amendment of the Administrative Procedure Law added the provision that normative documents can be reviewed together, which is a great progress. "The so-called normative documents refer to the so-called' red-headed documents'. A large number of' red-headed documents' can be repeatedly applied to the unspecified public, often involving a very wide range and lasting for a long time. Moreover, if it is illegal, the damage caused is a specific administrative act and cannot be mentioned in the same breath. " But this does not mean that the parties can directly file a lawsuit against the "red-headed documents". He explained that the lawsuit filed by a specific individual against "red-headed documents" actually exercised the right of public interest litigation, and this lawsuit should belong to public interest litigation. Public interest litigation advocates the general interests of the public, but it needs to be clearly defined by law. At present, public interest litigation has not been formally written into the administrative litigation law, so individual prosecution of abstract administrative acts cannot be included in the scope of accepting cases. Focus 2: The lawsuit brought by the people's court against the parties shall be accepted by the people's complaint court according to law, and all the complaints shall be accepted. If it can be judged that it meets the conditions for prosecution, it shall be registered on the spot; If it is impossible to judge whether the conditions for prosecution are met on the spot, it shall decide whether to file a case within seven days after receiving the complaint; If a judgment cannot be made within seven days, the case shall be filed first. Li Guangyu introduced that the judicial interpretation puts the registration system in the first place, and the first one is the relevant provisions of the registration system. If the conditions for prosecution are met, the court shall register and file a case on the spot. However, registration does not mean that the court must accept all charges according to the order. For those who do not meet the statutory conditions for prosecution such as jurisdiction, a ruling not to file a case may be made at the filing stage. In order to facilitate the parties to seek relief, the Interpretation also clarifies that if the parties are not satisfied with the decision not to file a case, they can appeal. Cheng Lei, deputy director of the Research Center for Litigation System and Judicial Reform of China Renmin University, said that the registration system of 1 will be implemented nationwide in May, and it is expected that the number of administrative litigation cases will increase substantially. Judges of administrative courts at all levels should make preparations in advance to improve the filing rate of administrative litigation, especially for the administrative litigation of land acquisition and demolition, which is generally low at present, and put an end to the situation that the filing rate of sensitive cases is not high in the past. Focus 3 The newly revised Administrative Procedure Law proposes that the chief of the administrative organ should appear in court and the chief of the accused administrative organ should appear in court. The chief of the administrative organ appearing in court shall be the chief and deputy of the administrative organ. If it is impossible to appear in court, it shall entrust the corresponding staff of the administrative organ to appear in court. Li Guangyu explained that the person in charge of the administrative organ appeared in court to respond to the lawsuit, which was not stipulated in the Administrative Procedure Law before the amendment. Judging from the administrative litigation laws of all countries in the world, there should be no special requirement that the legal representative of the administrative organ must appear in court in person to respond to the lawsuit. Li Guangyu said that it is an experience for administrative trial judges and administrative organs to jointly practice responding in court, and the effect is very worthy of recognition. For example, it can solve the problem of suing officials and not suing them. Many people say that administrative litigation is that the people sue officials, but they have never seen officials appear in court in so many lawsuits, which first makes the people feel a little unfair. The appearance of the person in charge of the administrative organ in court can also enhance the awareness of the administrative organ to respond to the lawsuit according to law and improve the concept of administration according to law. He said that at the same time, the person in charge of the administrative organ can understand the administrative law enforcement level of the organ more intuitively, which may be more intuitive than the effect of his subordinates reporting to him ten or twenty times.