Administrative complaint
Plaintiff: * * * * * * * *
Defendant: Shanghai Reeducation through Labor Management Committee.
Legal Representative: Director Wu Junying.
Address: No.0/85, Fuzhou Road, Huangpu District, Shanghai
Tel: 962 1 10
ask
1. Request your court to order the cancellation of the decision of reeducation through labor (20 1 1). 1475.
2. Request your court to order you to undertake state compensation. (detention period is calculated according to the standard of 142.33 yuan per day)
3. Request your court to order the defendant to bear all the litigation costs of this case.
Facts and reasons
First of all, the defendant decided that the plaintiff and others spilled oily items on vegetables, overturned the food stall and slightly injured Shan Moumou in retaliation for the victim. The defendant found that the main evidence of the above facts was insufficient. And the plaintiff's object is also "specific". Therefore, there is no factual basis for the defendant to conclude that the plaintiff "randomly beat others" and "committed acts of provocation and trouble".
Secondly, the defendant applied laws and regulations wrongly. "Reeducation through labor" is a compulsory measure to restrict personal freedom. According to the fifth item of Article 8 of the Legislative Law: "Compulsory measures and penalties for depriving citizens of political rights and restricting personal freedom", Article 9 of the Administrative Punishment Law stipulates that the law can set various administrative penalties. Administrative penalties that restrict personal freedom can only be set by law. This case is an administrative punishment involving the restriction of personal freedom, so the legal basis can only be the law. And defendant (20 1 1) Shen Zinuo of Shanghai Labor Committee. 1475 Decision on Reeducation through Labor. However, it is based on the Ministry of Public Security's "Trial Measures for Reeducation through Labor", which is only a departmental regulation, and its level is not enough to set up "compulsory measures to restrict personal freedom". Therefore, it is wrong for the defendant to apply trial measures to the plaintiff to decide "reeducation through labor" in the application of laws and regulations. The legal basis that should be applied in this case is Article 9 of the Law on Public Security Punishment. If the circumstances are minor, the public security organ may mediate and deal with acts that violate public security management, such as fighting and damaging other people's property caused by civil disputes. If the parties reach an agreement through mediation by the public security organ, they will not be punished. If the mediation fails to reach an agreement or fails to perform after reaching an agreement, the public security organ shall punish the violator of public security administration in accordance with the provisions of this law, and inform the parties that they can bring a civil lawsuit to the people's court according to law. Even if the relevant provisions conflict with the Public Security Punishment Law, the Public Security Punishment Law shall prevail.
Third, the defendant violated legal procedures. The defendant wrote in DecisionNo. 1475 of Shanghai Municipal Labor Committee (201) on reeducation through labor. The plaintiff has not been explicitly informed that he can bring a lawsuit to the people's court where the plaintiff is located, but according to Article 18 of the Administrative Procedure Law: "A lawsuit against administrative compulsory measures that restrict personal freedom shall be under the jurisdiction of the people's court where the defendant is located or where the plaintiff is located." Article 12 of the Trial Measures for Reeducation through Labor stipulates that "for those who need reeducation through labor, the undertaker must find out the facts, solicit the opinions of the unit or street organization, report to the Reeducation through Labor Management Committee for examination and approval, make a decision on reeducation through labor, and announce the basis and time limit for reeducation through labor to himself and his family. Those who have been reeducated through labor sign the Notice of Reeducation through Labor. " The plaintiff believes that the defendant failed to perform the above procedures. Article 32 of the Administrative Punishment Law stipulates that the facts, reasons and evidence put forward by the parties shall be examined. The defendant failed to perform this procedure.
Finally, the defendant abused his power. Abuse of power essentially refers to the intentional and improper exercise of power, which is objectively manifested as excessive use of power within the scope of duties. The defendant in this case is dealing with the plaintiff, but in fact it is very hasty and unfair. For the plaintiff's behavior, "reeducation through labor", "public security detention" and "fine" can be applied. However, it is inconceivable that the defendant should give priority to reeducation through labor. At the same time, it is obviously unfair that the victim has a serious fault and the defendant does not punish him.
In addition, it is in line with the second paragraph of Article 49 of the Regulations of the Ministry of Public Security on Handling Reeducation through Labor Cases: "The decision on reeducation through labor shall contain the following contents: (1) Basic information of reeducation through labor personnel, including name, gender, date of birth, ID number, place of origin, nationality, education level, occupation, work unit, address and criminal experience; (two) the facts and evidence of illegal crime, including the identification of the reporting unit, the confession and excuse of the criminal suspect, and the facts, evidence and reasons identified by the reeducation through labor management committee; (three) whether to hold a hearing and the basic situation of the hearing; (4) The basis for deciding on reeducation through labor; (five) to decide the duration of reeducation through labor, whether to decide the execution outside reeducation through labor, and to decide the reasons and basis for the execution outside reeducation through labor; Before deciding whether to take custody measures first, the name, duration and discount of custody measures first; (six) the decision on the disposal of illegal income and illegal property; (seven) the right of reeducation through labor personnel to apply for administrative reconsideration and bring an administrative lawsuit according to law; (eight) the way to solve the damages; (9) Time to make a decision on reeducation through labor ",the defendant's ((20 1 1) decision on reeducation through labor 1475 has at least the following problems: (1) the plaintiff's occupation and work unit are not listed; (2) Failing to list the confessions and excuses of the criminal suspect or the reasons for ascertaining the facts and evidence; (three) the basic information of the hearing is not listed; (4) There is no statement about whether there is pre-detention, the starting and ending date of reeducation through labor, and discounts; (5) There is no statement about the facts and evidence that the reporting unit finds illegal and criminal; (6) enumerating only the methods of evidence without stating the main contents of the evidence; Wait a minute.
To sum up, the plaintiff believes that the defendant's decision to "accept reeducation through labor for one year" made by the plaintiff has very serious mistakes or deficiencies in ascertaining the facts, applying laws and procedures, and there is also abuse of power. Therefore, we implore you to revoke it according to law, so as to safeguard the justice and authority of the judiciary and restore the plaintiff's freedom.
I am here to convey
People's court
Prosecutor:
date month year
Supplement:
Judging from your original question, I thought you were dissatisfied with the law enforcement behavior of the public security organs and were going to file an administrative lawsuit. If it is a criminal incidental civil action, a separate model essay will be provided for reference.
Criminal incidental civil indictment
Plaintiff in incidental civil action (hereinafter referred to as plaintiff): ××××× unit, address: ××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××
Legal representative: ××, position: ××.
Defendant in incidental civil action (hereinafter referred to as the defendant):
1. Name, gender, date of birth: MM DD YY.
2. Name, gender, date of birth: MM DD YY.
Litigation request:
1, investigate the criminal responsibility of the defendants ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××
2. The defendants xx and xx were ordered to compensate the plaintiff for the losses suffered by their criminal acts. XXX yuan;
3. The defendants XX and XX were ordered to bear joint and several liability for the above losses.
Facts and reasons:
On ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× The facts, circumstances and harmful consequences of the defendant XXX are described in detail in the indictment. People's Procuratorate ××× [20×××××], which is not repeated here.
The defendant's criminal behavior caused material losses to the plaintiff, and now an incidental civil action is filed according to law. Please try it together. The facts and reasons are as follows:
The defendant's criminal behavior caused the plaintiff to suffer serious material losses amounting to RMB * * *.
The plaintiff's above-mentioned material losses were entirely caused by the defendant's criminal behavior, and there was a causal relationship between them. The first paragraph of Article 77 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "If the victim suffers material losses due to the defendant's criminal behavior, he has the right to file an incidental civil action in the course of criminal proceedings." At the same time, Article 106, paragraph 2, Article 117, paragraph 1, and Article 130 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates: "Citizens and legal persons who infringe on the property of the state or the collective or the property or person of others due to their faults shall bear civil liability." "Whoever encroaches on state or collective property or other people's property shall return the property. If the property cannot be returned, it will be compensated at a discount. " "If two or more people infringe upon each other and cause damage to others, they shall be jointly and severally liable."
According to the above provisions, the plaintiff has filed an incidental civil action with your hospital, so please try it according to law.
Name and address of witness, evidence and sources of evidence:
1, witness ××, address ××, 1 written testimony proves the fact of ××;
2. Witness ××, address ××, written testimony 1 copy, which proves the fact of ××;
3. Evidence: ×× year × month × day × month × day × month × day × month × day × month × day × month × month × day × month × day × month × day × month × day × month × day × month × month × day × month × month × day × month × day × month × day × month × day × month × day × month × day × month × month × day × month ×
4. Evidence: ×× year × month × day × month × day × month × day × month × day × month × day × month × month × day × month × day × month × day × month × day × month × day × month × month × day × month × month × day × month × day × month × day × month × day × month × day × month × day × month × month × day × month ×
I am here to convey
welcome
Xx people's court
Plaintiff in incidental civil action: ×× unit
Legal Representative: ××××××××
×××× Year×× Month× Day
Attachment: X copies of this certificate.