The reason why the state gives the power to investigate and deal with unlicensed operation to the administrative department for industry and commerce is also because it is the issuing authority of business license and has the original registration certificate of business license, and the Urban Management Comprehensive Administrative Law Enforcement Bureau has no way of knowing whether the operator has a business license. Especially in this kind of on-site law enforcement in the streets and lanes, how can the urban management verify whether the operator has a business license on the spot and make administrative penalties?
Secondly, according to the provisions of Article 10 of the Administrative Punishment Law of the People's Republic of China, the law has stipulated administrative punishment for illegal acts, and if it is necessary to make specific provisions in administrative regulations, it must be stipulated within the scope of the acts, types and ranges of administrative punishment stipulated by law. According to Article 8 of the Administrative Punishment Law of the People's Republic of China, the types of administrative punishment are only warnings; Fines; Confiscation of illegal income and property; Ordered to stop production and business; Suspend or revoke the license, suspend or revoke the license; Administrative detention.
There are no types of administrative penalties for sealing up, detaining or temporarily detaining tools. It is illegal for Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau to exceed the types of administrative punishment stipulated in the Administrative Punishment Law of the People's Republic of China.
(2) The prosecution failed to prove that the establishment of Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau has been reported to the State Council for approval through legal procedures and filed with the Standing Committee of Beijing Municipal People's Congress, and failed to prove that Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau is a qualified administrative organ. According to the second paragraph of Article 64 of the Organic Law of Local People's Congresses and Local People's Governments at Various Levels in People's Republic of China (PRC), the establishment, increase, decrease or merger of departments such as departments, bureaus and committees of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be reported by the people's governments at the corresponding levels to the State Council for approval and to the Standing Committee of the people's congresses at the corresponding levels for the record.
Defenders have sent two applications to the Beijing No.1 Intermediate People's Court for collection and evidence collection, for obtaining the evidence of whether Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau has been filed with the Standing Committee of Beijing Municipal People's Congress, and for obtaining the evidence of whether the establishment of Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau has been reported to the State Council for approval by Beijing Municipal People's Government, so as to confirm whether it is a legally established administrative organ.
Prior to this, after investigation by defenders, there was no evidence that the institution had the procedural requirements required by law for its legal establishment. As a prosecutor, to accuse the defendant Cui Yingjie of obstructing official duties, it is necessary to prove that the Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau is an administrative organ established according to law.
(3) The prosecution failed to prove that the personnel who participated in the on-site law enforcement on that day had the status of state organ staff or career establishment personnel. The constitutive requirements of obstruction of official duties require the actor to know that the other party is a staff member of a state organ or a career establishment. Law enforcement officers did not show their work certificates to the defendant Cui Yingjie during law enforcement, and the composition of law enforcement officers was complex, including urban management, co-management, security, etc. What's more, most of the law enforcement officers who appeared at the law enforcement scene that day were just pretending to appear. How can an ordinary citizen be required to have this cognitive ability?
The defender has sent an application for obtaining evidence to the Beijing No.1 Intermediate People's Court, applying for obtaining the identity certificates of the victims and Cui Gaohai, Di, Lu Fucai, Lv Pingan, Zhao Shuangshun, Nima, He Xingmin and Lu Hailong who participated in the administrative law enforcement at the crime scene. As a prosecutor, to accuse the defendant Cui Yingjie of obstructing official duties, it is necessary to prove that the personnel involved in law enforcement have the identity of the staff of state organs or career establishment personnel.
(4) The law enforcement officers of Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau lack the law enforcement basis and seriously violate the law enforcement procedures. First of all, there is no basis for urban management law enforcement. The reason why urban management law enforcement officers imposed administrative punishment on the defendant was because the defendant operated without a license, but the urban management did not confirm the identity of the defendant in advance, so it was impossible to obtain relevant evidence of whether the defendant had industrial and commercial registration before the administrative punishment. At the scene of law enforcement, law enforcement officers did not ask whether the defendant had registered for industry and commerce and whether he had a business license. In other words, there is no basis for the administrative punishment of the defendant by the urban management.
Secondly, there are serious defects in urban management law enforcement procedures. According to the provisions of Articles 33, 34 and 41 of the Administrative Punishment Law of the People's Republic of China, "if the illegal facts are conclusive and have a legal basis, an administrative penalty of less than 50 yuan for a citizen or a fine of less than 1,000 yuan or a warning for a legal person or other organization may be made on the spot." "If a law enforcement officer makes a decision on administrative punishment on the spot, he shall show his law enforcement identity certificate to the party concerned and fill in the written decision on administrative punishment in a predetermined format and number." "Before making a decision on administrative punishment, the administrative organ and its law enforcement personnel failed to inform the parties of the facts, reasons and basis of administrative punishment in accordance with the provisions of Articles 31 and 32 of this Law, or refused to listen to the statements and arguments of the parties, and the decision on administrative punishment could not be established; Unless the parties give up their right to state or defend themselves. "
That is to say, according to the law, law enforcement officers should first show their certificates to the defendant, inform him of the facts, reasons and basis of administrative punishment, listen to the statements and defenses of the parties, fill out the decision on administrative punishment in a predetermined format and number, and even serve the so-called list of seized items. Law enforcement officers failed to comply with relevant legal procedures, and the decision on administrative punishment on that day was not established.
Therefore, the accusation of obstruction of official duties in the indictment is not established. That is to say, there is a legal basis for Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau to exercise the power of administrative punishment relatively centrally, that is, according to Article 16 of the Administrative Punishment Law of the People's Republic of China: "The people's governments of provinces, autonomous regions and municipalities directly under the Central Government authorized by the State Council or the State Council may decide that an administrative organ shall exercise the power of administrative punishment of the relevant administrative organs." The term "administrative organ" as mentioned in these Provisions obviously refers to an administrative organ established according to law. Defenders believe that there is a legal basis for the power of relatively centralized administrative punishment, but there is no evidence to prove that Beijing Urban Management Comprehensive Administrative Law Enforcement Bureau is an administrative organ established according to law, and its exercise of relatively centralized administrative punishment power has no legal basis.
Second, about the crime of intentional homicide charged in the indictment: Intentional crime in criminal law refers to the subjective psychological state in which the perpetrator knows that his behavior will cause harm to society and hopes or lets it happen when committing a criminal act. According to Article 14 of China's Criminal Law, the intention of a crime has two characteristics: first, the perpetrator knows that his behavior will have harmful consequences to society; Secondly, the actor holds a hopeful or laissez-faire attitude towards the occurrence of harmful results. These two characteristics must be possessed at the same time to constitute intentional crime.
How to judge the intentional content of the actor is a complex problem. We must adhere to the principle of consistency between subject and object, and consider not only the cognitive level and behavioral ability of the actor, but also the objective environment and the whole process of crime. In this case, because the case is sudden and unrepeatable, in order to find out the specific content of the defendant Cui Yingjie's subjective intention, it is necessary to make a concrete, comprehensive and objective analysis of various facts and circumstances related to the case in order to correctly convict and sentence the defendant Cui Yingjie.
(I) Cause of the incident: As can be seen from this case, the defendant Cui Yingjie and the victim Li Zhiqiang are strangers and have no enmity. Just because the scene was chaotic, the city management was chasing the defendant. The defendant worried that not only the tricycle was confiscated, but also his own people might be forced, so he waved a knife and hurried out of the car. Moreover, judging from the audio-visual materials provided by the public prosecutor, the defendant passed Li Zhiqiang when he entered the scene for the second time, and did not commit any acts against Li Zhiqiang. In this case, it is unreasonable and unreasonable to accuse the defendant of intentionally killing Li Zhiqiang.
(2) Knife used by the defendant: It must be noted that the knife that stabbed Li Zhiqiang was used to cut sausages. The quality of the knife bought at Xiyuan Morning Market for one yuan can be imagined. This knife is not a control knife. Moreover, the defendant didn't know where he was stabbed in the confusion and urgency. The defendant Cui Yingjie is1.78m in height and Li Zhiqiang is1.75m in height. Through the analysis of Cui Li's height, relative position and the defendant's backhand knife-holding posture, it is concluded that swinging the knife from top to bottom is the most convenient posture of the defendant at that time, not intentionally. The injured part of the victim is not the result pursued by the defendant.
(III) Defendant Cui Yingjie's attitude towards the death of the victim Li Zhiqiang: When the defendant left the crime scene and arrived in Tianjin, he sent a text message asking about the victim's injury, which can prove that he did not foresee the consequences of the victim's death and had no subjective hope or laissez-faire attitude towards the victim's death.
(4) Typical passion crime: From the perspective of criminal psychology, this case is a typical passion crime. Defendant Cui Yingjie was in chaos at that time. In a hurry, he ran away with a knife. The crime he committed was a crime caused by a strong emotion. Therefore, the crime of intentional homicide charged in the indictment cannot be established.
3. Defendant Cui Yingjie submitted the following evidence to the court in his sympathy defense:
1. Certificates issued by the villagers' committee of Jiucun Village in Fuping County, Hebei Province, Pingyang Town People's Government of Fuping County and Pingyang Police Station of Fuping County Public Security Bureau, which prove that Cui Yingjie is a good citizen who abides by the law and has never done anything against the law;
2. The certificate issued by Cui Yingjie who attended Fuping Central Primary School in Hebei Province proves that Cui Yingjie is an excellent student; The certificate issued by Pingyang Middle School in Fuping County, Hebei Province, which proves that Cui Yingjie has good ideological quality and excellent grades.
Cui Yingjie's letter to Cui Yingjie's parents who served in the 7 1799 Army, which proves that Cui Yingjie performed well during his service and won the title of "Good Soldier"; I usually train hard and get excellent grades. He was praised as a model at military conferences many times. The good soldier Certificate and the Registration Form of Soldiers of the China People's Liberation Army issued by Cui Yingjie's army, which prove that Cui Yingjie was awarded the title of "good soldier" and was commended once during his service; The troops it serves are electronic jamming troops, and the professional training is telegraphy;
4.3. The investigation record of Cui Yingjie colleague yangjin in Minggui Entertainment City, which proves that Cui Yingjie is hard-working, helpful and gentle in making a living in the city; A pleading letter from Cui Yingjie's comrades in the army to the judge; Mediation letter issued by villagers' committee and villagers in Pingyang Town, Fuping County. The above proof proves that Cui Yingjie has always performed well, and has no fighting and criminal record. He is indeed a good citizen. Still a good soldier in the army. Living in the city is very hard, struggling for survival. In addition, the investigation also proves that Cui Yingjie is not prone to violence and is not a natural criminal.