Administrative detention is the most severe administrative punishment, which is usually applied to acts that seriously violate public security management but do not constitute a crime. Warnings and fines are not enough to punish. Therefore, the law has strict regulations on its establishment, implementation conditions and procedures. The decision-making power of administrative detention belongs to the public security organs at or above the county level; The time limit is generally within 10 day, and the heavier one does not exceed 15 day; After the announcement of the administrative detention decision, during the application for reconsideration and administrative litigation, if the punished person and his relatives find a guarantor or pay a deposit in accordance with the regulations, they may apply to the administrative subject for suspending the execution of administrative detention. Administrative detention is different from criminal detention and judicial custody.
Basic information
Chinese name
Disciplinary detention
Foreign name
Administrative seizure
Attribution country
China
language
Chinese
legal ground
Public security administration punishment law
deadline
The term is generally within 10 days, and the heavier one is not more than 15 days.
application area
police
bale
trait
(1) Administrative detention is a severe form of administrative punishment. Only the public security organs at or above the county level have the right to make detention decisions, and the period is between 1 day and 15 day.
(2) Administrative detention is different from criminal detention. The former is a disciplinary measure taken against those who violate public security regulations according to administrative regulations; The latter is a criminal compulsory measure to temporarily deprive the criminal suspect of his personal freedom according to the provisions of the Criminal Procedure Law.
(3) Administrative detention is different from judicial custody. The latter is a compulsory measure taken by the people's court to temporarily deprive personal freedom in accordance with the provisions of the procedural law.
(4) Administrative detention is different from administrative detention. Administrative detention is an administrative compulsory measure taken by administrative organs to temporarily restrict personal freedom.
(5) Administrative detention is different from criminal detention. Criminal detention is a kind of punishment imposed by the people's court on people who violate the criminal law.
legal ground
Disciplinary detention
Disciplinary detention
China's original Regulations on Administrative Penalties for Public Security stipulated administrative detention, and the Law on Administrative Penalties for Public Security stipulated administrative detention in more detail. Administrative Detention With the "Regulations on Administrative Penalties for Public Security" being replaced by the "Law on Administrative Penalties for Public Security", the administrative detention system has also undergone some changes. According to the current Law on Public Security Administration Punishment, the third item of Article 10 in Chapter II of the Law stipulates that administrative detention is a kind of public security administration punishment, which defines the nature of administrative detention, that is, a kind of public security administration punishment. Article 16 of the law stipulates: "If there are more than two acts violating the administration of public security, they shall be sentenced separately and executed jointly. If the punishment of administrative detention is combined, the maximum time shall not exceed twenty days. "
Article 21 of the law stipulates: "If a person who violates the administration of public security is under any of the following circumstances and should be given administrative detention punishment according to this law, the administrative detention punishment shall not be executed:
1, full 14 years old but under 16 years old;
2, has reached the age of sixteen but less than eighteen, the first violation of public security management;
3. More than 70 years old;
4. Pregnant or nursing a baby under one year old. "This article negatively excludes the object of application, that is, administrative detention does not apply to people who meet certain circumstances, in order to reflect humanistic care.
The provisions on the administrative detention system in the Law on Public Security Administration Punishment are the above provisions, and others are aimed at whether administrative detention can be applied to specific violations of the Law on Public Security Administration Punishment.
situation
Deputy Director of Safety Supervision in Zhangzhou, Fujian Province beat a woman and was administratively detained for 5 days. On April 27th, 2006, Yan Jianguo, deputy director of Zhangzhou Municipal Administration of Work Safety, led a team to Zhangpu County to inspect the work. That night, accepting a banquet from the inspected unit, Yan Jianguo abused and beat a woman in Zhangpu Holiday Star Hotel after drinking, causing her to be injured and hospitalized.
On May 1 1, 2007, the Public Security Bureau placed Yan Jianguo in administrative detention for five days. According to the police, the injured woman Chen Xiaofeng was identified as slightly injured.
Retention problem
Ignoring the particularity of personal freedom.
Administrative detention restricts citizens' personal freedom, which is a basic right stipulated by the Constitution. However, China's Public Security Administration Punishment Law has no particularity for administrative detention. This law ranks administrative detention with warnings, fines and license revocation by public security organs, and there is no obvious difference in application procedures. This practice does not reflect the protection of citizens' basic rights by the Constitution and laws. Ignoring the particularity of personal freedom. "Worldwide, because personal freedom is a basic right protected by the Constitution, the initiation of measures to restrict personal freedom must be reviewed by the court, which is the basic requirement of administrative legitimacy recognized by all countries. In other words, no administrative organ can decide on its own to take measures to restrict citizens' personal freedom. Even in the administrative punishment law of civil law system, there is no personal freedom punishment. "
Legislators may consider that there are many illegal phenomena in China's social transition period, so they set such punishment types, but legislators obviously ignored the particularity of this punishment, and then ignored the setting of special procedures, failing to be more cautious and strict in procedures.
Hearing deficiency
Because administrative detention involves the punishment of citizens' basic rights and freedoms, we should be particularly cautious in the process of applying administrative detention and give citizens full procedural relief rights, such as giving the administrative counterpart the right to request a hearing. Hearing, also known as listening to opinions, means that the administrative organ should listen to the opinions of the relative person when making decisions that affect the rights and obligations of the relative person. Hearing has become the same and extremely important system in the administrative procedure law of all countries ruled by law in the world today. The development of hearing system conforms to the democratization trend of legislation and law enforcement in modern society, and also reflects the continuous progress of government management. Hearing reflects the state's respect for citizens' opinions and is a system design that conforms to the constitutional thought.
China's "Administrative Punishment Law" has made detailed provisions on the hearing procedure, among which the third to seventh paragraphs stipulate that the hearing should be held in public; The hearing shall be presided over by a person other than the case investigator designated by the administrative organ. If the parties think that the host has a direct interest in the case, they have the right to apply for withdrawal; When holding a hearing, the investigators put forward the facts, evidence and suggestions for administrative punishment of the parties, and the parties defend and cross-examine; The hearing shall be recorded. The Administrative Punishment Law stipulates that when an administrative organ makes an administrative penalty such as ordering to stop production or business, revoking a license or imposing a large fine, the parties concerned have the right to request a hearing.
It can be seen that the Administrative Punishment Law excludes administrative detention from the scope of hearing, but stipulates that the counterpart can request a hearing for some minor types of punishment, which has the phenomenon of putting the cart before the horse. The Public Security Administration Punishment Law after the Administrative Punishment Law did not make up for this defect. Article 94 of the Law on Public Security Administration Punishment stipulates that before making a decision on public security administration punishment, the public security organ shall inform the actor of the facts, reasons and basis for making the public security administration punishment, and inform him of his rights according to law. Those who violate the administration of public security have the right to state and defend themselves. Public security organs must fully listen to their opinions and review the facts, reasons and evidence they put forward; If the facts, reasons or evidence presented by them are established, the public security organ shall adopt them. The public security organ shall not increase the punishment because of the statements and defenses of the violators of public security administration.
Judging from the provisions of Article 94 of the Law on Public Security Administration Punishment, the counterpart has the right to state and defend, but this is not a hearing procedure, and it still belongs to "the combination of the decision and the decided party", so it is difficult to effectively protect the legitimate rights of the counterpart.
Lack of checks and balances
Administrative detention picture
Administrative detention picture
Decentralization and checks and balances are the essence of constitutional civilization in western capitalist countries. In Chinese mainland's constitutional system, although decentralization and restriction are also emphasized, some state organs enjoy too much power, and other state organs cannot effectively restrict them. In the political and legal system composed of public security organs, it is obvious that the authority of public security organs is the greatest, and the restrictions imposed by courts and procuratorates on its formation are quite limited. This is also reflected in administrative detention.
China's legislation completely entrusts the decision-making power of administrative detention to the public security organs, which decide whether to impose administrative detention on them. Of course, the procuratorate and the court did not participate at all, but only indirectly. After accepting administrative detention, the counterpart may appeal to the procuratorial organ or bring an administrative lawsuit to the court for the illegal and dereliction of duty of the public security organ and its personnel. However, it is not difficult to see that this way belongs to post supervision's way, not the way of prior supervision. Before making a decision on administrative detention, the courts and procuratorates cannot participate in it, and part of the process is completed by the public security organs alone.
The problem brought by this system design is that the public security organs have too much authority in the decision-making power of administrative detention, which can not be effectively restricted and has too much freedom. Of course, legislators have not ignored this issue. Lawmakers believe that public security organs can exercise their rights appropriately and prudently, and they can enforce the law fairly by relying on the internal supervision of the public security system.
Poverty relief
Because the Law on Public Security Administration Punishment juxtaposes administrative detention with warning, fine and other forms of punishment, it does not stipulate how citizens should relieve their rights during administrative detention. Because the detention decision unilaterally made by the public security organ may not be correct, there may be major mistakes. Even if there is no mistake, the counterpart has the right to request reconsideration or bring an administrative lawsuit. However, the current law is not clear about these issues, which leads to the blockage of relief channels. Only after the administrative detention is over, that is, after the personal freedom is restored, can citizens who are administratively detained file an administrative lawsuit.
The cause of the problem
Strike hard, light protection.
The Law on Public Security Administration Punishment, especially in the administrative detention system, overemphasizes the exercise of the power of public security organs and the crackdown on illegal phenomena, while neglecting the protection of the rights of administrative counterparts, especially in the right relief, which has great omissions.
Value entity is more important than procedure.
Administrative detention does not attach importance to the procedural rights of the administrative counterpart, such as the lack of hearing procedures.
Value power over rights.
From the perspective of administrative detention system, administrative detention system emphasizes the exercise of administrative power of public security organs, which is endowed with unilateral decision-making power and punishment power by law. However, the law turns a blind eye to citizens' right to personal freedom, juxtaposes administrative detention with warnings and fines, and fails to highlight the particularity of basic rights.
These defects limit the function of the administrative detention system and are not conducive to protecting the rights of the administrative counterpart.
The administrative detention system should emphasize the principle of participation, give the administrative counterpart the right to hear, strengthen the principle of judicial review and implement the principle of proportionality. Through these measures, the administrative detention system can be improved and the rights of the administrative counterpart can be guaranteed.
cultural tradition
Since Qin Shihuang unified China, China has been a highly centralized and unified society after more than two thousand years of feudal society. This highly centralized and unified social pattern will inevitably form a national power standard concept with national interests and social order stability as the highest value, and corresponding to this highly developed national power and concept is the basic loss of individual independent existence and personal rights and interests.
After the founding of New China, although the feudal autocracy was abolished politically, a highly centralized and unified planned economic system was implemented for a long time. The state ownership model gives the government (a country in a sense) unlimited power, which pushes the government to the supreme position of social structure, making it possible for the state to control the non-economic field comprehensively and directly with all the social resources it controls, and leaving other social structures outside the economic field deeply branded with this ownership structure. This makes the traditional concept of national strength standard continue under the new social structure. Under the care of the concept of state power standard, only a centralized traditional social structure can be produced, but it is impossible to produce a modern social legal structure based on "rule of law" and "restricting power by procedures" with the aim of limiting state power and safeguarding individual rights. This centralized political structure can easily lead to the "sit on the big" of administrative power, because the primary task of a centralized country is to consolidate rule and maintain social order and public peace, and in this respect, administrative power has natural advantages. On the contrary, the role of judicial power in restricting and balancing administrative power has been weakened. In a centralized country, judicial power often lacks sufficient independent authority and it is difficult to effectively restrict administrative power. As Harold Boehlmann pointed out when commenting on the "national worship" in Soviet law, "every administrative executive organ has extensive discretion controlled by its superior organ. Although the jurisdiction of each institution is limited by the region, it is largely unrestricted in terms of the nature of what it can do. This means that the control of power corruption and abuse of power is mainly made by those higher links in the chain of command, rather than by the restrictive rules of substantive law and procedural law in this country (the United States). "
Because of this, there is no mechanism for judicial review of administrative power (public security organs) by judicial power in China's administrative detention procedure, and the supervision and control of administrative organs (public security organs) is carried out within the administrative organs and through the superior administrative organs of administrative organs. It is not implemented by a neutral third party-judicial organs (courts and procuratorates).
Conceptual system
In the realistic context of China, we should see that judicial independence has encountered a seemingly difficult problem in China, that is, on the one hand, the judiciary should be independent, but on the other hand, it is afraid of judicial corruption because of judicial independence. However, judicial independence has deepened the occurrence of judicial corruption to some extent, and the two seem to be caught in the contradiction of antinomy. Therefore, in view of the reality in China, the current judicial independence in China does not include the interference of the ruling party, the organs of power and the legislature-the national and local people's congresses; Internally, it is not the independence of the trial court that exercises judicial power, let alone the independence of the judges who really try. The concept of judicial instrumentalism still occupies a place in the minds of quite a few people, and a series of measures that are not conducive to judicial independence are implemented from time to time in specific systems, such as the supervision of cases by the National People's Congress, the investigation system of misjudged cases by judges, the judge hierarchy, the presiding judge system, strengthening the power of court presidents, and why we should advocate judicial escort.
To realize judicial independence, there are at least two obstacles in our country at present: First, political ideas are often endowed with too strong political color, especially mysterious, moving and sensitive. The significance of judicial independence at the political level is often magnified or distorted, and it is simply regarded as a restriction on government power and a force to promote social division and division, rather than a force that can integrate society and make society more United and stable. Some even think that judicial independence is to be divorced from the leadership of the party and the supervision of the National People's Congress. The existence of this kind of ideological concern. Mainly because in the process from traditional imperial power politics to modern party politics, state power has penetrated into almost every organization and corner of society. This high degree of centralization and control has led to all the consequences of pan-politicization. Second, in the judicial system, the problems such as the administration of the court's own management, the localization of the fund guarantee and the vulgarization of the professional society are far from being solved, and there is no independent foundation and space.
suggestion
Emphasize participation
Giving the right of hearing procedural legitimacy is one of the important principles of modern rule of law. "The minimum standard of due process is that when a citizen's rights and obligations will be affected by a decision, he must have the opportunity to exercise his statement and right to know before making a decision." Administrative detention procedures should be improved. Because the parties only have the right to state and defend themselves, but have no right to request a hearing, the legitimacy of the administrative detention procedure is greatly reduced. "The essence of the hearing system is to give the relative person the right of self-defense to resist the illegal or improper administrative actions of the administrative organs and ensure that their legitimate rights and interests are not infringed."
Strengthen justice
As an administrative act, administrative detention is a concrete administrative act. According to the provisions of the Criminal Procedure Law, the counterpart can bring an administrative lawsuit against the act. However, this kind of review behavior is only an ex post review, and it can't relieve the rights of the relative person to the maximum extent. In view of the particularity of the right to personal freedom, it is advisable to introduce a pre-supervision system, that is, after the public security organ makes an administrative detention decision, the judge decides whether to allow the detention. On the one hand, it restricts the power of public security organs, on the other hand, it protects the rights of the relative person and strengthens the judicial power. Of course, it should be noted that this kind of prior review is only a preliminary review, and generally only reviews whether the procedure is legal. If it is legal, the judicial personnel will issue a writ allowing the execution of administrative detention, and if it does not conform to the procedure, it will not be issued. Moreover, of course, the judicial personnel who issue writs here cannot be post supervision, that is, the judge in administrative proceedings. The two should be different. In fact, this is what Britain and the United States do. For example, the United States has specialized magistrates. This practice is worth learning from in China.
Emphasize the principle of proportionality
The principle of proportionality, also known as the principle of necessity or balance, means that the intensity of administrative compulsory measures and administrative punishment must be commensurate with the seriousness of the illegal act of the person subjected to execution and cannot exceed the necessary limit. In administrative law, both administrative activities and traditional administrative actions that make general rules should be regulated and bound by this principle and its legitimacy should be judged.
The principle of proportionality includes three sub-principles: the principle that administrative measures are suitable for the purpose; Principle of possible necessity of minimum intervention; The principle of prohibiting excessive appropriateness. For the principle of proportionality in administrative detention, it is necessary to emphasize the adaptability between the seriousness of illegal acts and the intensity of punishment, which is equivalent to the principle of "suiting crime to punishment" in administrative detention. In practice, we can't stop work for 15 days or 20 days just because the relative person's attitude is not good.
Difference from criminal detention
1, the legal nature is different: criminal detention is a compulsory measure to ensure the smooth progress of criminal proceedings, and it is not punitive in itself; Judicial custody takes punitive measures against those who obstruct civil proceedings; Administrative detention is a punishment for those who violate the law on public security administration punishment.
2. Different objects of application: criminal detention of flagrante delicto or main suspect; Judicial detention has hindered civil litigation, including both participants in civil litigation and outsiders; Administrative detention violates the Law on Public Security Administration Punishment and does not constitute a crime.
3, the legal basis is different: criminal detention "Criminal Procedure Law"; Judicial custody Civil Procedure Law; Public security administration punishment law, administrative punishment law and other administrative regulations.
4. The purpose of application is different: criminal detention is to prevent criminal suspects from escaping, committing suicide or continuing to endanger society and ensure the smooth progress of criminal proceedings; Judicial detention ensures the smooth progress of civil litigation; Administrative detention is a punishment for ordinary administrative criminals.
5. Different applicable organs: criminal detention is decided by public security organs and people's procuratorates, and executed by public security organs; The people's court of judicial detention decided that it should be executed by the judicial police and handed over to the relevant places of public security organs for custody; Administrative detention by public security organs
6. Different detention periods: criminal detention is generally 14 days, and the longest detention period is 37 days for major suspects who commit crimes at large, repeatedly commit crimes, and commit crimes in partnership; Judicial custody 15 days; Administrative detention 15 days, with a fine not exceeding 20 days.
7. Legal consequences: 1 day criminal detention can be reduced to 1 day; Judicial detention is a punishment for those who hinder litigation, which has nothing to do with the judgment and can be lifted in advance; Administrative detention is a punishment for those who violate the law on public security administration punishment.
force of law
Generally, the parties who are administratively detained for violating the regulations on administrative penalties for public security will not leave criminal records, which is an important and essential factor that distinguishes them from criminal penalties.
However, if the party concerned reaches the age of 16 and is administratively detained, leaving a criminal record in the local public security organ and being administratively detained again for violating the regulations on administrative penalties for public security within five years, the punishment will be aggravated.
The case records of administrative detention are kept in the public security organs for a long time and can be inquired, which may adversely affect the political examination of the parties who apply for civil servants and employees of special departments.