[case]
Plaintiff: Shi.
Defendant: city Administration of B County of A Province.
Legal representative: Kim, director.
On the morning of November 20, 2000, the staff of B County Administration went to Shimou Automobile repair Factory to clean up the "Shiji Automobile repair Factory" sign placed outside the factory. The staff of the B County City Administration had a dispute with Shi's father, Shi Fu. When the two sides pushed and shoved each other, the father of Shi was pushed down, and Shi fought with his brother and the staff of the B County City Administration, causing Shi to be injured (later identified as a minor injury by the medical examiner). Shi sued to the people's Court of B County, asking: first, to confirm that the specific administrative act of the defendant violated the law. Second, the defendant compensated the plaintiff for various economic losses of 9077.60 yuan.
The defendant argued that because the plaintiff's car repair license plate was not in conformity with the standard, the City Administration issued a notice on October 17, 2000 to clear the random pile, and two oral notices on October 20 and November 3, and on November 20, the staff of the City Administration again informed the plaintiff to clear it. Instead of clearing it, the plaintiff beat my staff Wang and Hua and others, smashing my office vehicle. Violence hindered our normal performance of official duties, resulting in a loss of nearly 4000 yuan, the plaintiff did not pay compensation, we do not know the injury of the plaintiff, none of us beat anyone of the plaintiff, even if the plaintiff was injured is self-injury, so do not bear the loss of the plaintiff.
[trial]
The people's Court of B County found out: at noon on November 20, 2000, more than a dozen people from the Urban Administration Bureau cleaned up the random piles and went to the plaintiff's garage to clean up the sign of "Shiji Automobile repair Factory." first, there was a dispute between the plaintiff's father, Shi Fu, and the chengguan team. The two sides pushed and shoved each other, Shi Fu fell to the ground, and the plaintiff and his brother came out of the house, and the two sides clashed, resulting in the plaintiff's injury.
The plaintiff, Shi, was admitted to B County Hospital from November 20 to December 1, 2000. he was hospitalized for 12 days and spent 2665.60 yuan on medical treatment, 270 yuan on forensic identification, 2 yuan on car storage and 120 yuan on missed work, with a total loss of 3057.60 yuan. Shi's injury was identified as a minor injury by the forensic medical examiner.
After the trial, the court of first instance held that it was illegal for the staff of the defendant B County Management Bureau to cause personal injury to the plaintiff Shi while performing his duties, and the plaintiff should be compensated for his losses in accordance with the law. The defendant fails to provide evidence within the legal time limit, and the evidence provided within the time limit is invalid. The plaintiff is also responsible for not being calm and participating in the conflict between his father and the defendant, resulting in injury. Therefore, in accordance with Article 3, paragraph 5, and Article 27, paragraph 1, of the State compensation Law of the people's Republic of China, the court made a judgment on March 12, 2001:
First, confirm that the defendant B County Administration violated the law by infringing upon the personal rights of the plaintiff.
Second, the defendant B County Administration compensates the plaintiff Shi for personal damage of 2440.32 yuan, and the remaining 917.28 yuan shall be borne by the plaintiff, which shall be paid within 10 days after the judgment takes effect.
After the judgment of the first instance came into effect, the Langfang City Procuratorate protested against the case, believing that the personal injury of Shi in this case was caused by administrative law enforcement, and whether the B County Administration was liable for compensation for the injury of Shi. First of all, it depends on whether its administrative law enforcement behavior is illegal. If his administrative law enforcement act violates the law, he may bear the liability for administrative compensation in accordance with the law. When hearing this case, the court should confirm whether the damage caused by the organ of compensation obligation is illegal in accordance with the relevant legal provisions before it can determine whether it is liable for compensation for the economic loss of Shi. (2001) Yongxing first word judgment did not make a judgment on whether the specific administrative act of the B County City Administration Bureau violated the law, that is, it was found that it was illegal for him to cause personal injury to Shi while performing official duties, and ordered him to compensate for economic losses, in serious violation of Article 50 of the Administrative procedure Law. Article 2 of the State compensation Law and Article 34 of the provisions of the Supreme people's Court on the trial of Administrative compensation cases.
After a retrial, it was found out that, according to the spirit of the notice of the people's Government of County B, on the morning of November 20, 2000, more than a dozen staff of the city administration of County B went to the plaintiff's garage to clean up the "Shiji Automobile repair Factory" sign set up outside the plaintiff's garage. During the dispute between the plaintiff's father, Shi Fu, and the staff of the plaintiff, the two sides pushed each other. The plaintiff Shi ran out of the house and scuffled with the staff of the defendant, and the plaintiff was injured in the conflict between the two sides (identified by the forensic doctor as a minor injury). He was hospitalized in B County people's Hospital for 12 days from November 20 to December 1, 2000. it cost 2672.80 yuan in medical expenses, 270 yuan in appraisal fees and 120 yuan in missed work expenses, resulting in a total economic loss of 3067.80 yuan to the plaintiff. At the same time, the retrial found that after receiving a copy of the indictment, the original defendant provided evidence of specific administrative acts within the legal time limit without justifiable reasons.
The retrial holds that in the administrative legal relationship, the administrative organ is in an active position, and it generally does not need to obtain the consent of citizens, legal persons or other organizations, and has the power to take the initiative to enforce the law. the specific administrative act procedure should first have conclusive evidence and objective facts, and then be made in accordance with laws and regulations. Civil servants are one of the legal subjects in the administrative relationship, and they perform official duties on behalf of the administrative subjects. as long as the infringement is related to the exercise of the administrative functions and powers of the state, it belongs to the scope of national administrative compensation. If the original trial defendant fails to provide evidence within the legal time limit in the first instance, it shall be determined that the specific administrative act has no evidence and basis. The written testimony collected by him after making a specific administrative act cannot be used as a legal basis for a specific administrative act. The act of the staff of the original trial defendant causing personal damage to the plaintiff shall be recognized as a factual act and shall be liable for compensation in accordance with the law. The plaintiff in the trial should proceed from the interests of the society and actively cooperate with the work of the administrative organs. in this dispute, it is also responsible for not calmly participating in it to make it hurt. Therefore, in accordance with articles 26, 76 and 78 of the interpretation of the Administrative procedure Law of the people's Republic of China of the Supreme people's Court, and Article 3 (5) and 27 (1) of the State compensation Law of the people's Republic of China, the court made a judgment on November 9, 2001:
I. rescind item 2 of the original judgment
II. It is found that there is no evidence or basis for the specific administrative act committed by the original trial defendant.
III. To maintain the first item of the original judgment, that is, to confirm that the defendant's violation of the plaintiff's personal rights is illegal.
The defendant in the original trial shall compensate the plaintiff for the loss of 2143.96 yuan. The performance shall be completed at one time within ten days after the entry into force of the judgment.
[comment]
The case is a combination of administrative litigation and administrative compensation litigation. There are three points in this case that need to be clearly analyzed.
1 defendant B county city administration bureau specific administrative act is illegal. The examination of the legality of a specific administrative act should be confirmed from the administrative subject, applicable laws, regulations, administrative procedures, applicable evidence and so on. In administrative litigation, the burden of proof is mainly borne by the administrative organ as the defendant, and the defendant is also subject to a strict time limit for providing evidence. The second paragraph of Article 26 of the Supreme people's Court's interpretation of several issues concerning the implementation of the Administrative procedure Law of the people's Republic of China stipulates: "the defendant shall submit a statement of defense within ten days from the date of receipt of the copy of the indictment." and provide evidence and basis for a specific administrative act, if the defendant fails to provide it or fails to provide it within the time limit without justifiable reasons, it shall be determined that the specific administrative act has no evidence or basis. " A specific administrative act without evidence and basis shall be an illegal act. In this case, the defendant B County Administration did not provide evidence to prove the legality of the specific administrative act made by it during the limitation of proof in the first instance, although the corresponding evidence was provided in the retrial, but it has expired (the retrial only examines the facts found in the original trial). Therefore, the specific administrative act should be illegal.
2 accused B of the legal nature of the beating behavior of the staff of the county administration. In this case, the defendant B County City Administration staff injured the plaintiff Shi in the process of law enforcement, which is often understood as an administrative act. That is, the beating behavior is carried out by the administrative law enforcement personnel in the process of performing their duties, although the abuse of power, but this behavior is inseparable with the specific administrative act, is a kind of administrative illegal behavior. This understanding occupies a certain position before the promulgation of the provisions of the Supreme people's Court on several issues in the trial of Administrative compensation cases (hereinafter referred to as "provisions"). However, on closer inspection, the specific administrative act of the administrative organ is the decision made by the administrative subject to deal with specific matters according to the specific object. Beating people is not the authority of the administrative subject, nor the content of its specific administrative acts, so it is not to mention abuse of power, let alone administrative violations. In fact, this kind of behavior occurs in the administrative process of the administrative subject, which is related to the specific administrative act, which is called factual act. The factual act is different from the illegal administrative act and the abuse of power act, the latter two can directly lead to the invalidity of the specific administrative act, but the former can not be so. For example, when the public security officers and police are searching someone's house in accordance with the law, they accidentally break a warm pot of the person being searched, and breaking the warm pot is a factual act, which is related to the specific administrative act of the public security organ searching the house, but it should not be determined that the specific administrative act of the public security organ searching the house is illegal because the search broke the warm pot of the person being searched, and the damage to the administrative counterpart caused by the factual act. It should be included in the scope of administrative compensation (see articles 1 and 2 of the provisions). In this case, the procuratorial organ protested: "whether the B County City Administration Bureau is liable for compensation for Shi's injury, first of all depends on whether the administrative law enforcement act is illegal." It is obvious that the factual act of assault is understood as an administrative act.
(3) administrative litigation and administrative compensation litigation and filing. Article 28 of the provisions of the Supreme people's Court on the trial of Administrative compensation cases stipulates: "if the parties file administrative proceedings at the same time, if the claim for administrative compensation is made at the same time or for damage caused by a specific administrative act and other acts related to the exercise of administrative functions and powers, the people's court shall file the case separately and may try it jointly according to the specific circumstances. It can also be tried separately. " This is the case in this case, that is, the plaintiff also asks for administrative compensation while filing administrative proceedings. Therefore, the first instance of the case should be a combination of two cases or two cases. Because administrative litigation such as administrative compensation litigation is usually closely related, and the parties often file a lawsuit at the same time, it is easy to be regarded as a case when filing a case, and it is usually tried as the same case in the trial. And the truth is. Administrative litigation and administrative compensation litigation are two different claims, which should be put on file, divided or tried jointly. This point should be paid enough attention in the administrative trial.
