Few ordinary people are like Xu Bo, so closely paying attention to the draft of the solicitation of a draft law.
On September 1, 2023, public security management punishment law (revised draft) was announced.In the next 30 days, almost every day, he secretly submitted amendments on the Internet of the Chinese People's Congress while resting his classmates.
The reason is that he was detained six years ago and carried on illegal records.Since then, he has suffered a long time, and he did not dare to graduate to job jobs.Write a letter to the legal teacher for help, and send the inquiries that the law can restrict the illegal records and get the "redemption".
But the first review manuscript only states that the records of minors' violation of public security management punishment law should be sealed.The second review draft has not been further modified.But at the time of the incident, he was already an adult.
For a long time, the law and order management punishment law, known as the "small criminal law", regulates and punish the act that violates public security management and is not yet criminal punishment. It passed in 2005.
18 years later, the overhaul of the Punishment of Public Security Management directly affects the border between citizen rights and law enforcement of public security organs.On September 30, 2023, a total of 99,000 people participated when the first audit of the first audit of the first audit, and more than 120,000 amendments were submitted to the most in the same period.In the review of the Standing Committee of the National People's Congress, some members said that "more than 120,000 a month, accounting for 2/3 of the total of more than a dozen legal draft comments in 2023."
After the solicitation of the draft opinion of the first review, the Constitution and Legal Committee of the National People's Congress and the Standing Committee of the National People's Congress Standing Committee of the National People's Congress went to Hunan, Shandong, Jiangsu, Jilin and other places to conduct legislative investigations.
On June 28, 2024, the second review of the Public Security Management Punishment Law (revised draft) was released, which responded to the previous controversy.Shen Yan, a professor at the School of Law of Peking University, said that the amendment of this law needs to be awarded the police power to effectively handle the behavior of harmful social security, and to restrict police power to make it proper, legal, and limited exercise.balance.The other sense is also a balance between citizenship and police power.
Limited, correct
"A lot of progress has absorbed a lot of opinions." This is the first idea of the first review of the first review of the draft draft draft draft draft draft draft draft draft.
Taking Article 34, which has attracted much attention from the first review draft, the new clause aims to combat behaviors that damage Yinglie and national feelings, and listed 6 types of penalties.Among them, if you wear clothing and signs that are worn in public places or forced others to wear, wear the spirit of the Chinese nation and harm the feelings of the Chinese nation in public places, be detained for more than 5 days or less than 1,000 yuan or less than 3,000 yuan.If you are heavy, detained for less than 15 days, and can be fined below 5,000 yuan.
After the first audit draft was introduced, scholars, including Zhao Hong, frequently voiced and thought it was inappropriate.When she went to a lecture in many places, there were grass -roots public security officers arguing with her, and emphasized that 34 were retained, "saying this is because of the‘ law enforcement needs ’.”
This may represent the mentality of some grass -roots law enforcers.
The more typical is that in 2022, the Suzhou female cosplayer was provoked by wearing and uniform.According to the Beijing Youth Daily, the parties were reprimanded by the police for wearing kimono in Suzhou Japanese -style streets. They were later taken to the police station for investigation for suspected provocation. In the end, the police returned to the collection of clothes. The parties were not punished.
After the release of the second review, the "harmful national emotion" in the aforementioned clause was reduced to "beautify the aggression war and aggression."
"Compared with, the standards are more clear." Shen Yan commented, in general, the second review reduction reduced the subjective and fuzzy factors in the punishment standard.
Similar modification ideas are also reflected in Article 4, paragraph 4 of the first review.The first review stipulates that if the people's police law enforcement executes the law enforcement by insulting, abusive, threatening, encirclement, interception, etc., it will be punished by heavy punishment.
However, the staff of the public security organs are confused about how to grasp this clause in law enforcement.
According to the "Shanghai Changning" public account, when the Legislative Liaison Legislative Liaison Point of the Standing Committee of the National People's Congress Standing Committee of the National People's Congress, when consulting the law, the first -line law enforcement officer of the Shanghai Changning Public Security Bureau and the Hongqiao Road Police Station said, "How to insult and abuseIt is determined that the subjective colors are strong, and everyone's feelings are different. The grasp of the freedom of discretion in the law enforcement process increases difficulty. "By the second review, this clause was directly deleted.
In addition, Shen Yan said that "the tendency of heavy punishmentism has been corrected" is also a highlight of the second review.
In the first review draft, the punishment of various types of illegal acts is generally increased.The most obvious thing is that some of the new penalties have higher penalties, most of which are detention of 5 days and less than 10 days, and rare individuals to warn or fines for punishment.
The grassroots police also noticed that the amount of individual terms is not compatible with the harm of illegal actors.
A grass -roots legislative point in Pingluo County, Ningxia Hui Autonomous Region on Panzhuan Management Punishment Law (revised draft), mentioned that in the past three years, in the administrative cases of the Pingluo County Public Security Bureau, the theft was occupiedNearly 40 %.However, in some cases of theft, fraud, and damage to property, the amount of theft of illegal actors was small, "such as tens of dollars, one chicken, a few bundles of grass, three or four boxes of cigarettes.Small".
But in accordance with relevant regulations, if the theft, damage, and fraud are less than 500 yuan, they need to be detained for more than 5 days.The report believes that this type of penalty is "legal but unreasonable", which should increase the punishment of the single "fine" or "detention below 5 days", which is also more in line with the principles of administrative law enforcement.
The second review manuscript has responded to this. Based on Article 58, a single fine is added.In addition, in the case of private dismantling letter package and entertainment venue operators who did not register information in accordance with regulations, "the second review manuscript also decided to deal with the lawEssence
Expansion
As early as 2018, the Public Security Management Punishment Law has been included in a class of projects in the legislative planning of the Standing Committee of the 13th National People's Congress.This means that this is a draft legal case that has a mature condition and is intended to be reviewed during his term.
In January 2017, the Ministry of Public Security announced on the official website to announce the law and ordering punishment law (revised the public discussion draft) and solicited comments.
Many changes in the southern weekend reporter's solicitation of the comments draft were retained until the first audit draft in 2023.For example, the drone "Black Fei", cheating in the exam, organizing and leading MLM, etc. are included in illegal acts, and the amount of fines is generally increased.
"Many new illegal acts have actually overflowed the category of public security management." Zhao Hong believes that acts such as cheating and organizing pyramid schemes are not in the traditional order of public security management.
It is not to be ignored that in recent years, new situations and problems in the field of social security management have occurred. "Some new illegal acts are necessary to curb."
The current residential density of urban is getting larger and larger, and there are many incidents of harm dog injuries, but it has previously been resolved through civil liability for civil liability through the breeder.After Sichuan Chongzhou girls were bitten by large dogs in 2023, public opinion generally demanded severe punishment for dog owners, and there are many representatives of the National People's Congress.
In the second trial draft, the regulations of the severe dog injury have been added: those who violate relevant laws and regulations and sell dangerous animals such as sale and breed fierce dogs will be warned;Divisions under the 5th or fines below 1,000 yuan; if the circumstances are heavier, the detention is more than 10 days and less than 10 days.
<<<"The addition of new clauses has expanded the scope of the responsibility of punishment, and the seller must also bear joint responsibility, but law enforcement is difficult, and it is more deterrent." In Zhao Hong's opinion, the strong dog hurts people, "But let the seller bear administrative joint responsibilities, you need to consider it carefully. "
On the other hand, the scope of punishment is expanding, and it is also related to criminal law.
The amendment to the Criminal Law in 2011 (8) After the addition of dangerous driving, the French Open became more and more dense. As of 2020 Criminal Law Amendment (11), 35 were newly charged.
Yang Weidong, a professor at the Research Institute of the Government of China University of Political Science and Law, said that after the abolition of the labor education system, in addition to civil liability, the state's punishment for illegal behavior can only be achieved by criminal punishment or administrative penalties on criminal or administrative violations.Essence
Zhao Hong has done statistics. More than 70 % of the punishment of public security management penalties is that the crime in the criminal law is "similar, but there is a difference in illegal plots."
For illegal criminal acts, the law usually adopts a "qualitative+quantitative" method. If the "quantity" is insufficient, there may be a strike vulnerability."Therefore, in the usual thinking mode, it will feel that (some illegal acts) of the criminal law stipulate that there must be no loopholes in the law of public security management punishment."She gave an example. The amendments to the Criminal Law (9) added the crime of organizing the cheating of the organization. In the second review, it stipulated that in the national examinations stipulated in laws and administrative regulations, the organization cheat was punished accordingly.
In addition, some clauses of the Criminal Law and Criminal Procedure Law are also absorbed by the Penalty Management Penalty Law.
The legitimate defense and emergency hedging clauses in the criminal law are absorbed into Article 19 of the second trial draft.In the revised draft, the confession and punishment of the criminal lawsuit law also stipulated the principle of "admitting the wrong and confession from the width" from the wide system, but the second review draft deleted the rapid handling procedure of admitting the wrong and confession.Police abuse their power, "after deleting, it is more conducive to restraining police rights."
Public security management punishment law (revised draft) has incorporated examination cheating into the scope of public security punishment.(People's Vision/Picture)
"Difficulty"
Many legal experts believe that there is still room for improvement in the second review.
The reason is that the law of security management punishment represents the scope of police rights.While the permissions are expanding, the corresponding restraint mechanism should also be considered.
The "one -person enforcement" clause is a typical.
The first audit manuscript stipulates that an illegal act of warning or fines below 500 yuan can make a decision on public security management punishment on the spot. In this case, a police officer can be made by a police officer.
The second review manuscript is added on this basis. If a police officer make a decision on security management punishment, the recording and video of the whole process shall be synchronized, and the legal liability for editing, deletion, damage, and loss of recording and video materials shall be stipulated.
But one person's law enforcement does not meet the general principles of administrative punishment.Shen Yan believes that the administrative penalty law stipulates that administrative penalties shall be implemented by law enforcement officers with administrative law enforcement qualifications. Law enforcement officers shall not be less than two, except for other provisions.
"Except for the other regulations, it should be limited to a very small number of circumstances," but according to the above clauses, he can make a penalty decision for one person.Visible.
Shen Yan feels that adhering to the law enforcement of more than two people in the field of public security management, in fact, the personal safety of the police is a protection. "Police above the two may be more comprehensive when judging the case.It's stronger. "
Zhao Hong also recognized the aforementioned view, but the reality is that when she went to Hubei to give a lecture, several police officers came to tell her: "You don't know the difficulties of our police at all."Everyone will find police officers if there is anything. Children are not good at writing homework and police; the children climb to the tree and find the police.
Similar problems also appear on the hearing system.
When reviewing the first review draft, members of the Standing Committee of the National People's Congress suggested that administrative detention is included in the scope of hearing.On the basis of this, one of the second review is added.
This revision has improved.However, many scholars believe that the coverage of the hearing system is not ideal enough, and it should be expanded from "underage" to all those who may be detained administrative.
But the problem is that the number of administrative detention penalties for public security organs is huge.
According to data from the National Bureau of Statistics, the average public security cases investigated and dealt with from the public security organs were 8.26 million from 2018 to 2022.A paper published by Liu Renwen, vice president of the Chinese Criminal Law Society and a professor at the School of Law of the Chinese Academy of Social Sciences, estimated in 2021 that "From the perspective of the actual application of administrative detention by the public security organs, the proportion of unilateral detention cases generally exceeds 50%"Essence
Southern Weekend reporters were informed that during the second instance, members of the Standing Committee of the National People's Congress suggested that delete the regulations of the deletion of administrative detention into hearing.One of the reasons is that incorporating the hearing into the workload will increase, and the public security organs have put forward more harsh requirements for the normal handling of public security cases. It is difficult for public security organs to bear it and it is difficult to operate in practice.
Administrative law scholars have high attention to the hearing system, the root cause is that the procedures for supporting the field of administrative law are insufficient.
At present, there is no national and unified administrative procedure law in the field of administrative law.In the laws and norms, there is no unified national law. "Yang Weidong said.
Zhao Hong, for example, some criminal law scholars feel that some illegal acts are handled by the Public Security Management Penalty Law to deal with enough.There are lawyers involved and involved and filtered by procuratorates and courts.
The "Public Security Management Punishment Law has the label of administrative penalties, but the scope of the blow is highly overwhelmed by the scope of criminal law, but there is no intervention of the judicial organs.At the level, Zhao Hong more agreed to raise illegal acts into light crimes in criminal law. Instead of corresponding criminal proceedings, it can increase the degree of legal guarantee.
Yang Weidong does not think that this is a better solution now."Punishment of public security management, especially administrative detention, specifies and requirements in accordance with judicial procedures or quasi -judicial procedures. The overall ideas and directions are right. For example, heavy security punishments such as detention are required to follow the administrative procedures of similar judicial procedures."
However, he believes that if the transformation of public security violations and its punishment is included in the category of crimes and criminal penalties, it will obviously break the qualitative and positioning of public security management punishment, and even break the border of administrative punishment and criminal punishment.In the case of not changing the positioning of criminal punishment, whether the parties and social governance have been benefited or disadvantaged, it is yet to be observed. "Specifically, for the parties, do he want an administrative violation of law or a criminal record?Do you want procedural guarantee or physical results, or do you have both? "
balance
Repairing method is to balance the demands of all parties.
After the draft draft manuscript explanation shows that after the Ministry of Public Security drafted and submitted to the State Council for revised and submitted review drafts, the Ministry of Justice repeatedly investigated it and revised it with the Ministry of Public Security to form a draft draft draft draft.
During the review of the second instance manuscript, the relevant leaders of the Standing Committee of the National People's Congress said that after the formation of the first review, the National People's Congress Constitution and the Legal Committee of the National People's Congress and the Standing Committee of the National People's Congress did a lot of investigations.The revised draft was modified and added some content.
Under the feedback of multiple parties, the second manuscript of the Criminal Law of the Standing Committee of the National People's Congress Standing Committee of the National People's Congress shows "considering the balance of authority of public security organs and the protection of citizen rights, but also attaches importance to the title and criminal law."The appearance, Yang Weidong said.
But there are still some questions that need to be answered.
For example, is it reasonable to improve fines?
When the 2005 Public Security Management Punishment Law was introduced, it was compared to the severity of the circumstances of the criminal law, divided the fine into three levels, less than 200 yuan; 200 yuan to 500 yuan;Invisible.
In the first review draft, the original 200 yuan fine was increased to 500 yuan, and 500 yuan was increased to 1,000 yuan.In addition, 2,000 yuan, 3,000 yuan, 5,000 yuan, etc. have been added, and even a fine of less than 20,000 yuan can be imposed.
In Zhao Hong's view, "the legislature should give at least one explanation, or there is a clear ladder arrangement in the fine setting."
Another concern is that the illegal record gradually shows the "attachment" that is similar to the criminal record.
According to a report from the China Business Daily in 2023, the 14 -year -old boy in Xi'an was rejected by many schools during the transfer because he left the "bottom of the case" because he did not tie the seat belt.In addition, there are also cases of many public security organs on the Internet that the public security organs have fallen illegal records that cause inconvenience to the parties to study and employment, which causes inconvenience to be inconvenient and filed administrative lawsuits.
A lawyer who had worked in the public security system told the Southern Weekend reporter that if the party's illegal records were found in the system, these records would also be marked on its proof of no criminal records.At the same time, there are differences in political audit standards of different units.For some minor illegal records, it is still possible to pass political review.When he encountered a grandson applying for enlistment, he failed to pass the political trial because his grandfather had illegal records.
"Due to the extensive coverage of public security management punishment law, many actions have been incorporated into the field of public security management." Shen Yan believes that if only one law and order is violated, the actor will be labeled for life.It's hard to let a person be treated fairly. "
The first -instance manuscript adds a new minor illegal record sealing system.Those who are under the age of 18 when they are under the age of 18, their records of violations of public security management shall be sealed.
Although the second review draft has not been further amended the above clauses, Li Ning, a member of the Standing Committee of the National People's Congress during the group review, actually not only seal the law of public security violations of minors, but also records the public security violations of adults. ExceptIt is not appropriate to be provided outside the law.
At present, the second review draft is still in the solicitation opinion. As of July 10, only less than 900 people made opinions, and the discussion of the discussion was very different from the first review of the review opinions.
(To protect the privacy of the respondents, Xu Bo is the name)
Southern Weekend reporter Chen Yifan Southern Weekend Intern Gu Liangan
Editor Qian Haoping
