Author: Binzhou Shang Zhebin Source: Shandong

On the detachment information network, I saw the article "Insufficient evidence on summary punishment of road traffic safety violations" published by Comrade Wei Xiaoying on July 26, 2004. In this article, the author talked about the importance of the parties' signature as evidence in the summary punishment decision: if the parties refuse to sign, then from the perspective of evidence law, the written materials made by the administrative organs themselves cannot be used as evidence to prove the legality of their actions. After reading it, as a traffic policeman, I was deeply touched by the questions raised by the author. In actual law enforcement, many traffic offenders just don't sign when they accept the fine, and use it as a weight to bargain with the law enforcement police about the amount of the fine, because they think that once they sign, the summary punishment decision may become written evidence, but if they don't sign, the police have no other legal evidence. As we all know, most traffic safety violations belong to the category of summary punishment. If there is a gap in the law, the grass-roots administrative organs and law enforcement police are at a loss. So what are the specific requirements of current laws, regulations and departmental rules for summary punishment? Does summary punishment require fixed evidence? How to fix evidence as a law enforcement police? With these problems, the author consulted relevant laws and analyzed the actual situation of road traffic safety management in our brigade.

I. Relevant provisions of laws and regulations

(a) the provisions of laws and regulations on specific administrative acts

1, Administrative Reconsideration Law

Article 28 stipulates that the institution in charge of legal affairs of the administrative reconsideration organ shall examine the specific administrative act made by the respondent, put forward opinions, and make an administrative reconsideration decision in accordance with the following provisions after the consent of the person in charge of the administrative reconsideration organ or collective discussion: … (3) If a specific administrative act is in any of the following circumstances, it shall decide to cancel, change or confirm that the specific administrative act is illegal; If it is decided to revoke or confirm that a specific administrative act is illegal, the respondent may be ordered to make a specific administrative act again within a certain period of time: 1. The main facts are unclear and the evidence is insufficient; 2. The application basis is wrong; 3. Violation of legal procedures; 4. Exceeding or abusing power; 5. The specific administrative act is obviously improper.

2. Administrative Procedure Law

Article 32 stipulates that the defendant bears the burden of proof for a specific administrative act and shall provide evidence and normative documents on which the specific administrative act is based.

Article 54 stipulates that the people's court shall, after hearing the case, make the following judgments according to different situations: … (2) If a specific administrative act is under any of the following circumstances, the judgment shall be revoked or partially revoked, and the defendant may be sentenced to re-engage in the specific administrative act: 1, and the main evidence is insufficient; 2. Incorrect application of laws and regulations; 3, in violation of legal procedures; 4, beyond the authority; 5. Abuse of power.

(two) the provisions of laws and regulations on summary punishment

1, Administrative Punishment Law

Article 33 stipulates that if the illegal facts are conclusive and there is a legal basis, a citizen shall be given an administrative penalty of less than 50 yuan or a legal person or other organization shall be given a fine of less than 1000 yuan or a warning, and a decision on administrative penalty may be made on the spot.

Article 36 stipulates that: in addition to the administrative punishment that can be imposed on the spot as stipulated in Article 33 of this Law, if an administrative organ discovers that a citizen, a legal person or any other organization has committed an act that should be given administrative punishment according to law, it must conduct a comprehensive, objective and impartial investigation and collect relevant evidence; When necessary, inspection can be conducted in accordance with the provisions of laws and regulations.

2, "road traffic safety violations handling procedures"

Article 25 stipulates that if the owner, manager or driver of an illegal motor vehicle is fined below 200 yuan according to the traffic technical monitoring records, a summary procedure can be applied to make a decision on punishment. In accordance with the provisions of laws and regulations, the violator shall be fined above 200 yuan (excluding), the motor vehicle driver's license shall be suspended or revoked, and the unit shall be fined, and the investigation and evidence collection shall be conducted, and the punishment decision shall be made in accordance with the general procedures.

Article 44 stipulates that the summary procedure file includes the summary punishment decision. The general procedure file includes the certificate of administrative compulsory measures (notice of handling illegal acts of road traffic safety), evidential materials and the decision of administrative punishment. Other documents formed in the process of handling illegal acts shall be filed together.

Second, analysis

(a) whether the summary punishment requires fixed evidence.

From the analysis of the provisions of Articles 25 and 44 of the Procedures for Handling Road Traffic Safety Violations issued by the Ministry of Public Security, it is clear that if the punishment decision is made according to the general procedure, it needs investigation and evidence collection, that is, the case that forms the general procedure file clearly needs evidence materials; The requirements of summary procedure documents only include summary punishment decisions, and there is no clear evidence. I understand that the summary punishment decision is evidence.

Article 36 of the Administrative Punishment Law clearly stipulates that evidence must be collected for off-site punishment except for simple punishment that can be made on the spot, but it does not clearly stipulate that evidence must be collected for simple punishment that can be made on the spot, that is, if the parties have no objection on the spot, evidence can be collected without applying on-site punishment.

Worst consequences of summary punishment for not collecting evidence

If a party fails to sign on the spot, but has any objection afterwards, it shall bring an administrative lawsuit to the people's court with a summary punishment decision within 60 days. According to the provisions of Article 32 of the Administrative Procedure Law, the people's court requires the grass-roots traffic management department of the defendant's public security organ to provide evidence on the specific administrative act-fine punishment, and provide evidence and normative documents on which the fine punishment is based. As we all know, most road traffic safety violations happen instantly, and only the traffic police find them on the spot. At this time, the traffic police are both referees and witnesses, and the evidence to prove the violation is difficult to fix without equipment support at that time or cannot be fixed at all afterwards. If no evidence can be provided or the provided evidence is insufficient to prove the legality of the administrative act, then the people's court will revoke or partially revoke the judgment according to the provisions of Item 1, Paragraph 2, Article 54 of the Administrative Procedure Law, that is, lose the case.

If a party brings an administrative reconsideration to a higher authority, according to Article 28 of the Administrative Reconsideration Law, the punishment of the same grass-roots authority will be revoked or changed.

Third, measures to collect evidence in road law enforcement.

The police should establish five kinds of consciousness, one of which is legal consciousness, and the legal consciousness implemented in traffic safety management is law enforcement consciousness, law enforcement procedure consciousness, evidence consciousness and limited scope of authority consciousness. Evidence is an important link for police to establish legal consciousness. It is not only necessary for law enforcement traffic police to find, collect and fix in time in their work, but also needs the strong support of scientific and technological equipment, which is difficult to operate. If summary punishment is applied to traffic violations, the main legal evidence is: investigation record, witness testimony and audio-visual materials.

1, investigation record: improved summary punishment decision.

The summary punishment decision stated the fact that "the party XXX committed the illegal act of XXX in XXX" and printed "It has been found out now". In this way, the summary punishment decision of the illegal facts of the parties plays the role of on-site investigation record after the parties sign it. Once the parties appeal, the summary punishment decision can be used as a powerful documentary evidence to fight back against the litigation of the parties.

2. Witness testimony: implementing the law enforcement partner model.

Article 37 of the Procedures for Handling Administrative Cases by Public Security Organs: When a public security organ conducts an investigation, there shall be no less than two investigators, and the investigators shall show their law enforcement status. When the traffic safety violator refuses to sign the summary punishment decision, the traffic violation case at this time does not actually apply summary punishment, and should enter the general procedure punishment. According to Article 36 of the Administrative Punishment Law, cases that are not subject to summary punishment must be investigated comprehensively, objectively and fairly, and relevant evidence must be collected. At this time, the law enforcement police should look for relevant witnesses in time. If there are no other witnesses, the partner of the policeman who carries out the punishment can be a witness, but this move needs the support of the court. The implementation of the law enforcement partner system has temporarily made up for the lack of scientific and technological equipment, but it needs to invest twice as much police force in law enforcement.

3. Audio-visual materials: vigorously implement the strategy of strengthening the police through science and technology.

For some traffic safety violators who refuse to admit the illegal facts and sign the punishment decision in simple punishment, the evidence collected by intersection electronic monitoring system, mobile electronic capture system and other scientific and technological equipment is the most powerful counterattack against the violators and also the strong support for police law enforcement. Article 1 14 of the Road Traffic Safety Law also authorizes the public security traffic management department to punish the offenders according to the traffic technical monitoring records. Scientific and technological equipment needs a lot of financial and material support, police training and timely and skilled use.

In a word, the collection and fixation of summary punishment evidence depends not only on the reform of law enforcement system and the input of science and technology, but also on the traffic police's mastery of working methods and skills under the current law enforcement mode, thus reducing the cost of law enforcement and getting twice the result with half the effort.