Organized by Miyun Branch of Beijing Administration for Industry and Commerce on June 2004 14

Handling cases after inspection is a highly professional job. How to handle a case according to law? How to solve various problems in handling cases? It is an urgent task for our grassroots case handlers to solve. Yi Cao, the chief of the economic inspection department of the branch, and Wang Chunhua, the clerk, combined with the actual situation of the economic inspection work of the branch, wrote the research materials of "Eight Common Problems in Handling Cases after Inspection", which were adopted by the research results of the Municipal Bureau and are hereby forwarded to you for comrades to learn and communicate.

—editor—

Talking about Eight Common Problems in Checking and Handling Cases

Miyun Branch: Yicao Wang Chunhua

Fair trade law enforcement in economic inspection is an important guarantee of social market economic system. Without the protection of fair trade law enforcement, there will be no healthy development of market economy. Therefore, creating a fair and competitive market environment is an important historical mission entrusted by our party and state to the administrative department for industry and commerce. With the gradual establishment and improvement of China's market economic system, especially the accession to the World Trade Organization and the implementation of the strategy of developing the western region, market subjects are more diverse, market behavior is more complicated, and economic inspection is facing severe challenges.

With the implementation of "Administrative Punishment Law" and "Interim Provisions on Administrative Punishment Procedure of Industrial and Commercial Administration", the investigation of cases in economic inspection is more rigorous and the procedures are more standardized, but there are still some problems in handling cases. Mainly as follows:

First, investigate the case first, and then file a case. According to the provisions of Article 13 of the Interim Provisions on Administrative Punishment Procedures for Industry and Commerce, the administrative department for industry and commerce should file a case when investigating illegal acts, which is the link for the administrative organ to start the administrative punishment procedure and the premise for in-depth investigation and evidence collection. Filing a case must fill in the filing approval form and attach relevant materials (report materials, materials assigned by superiors or handed over by relevant departments, etc.). ), approved by the director of the administration for industry and commerce at or above the county level, and designated two or more investigators to be responsible for the investigation and handling. However, in practice, law enforcement officers often investigate and collect evidence after the case is discovered, and fill in the approval form for filing a case after the facts of the case are clear and the evidence is collected, which leads to the case being filed after the case is investigated and collected, which violates the original intention of the law to set up the "filing" procedure and makes the "filing" lose its legal significance and does not meet the requirements of legal procedures.

Second, the inquiry record is unclear. The record of inquiry refers to the written record of investigation and inquiry. The quality of interrogation record is directly related to the investigation of cases and plays an important role in the investigation of cases. However, there are the following problems in making the record of inquiry: (1) The preparation before the case is not sufficient, and the outline of inquiry and investigation has not been drawn up. Some law enforcement officers believe that it is very troublesome to make an investigation outline and cross the river by feeling the stones. They don't know what to ask first, then what to ask, what not to ask, what to remember and what not to remember. Sometimes it is a very simple illegal fact, and the preface of the inquiry does not match the latter. Even a small matter, we asked the parties many times is not clear. There is no purpose, and we don't know. The economic violators we face are very complicated. The record of asking once is not clear. Let's ask again. Therefore, a good investigation outline can make law enforcement personnel clear about the investigation of the whole case. The investigation outline was drafted by two law enforcement officers, which enabled them to communicate with each other during the investigation of the case. When you ask, no matter who asks and records, you can ask and record in the same way. (2) Don't identify yourself when asking the parties. Article 16 of the Interim Provisions on Administrative Punishment Procedures of the Administration for Industry and Commerce clearly stipulates that when investigating and collecting evidence, the case-handling personnel shall produce the law enforcement identity documents and the certification documents of the Administration for Industry and Commerce at or above the county level. Specifically, in the process of law enforcement, it is mainly that law enforcement officers must show their identity to the relative person before checking the relevant places, asking the parties and asking the witnesses. However, in practice, law enforcement officers often ignore this procedural requirement and directly conduct on-site inspection or ask the parties and witnesses, thus affecting the proof ability of on-site inspection transcripts and inquiry transcripts and the seriousness of law enforcement. (3) The name of the violator is unclear. For example, the prefix of the query record is "Wang Jianqing", but the query process is "Wang Jianqing". I think that when asking the name of the party concerned, the identity card of the party concerned shall prevail, and when signing, the party concerned shall prevail, which is more rigorous. (4) The purpose of the inquiry record is not strong, and the probative force is poor. In the process of inquiry, due to insufficient preparation before the case and insufficient understanding of the case, it is impossible to ask the illegal facts of the illegal parties clearly during the inquiry process, or avoid asking questions when they should be traced back to the source, resulting in a lack of probative force in the transcript. (5) Interrogation transcripts are contradictory and inconsistent. In some cases, it is necessary to ask the illegal parties many times to understand the illegal facts and the number of illegal goods. Therefore, it is best for law enforcement officers to carefully read the last transcript of the parties in the next inquiry and make statistics on the illegal facts and figures to be further verified. Then in the process of inquiry, even if the answer given by the parties has a source, it can be directly pointed out for reconfirmation, until the final unified inquiry record. In reality, some law enforcement officers are vague about some facts and figures because they have not carefully read the contents of the last transcript, which has caused contradictions between interrogation transcripts and brought great inconvenience to the investigation and closing of cases.

Three. Verification and confirmation of evidential materials. In order to reflect the objective authenticity of the obtained evidence materials and ensure the evidence ability, especially some evidence can only be extracted once, and it is difficult to obtain it if you miss this opportunity, so it is necessary to check and judge the evidence materials. The correct way is that law enforcement officers should check the copied copies of evidence materials on the spot, mark the words "checked correctly and original" on the copies, and sign and seal them; At the same time, the provider of evidence materials signs and seals it to show confirmation, and finally the case-handling personnel mark the time, place and personnel of evidence collection. However, in practice, many law enforcement officers often miss the step of signing the copy, and some even don't have the signature and seal of the evidence material provider, which affects the identification of the objective authenticity of the evidence material and forms invalid evidence.

Fourth, make on-site inspection records. On-site inspection record is a written record made by the administrative department for industry and commerce of our country when inspecting the articles of suspected illegal parties or suspected illegal places according to law. It is a legal form of evidence and a very standardized legal document. However, when some law enforcement officers conduct on-site inspections, there are not only empty items in the on-site inspection records, but also the following problems often occur, thus reducing or invalidating the evidence in the on-site inspection records. (1) There is an empty item in the on-site inspection record; (2) Do not record the law enforcement procedures of showing law enforcement certificates and showing law enforcement identity. According to the provisions of the Administrative Punishment Law, law enforcement officers must show the administrative law enforcement certificates that can prove the identity of law enforcement to the parties when inspecting the articles or places that the parties are suspected of violating the law, and carry out inspections according to law. Not recording the production of law enforcement certificates does not show the identity of law enforcement, that is, it does not conform to legal procedures, and the evidence extracted does not have procedural legitimacy, and of course it cannot be used as evidence for finalizing the case; (3) On-site inspection records are mistaken for administrative punishment records. On-site inspection record is a legal form of evidence, and only when it is used in combination with other evidence materials can we judge whether the parties have violated the law. Therefore, the on-site inspection record should not record the administrative punishment such as "100 bottles of fake wine" and order the parties to destroy it on the spot. In this way, the process of collecting evidence will become a process of direct administrative punishment, which will lead to illegal procedures and invalid evidence. (4) The administrative compulsory measures taken are not recorded. It is one of the contents that should be recorded in the on-site inspection record that law enforcement officers take corresponding administrative compulsory measures against suspected illegal items according to different situations when inspecting the goods or the site of the parties, but law enforcement officers often ignore the record of this situation, resulting in the on-site inspection record not reflecting the whole process of the on-site inspection. Therefore, the on-site inspection record should record in detail the types of administrative compulsory measures taken, the types and quantities of items taken, and whether legal documents were delivered on the spot, so as to reflect the whole process of on-site inspection. (5) The on-site inspection record is not signed by the parties "the above situation is true".

5. The power of attorney is incomplete. The power of attorney is a document that the illegal party authorizes others to accept the investigation on its behalf, and the words and deeds of the authorized person directly represent the party. Therefore, the power of attorney should specify the authorized items and time limit in detail. However, some power of attorney only states that "someone is authorized to accept the inquiry and investigation on his own behalf", and does not authorize the start and end time of the investigation. Such a power of attorney is very irregular and easy to dispute. In addition, law enforcement officers should copy and file the identity cards of the authorized person and the authorized person.

The compound procedure of statement and defense. The right of statement and defend oneself embody the principle of fairness and justice in the investigation and handling of economic illegal cases by law enforcement agencies, and are the main ways for the parties to participate in the administrative punishment procedure, which embodies the fairness of the procedure, is conducive to further ascertaining the facts, discovering the truth, and preventing the subjective prejudice of the administrative organs, thus effectively safeguarding the legitimate rights and interests of the parties. However, in practice, many law enforcement officers have preconceived views on the case, subjectively thinking that the statements and defenses of the parties are only formal things, and even thinking that the statements and defenses of the parties are "dishonest" and "sophistry". Therefore, in practice, they ignore or even refuse to accept the statements and defenses of the parties, or simply put them in the case file without serious privacy. I think that after receiving the statements and arguments of the parties, the case-handling personnel should analyze the opinions in time, explain the reasons for adopting or not adopting them, make corresponding examination and approval, and report them to the leaders for approval.

Seven, the time and content of administrative punishment is incomplete. The contents of the notice of administrative punishment shall include the facts, reasons and basis for the proposed administrative punishment. Only by telling the facts, reasons and basis to the parties completely and accurately can the parties put forward their own rebuttal opinions and claims, provide evidence for their claims and safeguard their legitimate rights and interests. If the content that the administrative organ informs the parties is incomplete or incorrect, then the statements and defenses of the parties have no goals, and their rights to make statements and defenses cannot be truly realized. In practice, there are mainly the following problems: (1) Article 39 of the Interim Provisions on Administrative Punishment Procedures of the Administration for Industry and Commerce stipulates that if a party fails to exercise the right of statement, defense and hearing or make other representations within three days from the date of receipt, or within fifteen days from the date of registration and mailing by the case-handling organ, or within fifteen days from the date of announcement, it shall be deemed as giving up the secondary rights. However, some law enforcement officers often ignore the concept of time. For example, the delivery time of the right was 65438+20031October 6, and it was punished by the administration on the 9th; After receiving the notice of rights, some parties immediately said that they would not state or defend themselves and demanded punishment. Some law enforcement officers also tried to close the case as soon as possible, and also imposed administrative penalties on the parties on the day when the notice of rights was served, resulting in illegal procedures. (2) The illegal facts are incomplete. The facts include who, when, where, what specific illegal facts and what harmful consequences. Some cases did not inform the above situation in detail. (3) Apply laws and regulations to inform errors. The main reason is that the names of laws and regulations are not standardized, such as the Anti-Unfair Competition Law of People's Republic of China (PRC), which is referred to as "anti-law" for short. And some applicable provisions are not specific, and they are replaced by general expressions such as "relevant provisions"; (four) the applicable laws and regulations are inconsistent with the laws and regulations that actually apply administrative punishment.

Eight, the right to appeal to inform the wrong. The way to inform the parties of their administrative litigation rights is wrong. If it is a reconsideration choice, you can only inform the higher authorities to apply for reconsideration, or you can bring a lawsuit to the people's court without telling them; For pre-reconsideration, it is confirmed that you can apply for reconsideration to the higher authorities or bring a lawsuit to the people's court. In addition, there are time limits to inform them of mistakes and so on.

As law enforcement officers, we must strictly abide by the Administrative Punishment Law and the Interim Provisions on Administrative Punishment Procedures of the Administration for Industry and Commerce, and carefully investigate and deal with every case of economic violation, so as to strictly enforce the law, impartially enforce the law, and make the cases we investigate and deal with become "excellent" cases.

(Editor: Feng)

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Editor: Luo Wanen, deputy editor: Zhao Xueshan, editor: Feng Bo.