For example, at noon on May 2 1 Sunday, at 2065438, two girls were searched by a policeman while shopping in Liutang Village, xixiang street, Baoan District, Shenzhen. The two girls were forced to summon them to the police car because they didn't bring their ID cards. When they questioned the rationality of police enforcement, the other side was arrogant: "You must cooperate with me, just remember this one, today is your own crime." "I want to lock you up with thieves, AIDS and robbers and let you enjoy it." The relevant dialogue scene was photographed by one of the girls involved with her mobile phone. After June 10 was uploaded to the Internet, public opinion was in an uproar. A notice issued by the Shenzhen police later said that the policeman was stopped from performing his duties and immediately attended a study class, waiting for further treatment.
He Guangwei, a former media person in Guangzhou, published the article "Crossing Xiancun Police Station" on the "Media Law Circle" of WeChat WeChat official account on August 20 18. In August 17, when he passed a subway station near Xiancun Police Station in Tianhe District, Guangzhou, he was stopped by an auxiliary police officer and asked to show his identity card (some of his peers) He Guangwei was then forcibly taken to the Xiancun police station, searched his body and belongings, made a record, and then wrote a review before leaving, which took more than three hours.
There are both positive and negative opinions on whether the police can go to the streets to check the identity cards of residents. Supporters believe that the police's inspection of resident identity cards is conducive to deterring potential criminals and finding suspects and criminals at large, which is an essential law enforcement activity to maintain social order. Opponents believe that as long as they are not obvious criminals, the police have no right to prevent residents from checking their identity cards at will, nor have the right to doubt their innocence at will.
The reasons for the above-mentioned conflicts between the police and the people are not only the irregular law enforcement of individual auxiliary police or civilian police, but also the lack of necessary trust and even hostility between the two sides.
On the one hand, it is easy for the inspected to be dissatisfied with the law enforcement police, thinking that there are so many people nearby who don't check, why do they check me, just because I look like a foreigner, a migrant worker, or an ugly person? On the other hand, when the other party is refused to show his identity card, individual policemen, especially auxiliary policemen, are particularly prone to feel hurt in their self-esteem and think that their hard work in law enforcement on behalf of the state has been rejected. Obviously, the other party disrespected and looked down on him, which wasted his working time and caused unnecessary conflicts.
The author believes that, in addition to social, psychological and cultural reasons that are difficult to change in the short term, it is necessary to strengthen the work of popularizing laws and let citizens know the legal basis and related rights and obligations of the police to check resident identity cards, so as to reduce such conflicts.
I. Relevant provisions of the Resident Identity Card Law
The police can check the legal basis of the resident ID card. The first is the resident identity card law, which was revised at the 23rd meeting of the 11th the National People's Congress Standing Committee (NPCSC) and came into effect on 20 12 1.
Article 15 of the law stipulates:
"When the people's police perform their duties according to law, they may check their identity cards if they have any of the following circumstances: (1) It is necessary to find out the identity of the criminal suspect; (two) when implementing on-site control according to law, it is necessary to find out the identity of the relevant personnel; (3) It is necessary to find out the identity of the relevant personnel at the scene in case of an emergency that seriously endangers social order; (four) during major events in railway stations, long-distance bus stations, ports, docks, airports or places designated by the Municipal People's government, it is necessary to find out the identity of the relevant personnel; (five) other circumstances required by law.
In any of the circumstances listed in the preceding paragraph, if the people's police refuse to examine the resident identity card, they shall take measures to deal with it in accordance with relevant laws and regulations. "
According to the provisions of this article, the police should meet the following three conditions when checking resident identity cards.
First, inspections can only be carried out when performing duties according to law. The so-called "performing duties according to law" means performing duties according to laws and administrative regulations. Those who do not perform their duties according to law cannot check their identity cards. For example, when the police are shopping in a shopping mall, they can't ask for a resident ID card because they are dissatisfied with the salesperson.
Because it is impossible for a citizen being inspected to know whether the police are performing official duties according to law when he is stopped by the police, if the citizen knows the law and violates the law, he can invoke this condition to ask the police to tell him whether he is performing official duties and what is the legal basis for performing official duties. However, there is no legal basis for this requirement, because so far, there is no law requiring the police to inform the police of the legal basis for the inspection when checking the resident identity card, which is not stipulated in the resident identity card law or other laws and regulations.
Although the administrative organ is obliged to inform the legal basis of the punishment before imposing administrative punishment on the administrative counterpart, checking the resident identity card is not an administrative punishment, so the relevant provisions of the Administrative Punishment Law cannot be applied. Generally speaking, if the police are carrying out secret investigation tasks, such as detecting terrorists, international drug dealers, wanted criminals and so on. It is really unnecessary and should not tell the person under investigation what task he is performing and which law he is based on, otherwise he may be suspected of leaking state secrets and tipping off criminals.
The second is to show the law enforcement certificate before the inspection. This law enforcement certificate generally refers to the people's police certificate, which proves that he is a real policeman rather than a fake policeman. The so-called "show the law enforcement certificate" means that, procedurally, the police must show their own law enforcement certificate before checking the resident identity card. If the police do not take the initiative to show it, the respondent has the right to ask the police to show it first.
However, this condition is not absolute. When we understand this condition, we can't just rely on the Resident Identity Card Law, because the police may not check the resident identity card according to the Resident Identity Card Law, but according to other laws and regulations, and other laws and regulations may not require the police to show their law enforcement certificates before the inspection.
For example, Article 4 of the Rules for People's Police of Public Security Organs promulgated by the Ministry of Public Security in June 5438+065438+ 10, 2008 stipulates: "The police should wear standard clothes when performing interrogation tasks; If you don't wear standard clothes, you must show your people's police card. " In other words, there are two ways for the police to show their identity, one is to wear police uniforms, and the other is to show people's police cards. When the police wear standard clothes, they don't have to show the people's police card, they can show it or not. Logically speaking, if it is confirmed that the other party is a policeman according to the police uniform, it doesn't matter whether he shows the people's police card or not; If you suspect that the other person is a fake policeman in police uniform, even if he shows his People's Police ID card, you can't rule out the suspicion of fraud, because it is much easier and safer to carry a fake People's Police ID card with you than to pretend to be a policeman in police uniform.
Some people think that what is the relationship between police interrogation and identity card checking? As common sense, when the police interrogate suspicious persons, of course, they must first confirm their identity, but to confirm their identity, of course, they must first check the resident identity card or other documents that can prove their identity.
Some people think that the resident identity card law with higher level of validity should be applied first, instead of the above list rules. This view is not comprehensive enough. Because the Inspection Code is mainly a procedural provision, it serves the implementation of the corresponding substantive law, and the provisions of the substantive law should be considered first when applied. For example, if the police are interrogating suspicious persons in order to implement the provisions of the newly revised Anti-Terrorism Law of 20 18, then there is no reason to give priority to the procedural provisions in the Resident Identity Card Law.
Some people think that police uniforms may be fake and unreliable. However, the people's police card is more likely to be forged. It is much easier and safer to carry a forged people's police card with you than to wear a police uniform to make a fake. Moreover, if you suspect that the police are fake, you can call 1 10 to verify. Suspicion that the police are fake is not a legitimate reason for citizens to refuse to show their identity cards.
In a word, because citizens don't know what kind of law the police use to check their identity cards, it is not appropriate to insist that the police show their law enforcement certificates.
Third, the inspected person may be suspected of violating the law and committing crimes. No matter which of the first four situations listed in Article 15 of the Resident Identity Card Law cited above, the police can only check their identity cards if the other party is suspected of violating the law and committing crimes, otherwise they have no right to check them.
However, because the police who perform the task on the spot judge whether they are suspected of committing crimes according to their own experience and common sense, it is impossible not to doubt the investigated person just because he insists that he is not a criminal. Therefore, it is inappropriate for the investigated person to refuse to accept the inspection and show the resident identity card on the grounds that he is not a criminal, which may lead to serious consequences, including being forcibly taken to the police station for further inquiry, investigation and even detention on the grounds of suspected crimes.
Obviously, instead of being forcibly taken away by the police, it is better to show your ID card for a minute or two. No matter from which angle, it is unwise for citizens to confront professional law enforcement personnel according to their limited legal knowledge.
Some people think that the police should have a reasonable basis to suspect others as criminal suspects. For example, some people believe that the person under investigation is a criminal and find obvious evidence of illegal crimes. They should not doubt for no reason, especially should not judge a book by its cover. This view is correct in theory, but it is not in line with the reality of social life. Because an experienced policeman can roughly judge whether someone is suspected of committing a crime according to his own experience and intuition as soon as he sees someone's appearance, demeanor and movements, and no one needs to identify or look for obvious evidence of committing a crime, while an inexperienced policeman has relatively weak judgment ability. However, no matter how accurate the judgment is, it needs to be further verified by checking the resident ID card.
Besides the above three conditions, are there any other conditions? For example, the second to fourth situations listed in Article 15 of the Resident Identity Card Law stipulate specific places. So, are the police only authorized to check the identity cards of residents in these specific places? The answer is no.
It can be said that the only reason for the police to check the resident ID card is to suspect that the person under investigation may be suspected of committing crimes, and it is necessary to preliminarily confirm or eliminate this suspicion by checking the resident ID card. As long as there is such suspicion, the first situation listed in Article 15 can be directly applied, and the second, third and fourth situations may not necessarily be applied. In the second, third and fourth cases, although the words "suspected of illegal crime" do not appear, if there is no suspected illegal crime at all, including the possibility of illegal and criminal activities soon, there is no reason to check the resident identity card at all. Therefore, the second, third and fourth situations are actually only supplementary explanations to the first situation. Even if these three situations are not listed, it will not hinder the application of the first situation.
As a citizen under investigation, it is not appropriate to refuse to accept the inspection because it is impossible to know whether the police are carrying out on-site control tasks, whether there has been an emergency that seriously endangers social order, whether it is a place designated by the municipal people's government with districts during major events, and whether it is based on laws and regulations such as the resident ID card law or the anti-terrorism law.
To sum up, as long as the police suspect that the other party may be suspected of violating the law and committing crimes when performing their duties, they have the right to ask the other party to show their resident identity cards, while citizens can't refuse to accept the inspection according to the current resident identity card law, nor have the right to ask the police to inform them of the specific legal basis, or even insist on asking the other party to show their people's police cards. It is a lack of basic trust in the police to think that the police may check their ID cards because they are bored. Although it is undeniable that individual police officers are rude and the law enforcement is not standardized, it is fair to say that the vast majority of police officers are relatively standardized.
Two. Relevant provisions of the People's Police Law
The second legal basis for the police to check the identity cards of residents is the People's Police Law, which was revised at the 29th Session of the 11th the National People's Congress Standing Committee (NPCSC) and came into effect on 20 13 10.
Article 2 of the law stipulates: "The tasks of the people's police are to safeguard national security, maintain social order, protect citizens' personal safety, personal freedom and legitimate property, protect public property, and prevent, stop and punish illegal and criminal activities. "Article 6 stipulates:" The people's police of public security organs shall perform the following duties according to their division of responsibilities: (1) to prevent, stop and investigate illegal and criminal activities; ......"
According to these two provisions, the police have the task and responsibility to prevent illegal and criminal activities. To prevent illegal and criminal activities, it is undoubtedly a relatively simple way to check the identity cards of residents in crowded places, which will not obviously interfere with civil liberties, but also find out the criminal suspects hidden in the crowd. This is far more acceptable than checking citizens' bodies or searching their belongings.
Article 9 of the law stipulates: "In order to maintain public order, the people's police of public security organs may interrogate and inspect persons suspected of violating the law and committing crimes on the spot upon showing corresponding certificates; After cross-examination and inspection, if one of the following circumstances occurs, with the approval of the public security organ, it may be taken to the public security organ for further cross-examination: (1) being accused of a criminal act; (2) Being suspected of committing a crime on the spot; (3) Having an unidentified suspect; (4) The articles carried may be stolen goods. "
According to the provisions of this article, as long as the police think that citizens are suspected of violating the law and crimes and produce corresponding certificates, they can be questioned and inspected on the spot, regardless of time and place. The first step of cross-examination is, of course, to check the resident identity card and confirm the citizenship. If citizens refuse to show their identity cards, they will only deepen the suspicion of the police, and even be forcibly taken to the police station for further questioning on the grounds that the suspect's identity is unknown.
As for "show the corresponding documents", because wearing the uniform clothes of the people's police can show the identity of the police, the effect is exactly the same as showing the people's police card, so there is no need to show the people's police card specially. Only when the police wear casual clothes to enforce the law, they need to show their people's police cards to show their identity.
In other words, from the point of view of substantive explanation, because the purpose of this provision is to let the police show their police identity to citizens, so as to eliminate their reasonable doubts, it is enough to show their police identity by wearing people's police uniforms and showing people's police cards. Therefore, whether it is "showing the corresponding documents" or "wearing police uniforms", it shows that police law enforcement is legal in procedure, and it is meaningless to dwell on the formal difference between the two.
Because of this, Article 23 of the Law stipulates: "People's police must dress in accordance with the regulations, wear people's police signs or hold people's police cards, and keep their police appearance clean and dignified." In this article, wearing a police uniform and carrying a people's police card are not the conditions that the police must meet at the same time, but only one, although in general, the police will wear uniforms and carry a people's police card when enforcing the law.
As mentioned above, if the citizen whose identity card is checked must suspect that the person wearing the police uniform is a fake policeman, it is still difficult to prove that he is a real policeman even if the latter shows his people's police card, because the people's police card may also be forged. Even if the police really want to commit a crime, it is difficult for ordinary citizens to identify or even stop it. The only problem is that the law enforcement police only check the identity cards of residents, which seems to have nothing to do with premeditated crimes.
Three. Relevant provisions of the Anti-Terrorism Law
The third legal basis for the police to check the identity cards of residents is the Anti-Terrorism Law, which came into effect in 20 16 1 and was revised by the second session of the 13th the National People's Congress Standing Committee (NPCSC) in April 20 18.
Article 31 of the law stipulates: "The public security organ shall, jointly with relevant departments, identify units, places, activities and facilities that are vulnerable to terrorist attacks and may cause heavy casualties, property losses or social impacts as key targets for preventing terrorist attacks, and report them to the leading anti-terrorism agencies at the same level for the record." Article 36 stipulates: "Public security organs and relevant departments shall grasp the basic information and important trends of key targets, and guide and supervise key target management units to perform their duties of preventing terrorist attacks. The public security organs and the Chinese People's Armed Police Force shall guard, patrol and inspect key targets in accordance with relevant regulations. "
According to these two provisions, the public security organ shall, jointly with the relevant departments, determine the units, places, activities and facilities that are vulnerable to terrorist attacks or may cause heavy casualties, property losses or social impact once attacked, and conduct vigilance, patrol and inspection on key targets in accordance with relevant regulations. The so-called inspection, of course, should start with the inspection of resident identity cards with the least interference to civil liberties.
Article 40 of the law stipulates: "If a public security organ receives a report of suspected terrorist activities or discovers suspected terrorist activities and needs to investigate and verify them, it shall conduct an investigation in a timely manner." Article 50 stipulates: "When investigating a case suspected of terrorist activities, the public security organ may interrogate, examine and summon the suspect in accordance with relevant laws and regulations, and may extract or collect human biometric information such as portraits, fingerprints and iris images, and biological samples such as blood, urine and exfoliated cells, and keep their signatures. When a public security organ investigates a person suspected of terrorist activities, it may notify the person who knows the relevant situation to go to the public security organ or other places for questioning. "
According to these two provisions, if a public security organ receives a report or report on suspected terrorist activities in a certain place, or discovers it on its own, it shall promptly investigate, interrogate, inspect or summon the suspect. Among them, checking the identity card of residents is the first step to investigate the suspicion of terrorist activities.
It is conceivable that when the police check the identity cards of residents according to the Anti-Terrorism Law, it is impossible to tell the other party that they are investigating terrorists or suspected terrorist activities, and it is impossible to disclose any information related to terrorist suspects. If the police must clearly state the legal basis for checking the identity cards of residents, it is beyond their power. Although ordinary citizens are unlikely to know that the police are investigating terrorists, they may not think that the public security situation is grim or serious, but this does not mean that the police are obliged to inform him of the specific legal basis, nor is it a legitimate reason for citizens to refuse to show their resident identity cards for inspection.
Four. conclusion
To sum up, at least as far as the current legal provisions are concerned, the police have the right to check the identity cards of people they think are suspected of committing crimes at any time and anywhere, while citizens have the legal obligation to accept the inspection; Those who refuse to accept the inspection may bring unnecessary consequences to themselves. This can be said to be the price that citizens must pay to enjoy national security protection.
Although it may make some decent citizens feel uncomfortable about being inspected by the police, it is better to show their ID cards for inspection for one or two minutes at a time than to encounter various accidents caused by real criminals.