China News Service, December 14 According to the Supreme People’s Procuratorate’s website, on December 14, the Supreme People’s Procuratorate issued the 23rd batch of guiding cases under the theme of "Procuratorates performing their duties in accordance with the law to promote social governance."
There are 5 guiding cases released this time, including Liu Yuanpeng (pseudonym) suspected of producing and selling counterfeit and inferior products (no prosecution), blooming (pseudonym) water company environmental pollution criminal and civil public interest litigation, and Li Weijun and other "routine loans" In the case of false litigation, the Haidian District Procuratorate of Beijing supervised the implementation of the case of protecting minors from smoking ban, and the Procuratorate of Heilongjiang Province supervised the management of the secondary public interest litigation of water supply safety.
Gao Jingfeng, director of the Supreme People’s Procuratorate’s Legal Policy Research Office, introduced that social governance innovation is an important manifestation of the modernization of national governance.
Relying on judicial case handling to promote social governance innovation is an important measure taken by procuratorial agencies to help modernize the national governance system and governance capabilities.
Social governance involves economic, environmental, cultural and other aspects. The 23rd batch of guiding cases involves water supply safety, technological innovation, ecological environmental protection, financial security, and minor protection, which are all important areas of social governance.
The occurrence of the case reflects the shortcomings and weaknesses in current social governance.
In the process of performing the "four major procuratorial" functions, the procuratorial organs comprehensively use the methods given by law to initiate public prosecution, non-prosecution, initiate public interest litigation, conduct investigation and verification, and issue procuratorial recommendations, combined with case handling, find loopholes in social governance, and urge the improvement of society The governance system mechanism can effectively promote social governance innovation and further demonstrate the proactive role of procuratorial organs in the overall service guarantee.
Gao Jingfeng pointed out that in the new era, procuratorial organs must not only settle the case with people, but also based on the legal supervision function, better perform political and social responsibilities, and achieve the organic unity of political, legal, and social effects. It is necessary to promote social governance innovation through case handling.
The procuratorial organs carry out social governance innovations in conjunction with case handling. Many issues and areas involved are closely related to the vital interests of the people. By issuing guiding cases, they aim to respond to social concerns, interpret the law with cases, and give full play to the special role of cases in publicity and education of the rule of law. .
The twenty-third batch of guiding cases selected for the protection of the Yangtze River Economic Belt, the false litigation of routine loans, and the protection of minors are all hot issues of concern from all walks of life. These cases are selected as guiding cases for publication and are implemented by the procuratorial agency. "Whoever enforces the law will popularize the law" requires the responsibility system, combined with specific measures to carry out law popularization, will definitely help build social consensus, help improve the modernization of social governance, and jointly create a social governance pattern of co-construction, co-governance and sharing.
Gao Jingfeng said that in the next step, procuratorial organs at all levels should actively perform their criminal, civil, administrative, and public interest litigation procuratorial functions, carry forward the "craftsman spirit", improve the quality of procuratorial case handling, adhere to problem orientation, focus on solving outstanding problems, and regulate the performance of their duties in accordance with the law. Improve the quality and efficiency of work, strengthen coordination and cooperation, and strengthen the joint force of social governance, so as to promote the new improvement of national governance efficiency and serve the new goal of building a modern socialist country in an all-round way.
The 23rd batch of guiding cases of the Supreme People's Procuratorate
Liu Yuanpeng suspected of producing and selling "fake and inferior products" (no prosecution)
(Experiment No. 85)
【Key words】
Private enterprises, innovative products, mandatory standards, hearings, no prosecution
【gist】
In handling cases involving enterprises, procuratorial organs shall pay attention to protecting the innovative development of enterprises.
For dispute cases involving innovation, review can be conducted through hearings.
For professional issues, it is necessary to strengthen communication with industry authorities, fully listen to industry opinions and expert opinions, and promote the improvement of relevant industry standards.
[Basic case]
The defendant Liu Yuanpeng (pseudonym), male, born in May 1982, is the legal representative of Zhejiang Dongmai Co., Ltd. (pseudonym).
On October 26, 2017, Liu Yuanpeng sold his company’s "T600D" electric treadmill at a price of 1,200 yuan per unit, with a total sales amount of more than 50,000 yuan.
The market supervision and management department of Yongkang City, Zhejiang Province passed a random inspection of product quality and commissioned the Zhejiang Furniture and Hardware Research Institute to inspect 18 items of the samples, and found that the treadmill’s "external structure" and "foot platform" did not meet the national mandatory standards , Was identified as a substandard product.
From November to December 2017, Liu Yuanpeng sold the "smart flat walking treadmill" developed by Liu Yuanpeng in the name of a treadmill, with a total sales amount of 7.014 million yuan.
After being inspected by the Ningbo Entry-Exit Inspection and Quarantine Technology Center entrusted by the market supervision and management department, the product was not equipped with an “emergency stop switch” in accordance with the “special safety requirements and test methods for treadmills”, and the “safety handrails” and “foot platform” were not installed. It meets the national mandatory standards and is identified as a substandard product.
[Procuratorate’s performance process]
On September 21, 2018, the Public Security Bureau of Yongkang City, Zhejiang Province filed a case for investigation by Liu Yuanpeng suspected of producing and selling fake and inferior products and adopted compulsory criminal detention measures.
After the incident, the People's Procuratorate of Yongkang City intervened in the investigation and learned that the company involved was a local tax-winning enterprise. The "smart flat walking treadmill" involved in the case was the company's three-year research and development result and has more than ten patents.
After the basic facts of the case have been investigated and the main evidence has been fixed, considering that Liu Yuanpeng is the person in charge and core technical personnel of the enterprise, in order to ensure the normal production and operation of the enterprise, the procuratorial organ recommends changing the compulsory measures against Liu Yuanpeng.
On October 16, 2018, the public security agency decided to change Liu Yuanpeng to be released on bail pending trial.
On November 2, 2018, the public security organ transferred the case to the Yongkang People's Procuratorate for review and prosecution.
After review, the key question in this case is: Is the "smart flat-panel walking treadmill" an innovative product or a substandard product?
Can the product be identified as a substandard product in accordance with the national mandatory standards for treadmills?
After going to the company to conduct an on-site investigation and verification, the People's Procuratorate of Yongkang City found that the running speed of the "smart flat walking treadmill" was significantly different from that of the traditional treadmill.
Through telephone return visits, I learned that consumers have zero complaints about the quality of the product, and it is generally reflected that the product is convenient to use, without causing personal injury or property damage.
After further review by the prosecutors’ agency, the identification report identified the "smart flat walking treadmill" as the main basis for the unqualified product. This product was not equipped with emergency stop devices, safety handrails, and pedal platforms in accordance with the national mandatory standards for treadmills. And other special security configuration.
After further verification, the maximum speed limit of the “smart flat walking treadmill” involved is only 8 km/h, which is far lower than the speed of 20 km/h of the traditional treadmill. The company’s self-developed infrared sensor intelligent speed control, start and stop is installed After the system, the actual use is safe and reliable, and there is no need to install the aforementioned special safety configuration.
The procuratorial agency further consulted industry associations and professionals. The industry believes that the "smart flat walking treadmill" is a new type of fitness equipment, and it is unreasonable to determine whether it is safe under the traditional treadmill standard.
Based on the evidence of the whole case, the People's Procuratorate of Yongkang City believes that the "smart flat walking treadmill" may be an innovative product different from the traditional treadmill. The appraisal report identified it as a fake and inferior product based on the quality standards of the traditional treadmill, and the rationality is doubtful.
On March 11, 2019, the People's Procuratorate of Yongkang City conducted a hearing on the case and invited more than 20 investigators, defense lawyers, representatives of the National People's Congress, representatives of relevant functional departments and representatives of the treadmill association to participate in the hearing.
After deliberation, the hearing participants unanimously agreed that the “smart flat walking treadmill” involved in the case is an innovative product of the enterprise. From the analysis of consumer experience and technical parameters, there are no real hidden dangers in using the product. Before the national standard is issued, it is not suitable to run. According to the compulsory standard of the machine, it is regarded as a substandard product.
Based on the opinions of the hearing, the People's Procuratorate of Yongkang City, after review, determined that the "smart flat walking treadmill" produced and sold by Liu Yuanpeng is obviously different from the traditional treadmill in terms of running speed and structural design, and is an innovative product.
Its quality should not be recognized by the standards of traditional treadmills, because its performance indicators meet the national standards of "General Safety Requirements and Test Methods for Stationary Fitness Equipment", and are not counterfeit and inferior products. Liu Yuanpeng's act of producing and selling this innovative product does not constitute crime.
Based on the facts of the entire case, on April 28, 2019, the People's Procuratorate of Yongkang City made a decision not to prosecute Liu Yuanpeng in accordance with the law.
After the case was handled, after researching with industry supervisors and regulatory authorities, Yongkang City People’s Procuratorate suggested that Yongkang City’s market supervision and management departments report to relevant state ministries and commissions for instructions on the application of standards for the "smart flat walking treadmill".
It was reported to the State Administration of Market Supervision and Administration at various levels, and the SAIC responded in writing: "Smart flat walking treadmill" is an "innovative product" because of its slow running speed, relatively simple structure, and compact appearance. It is not suitable for treadmills. National standard.
At the same time, the SAIC also put forward normative opinions on the name, publicity, and safety standards of "walking treadmill" products.
【Guiding significance】
(1) It is necessary to conduct substantive review and judgment on innovative products, and it is not appropriate to simply apply existing product standards to identify “fake and inferior products”.
The Criminal Law stipulates that using substandard products to pass off as qualified products constitutes the crime of producing and selling fake and inferior products.
The identification of "non-conforming products" is based on the premise that the relevant quality requirements stipulated in the "Product Quality Law" are violated.
The "Product Quality Law" requires that the product "has no unreasonable hazards endangering the safety of persons and properties" and "if there are national standards or industry standards to protect human health and the safety of persons and properties, they shall meet the requirements of the standards"; at the same time, The product should also have usability.
According to these requirements, for traditional products that have national and industry standards, only those that meet the standards can be recognized as qualified products; for innovative products that do not yet have national or industry standards, it should be based on encouraging innovation and ensuring personal and property In the principle of safety, many parties listen to opinions and conduct substantive research and judgment.
If innovative products are substantially different from traditional products in terms of performance, it is not appropriate to simply apply traditional product standards to determine whether they are "qualified."
Innovative products that have no hidden dangers to personal and property safety, and have proper performance, should not be regarded as fake or inferior products.
Where the relevant quality inspection agency makes an appraisal opinion, the procuratorial agency shall conduct a substantive review.
(2) Improve the way of handling cases and strengthen equal protection of private enterprises.
In handling cases involving private enterprises, it is necessary to change concepts and improve methods in a targeted manner, strictly grasp the boundaries between crime and non-criminal, arrest and non-arrest, and prosecution and non-prosecution, and combine case handling with protection of business operations, and protect companies through case handling Innovation, in the process of handling cases, pay attention to ensuring the normal business activities of enterprises.
We must pay attention to the use of hearing methods to handle difficult cases involving enterprises, be good at listening to industry opinions and expert opinions, accurately understand legal regulations, combine legal judgments, professional judgments with the simple cognition of the public, and strive for the unity of the "three effects" of handling cases.
(3) Actively participate in social governance based on case handling, and promote the formulation and improvement of relevant regulations and industry standards.
When handling cases involving business management and product technological innovation, and discovering that the problems reflected in the case are universal and industry-specific, they should promptly communicate with the industry authorities and adopt methods such as procuratorial suggestions to prompt the industry authorities to formulate and improve Relevant system regulations and industry standards, etc., promote the soundness and improvement of regulations and systems in related fields, and promote the improvement of governance effects.
【Regulations】
Article 140 of the Criminal Law of the People's Republic of China
Article 177 of the Criminal Procedure Law of the People's Republic of China
Article 26 of the Product Quality Law of the People's Republic of China
Article 1 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in Handling Criminal Cases Concerning the Production and Sale of Fake and Inferior Commodities"
Environmental pollution criminal and incidental civil public interest litigation case of Shengsheng Water Company
(Experiment No. 86)
【Key words】
Criminal incidental civil public interest litigation Participation in mediation Joint liability Alternative repair
【gist】
In handling civil public interest litigation cases involving environmental pollution, procuratorial organs may actively participate in mediation by following the principles of voluntariness, lawfulness and maximum protection of public interests based on the facts and clarification of responsibilities.
If the controlling shareholder of a company that causes environmental pollution joins the lawsuit voluntarily and is willing to bear joint liability and provide guarantees, the procuratorial organ may list him as a third party upon application and make him the subject of joint compensation, and urge them to use cash compensation, alternative repairs, etc. Way, bear joint and several liability for ecological damage compensation.
With regard to common problems found in handling cases, procuratorial organs can promote innovation in social governance by proposing procuratorial suggestions and legislative suggestions.
[Basic case]
The defendant is Nanjing Blooming Water Co., Ltd. (a pseudonym, hereinafter referred to as Blooming Water Company), domiciled in an industrial park in Nanjing.
The defendant Zheng Yigeng (pseudonym), male, born in March 1965, is the general manager of Nanjing Blooming Water Company.
Blooming Water Company was established in May 2003, and its main business is sewage treatment.
From October 2014 to April 2017, when the high-concentration wastewater treatment system was not in operation and the SBR (Sequence Batch Activated Sludge Treatment Technology, mainly used to treat organic matter in water) reaction tanks could not be used normally, the company used dark The pipe illegally discharged 284,600 cubic meters of high-concentration wastewater and 54.06 tons of mixed waste liquid containing hazardous waste to the Yangtze River.
The company also used the method of tampering with online monitoring instrument data in the second-phase wastewater treatment system to evade supervision, and sneaked 4,362.53 tons of sludge containing toxic and harmful components and 9,068.6 million cubic meters of sewage that exceeded the standard into the Yangtze River.
The above-mentioned pollutant discharge behavior caused ecological environmental damage. After identification and assessment, in accordance with the virtual governance cost method, the total unit governance cost was multiplied by the environmental sensitivity coefficient, and the ecological environment restoration cost was determined to be about 470 million yuan.
[Procuratorate’s performance process]
(1) Initiate public prosecution for criminal responsibility
On April 10, 2017, the Water Branch of the Nanjing Public Security Bureau filed an investigation on the crime of environmental pollution by the Blooming Water Company and others.
On August 25, 2017, the public security agency transferred the case to the People’s Procuratorate of Gulou District, Nanjing City for review and prosecution after the investigation.
On January 23, 2018, in accordance with the requirements of the centralized jurisdiction of environmental resource cases in Nanjing, the People's Procuratorate of Gulou District, Nanjing, filed a public prosecution with the Nanjing Xuanwu District People's Court designated by the Nanjing Intermediate People's Court.
In October 2018 and March 2019, the People's Court of Xuanwu District, Nanjing City opened a trial on the case.
The court trial conducted court investigations and debates on issues such as the determination of hazardous waste, the processing technology of the company involved, the identification of pollution standards, and the application of virtual treatment costs.
After trial, the court accepted the criminal charges of the procuratorial organ and found that the defendant unit and the defendant Zheng Yigeng constituted the crime of environmental pollution.
On May 17, 2019, the Xuanwu District People’s Court sentenced the defendant's unit, Blooming Water Company, to a fine of 50 million yuan for environmental pollution; sentenced 12 people including the defendant Zheng Yigeng to fixed-term imprisonment ranging from six years to one year, and fined two million yuan. 50,000 yuan.
After the first-instance judgment was made, Blooming Water Company, Zheng Yigeng and others filed an appeal. On October 15, 2019, the Nanjing Intermediate People's Court made a second-instance ruling and upheld the original judgment.
(2) Initiating a criminal incidental civil public interest lawsuit
The People's Procuratorate of Gulou District, Nanjing City found clues to the case of public welfare damage during its intervention in the investigation and guided evidence collection, and decided to file the case as a public interest litigation case.
On September 22, 2017, in accordance with the requirements of the public interest litigation pilot work, the court conducted pre-litigation procedures by visiting environmental protection departments and public interest organizations qualified to initiate environmental public interest litigation based on actual conditions. The environmental protection departments and public interest organizations clearly stated No public interest litigation was filed in this case.
After the public interest litigation case was filed, the procuratorial organs further collected and improved evidence on the subject of infringement, the amount of illegal sewage discharge, causality, etc., and commissioned professional institutions such as the Nanjing Institute of Ecological Environment of the Ministry of Environmental Protection to organize more than 20 expert demonstration meetings and issue 6 phased Appraisal opinion.
On September 14, 2018, the People's Procuratorate of Gulou District, Nanjing City filed a criminal incidental civil public interest lawsuit against Blooming Water Company, appealing to the court to order it to publicly apologize to the media at or above the provincial level and to bear approximately 470 million yuan in compensation for environmental damage.
In October 2018 and March 2019, the People's Court heard both civil public interest litigation cases and the criminal part in two hearings.
On May 7, 2019, Blooming Water Company filed a mediation application for the civil public interest litigation part, but its assets were about 100 million yuan, and it was unable to fully bear the 470 million yuan in compensation.
Its controlling shareholder, Blooming (China) Investment Co., Ltd. (a pseudonym, hereinafter referred to as Blooming Investment Company, holding 95% of the shares of Blooming Water Company) has the ability to pay compensation and the willingness to repair the environment on its behalf, voluntarily apply for joining the lawsuit, willing to carry out environmental restoration and issue The letter of guarantee shall be approved by the procuratorial organ and the people's court after review.
During the mediation process, the procuratorial agency proposed a "cash compensation + alternative repair" mediation plan, and the full-bodied water company assumed the cash compensation liability, and the full-blown investment company assumed joint liability.
At the same time, Blooming Investment Co., Ltd. undertakes the obligation of alternative restoration, and determines specific measures to undertake the obligation of alternative restoration, including new sewage treatment plants, upgrading of existing sewage treatment plants, and establishment of public welfare projects to protect finless porpoises.
After many consultations, the defendant and the Blooming Investment Company agreed with the prosecution's claims on the environmental damage identification method, compensation standard, total compensation, and compensation method in the case.
On December 27, 2019, under the auspices of the People’s Court of Xuanwu District, Nanjing City, the procuratorial organs signed a four-phase payment of 237 million yuan in cash compensation and assumes 233 million yuan in alternative repair obligations Mediation agreement.
On December 31, 2019, the court made a 30-day announcement on the mediation agreement on the People's Court. During the announcement period, no objection feedback was received.
On February 7, 2020, the mediation agreement was signed.
Currently, Blooming Investment Company has paid 117 million yuan in compensation on schedule, and the remaining 120 million yuan will be paid in three years.
Alternative repair projects are underway in an orderly manner.
(3) Participate in social governance and promote local legislation
After handling the case, the procuratorial organs actively promoted the improvement of social governance in response to environmental supervision loopholes discovered during the handling of the case.
First, in response to the excessively high concentration of chloride ions found in the sewage discharge approval standard during the handling of the case, in view of the insufficient duty of care by the environmental protection department, the procuratorial agency issued a procuratorial recommendation requesting that the chloride ion concentration be included in the "Water Pollutant Discharge from Chemical Industry" in Jiangsu Province Standards are supervised and adopted by the proposed units.
The second is to carry out warning education for more than 300 heads of chemical companies and environmental protection managers, including the Blooming Company, to enhance the awareness of environmental protection and the rule of law of company managers, and to promote the strengthening of water pollution prevention and control supervision.
The third is to investigate the water pollution of the Yangtze River in combination with this case. Aiming at the problems of the large number of administrative supervision departments for the ecological protection of the Yangtze River, overlapping functions and poor connection, the legislative proposal for the formulation of the "Nanjing Yangtze River Ecological Environmental Protection Implementation Regulations" was proposed, and Nanjing The Standing Committee of the Municipal People's Congress adopted and decided to study and formulate this local law at an appropriate time to help protect the Yangtze River's ecology and promote the modernization of the regional governance system and governance capabilities.
【Guiding significance】
(1) In environmental public interest litigation, procuratorial organs can participate in mediation on the premise of protecting public interests to the greatest extent.
In handling environmental pollution cases, procuratorial organs must give full play to their civil public interest litigation functions and focus on serving economic and social development.
It is necessary to implement the principle requirements of "protecting the ecological environment with the strictest system and the strictest rule of law", but also to pay attention to the innovation of case handling methods.
When dealing with a case, when the enterprise is insolvent due to heavy fines, or may go bankrupt and close, the case cannot be handled mechanically or the case is fined.
According to relevant laws and regulations, the procuratorial organ can mediate with the defendant on compensation issues.
Different from general civil mediation, procuratorial organs initiate public interest litigation on behalf of the state, and the mediation should ensure that the public interest is maximized.
In the case that the defendant is willing to actively compensate, the procuratorial agency considers the need for ecological restoration, comprehensively evaluates the defendant’s financial status, expected income, and willingness to compensate, and can promote the use of cash compensation, alternative restoration, etc., to implement responsibility and ensure The damaged environment is repaired.
When implementing alternative restoration, the alternative restoration project should be evaluated and demonstrated.
The project should not only be beneficial to the restoration of the ecological environment, but also have a public interest. At the same time, it should also be approved by the People's Procuratorate, the People's Court and the public.
(2) Shareholders voluntarily apply to join the public interest litigation, and if the procuratorial organ considers that it is beneficial to the public interest protection of the ecological environment after review, it may agree to their request.
In environmental civil public interest litigation, the controlling shareholder of the defendant unit voluntarily assumes the liability for public welfare damages. If the procuratorial organ finds that its participation is indeed beneficial to the restoration of the ecological environment and other public welfare protections, it can be approved and approved by the people’s court. For the third person.
Whether it is allowed to join the litigation, the procuratorial organ needs to focus on examining whether the controlling shareholder has no legal obligation or liability for the damage.
If the controlling shareholder has legal obligations and liabilities for the occurrence of damages, the people's court should add him to the litigation, and he cannot choose whether to participate in the litigation.
(3) In public interest litigation, procuratorial organs should focus on the use of procuratorial suggestions, legislative suggestions and other methods to promote innovation in social governance.
Procuratorial organs handle environmental-related public interest litigation cases, and can use procuratorial suggestions and other methods to urge relevant administrative departments to perform their duties and promote the improvement of regional ecological environment quality in response to problems in environmental law enforcement, supervision, and social governance.
For key issues involving local governance, legislative suggestions can be adopted to promote innovation in social governance and advance the improvement of the legal system.
Regarding the problems in legal education and publicity and popularization, the principle of “who will enforce the law will popularize the law” should be combined with case handling and interpretation of the law, and legal publicity and education should be carried out for practitioners in relevant special industries to enhance environmental protection and legal awareness.
【Regulations】
Article 101 of the Criminal Procedure Law of the People's Republic of China
Article 51 and Article 55 of the Civil Procedure Law of the People's Republic of China
Articles 10 and 39 of the Water Pollution Prevention and Control Law of the People's Republic of China
Article 6, Article 42 and Article 64 of the Environmental Protection Law of the People's Republic of China
Article 20 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Litigation Cases"
Article 4 and Article 25 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation Cases"
Article 159 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China"
"The Reply of the Supreme People's Court and the Supreme People's Procuratorate on whether the People's Procuratorate should perform the pre-litigation announcement procedure for filing a criminal incidental civil public interest lawsuit"
Li Weijun and other "routine loan" false lawsuits
(Experiment No. 87)
【Key words】
False litigation, routine loans, criminal and civil prosecution coordination, supervision of similar cases, financial supervision
【gist】
When procuratorial organs handle cases involving "routine loans", they should find out whether there are situations in which illegal interests are realized through false litigation.
The civil judgments, rulings, and mediation agreements involved in false litigation shall be supervised in accordance with the law.
In response to illegal financial activities and regulatory loopholes discovered in case handling, procuratorial suggestions and other methods should be used to promote legal rectification and timely plug industry regulatory loopholes.
[Basic case]
The defendant Li Weijun, male, was born in October 1979 and unemployed.
Since October 2015, Li Weijun has used the HSBC Financial Microfinance Company in Jintan District, Changzhou City, Jiangsu Province as a carrier to gather many idle people such as Feng Xiaotao, Wang Yan, Lu Yunbo, Ding Zhong, etc., to implement usury activities, gradually The formation of an evil criminal group with Li Weijun as the chief element.
The group has long used deception and inducement to make borrowers falsely write IOUs that are much higher than the principal, sign false housing lease contracts, etc., and require borrowers to provide collateral and guarantors to create false payment facts.
Subsequently, they used "soft violence" methods such as telephone harassment, verbal intimidation, blocking and changing locks, to demand high interest from borrowers, guarantors and their families, or to make false IOUs in the name of collecting interest.
When the borrower was unable to pay, he filed a civil lawsuit with the court with false IOUs, lease contracts, etc., to deceive the court to make a civil judgment or preside over the signing of a mediation agreement.
Li Weijun and others also applied for court enforcement, forcing borrowers, guarantors and their families to repay debts, resulting in 5 people being detained in justice, 26 people being restricted from high consumption, 21 people being included in the list of untrustworthy people, and 11 victims being named Six properties and seven vehicles were seized.
[Procuratorate’s performance process]
(1) Initiate public prosecution for criminal responsibility
In March 2018, the victim Wu reported to the public security organs that he had been defrauded of borrowing from a small loan company run by Li Weijun and others.
The public security agency filed an investigation against Li Weijun and others for suspected fraud.
After the investigation was completed, on August 20, 2018, the public security agency transferred Li Weijun and other suspects of fraud to the People’s Procuratorate of Jintan District, Changzhou City, Jiangsu Province for review and prosecution.
The People’s Procuratorate of Jintan District found that Li Weijun and others had been engaged in professional lending activities for a long time, with the typical characteristics of "routine lending", and were suspected of criminal crimes.
The prosecutor handling the case immediately retrieved the civil lawsuits filed by Li Weijun and others from the People's Court, and found that between 2015 and 2018, Li Weijun and others filed hundreds of civil lawsuits, most of which were private lending disputes, and the IOUs were all standard contracts. Most cases Was judged in absentia by the People's Court.
After preliminary judgment, the People’s Procuratorate of Jintan District believes that the criminal group has committed “routine loans” criminal activities through false litigation.
The procuratorial organ then returned the case to the public security organ for additional investigation.
After the supplementary investigation by the public security organs and the facts of the crime of “routine loans” were found out, on December 13, 2018, the public security organs were again transferred for review and prosecution with Li Weijun and others suspected of fraud, extortion, false litigation, and quarrel.
On January 25, 2019, the Jintan District People’s Procuratorate filed a public prosecution against the criminal part of the case. The Jintan District People’s Court held four trials from January to October 2019.
After hearing the facts of the crimes of Li Weijun and others, the People's Court of Jintan District identified him as a criminal group of evil forces.
On November 1, 2019, the People’s Court of Jintan District sentenced Li Weijun to 12 years’ imprisonment for fraud, extortion, false litigation, and the crime of creating quarrels and a fine of RMB 280,000; the remaining defendants were separately sentenced to 12 years in prison. Sentences ranged from eight years to three years and six months in prison, and a fine.
(2) Carry out civil supervision of false litigation cases
In response to the possible false litigation problems in the routine loans of Li Weijun and others discovered during the review and prosecution, the People's Procuratorate of Jintan District, Changzhou City, while reviewing and prosecuting criminal responsibility, initiated civil litigation supervision procedures according to its powers and focused on the following investigations Verification work: First, conduct a thorough investigation of civil litigation cases initiated by Li Weijun and others. It was found that Li Weijun and others filed a total of 113 civil lawsuits in the local courts for private lending, house leasing, and sales contract disputes, and applied for 80 civil enforcement cases. The total amount involved is more than 4 million yuan.
The second is to investigate and verify with the relevant civil litigants, and find out that the borrowing facts of relevant private lending cases are unclear and the amount is falsely high. The parties were forced to repay the debts due to "soft violence" by Li Weijun and others.
The third is to verify the main evidence in the civil judgment and find out that there is no legal evidence for the relevant civil judgment, ruling, and mediation.
The fourth is to verify whether there are major financial risks in the case, and find out that the small loan companies and trading companies, including this case, have problems such as unqualified operations and group lending, and the lack of financial supervision and major risks.
After investigation and verification, the procuratorial agency believed that Li Weijun and others mainly used methods such as signing false IOUs, arbitrarily creating breaches of contract, concealing mortgage facts, etc., in order to embezzle the legal property of others under the guise of litigation.
In the relevant civil judgments, the people’s court found that the evidence based on the basic facts of the case was false, and the relevant civil judgments should be corrected; for the civil mediation documents between Li Weijun and other parties, the criminal acts of Li Weijun and others belonged to the use of court trial activities and were illegal Misappropriating the legal property of others, seriously obstructing judicial order, harming national interests and social public interests, should also be corrected.
From June to July 2019, the People’s Procuratorate of Jintan District submitted 42 prosecution recommendations to the People’s Court for retrial of 50 cases involving false litigation, and appealed to the People’s Procuratorate of Changzhou on 8 cases of typical significance.
In July 2019, the Changzhou Municipal People’s Procuratorate filed a protest with the Changzhou Intermediate People’s Court. In August of the same year, the Changzhou Intermediate Court ruled that 8 cases should be ordered to the Jintan District People’s Court for retrial.
In September, the People's Court of Jintan District ruled for retrials on 42 cases.
In October, the People's Court of Jintan District issued a civil ruling on the batch of 50 cases and annulled the original judgment.
After the case was completed, after investigation, in January 2020, the Commission for Discipline Inspection of Jintan District issued corresponding party and political disciplinary sanctions to the trial personnel involved in a series of civil cases for negligence.
(3) Participate in social governance with case handling
In response to the social governance issues discovered during the handling of the case, the procuratorial organs based their legal supervision functions and carried out the following tasks.
The first is to promote the city's special activities to focus on combating false lawsuits. A total of 103 false lawsuits were handled, and 12 criminal clues were transferred to 15 people; the people's courts negotiated to establish a civil case review system and a civil case retrial information sharing mechanism , Establish clue transfer and case collaboration mechanisms with relevant departments such as the Commission for Discipline Inspection, Public Security, and Justice to effectively form social governance synergy.
The second is to issue 7 procuratorial recommendations to the administrative authorities in response to the discovered management vulnerabilities in the small and micro financial industry to carry out financial services without a license; to cooperate with public security, financial supervision, market supervision and other departments to carry out special financial rectification activities throughout the city. The key areas were cleaned up and rectified, the “sweep” operation was carried out on office buildings where illegal financial activities were concentrated, 133 illegal wealth management companies were cleaned up and banned, and 6 criminal cases of illegal business operations were investigated.
The third is to report to the Standing Committee of the Changzhou Municipal People’s Congress on the procuratorial and supervision of civil false litigation, and promote the release of the "Changzhou Municipal People’s Congress Standing Committee’s Deliberation Opinions on the Legal Supervision of Civil False Litigation", and require relevant functional departments of the city to strengthen cooperation and cooperation. 9 measures such as the construction of a large information platform for political and legal agencies and the implementation of false litigation, joint prevention and joint punishment.
The fourth is to issue procuratorial recommendations to the Changzhou City Lawyers Association and relevant courts in response to the illegal representation by lawyers and illegal representation by citizens discovered in the handling of the case.
From this, the Changzhou Lawyers Association carried out special education and rectification, standardized the practice of lawyers in the city, and promoted and strengthened the construction of a social credit system.
【Guiding significance】
(1) The criminal and civil prosecutors coordinated to strengthen the review of "routine loans" in crimes involving gangs and evil.
The procuratorial organs should pay attention to strengthening the coordination of criminal and civil procuratorial functions when handling "routine loans" in criminal and criminal cases.
It not only gives full play to the criminal prosecution function, strictly examines the prosecution of crimes, but also gives full play to the civil prosecution function. Based on the clues of abnormal cases discovered, it carries out research and judgment analysis of related cases and provides precise supervision.
Criminal prosecutions and civil prosecutions are linked to form a combined force of supervision, increase the intensity of cracking down on criminals and criminals, and improve the quality and effectiveness of legal supervision.
(2) In handling "routine loan" cases, attention should be paid to examining whether there is any false litigation.
For cases involving "routine loans" in crime-related crimes, the procuratorial organs should focus on examining whether there are situations in which the illegal benefits of "routine loans" are realized through false litigation.
In this regard, it can be reviewed whether there is a suspected professional lender in the case, whether the loan contract is in a uniform format, whether the form of evidence provided by the plaintiff is unreasonable, and whether the defendant is judged by default.
If a false lawsuit is found to seriously harm the interests of the parties and obstruct the judicial order, supervision shall be initiated in accordance with its powers and the wrong judgments, rulings and mediation agreements shall be corrected in a timely manner.
(3) Comprehensively use multiple methods to promote the governance of the financial industry.
In response to issues such as illegal financial activities, industry regulatory loopholes, and integrity mechanisms discovered in handling cases, procuratorial organs should analyze the deep-seated reasons for the lack of supervision, pay attention to the use of procuratorial suggestions and other methods to promote industry regulatory agencies to establish regulations and plug management loopholes .
At the same time, it should actively work with the Commission for Discipline Inspection, the court, public security, financial supervision, market supervision and other units to establish a joint financial risk prevention and joint punishment system to form a joint supervision and crackdown consensus.
For the discovered tendencies and signs of problems, joint meetings can be used to strengthen research and judgment, establish and improve working mechanisms such as information sharing, clue transfer, and case investigation, and promote the eradication of the breeding ground for illicit financial activities from the source.
【Regulations】
Article 208 of the Civil Procedure Law of the People's Republic of China
Article 238, Article 266, Article 274, Article 293, Article 307 of the Criminal Law of the People’s Republic of China
Article 19 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases
The People's Procuratorate of Haidian District, Beijing urges the implementation of the case of protecting minors from smoking ban
(Experiment No. 88)
【Key words】
Administrative public interest litigation Judicial protection of minors Prosecutorial recommendations Anti-smoking protection
【gist】
Where the lawful rights and interests of minors are infringed upon public interests, the people’s procuratorate shall initiate a public interest lawsuit for judicial protection.
When there are illegal activities such as selling tobacco products to minors around the campus, the procuratorial agency can adopt the method of making procuratorial recommendations, urge relevant administrative departments to perform their duties in accordance with the law, strengthen the rectification of the surrounding environment of the campus, and promote the protection of the rights of minors.
[Basic case]
The People’s Procuratorate of Haidian District, Beijing, combined with investigation and verification activities, found that some retail establishments around schools in the district had illegal sales of tobacco products, making it easy for minors to obtain tobacco products, which may harm minors. The physical and mental health of people violates the "Minors Protection Law", "Tobacco Monopoly Law" and other relevant legal provisions.
On May 17, 2019, the Haidian District People’s Procuratorate decided to file an administrative public interest lawsuit against minors’ smoking protection.
After investigation and verification, it is found that there are obviously illegal situations such as illegal sales of tobacco products to minors in this district, and the relevant administrative supervision departments have not performed their duties in place.
After the Haidian District People’s Procuratorate issued pre-litigation procuratorial recommendations to the District Tobacco Monopoly Bureau and the District Market Supervision Administration, the two agencies attached great importance to the issues raised by the procuratorial recommendations, actively performed their supervisory duties, and adopted effective rectification measures to eliminate free purchase of tobacco products around the school The problem.
[Procuratorate’s performance process]
(1) Investigation and verification
After the case was filed by the Haidian District People’s Procuratorate of Beijing, a prosecutor’s case handling team was formed to visit and investigate more than 100 tobacco retail establishments around more than 30 primary and secondary schools in the jurisdiction within one month. There are the following illegal phenomena: First, there are illegal acts of operators selling tobacco products to minors around the school.
The second is that in convenience stores and other retail places where minors often visit, operators have not set up obvious signs not to sell tobacco products to minors.
In response to some operators’ violations of the Law on the Protection of Minors and the Tobacco Monopoly Law, the People’s Procuratorate of Haidian District has studied and sorted out the responsibilities of relevant administrative supervision departments and believes that the District Tobacco Monopoly Bureau, as the administrative department in charge of tobacco monopoly, should deal with the above violations. Perform supervision duties, order relevant operators to correct illegal acts, and impose fines and other administrative penalties; District Market Supervision Administration, as the administrative department in charge of banning the sale of tobacco products around the school, should perform its supervisory duties and order operators to stop illegal retail Business, and take administrative penalties such as confiscation of illegal income and fines.
Neither agency performed their duties in accordance with the law.
After investigation and verification, the Haidian District People’s Procuratorate believes that it should urge administrative agencies to perform their duties in accordance with the law by performing administrative public interest litigation procuratorial functions, correct relevant market entities’ illegal acts, and effectively protect the physical and mental health of minors.
(2) Making and issuing procuratorial recommendations
On May 24, 2019, the Haidian District People’s Procuratorate issued pre-litigation recommendations to the District Tobacco Monopoly Bureau and the District Market Supervision Administration: First, perform supervision and management duties in accordance with the law, and investigate and deal with the illegal activities of the aforementioned operators.
The second is to further strengthen the supervision of the protection of minors from smoking ban within the jurisdiction, establish and improve a long-term working mechanism, and effectively protect the physical and mental health and legal rights of minors.
After receiving the procuratorial suggestions, the two agencies quickly formulated rectification and implementation plans, and carried out joint law enforcement actions to investigate and deal with the illegal operators involved.
The People's Procuratorate of Haidian District followed up and supervised the whole process, strengthened communication and cooperation, and supervised on-site law enforcement inspection activities many times to ensure the effect of rectification.
In July 2019, the Haidian District People's Procuratorate successively received replies from the District Tobacco Monopoly Bureau and the District Market Supervision Bureau on the implementation of procuratorial recommendations.
The reply stated that all the illegal acts involved in the procuratorial proposal have been rectified: for illegal acts that did not set up signs in accordance with the law, illegal operators have been ordered to post signs in prominent locations; for illegal acts of selling tobacco products to minors, follow legal procedures After the case was filed and reviewed, an administrative penalty decision of 10,000 yuan was imposed on the operator, and the parties had paid the fine; the business entities that had illegal activities within 100 meters of the school were ordered to stop selling tobacco products, confiscated illegal income, and fined. Decided.
(3) Improve long-term mechanism
On the basis of handling individual cases, the Haidian District People’s Procuratorate has also increased communication and collaboration with administrative agencies, effectively exerting the demonstration and leading effect of "points to areas", and strives to build a long-term mechanism for solving and preventing problems involved in the case.
The first is to carry out investigations on similar issues in the whole district.
The Haidian District Market Supervision and Administration Bureau conducted a comprehensive investigation and rectification of the 85 merchants selling tobacco products around the district’s primary and secondary schools, children’s palaces, etc.; Haidian District Tobacco Monopoly Bureau investigated whether tobacco control signs were set up on a house-by-house basis, and increased the sale of tobacco products to minors The intensity of investigation.
The second is to carry out various forms of tobacco control and prevention activities throughout the region.
Carry out publicity and explanations, establish mutual assistance groups in the districts and streets, hire third-party agencies to conduct unannounced visits and inspections to achieve "zero distance" prevention and control; the two agencies also jointly held special action meetings to strengthen the monitoring of the promotion and sales of tobacco products through the Internet. Dissuade and stop.
The People's Procuratorate of Haidian District paid attention to summarizing and propagating while handling the case, and invited mainstream media such as Xinhua News Agency to report on the case extensively, which aroused considerable response.
On October 29, 2019, the National Health Commission and other eight departments jointly issued the "Notice on Further Strengthening Youth Tobacco Control".
On October 30 of the same year, the State Tobacco Monopoly Administration and the State Administration for Market Regulation jointly issued the "Notice on Further Protecting Minors from Electronic Cigarettes."
【Guiding significance】
(1) The procuratorial organ may use public interest litigation to protect the rights and interests of minors in accordance with the law.
Judicial protection of minors is an important part of the protection of minors' rights and interests.
Article 59 of the Law on the Protection of Minors, as amended and passed at the 22nd Meeting of the Standing Committee of the 13th National People’s Congress on October 17, 2020, stipulates: “No tobacco, alcohol, alcohol, etc. shall be set up around schools and kindergartens. Lottery sales outlets. It is forbidden to sell cigarettes, alcohol, lottery tickets or redeem lottery prizes to minors. Tobacco, alcohol and lottery operators shall set up signs not to sell cigarettes, alcohol or lottery tickets to minors in a prominent position; If they are minors, they should be required to show their identity documents.” Article 106 stipulates: “Where the legal rights and interests of minors have been infringed and relevant organizations and individuals have not filed a lawsuit on their behalf, the People’s Procuratorate may urge and support the lawsuit. ; Where public interests are involved, the People’s Procuratorate has the right to initiate public interest litigation.” According to the law, the procuratorial organ can sell cigarettes and alcohol products, sell lottery tickets, sell unqualified food, and allow minors without reviewing the status of minors. People enter Internet cafes and other common infringements on the rights and interests of minors, use public interest litigation in accordance with the law, put forward pre-litigation procuratorial recommendations, urge administrative agencies to perform their duties in accordance with the law, cut off minors’ access to tobacco and alcohol, and prevent minors from indulging in The network realizes the front-end governance of social issues.
(2) In handling cases, procuratorial organs should pay attention to communication and collaboration, strengthen inter-departmental linkage, and ensure the effectiveness of supervision.
In the process of handling public interest litigation cases, comprehensive investigations and evidence collection should be conducted in advance, full communication and coordination during the event, strict follow-up and supervision after the event, and consensus of all parties to ensure effective use of the effectiveness of pre-litigation procuratorial recommendations in public interest litigation, and to urge administrative agencies to effectively perform their duties in accordance with the law. Maximize the quality and efficiency of procuratorial organs in handling administrative public interest litigation cases.
(3) The procuratorial organs must promote the establishment of a sound long-term working mechanism for social problems discovered in handling cases.
In order to effectively purify the growth environment of minors and help minors grow up healthily, procuratorial organs can combine the cases handled to promote the establishment of a platform for multi-departmental cooperation, and realize the multi-dimensional linkage coordination of "procuratorial + administration + school + society". The benign interactive working mechanism promotes the improvement of social governance.
【Regulations】
Article 25 of the Administrative Procedure Law of the People's Republic of China
Article 59 and Article 106 of the Law of the People's Republic of China on the Protection of Minors (Revised at the 22nd Meeting of the Standing Committee of the 13th National People's Congress on October 17, 2020) , Effective from June 1, 2021)
Article 5 of the "Tobacco Monopoly Law of the People's Republic of China"
Article 4 of the "Regulations for the Implementation of the Tobacco Monopoly Law of the People's Republic of China"
Article 21 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Procuratorial Public Interest Litigation Cases"
Heilongjiang Provincial Procuratorate Supervises and Controls the Second Public Interest Litigation on Water Supply Safety
(Experiment No. 89)
【Key words】
Major people's livelihood, regional governance, coordinated rectification, procuratorial recommendations, social governance
【gist】
Procuratorial organs handle public interest litigation cases involving major people's livelihoods. If similar problems exist elsewhere, they should report to the higher-level people's procuratorate while handling them in accordance with the law.
For issues that involve damage to the public interest in a larger area and involve the supervision of multiple administrative departments, the people’s procuratorate at a higher level can make procuratorial recommendations to the people’s government to urge it to coordinate all departments to coordinate rectification.
[Basic case]
In June 2018, the People's Procuratorate of Didao District, Jixi City, Heilongjiang Province received complaints from citizens, reflecting that the secondary water supply facilities of the water supply company in the district have serious safety hazards.
Secondary water supply refers to the process of re-storing, pressurizing and disinfecting the domestic water provided by urban public water supply facilities before entering the households, and transporting them to users through pipelines or containers in order to compensate for the lack of pressure in municipal water supply pipelines or the water demand of high-rise buildings. Water supply method.
The "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases" stipulates that drinking water water supply units shall obtain a sanitation license in accordance with the law to engage in production or supply activities; the "Secondary Water Supply Facilities Hygiene Code" stipulates that secondary water supply management units shall conduct a comprehensive cleaning of the facilities once a year , Disinfect and inspect the water quality. Personnel directly engaged in water supply and management must obtain a medical certificate, and be trained in hygiene knowledge before they can work, and a health check is required every year.
The People’s Procuratorate of Didao District of Jixi City found that the Xiaobandao Pumping Station of the district’s water supply company is responsible for supplying the drinking water from the Beishan Water Plant in Didao District to 18,000 households and approximately 54,000 residents in the Didao District under pressure.
The pumping station performed secondary water supply without obtaining a sanitation license, and the personnel directly engaged in water supply did not obtain a health certificate and went directly to work. The water tank of the pressurization station was not cleaned and disinfected as required. This violated relevant laws and regulations and the water quality has hidden safety hazards.
[Procuratorate’s performance process]
(1) Duty performance of the People's Procuratorate of Didao District, Jixi City
After discovering the public safety hazards of the secondary water supply, the People’s Procuratorate of Didao District, Jixi City decided to file a case on June 12, 2018. On June 14, it issued procuratorial recommendations to the District Health Committee and the Housing and Urban-Rural Development Bureau to recommend to the administrative agency Effectively perform duties, eliminate hidden dangers in the sanitary safety of residents' drinking water, establish and improve sanitation permits and other related systems, strictly supervise the secondary water supply and sanitation of Xiaobandao Pumping Station, and order them to make corrections within a time limit.
After receiving the procuratorial advice, the District Health Commission and the Urban and Rural Construction Bureau attached great importance and acted quickly, performed their duties in accordance with the law, carried out rectification, and responded to the rectification situation.
At the same time, the Didao District People's Procuratorate of Jixi City will report the relevant situation to the People's Procuratorate of Jixi City.
(2) Duty performance of the People's Procuratorate of Jixi City
The Jixi City People’s Procuratorate analyzed that the problems found in the above cases may have a wider range of universality, so it deployed the supervision of secondary water supply safety administrative public interest litigation cases across the city, and sorted out 57 clues to “secondary water supply” public interest litigation cases. And file all cases.
After investigation and verification, in October 2018, Jixi City People's Procuratorate put forward procuratorial recommendations to Jixi City Health Commission, Housing and Urban-Rural Development Bureau and other departments.
After receiving the procuratorial advice, Jixi City Health Commission and others actively urged the water supply company to make rectifications.
After rectification, the Jixi City Health Commission issued a sanitation license for the qualified water supply unit after acceptance.
In order to consolidate the effect of governance, the Jixi City People’s Procuratorate also promoted and participated in the drafting of the "Regulations on the Management of Urban Secondary Water Supply in Jixi City," and plans to establish and improve a long-term mechanism for the management and operation of secondary water supply in the form of local regulations to fill in social governance gaps.
The regulations were reviewed and approved by the executive meeting of the Jixi Municipal People's Government on June 12, 2020, and have been submitted to the Standing Committee of the Jixi Municipal People's Congress for deliberation.
After the Jixi City People's Procuratorate has achieved good results in the supervision activities of the "Secondary Water Supply Safety" case, it reported the supervision to the Heilongjiang Provincial People's Procuratorate.
(3) Duty performance of the People's Procuratorate of Heilongjiang Province
1. Investigation and verification
The Heilongjiang Provincial People’s Procuratorate believes that the secondary water supply safety hazards are universal in the province and endanger public health.
In order to promote the centralized solution of the province's secondary water supply safety issues, the People's Procuratorate of Heilongjiang Province conducted on-site investigations on the secondary water supply safety status of relevant residential communities and water companies in the province by means of special supervision.
The investigation found that the province’s secondary water supply units fail to meet the sanitation permit conditions are prominent; there are people who have not obtained health certificates directly engaged in water supply work, failing to carry out cleaning and disinfection of water storage facilities in secondary water supply facilities, water quality monitoring, and sanitation Protection and safety precautions, long-term stacking of garbage near the storage tank or water tank, and the water tank has no cover or lock and other violations of laws and regulations.
The Provincial Health Commission, the Provincial Department of Housing and Urban-Rural Development and other administrative departments have violated relevant laws and failed to perform their duties in order to cause potential safety hazards in water quality and endanger public safety and health.
In response to the above problems, the People's Procuratorate of Heilongjiang Province went to the Provincial Health Commission, the Provincial Department of Housing and Urban-Rural Development and other provincial administrative departments and some cities, counties, and districts to investigate and verify the situation, and to further communicate on issues related to their respective areas of responsibility.
Based on the information obtained through investigation and verification, the Heilongjiang Provincial People's Procuratorate concluded that there are governance omissions in the administrative supervision of the province's secondary water supply.
One is the inadequate management of the secondary water supply unit, the low level of operation and maintenance, the delayed emergency response, and the aging of some water supply facilities, which affects the stability and safety of water supply.
The second is that the leading role of the government needs to be further brought into play. The relevant administrative departments have insufficient coordination and cooperation, lack of information communication and law enforcement linkage, and backward supervision methods, and insufficient intelligence and coverage of monitoring.
Third, the ownership and management of secondary water supply facilities in some old communities are not clear, and the problem of shortage of funds is prominent.
Fourth, relevant policies are not perfect.
The "Heilongjiang Province Drinking Water Hygiene Supervision and Administration Regulations" set a framework for the responsibilities of each department, but the division of labor and coordination mechanism between the departments is not clear enough.
In this regard, it is difficult to solve the problem fundamentally by relying only on the basic-level procuratorial organs to supervise the basic-level administrative units to perform their duties in a case-by-case basis. It is necessary to urge the higher-level people's government to play the main role and coordinate the relevant departments to conduct systematic and source-based governance and form a long-term effect. The mechanism can achieve the best effect.
2. Make and issue inspection recommendations
On the basis of in-depth investigation and verification, in order to improve the accuracy of supervision and performance of duties, the People's Procuratorate of Heilongjiang Province listened specifically to the supervision difficulties of various administrative departments and key issues that need to be coordinated to promote, and solicited relevant experts and scholars, representatives of the National People's Congress, CPPCC members, and lawyers. Heilongjiang Provincial People’s Government has also communicated with the Heilongjiang Provincial People’s Government on the work ideas of procuratorial public interest litigation from individual case supervision to category case supervision and even promotion of industry governance in the province.
On the basis of the above work, on December 20, 2019, the Heilongjiang Provincial People’s Procuratorate delivered a procuratorial proposal to the Heilongjiang Provincial People’s Government. The recommendations were as follows: First, strengthen the operation and maintenance management of secondary water supply facilities, promote water supply services to the terminal, and gradually realize the city Unified construction and management of public water supply enterprises.
The second is to strengthen the administrative supervision of relevant functional departments, establish a sound administrative law enforcement information sharing mechanism, establish a strict random inspection and notification system, increase penalties, and increase the cost of violations.
The third is to give full play to the government's overall role, strengthen system supervision and promote system co-governance, and incorporate the effectiveness of secondary water supply supervision into the government and its functional department target evaluation system.
The fourth is to strengthen capital security, coordinate the use of policy funds, comprehensively implement policies and financing funds, and ensure that supporting funds are in place.
Fifth, improve the relevant supporting policies, improve the secondary water supply system specifications, establish a joint law enforcement mechanism, and strengthen the renovation of water supply facilities.
After receiving the procuratorial proposal, the Heilongjiang Provincial People's Government attached great importance to it.
On January 12, 2020, the Heilongjiang Provincial People's Government pointed out in a work report to the Fourth Session of the Thirteenth People's Congress of Heilongjiang Province that it is necessary to "speed up the transformation of urban secondary water supply facilities."
On April 28, the Department of Housing and Urban-Rural Development of Heilongjiang Province issued the "Technical Guidelines for the Reconstruction of Water Supply Facilities in Existing Communities in Heilongjiang Province" to strengthen the technical guidance for the design of secondary water supply facilities in old communities in the city.
In May of the same year, the Department of Housing and Urban-Rural Development of Heilongjiang Province and the Provincial Health and Health Commission jointly formulated relevant work plans to assess the number of secondary water supply pumping stations and pipe networks in the province, the number of old secondary water supply pumping stations, and health permits. Comprehensive census, establishment of problem accounts, and clarification of goals and tasks for transformation in 2020.
On June 23, the People’s Government of Heilongjiang Province held a video and telephone conference on the transformation of secondary water supply facilities in cities and towns across the province, clarifying that the transformation of all “old, old, scattered, small, and poor” secondary water supply facilities will be completed within three years. Solve the safety and sanitation problems of the "last mile" of secondary water supply.
After earnestly carrying out the rectification work, the Heilongjiang Provincial Department of Housing and Urban-Rural Development and the Provincial Health and Health Commission responded to the Provincial People’s Procuratorate on the implementation of the rectification.
【Guiding significance】
(1) In handling cases, procuratorial organs must consciously practice the purpose of justice for the people, pay close attention to major livelihood issues, and actively participate in social governance by performing legal duties.
Water supply is a basic livelihood project that affects the health of residents.
In response to the hidden safety hazards and governance omissions in the secondary water supply in the jurisdiction, the procuratorial organs, based on in-depth investigation and verification and extensive hearing of opinions, put forward procuratorial suggestions to the administrative department in a targeted manner, and actively promoted the administrative organs to perform their duties in accordance with the law. Ensure the safety of the "last mile" of urban residents' domestic water and demonstrate the responsibility of justice for the people.
(2) In carrying out public interest litigation work, procuratorial organs must not only handle cases well, but also focus on the expansion from individual cases to types of cases to better enhance the effectiveness of supervision.
If the procuratorial organ handles a public interest litigation case involving major people's livelihood, if it believes that there are similar problems in other places, it shall report to the higher-level people's procuratorate while handling it in accordance with the law.
If the problem of damage to public welfare is frequent and common in a certain area, and it is difficult for the basic-level people's procuratorate to solve it, the clues of the case should be reported to the higher-level people's procuratorate in a timely manner.
The people's procuratorate at a higher level shall promptly accept the case and take advantage of the "integrated procuratorial work" to organize investigation and verification.
When handling public interest litigation cases involving major people’s livelihood and public interest, the People’s Procuratorate at a higher level can adopt the method of supervision of similar cases to focus on solving the common public interest damage problems in the region or industry, so as to achieve “one case, one case rectified. "Effect.
(3) For major public welfare problems, procuratorial suggestions should be made to units with overall planning and coordination functions to promote systematic rectification of the problems.
For major public welfare issues involving imperfect management systems, supervising responsibilities of higher administrative organs, or overlapping functions of multiple administrative organs, the higher-level procuratorial organ shall supervise and urge the government at the same level or relevant departments to perform their duties in accordance with the law.
The provincial people’s government occupies an important position in the provincial social governance system. For social governance issues involving the province, the provincial people’s procuratorate can put forward procuratorial suggestions to it, fundamentally promote the solution of the problem, and promote top-down progress. Source and systematic rectification, forming a long-term mechanism for public welfare protection, and giving play to the proactive role of procuratorial organs in social governance.
【Regulations】
Article 25 of the Administrative Procedure Law of the People's Republic of China
Article 14, Article 29, Article 53, Article 73 of the "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases"
Article 7 of the Urban Water Supply Regulations
Articles 5 and 10 of the Provisions of the People's Procuratorate on Procuratorial Recommendations