Procuratorial public interest litigation to plug loopholes in pension fraud
The Supreme People’s Procuratorate issued a typical case of administrative public interest litigation in the field of state-owned property protection and transfer of state-owned land use rights
□ Our reporter Zhou Bin
□ Reporter Zhao Jie
Real estate development and construction projects have not paid environmental protection taxes; family members continue to receive pensions after the death of the elderly; forged materials to apply for subsidies for poverty alleviation projects... On December 17, the Supreme People’s Procuratorate issued 9 administrative cases in the field of state-owned property protection and state-owned land use rights transfer Typical cases of public interest litigation, these cases are closely related to major national economic policies or livelihood hot issues, and reflect the role of public interest litigation procuratorial functions in special relief of national interests.
Unpaid environmental tax
[Process of handling the case] In June 2020, the People's Procuratorate of Ganzhou City, Jiangxi Province found out that there may be a lack of levy on the new tax of environmental protection tax when communicating with the housing construction and environmental protection departments, so it decided to open a case for investigation.
The procuratorate collected relevant materials from taxation, housing construction, and ecological environment departments and found that 25 real estate development and construction projects supervised by the Municipal Taxation Bureau had not paid environmental protection taxes in accordance with the law.
Through field understanding, these 25 projects all have the problem of construction dust.
In August 2020, the Ganzhou City Procuratorate publicly announced the service of procuratorial recommendations to the Municipal Taxation Bureau, suggesting that the environmental protection tax of the construction project involved in the case should be recovered, and a comprehensive investigation should be conducted, penalties for failure to file tax returns in accordance with regulations, and strengthening of The coordination of ecological environment, housing construction and other departments strengthened data sharing.
After receiving the procuratorial suggestion, the Municipal Taxation Bureau organized special inspections and supplementary reports, and collected a total of 353,500 yuan in environmental protection tax and 28,600 yuan in late payment on the 25 engineering projects involved.
With this case as the driving force, actively promote the environmental protection tax law.
Strengthen communication and cooperation with the ecological environment, housing construction, finance and other departments, and improve basic tax-related information sharing.
In response to the widespread problem of insufficient implementation of environmental protection taxes in the city, the Ganzhou City Procuratorate deployed special actions in its jurisdiction. 11 primary-level procuratorates issued pre-litigation procuratorial recommendations to local tax authorities, and 8 primary-level prosecutors passed pre-litigation consultations. Carry out supervision in accordance with the law.
From January to September 2020, the city's environmental protection tax was stored in the database of 56.7 million yuan, a year-on-year increase of 98.7%.
[Typical Significance] Due to the short period of time for the environmental protection tax law to be promulgated, it is common for some companies to not actively declare tax because they do not understand this new tax.
The procuratorial organs focused on the problem of environmental protection tax leakage and non-payment of construction projects, actively performed their duties, and urged the taxation department to strengthen environmental protection tax assessment and collection and management, and recovered construction projects that underpaid environmental protection taxes in accordance with the law, and constructed and improved them. Multi-departmental linkage and cooperation working mechanism.
At the same time, from point to aspect, special supervision activities are deployed in the whole region to promote the establishment of a green tax system.
False pension
[Case handling] After the death of Bai, a resident of Yanta District, Xi'an, Shaanxi Province, his family continued to receive pensions for nearly 4 years, totaling 61,400 yuan.
The Yanta District People’s Procuratorate filed a case for investigation after receiving reports from the masses. During follow-up supervision, it was discovered that Liu and other 20 family members had problems with false pensions, totaling 2,394,600 yuan.
In May 2019, the Yanta District Procuratorate issued procuratorial recommendations to the Yanta District Pension Insurance Handling Center, urging it to deal with fraudulent pensions in accordance with the law.
After receiving the procuratorial suggestion, the center reported that after it transferred the Bai case to the Yanta District Human Resources and Social Security Bureau, it was returned on the grounds of lack of jurisdiction.
In response to this problem, the Yanta District Procuratorate visited multiple departments and analyzed the laws and regulations that were inquired, and found that the crux of the problem stems from the responsibilities.
In order to solve the problem from the source, the Yanta District Procuratorate conducted a discussion with the provincial, municipal, and district pension insurance authorities.
In September 2019, the Shaanxi Provincial Department of Human Resources and Social Security formulated and issued a notice that clarified the pension insurance agency and human resources and social security departments in pension verification, ordering refund procedures and applicable documents, and completely resolved the gaps in regulations and procedures The problem of convergence.
At present, 2.4259 million yuan of pension has been recovered, and the remaining 30,100 yuan is being returned.
In November 2019, the Yanta District Procuratorate reported in a written report to the People's Procuratorate of Xi'an, suggesting that special supervision should be conducted on pensions received by retired employees after death.
In January 2020, the Xi'an City Procuratorate launched a special inspection and supervision activity for the defrauding of pension insurance funds by retirees from enterprises throughout the city.
[Typical Significance] The basic pension insurance fund is the "life-saving money" of the broad masses, and is also an important public fund. In recent years, the phenomenon of false pensions has increased, causing the loss of national property.
In this case, the procuratorial agency conducted an in-depth investigation of the long-standing and widespread violation of old-age insurance benefits in its jurisdiction, found similar cases from the case, and found that the administrative agency’s "three-determination" plan was inconsistent with departmental regulations during the handling of the case. Problems, promote the introduction of regulatory documents at the provincial level to fill regulatory loopholes, and promote the standardization and institutionalization of local pension insurance work.
Defrauding poverty relief funds
[Case handling] Chang Mou used his vegetable planting cooperative in Zaoqiang County, Hebei Province to forge the official seal of the Matun Village Committee and the transfer contract of the land use rights of some poor households, and applied for a subsidy of RMB 1,366,800 for the poverty alleviation project.
The People's Procuratorate of Zaoqiang County found that: the county poverty alleviation office failed to strictly verify when reviewing the cooperative's application for poverty alleviation projects, and failed to recover the cheated poverty alleviation project subsidies in a timely manner.
It then issued a procuratorial suggestion to the county poverty alleviation office, suggesting that the cooperative’s declaration of poverty alleviation projects be cancelled in accordance with the law, and the financial and other relevant departments should recover the defrauded poverty alleviation project subsidies.
The county poverty alleviation office replied that changes to poverty alleviation projects should be approved by the county-level people's government, and it does not have the authority to cancel poverty alleviation projects.
The procuratorate found through follow-up investigations that the county poverty alleviation office failed to report to the county people's government that the cooperatives fraudulently obtained subsidies for poverty alleviation projects and did not cooperate with the county finance bureau to recover the defrauded poverty alleviation project subsidies.
In December 2018, the procuratorate filed an administrative public interest lawsuit, requesting a ruling: the county poverty alleviation office shall perform the relevant duties of canceling the financial poverty alleviation subsidy project declared by the cooperative in accordance with the law and recover the defrauded poverty alleviation project funds with the finance and other departments.
The court's decision supported the prosecution's appeal.
After the verdict took effect, the county poverty alleviation office actively performed its duties and has recovered more than 900,000 yuan.
The Zaoqiang County Procuratorate, led by this case, organized special actions within its jurisdiction to supervise and initiate legal procedures for 16 poverty alleviation projects with similar violations of equity and dividends, and recovered more than 5 million yuan of subsidies for poverty alleviation projects defrauded.
[Typical Significance] The accuracy of the use of subsidies for poverty alleviation projects and the effectiveness of management are of great significance to winning the battle against poverty.
In response to the unclear responsibilities and prevarication of relevant local departments, the procuratorial organs, based on the principle of equal rights and responsibilities and active protection of national interests, accurately identify relevant departments and their duties in accordance with relevant laws and regulations, and urge administrative organs to perform their duties in accordance with the law.
If the administrative agency still refuses to make rectifications for illegitimate reasons after issuing procuratorial recommendations, it shall resolutely file a lawsuit to increase the rigidity of supervision.
At the same time, by learning from one another, taking advantage of the situation, organizing and carrying out special supervision, rapidly expanding the results, and effectively maintaining the security of special funds for poverty alleviation.
Change the plot ratio
[Case handling] A real estate company bid for a piece of state-owned construction land use right through bidding, auction and listing: the land area is more than 47,000 square meters, the plot ratio is 2.3, and the transfer fee is 86 million yuan (paid).
Later, the relevant administrative department adjusted the land plot ratio to 4.84, and sent a letter to the real estate company requesting it to pay the land transfer fee, and repeatedly called for payment, but the huge amount of land transfer fee that was owed has not been recovered.
After discovering this in an administrative appeal case, the People’s Procuratorate of Nanjing City, Jiangsu Province handed the clues to the People’s Procuratorate of Jiangning District for handling.
After visiting and obtaining relevant vouchers and documents, the Jiangning District Procuratorate issued pre-litigation procuratorial recommendations to the original Land and Land Branch, the original Planning Bureau, the District Finance Bureau, and the District Housing and Urban-Rural Development Bureau in November 2018, suggesting to actively perform statutory duties. Take effective measures in time to recover the land transfer fees.
In order to ensure the implementation of procuratorial recommendations, the Jiangning District Procuratorate has held coordination meetings with relevant district departments on many occasions to study solutions, and it is recommended that relevant departments report to the higher authorities and the district government in a timely manner.
The Jiangning District Government has convened several procuratorial organs and relevant functional departments to hold special meetings with real estate companies to study disposal plans.
In July 2019, the real estate company signed the "Supplementary Agreement for the Land Transfer Contract" with the original Land and Resources Bureau.
After the agreement was signed, the Jiangning District Procuratorate continued to follow up and supervise.
The real estate company paid a total of 81.375 million yuan in land transfer fees, liquidated damages and taxes in July and December 2019.
[Typical Significance] It is not uncommon to fail to pay the transfer fee for state-owned land use rights in accordance with the law after changing the plot ratio due to the adjustment of land use planning and the related work of the administrative agency.
In this case, the two-level procuratorial organs handled the case in an integrated manner, and the higher-level courts strengthened their guidance, jointly exerted the procuratorial function of administrative public interest litigation, and urged multiple administrative agencies to cooperate with each other in performing their duties in accordance with the law to collect state-owned land use rights and liquidated damages, effectively protecting the state-owned Property security reflects the role of procuratorial organs as guardians of national interests in the transfer of state-owned land.
Beijing, December 17th