Legal issues of fire compensation

Reflections on legal issues related to administrative confirmation behavior

1On March 5th, 999, the National People's Congress amended the Constitution of People's Republic of China (PRC). Supplement: "People's Republic of China (PRC) governs the country according to law and builds a socialist country ruled by law". This has set a goal for China's legal system construction. To realize "ruling the country according to law", we must first administer according to law. Only by bringing the administrative actions of government administrative organs into the scope of legal supervision can the general plan of governing the country according to law be realized. Therefore, it is necessary for us to study and discuss the related issues of administrative law. The topic I want to discuss today is the status of administrative confirmation in administrative law and related legal issues.

First, the legal status of administrative confirmation in administrative law.

First of all, let's clarify the concept and characteristics of administrative confirmation behavior.

The so-called administrative confirmation behavior refers to the unilateral legal behavior that the administrative subject has to confirm or deny the legal status or rights and obligations of the relative person. For example, administrative actions such as road traffic accident responsibility identification, medical accident responsibility identification, disability grade identification, product quality identification, fire responsibility identification, etc. all belong to administrative confirmation actions.

The characteristics of administrative confirmation behavior are:

1, administrative confirmation behavior is an evaluation behavior, not a sanction and execution behavior. Administrative punishment and administrative compulsion include administrative confirmation. Because only by confirming the illegality of the act can punishment and execution be carried out.

2. The right of administrative confirmation is exclusive and irreplaceable. Administrative confirmation is the power of a specific administrative organ. For example, the right to determine the responsibility for traffic accidents must be exercised by the road traffic administrative department, and the confirmation of land ownership in land disputes must be exercised by the land administrative department. The confirmation of medical malpractice liability must be decided by the health administrative department.

3. The counterpart of administrative confirmation includes the offender and the victim. He is an evaluation of the rights and obligations of the parties and their legal status.

Administrative confirmation is similar to "confirmation behavior" in China's civil procedure law. That is, to confirm the legal status and rights and obligations of the parties. This is a unilateral punishment imposed by the administrative organ on the rights and obligations of the parties by using its own unique administrative power. In the practice of administrative law, this right has a great scope of application and an important position. Regrettably, the important concept of administrative confirmation is still controversial in the field of administrative law. Some scholars deny that the classification of administrative acts includes administrative confirmation. They either classify administrative confirmation as administrative punishment or administrative compulsion, which is not even mentioned in some administrative law textbooks. Therefore, it is necessary for us to clarify the position of administrative confirmation in administrative law in the following arguments.

Traditional administrative law divides administrative behavior into eight aspects (excluding administrative confirmation): administrative legislation, administrative license, administrative coercion, administrative contract, administrative guidance, administrative punishment, administrative supervision and administrative responsibility. Firstly, we analyze the relationship between administrative confirmation and administrative coercion. The so-called administrative coercion refers to a specific administrative act in which citizens, legal persons or other organizations fail to perform their obligations in administrative law, and administrative organs take necessary coercive measures according to law to force them to perform their obligations. The premise of administrative coercion is to confirm that the actor violated the administrative law. Therefore, administrative coercion can only be applied after the administrative confirmation procedure. Administrative confirmation and administrative coercion are the relationship between premise and result. Let's analyze the relationship between administrative confirmation and administrative punishment. The so-called administrative punishment refers to the punishment given by administrative organs and their statutory organizations to citizens, legal persons or other organizations who violate administrative legal norms but have not yet constituted a crime. Broadly speaking, administrative punishment must first be confirmed by the administration, and administrative punishment can only be carried out if the actor is confirmed to have violated the administrative law. The difference between them is that the counterpart of administrative punishment must be a person who violates administrative law. The counterpart of administrative confirmation is not necessarily a person who violates administrative law, and sometimes there are victims.

After the above analysis, I realize that administrative confirmation is an independent administrative act and should not be confused with administrative coercion and administrative punishment.

The right of administrative confirmation is an important administrative power of administrative organs. Administrative confirmation plays an important role in administrative legislation and administrative judicial practice. For example, medical malpractice disputes, fire compensation disputes and other cases, the administrative department must first divide the responsibility for the accident. The specific amount of damages in the next step, as well as the legal responsibilities such as administrative punishment that the illegal party should accept, shall be determined according to the proportion of responsibilities confirmed in the accident liability confirmation. The legal status, rights and obligations of the parties are realized through the confirmation of administrative organs. Therefore, the correctness of administrative confirmation will have a great impact on the property and person of citizens, legal persons and other organizations. It can be seen that the right of administrative confirmation is of great responsibility and should occupy an important position in administrative law.

Second, the problems of administrative confirmation in legislation and judicature.

As mentioned above, administrative confirmation plays an important role in administrative behavior. Because administrative confirmation is specific and irreplaceable, and the right of administrative confirmation is exercised by the subject with special technology and professional knowledge, it is difficult to carry out judicial supervision on the right of administrative confirmation In addition, most administrative regulations are drafted and formulated by administrative organs, which will inevitably infiltrate the interests of their own departments and industries into legislation. The specific problems can be summarized as follows:

Firstly, the administrative confirmation procedure lacks legal norms.

In order to make specific administrative actions truly "legal, fair, just and reasonable", it is necessary to administer according to law, and the content of administration according to law should not only comply with substantive legal norms, but also comply with relevant procedural laws. 1On March 7, 1996, the National People's Congress passed the Administrative Punishment Law of the People's Republic of China. For administrative punishment, there are special legal norms in procedure. There is still no legal basis for other administrative acts, such as administrative confirmation, administrative legislation, administrative licensing and so on. The author thinks that some principles and procedural provisions in the Administrative Punishment Law of the People's Republic of China should be applied to law enforcement activities of other related administrative acts.

For example, the author once handled a fire damage compensation dispute case, and the fire actually caused a property loss of more than 800,000 yuan in a clothing factory. After on-site investigation, the fire department of the Public Security Bureau determined that the fire was caused by sparks from the chimney of bath B splashing into room A, igniting wood chips in the roof insulation layer. The fire department then made a fire responsibility determination. It is determined that Bath B is responsible for 70% and Clothing Factory A is responsible for 30%. Bathroom B refuses to accept, and applies for reconsideration to the public security organ at a higher level to maintain the original administrative act. Then, B filed an administrative lawsuit with the court. In the course of hearing the case, the collegial panel found that the fire department failed to fulfill its obligation to inform when making a specific administrative act to identify fire responsibility. That is, it does not conform to the provisions of Article 31 of the Administrative Punishment Law: "Before making a decision on administrative punishment, the administrative organ shall inform the parties of the facts, reasons and basis for making the decision on administrative punishment, and inform them of the rights they enjoy according to law." Finally, the court decided to revoke the fire responsibility certificate issued by the Fire Department of the Public Security Bureau.

I think the court's decision is a good judicial practice. This judgment interprets the legislative spirit of the administrative punishment law and is of great significance to promoting administration according to law. Fortunately, some administrative organs have formulated some procedural rules applicable to this system according to relevant legal principles, and consciously put administrative actions into the track of legal norms.

For example, the identification of liability for medical malpractice has always been a problem with great social repercussions. Some complicated medical malpractice disputes have been identified by the health administrative departments at the county level, prefecture level, provincial level and tertiary level for three times, and three different conclusions have been drawn. Sometimes the conclusions are even contradictory. This shows that some medical malpractice liability determination is subjective and arbitrary. Some people vividly compare the relationship between the health administrative department and the responsible hospital to the relationship between father and son. It is difficult for a father to supervise and evaluate his son's wrong behavior fairly. However, according to the law, the parties concerned are not satisfied with the determination of medical malpractice liability and cannot bring an administrative lawsuit. This makes people feel helpless. Some places have formulated local laws and regulations in response to this situation. Before determining the responsibility of medical malpractice, a hearing shall be held with reference to the provisions of the Administrative Punishment Law. Invite court judges, NPC deputies, CPPCC members, lawyers and experts on related issues to conduct hearings. Clarify your views and opinions. Only in this way can the responsibility determination be relatively objective and fair, and the occurrence of black-box operation can be avoided. Some time ago, I read in the newspaper that the price department held a hearing with reference to the provisions of administrative punishment when approving community service charges. After listening to the opinions of all parties, the charging standard will be approved. This is equivalent to a good embodiment of the principles of openness, transparency and serving the society in administrative actions.

Second, the administrative confirmation behavior lacks judicial supervision.

We all realize that administrative confirmation is professional, and the right of administrative confirmation can only be exercised by a specific administrative organ. Therefore, some administrative laws stipulate that administrative litigation cannot be brought when administrative confirmation disputes occur. The ruling of the administrative organ is final. However, the question now is, what should be done once the administrative organ makes a wrong administrative confirmation in violation of the law and infringes on the legitimate rights of the parties? Does this violate the legislative principle of the Administrative Procedure Law of the People's Republic of China? In practice, there are many such cases, which have caused many social instability factors.

In the early stage of the implementation of the Administrative Procedure Law, the author handled a dispute case of compensation for traffic accident damage. On the way home from work by bike, the plaintiff's husband A was hit from behind by a Dongfeng truck driven by B, and died on the spot. On-the-spot investigation by the traffic police team found that the left brake of B's car was not sensitive, which caused the car to derail when braking and caused a traffic accident. Besides, B's car horn is out of order. According to the above facts, the responsibility of the traffic accident in this case is very clear. The unbelievable and unacceptable fact is that the traffic police team determined that Party A and Party B were each responsible for 50% of the accident, and each played 50 games. There was no evidence that A was riding a bike illegally. A was killed for no reason, but she was responsible for 50% of the accident. This is so unfair.

The plaintiff went to the superior traffic police team to apply for reconsideration, and the superior traffic police team officials defended the other party and upheld the original judgment. The plaintiff brought an administrative lawsuit to the court. Results During the proceedings of 1992 from June 5 to February 6, the Supreme People's Court and the Ministry of Public Security jointly issued the Notice on Handling Road Traffic Accident Cases. The notice stipulates that "if a party only refuses to accept the responsibility identification and disability assessment of road traffic accidents made by the public security organs and brings an administrative lawsuit to the court, the court will not accept it ... When the court hears civil cases of damages and criminal cases of traffic accidents, it thinks that the responsibility identification and disability assessment made by the public security organs are really improper, it will not be accepted. Based on the facts ascertained by the court. " Later, according to the notice, the court rejected the plaintiff's request for administrative litigation. The plaintiff had to bring a lawsuit for damages to the civil court. When trying the dispute over damages, it also involves the validity of the responsibility confirmation letter of the Public Security Bureau. The plaintiff asked the court to revoke the responsibility certificate, and the court was also very embarrassed. Finally, the case was settled through mediation. The problem now is that the responsibility letter made by the public security organ has legal effect. When the court hears a case and finds something wrong, it may not accept it. So, what is the legal effect of liability determination? The inconsistency in the contents of the Notice is obviously the product of mutual compromise between the judicial organs and the administrative organs. In people's legal consciousness, the law is not allowed to compromise. What is right is legal and what is wrong is illegal.

Similar to this case, there are many cases of infringement of the litigant's litigation rights. 1In July 1997, the National People's Congress passed the Highway Law of People's Republic of China (PRC), which really played a positive role in improving the level of highway management and developing transportation. Regrettably, however, whether the specific administrative acts made by highway management departments are subject to judicial supervision by law. Whether the parties have the right to bring an administrative lawsuit to the court within 15 days has not been stipulated.

It is thought-provoking to have such a dispute over the land occupied by highways. A's house is located beside a highway in the suburbs. Due to disrepair, the house is in danger of collapse at any time. Approved by the urban construction planning management department and the land management department. Jia demolished the old house and flipped the house on the original basis. As a result, when the big frame of the house was just built and the roof tiles were being prepared, the law enforcement officers of the Municipal Highway Management Office arrived. It is said that A's house is built in the "red line area" of the highway (within subgrade15m), and A is ordered to stop construction and demolish the house within one week. A week later, law enforcement officers saw that Jia didn't smash the house himself, so they drove a bulldozer to forcibly push down the house. Later, Jia petitioned and complained everywhere. The expressway management office changed the punishment decision again, retaining two-thirds of the original homestead area.

There are many questions worth pondering in this debate. A's new house is built in the "red line", which hinders traffic and should be demolished. Then, the old house in front of the flip house is also within the "red line". Why didn't you let it down in the first place? The reason is simple, because A's house is in front and the road is behind. If the old house is demolished, the state needs to compensate it. Then, the old house has lost its use value and is in jeopardy. A Where should I build a house? The urban construction planning and land department has approved the building of houses. Is it their power to approve the construction, or the power of the highway management office to decide the house demolition? The most serious problem is the legislative problem of the highway law itself. After the legitimate rights of the parties are infringed, they have no right to bring a lawsuit to the court according to the provisions of the Highway Law. Highway management departments are also not subject to judicial supervision when executing awards. They can enforce it by themselves, and they don't need to apply to the court for enforcement. Today, under the rule of law, these unreasonable provisions in the Highway Law are undoubtedly a retrogression in legislation. This law only emphasizes the power of the department. Protect the interests of the department. But it ignores the interests of society and the public.

Third, the legislative prospect of administrative confirmation.

It has become the consensus of the whole society to put administrative actions under judicial supervision. In my opinion, the state should formulate an administrative behavior supervision law as soon as possible. This administrative procedure law should bring all administrative acts except administrative punishment into the track of judicial supervision. 1999 promulgated the "Administrative Reconsideration Law of People's Republic of China (PRC)", which stipulates that those who are dissatisfied with the regulations issued by the administrative organ may apply to the administrative organ at the next higher level for reconsideration. This provision is the supervision of administrative acts in administrative legislative acts. This provision plays an important role in promoting administration and governing the country according to law. China's legislative work is gradually shifting from the initial conclusion focusing on substantive law to the conclusion of procedural law. At present, it is particularly necessary to formulate a perfect and detailed administrative procedure law. Only by bringing all administrative actions into the orbit of the rule of law and truly realizing administration according to law can we hope to put an end to trading power and money and bending the law. The general plan of governing the country according to law is expected to be realized.

To sum up, administrative confirmation is an important administrative act. It occupies an important position in administrative law. Although there are still many problems in China's current administrative substantive law and administrative procedural law, with the determination of the general plan of governing the country according to law, a series of scientific, complete and practical administrative substantive law and administrative procedural law will be promulgated in the near future. By then, the rule of law will no longer be a formal slogan, but the actual content of government management and people's daily life.