Today is the day of the second-instance trial of Li Song's administrative litigation case, and the Intermediate People's Court previously notified Fang Yi that the trial would be held at half past nine in the morning, and the parties had made an appointment the afternoon before, so Fang Yi had to get up early in the morning and rush to the city.

After Fang Yi took out the case file, he put the required items on the appellee's seat, he glanced at the appellant's seat opposite, this time there was only one male lawyer with big ears, it is estimated that Officer Zhao, who participated in the trial last time, was hurt in his heart, and he will not come this time.

The collegial panel of the court of second instance is composed of three judges, and in the center sits a female judge in her forties, with short hair and a heroic face, she is the presiding judge; On the left and right sat a male judge, who looked to be in his thirties.

……

"Appellant, please state the request for appeal and the facts and reasons." The female judge said.

"Appeal requests: 1. Revoke the [2013] Ji 0113 Xingchu No. 63 Administrative Judgment of the District People's Court, and change the judgment to reject the Appellee's litigation claims. 2. The Appellee shall be ordered to bear the costs of the proceedings.

Facts and Reasons: The Appellant ascertained that at about 13 o'clock on June 1, 2013, the Appellee smoked DP at home and tested positive for morphine in the urine test, which was assessed as having a serious addiction to D. The above facts are supported by the confession, appraisal opinions, transcripts and other evidence of the offender Li Song.

In accordance with Article 72 (3) of the Law of the People's Republic of China on Public Security Administration Punishments, the Appellant imposed an administrative penalty of 15 days of administrative detention on the Appellee, and the facts were clear, the evidence was credible and sufficient, and the law was correctly applied.

The appellant argued that the important evidence found by the court of first instance as the basis for punishment, such as the transcript of the interrogation of the plaintiff Li Song, was obviously procedurally illegal and not enough to be admissible, so although the appellee Li Song had a positive urine test on June 3, 2013, it was not sufficient to prove the fact that the appellee Li Song had taken DP on June 1, 2013, and the decision to revoke the "Administrative Penalty Decision" made by the appellant was a finding of unclear facts.

On June 3, 2013, the Appellant confessed to the Appellee's illegal act of smoking DP in his home in the interrogation transcript and the simultaneous audio and video recording, which corroborated the fact that the urine test report was positive on that day, and the Appellee signed to confirm the above facts.

Therefore, the transcript of the interrogation and the simultaneous audio and video recordings are authentic evidence, and although the police officers questioned are inconsistent with the police officers appearing in the video, the above evidence can fully prove the facts of the Appellee's violation of the law on June 3, 2013.

Although there were flaws in the procedure of questioning throughout the process, such procedural flaws did not affect or infringe on the rights of the Appellee.

According to Article 74 of the Administrative Litigation Law, "Where an administrative act falls under any of the following circumstances, the people's court shall make a judgment confirming the illegality but not revoking the administrative act...... (2) The administrative act procedure is slightly illegal, but does not have an actual impact on the plaintiff's rights'.

The facts of the appellant's administrative punishment against the appellee's illegal acts are clear, the evidence is credible and sufficient, and the law is correctly applied. Although there was a minor procedural violation, it did not have an actual impact on the appellee's rights, and the court of first instance should not revoke the administrative punishment of the above-mentioned person. ”

Speaking of this, the big-eared male lawyer paused, brewed his emotions and continued: "'DP is as fierce as a tiger', how many wives have been separated and their families have been ruined, all because of it. The social dangers of DP are well known, and there is a huge personal danger to users.

Cracking down on DP's illegal and criminal acts is not only the responsibility of the public security organs for a long time and arduous struggle, but also the unshirkable obligation of the whole society.

The public security organs attached great importance to the DP's illegal and criminal acts, and the appellants, under the leadership of the higher-level public security organs and the district party committee and government, intensified the investigation and punishment of the DP's illegal and criminal acts and purified the social atmosphere.

In this case, the Appellant had recognized the flaws in the enforcement procedures, and the court of first instance confirmed that the administrative penalty was illegal as a warning to the Appellant, but the Appellee's illegal use of DP did exist, so the revocation of the Appellant's administrative penalty was not conducive to cracking down on the DP's illegal acts. The appellant implored the court of second instance to rectify the situation in accordance with the law. Complete! ”

Fang Yi looked at the indictment in his hand, listened to the speech of the big-eared male lawyer, and said secretly in his heart: It seems that the other party has done a lot of work before the trial, not only the laws and regulations have been used, but the emotional card has also been played, it is not easy to be a lawyer, not only to understand the law, but also to be able to perform, full of emotions, not easy!

In fact, from the bottom of his heart, Fang Yi also hates people who smoke DP, when Grandpa Lin sold cigarettes in Humen, in order to have a good body, now there is a new society, and there are still people who are willing to fall, hey! The woods are big and there are all kinds of birds.

But since you have taken on this case, you have to let go of your inner disgust and strive to maximize the interests of the client, which is what a lawyer should do. To be honest, sometimes lawyers are quite entangled in handling cases.

"Appellee, make a defense." The female judge said.

As a lawyer, Fang Yi did a lot of homework after getting the appeal brief, and this reply took a lot of effort

"The Appellee disagreed with the Appellant's request for appeal. Here's why:

1. The main evidence on which the Appellant's Administrative Penalty Decision (Xing Zhi Du Zi [2013] No. 10113) was based was insufficient and the facts were unclear.

The interrogation records and urine test reports on which the above-mentioned "Administrative Punishment Decision" is based have serious procedural flaws, which are sufficient to make the above evidence untrustworthy and should not be admitted. The Appellee held that the judgment of the court of first instance confirming that the Appellee's administrative punishment was illegal and revoked was correct and appropriate, and should be upheld.

The Appellant determined that the Appellee's main evidence for taking D was only the interrogation record and urine test report, but the interrogation record was not prepared in accordance with the provisions of the "Provisions on the Procedures for Handling Administrative Cases by Public Security Organs".

The interrogators recorded in the interrogation record are Zhao Yidong and Feng Sheng, and the recorder is Zhao Yidong. However, the simultaneous audio and video recordings submitted by the appellant in the first instance clearly show that the questioners were Zhao Yidong and Zhou Tao, and Li Bing joined in the later stage, and the recorder was not Zhao Yidong.

Persons unrelated to the case, Zhou Tao and Li Bing, entered the interrogation room and revised the interrogation record. At the first-instance trial, Zhao Yidong, the interrogator recorded in the transcript, participated in the trial as the appellant's agent, and when the appellee and the first-instance judge questioned the questioner in the simultaneous audio and video recording, Zhao Yidong deliberately evaded answering, which shows that Zhao Yidong was aware of his illegal act of not following legal procedures to make records and collect evidence.

In addition, the urine collectors and testers shown in the urine test report were Zhao Yidong and Feng Sheng, who were both the undertaker of the case, the urine collector and the tester, and seriously violated the "Provisions on Drug Use Testing Procedures" promulgated by the Ministry of Public Security.

The Appellant found that the Appellee's two main pieces of evidence for absorbing D were both seriously procedurally flawed, and there was no other relevant evidence, because the Appellee believed that the Appellant's evidence for asserting that the Appellee had absorbed D was seriously insufficient.

Therefore, the judgment of the court of first instance found that the main evidence on which the respondent's administrative penalty decision was based was insufficient and the facts were unclear, and that it was correct and appropriate to revoke it, and should be upheld.

2. The appellant's grounds of appeal are untenable.

We all know the basic principle of building the socialist legal system: 'There are laws to follow, laws must be followed, law enforcement must be strict, and violators must be prosecuted.'

'Strict law enforcement and prosecution of violations' is an intrinsic requirement of the law, and it is also a basic requirement for law enforcement agencies and law enforcement personnel.

It requires that all people are equal before the law, and that there are no individuals or organizations that go beyond legal norms; It also requires law enforcement agencies and law enforcement personnel to strictly and strictly enforce the ......, rather than abusing the law enforcement power granted by the state, and putting the power in a cage is the original intention of the Administrative Litigation Law.

Public security organs are organs of state power and have the important duty of cracking down on violations and crimes, and they should all the more abide by the principles of legality, fairness, openness, and timeliness, respect and protect human rights, and protect the personal dignity of citizens.

However, the appellant not only turned a blind eye to the two pieces of evidence of serious violations involved in the administrative punishment in this case, but also brazenly believed that the transcripts and urine test reports provided were authentic as evidence.

What the Appellee does not understand is who is breaking the law? If there is insufficient evidence to prove that the Appellee violated the law, the Appellant may arbitrarily impose administrative penalties on the Appellee and restrict his personal freedom; In fact, the appellee's legal rights had been seriously violated.

Now that we look back at this case, can the serious flaws in the law enforcement procedures be ignored on the basis of the administrative punishment provided by the appellant? Is it legal to reach a conclusion that is procedurally illegal? Is the revocation of the appellant's administrative penalty by the court of first instance not conducive to cracking down on DP's illegal acts? Obviously not!

Justice must not only be achieved, but it should be achieved in a way that is seen and seen. There can be no substantive justice without procedural justice.

Therefore, the Appellee argued that the Appellant's grounds for appeal were unreasonable and untenable because of the law.

To sum up, the Appellee held that the facts ascertained in the first-instance judgment were clear, the evidence was credible and sufficient, the law was correctly applied, the procedures were lawful, and the judgment was fair and just, and the appellant's appeal request was not sustained, and requested the second-instance court to reject his appeal request in accordance with law and uphold the original judgment. Complete. ”

Fang Yi put down the reply and said in his heart: You have a good plan, I have a wall ladder. The spring breeze blows the drums of war, who is afraid of whom in this era!

Fang Yi is still very satisfied with the defense opinions he wrote, of course, this is his first time doing administrative litigation, and the things he writes can't be too demanding, and everything has to be perfect.

After Fang Yi finished reading the defense opinions, he inadvertently glanced at the other party, the big-eared male lawyer was very professional, and in addition to indifference, there were no knives, guns and sticks in his eyes.

"Now let's start the cross-examination. Appellant, do you have any new evidence to submit? The female judge asked.

"There is no new evidence." The big-eared male lawyer said.

"Appellee, do you have any new evidence to submit?" The female judge looked at the appellee.

"Nope." Fang Yi said.

"Do you have anything to add to the cross-examination of the evidence submitted in the first instance?" The female judge asked.

"Nope." Both sides.

"We conclude that the focus of the dispute in this case is whether the evidence on which the appellant's administrative punishment is based is illegal and sufficient. Do you disagree? The female judge asked.

"Yes." Both sides.

"Okay, next, this trial will focus on the focus issues just summarized. Please both of you answer truthfully. The female judge said.

"Appellant, we noticed that the examiners on the urine test report were written Zhao Yidong and Feng Sheng, are these two people the undertakers of the administrative punishment involved in this case?" The female judge looked at the materials in her hand and asked.

"Yes, Zhao Yidong and Feng Sheng are the undertakers of the case, but we believe that the procedural flaws in the case do not infringe on the rights of the appellee Li Song." The big-eared male lawyer said.

"Appellant, how did you know that the Appellee had taken DP? Did anyone see it on the spot? The female judge asked.

"The appellant summoned the appellee Li Song to the appellant's office after receiving a report from the public, and during the questioning, Li Song admitted it himself." The big-eared male lawyer said.

"Are there any witnesses who saw the appellee suck D?" The female judge asked.

"No, it's just that some people reacted that the appellee behaved abnormally, and they didn't see it with their own eyes." The big-eared male lawyer said.

"In other words, no one saw it with their own eyes, only the appellee admitted it, is that so?" The female judge said.

"Yes, that's right." The big-eared male lawyer said.

……

Because neither party has any new evidence, the dispute in the case is only whether the evidence on which the public security organ's punishment is based seriously violates the relevant regulations, so the entire second-instance trial process is relatively simple.

Out of the courthouse, Fang Yi called Zhou Deguang and briefly introduced the trial. Originally, Zhou Deguang wanted to go to the scene to observe, but when he thought that the two sides were arguing about all the legal provisions, he couldn't understand it, so he didn't go and waited in the office for good news.

Seeing that the time was not yet noon, Fang Yi remembered Li Shuming, who he hadn't seen for a long time, so he took the bus to Brilliance. When he reached his glory, it happened that Li Shuming had just returned.

"What's wrong with you? Why is it a little depressed? Fang Yi looked at Li Shuming, who was carrying a leather bag in his hand and looked lost, at the glorious gate, and asked.

"I lost my favorite little padded jacket!" Li Shuming shook his head, said with a depressed expression, and walked inside after speaking.

"Lao Li, you are so funny, who still wears a padded jacket these days......" Fang Yi didn't finish speaking, he immediately realized something, and quickly chased after Li Shuming.

In the general manager's office, Li Shuming lit a cigarette, and then buried himself in the smoke, looking extremely lonely.

Fang Yi didn't bother him, took out a Huazi from the cigarette case on the coffee table, lit it, and sat on the sofa to enjoy it alone, waiting for Li Shuming to confide in him.

After smoking a cigarette, Li Shuming walked leisurely to the coffee table, sat down, leaned towards the soft sofa, put his hands behind his head, and looked up at the ceiling.

Fang Yi saw tears shining in his eyes.

(End of chapter)