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Notice of the Supreme People's Court on Issuing the Ninth Group of Guiding Cases [Effective]
最高人民法院关于发布第九批指导性案例的通知 [现行有效]
【法宝引证码】

Notice of the Supreme People's Court on Issuing the Ninth Group of Guiding Cases 

最高人民法院关于发布第九批指导性案例的通知

(No. 337 [2014] of the Supreme People's Court) (法〔2014〕337号)

The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
In accordance with the provisions of Article 9 of the Provisions of the Supreme People's Court on Case Guidance, the Supreme People's Court has compiled cases published on the Gazette of the Supreme People's Court that have guiding significance in the work of adjudication and enforcement for courts over the country. Upon deliberation and decision of the Judicial Committee of the Supreme People's Court, the case of Tian Yong v. University of Science and Technology Beijing regarding refusal to issue graduation certificate and degree certificate and other six cases (Guiding Cases No. 38-44) are hereby issued as the ninth group of guiding cases for references in trial of similar cases. 根据《最高人民法院关于案例指导工作的规定》第九条的规定,最高人民法院对《最高人民法院公报》刊发的对全国法院审判、执行工作具有指导意义的案例,进行了编纂。经最高人民法院审判委员会讨论决定,现将田永诉北京科技大学拒绝颁发毕业证、学位证案等七个案例(指导案例38-44号),作为第九批指导性案例发布,供在审判类似案件时参照。
Supreme People's Court 最高人民法院
December 24, 2014 2014年12月24日
Guiding Case No. 38 指导案例38号
Tian Yong v. University of Science and Technology Beijing (a case regarding refusal to issue graduation certificate and degree certificate) 田永诉北京科技大学拒绝颁发毕业证、学位证案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: administrative litigation; issuance of certificates; institution of higher education; scope of case acceptance; due process 关键词 行政诉讼 颁发证书 高等学校 受案范围 正当程序
Key Points of Judgment 裁判要点
1. Where an institution of higher education refuses to issue the academic certificate or degree certificate to an educatee who has violated the school rules and disciplines and the educatee raises an objection thereto, the educatee may file an administrative litigation according to the law. 1.高等学校对受教育者因违反校规、校纪而拒绝颁发学历证书、学位证书,受教育者不服的,可以依法提起行政诉讼。
2. Where an institution of higher education makes a decision on ordering an educatee to leave school in accordance with school rules and disciplines that violate the laws, administrative regulations, or rules of the State, the people's court may not affirm such decision. 2.高等学校依据违背国家法律、行政法规或规章的校规、校纪,对受教育者作出退学处理等决定的,人民法院不予支持。
3. When an institution of higher education makes a decision against an educatee who has violated school rules and disciplines and the decision affects the basic rights of the educatee, the institution of higher education shall permit the educatee to defend himself or herself and waste no time in serving the decision on the educatee after the decision is made; otherwise, it shall be regarded to have violated the statutory procedures. 3.高等学校对因违反校规、校纪的受教育者作出影响其基本权利的决定时,应当允许其申辩并在决定作出后及时送达,否则视为违反法定程序。
Relevant Legal Provisions 相关法条

Article 25 of the Administrative Litigation Law of the People's Republic of China

 中华人民共和国行政诉讼法》第二十五条

Articles 21 and 22 of the Education Law of the People's Republic of China

 中华人民共和国教育法》第二十一条、第二十二条

Article 8 of the Regulations of the People's Republic of China on Academic Degrees

 中华人民共和国学位条例》第八条

Basic Facts
 基本案情
In September 1994, plaintiff, Tian Yong, was admitted to University of Science and Technology Beijing (“USTB”) and was registered in the school roll of undergraduates. On February 29, 1996, Tian Yong carried a scrip with electromagnetics formulas on it when attending a makeup examination on electromagnetics. When he went to the washroom in the middle of the examination, the scrip dropped out and was found by the invigilators. Although the invigilators did not identify that Tian Yong had the act of peeping at the scrip, they still immediately stopped Tian Yong from taking the examination according to examination room disciplines. In 1994, the defendant, USTB, formulated the Urgent Notice on Conducting Strict Examination Administration (No. 068 [1994], USTB) (hereinafter referred to as No. 068 Notice) in accordance with the spirit of the instructions of the former State Education Commission on strictly enforcing examination room disciplines. In accordance with No. 068 Notice, any student who has cheated in the examination shall leave school and be deregistered from the school roll. Based thereon, on March 5, 1996, the defendant determined that Tian Yong's act was cheating in an examination and made a decision that Tian Yong must leave school. On April 10 of the same year, the defendant filled out and issued a notice on change in the school roll; however, it failed to directly announce the decision on ordering Tian Yong to leave school or serve the notice on change in the school roll upon Tian Yong and failed to handle the formalities of Tian Yong's leaving school. Tian Yong continued to attend normal studies and activities organized by USTB with his identity as a student in USTB. In September 1996, the defendant reissued a student ID card to Tian Yong. In each academic year later, it accepted the education fee paid by Tian Yong, registered his name, granted undergraduate subsidies to him, and arranged him to attend the practical design for university graduates, with the completion fee for graduation design granted by it obtained by his supervising teacher of the thesis. Tian Yong also attended examinations in the name of a student in USTB and successively obtained the qualification certificates of CET-4 and Basic Language in computer application proficiency test. The defendant admitted such facts that during the four years of study in USTB, the plaintiff's academic performance was qualified for all subjects, he passed the graduation practice, design and oral defense of his thesis, he was also awarded excellence in his graduation thesis, and his total academic performance ranked ninth among the whole class. 原告田永于1994年9月考取北京科技大学,取得本科生的学籍。1996年2月29日,田永在电磁学课程的补考过程中,随身携带写有电磁学公式的纸条。考试中,去上厕所时纸条掉出,被监考教师发现。监考教师虽未发现其有偷看纸条的行为,但还是按照考场纪律,当即停止了田永的考试。被告北京科技大学根据原国家教委关于严肃考场纪律的指示精神,于1994年制定了校发(94)第068号《关于严格考试管理的紧急通知》(简称第068号通知)。该通知规定,凡考试作弊的学生一律按退学处理,取消学籍。被告据此于1996年3月5日认定田永的行为属作弊行为,并作出退学处理决定。同年4月10日,被告填发了学籍变动通知,但退学处理决定和变更学籍的通知未直接向田永宣布、送达,也未给田永办理退学手续,田永继续以该校大学生的身份参加正常学习及学校组织的活动。1996年9月,被告为田永补办了学生证,之后每学年均收取田永交纳的教育费,并为田永进行注册、发放大学生补助津贴,安排田永参加了大学生毕业实习设计,由其论文指导教师领取了学校发放的毕业设计结业费。田永还以该校大学生的名义参加考试,先后取得了大学英语四级、计算机应用水平测试BASIC语言成绩合格证书。被告对原告在该校的四年学习中成绩全部合格,通过毕业实习、毕业设计及论文答辩,获得优秀毕业论文及毕业总成绩为全班第九名的事实无争议。
In June 1998, when the college and department where Tian Yong studied submitted to the defendant the form for conferring the bachelor's degree on Tian Yong's class, the relevant department of the defendant refused to issue the graduation certificate to Tian Yong on the ground that Tian Yong has been ordered to leave school and did not have his name in the school roll of USTB, nor did it submit the qualification form for graduation dispatch to the administrative department of education. The college and department where Tian Yong studied held that the plaintiff met the requirements for university graduation and was qualified to be conferred the bachelor's degree. As the plaintiff was negotiating with USTB on the issue of his graduation at that time, the college and department did not sign on the form for conferring the bachelor's degree temporarily and were to sign it after the issue of the plaintiff's name in the school roll has been settled. Therefore, the defendant did not put plaintiff's name into the name list of students with qualification for the conferment of the bachelor's degree and submit it to the Academic Degree Evaluation Committee of USTB for approval. Some teachers in USTB have petitioned to the former State Education Commission for the matter of Tian Yong's name in the school roll. On May 18, 1998, the Department for Students in Institutions of Higher Education of the former State Education Commission sent a letter to the defendant, holding that the defendant's disciplinary measure against Tian Yong for his violation of the examination room disciplines was too severe, and suggested a second check on the matter. On June 10 of the same year, the defendant still insisted on the original conclusion after the second check. Tian Yong filed an administrative litigation in the People's Court of Haidian District, Beijing Municipality, claiming that he has met the legal requirements to be a university graduate and it was illegal for USTB to refuse to issue graduation certificate and degree certificate to him. 1998年6月,田永所在院系向被告报送田永所在班级授予学士学位表时,被告有关部门以田永已按退学处理、不具备北京科技大学学籍为由,拒绝为其颁发毕业证书,进而未向教育行政部门呈报田永的毕业派遣资格表。田永所在院系认为原告符合大学毕业和授予学士学位的条件,但由于当时原告因毕业问题正在与学校交涉,故暂时未在授予学位表中签字,待学籍问题解决后再签。被告因此未将原告列入授予学士学位资格的名单交该校学位评定委员会审核。因被告的部分教师为田永一事向原国家教委申诉,国家教委高校学生司于1998年5月18日致函被告,认为被告对田永违反考场纪律一事处理过重,建议复查。同年6月10日,被告复查后,仍然坚持原结论。田永认为自己符合大学毕业生的法定条件,北京科技大学拒绝给其颁发毕业证、学位证是违法的,遂向北京市海淀区人民法院提起行政诉讼。
Judgment 裁判结果
On February 14, 1999, the People's Court of Haidian District, Beijing Municipality rendered the following administrative judgment (No. 00142 [1998], First, Administrative Division, Haidian): 北京市海淀区人民法院于1999年2月14日作出(1998)海行初字第00142号行政判决:
1. USTB shall, within 30 days as of the date when this Judgment comes into force, issue the university graduation certificate to Tian Yong; 一、北京科技大学在本判决生效之日起30日内向田永颁发大学本科毕业证书;
2. USTB shall, within 60 days as of the date when this Judgment comes into force, organize the relevant college and department and its Academic Degree Evaluation Committee to examine Tian Yong's qualification for the bachelor's degree; 二、北京科技大学在本判决生效之日起60日内组织本校有关院、系及学位评定委员会对田永的学士学位资格进行审核;
3. USTB shall, within 30 days as of the date when this Judgment comes into force, perform the duty of reporting the relevant formalities of the graduation dispatch of Tian Yong to the local administrative department of education; and 三、北京科技大学于本判决生效后30日内履行向当地教育行政部门上报有关田永毕业派遣的有关手续的职责;
4. Tian Yong's other claims shall be dismissed. After this Judgment was pronounced, USTB appealed. On April 26, 1999, the No. 1 Intermediate People's Court of Beijing Municipality rendered an administrative judgment (No. 73 [1999], Final, Administrative Division, No. 1 IPC, Beijing) to dismiss the appeal and affirm the original judgment. 四、驳回田永的其他诉讼请求。北京科技大学提出上诉,北京市第一中级人民法院于1999年4月26日作出(1999)一中行终字第73号行政判决:驳回上诉,维持原判。
Judgment's Reasoning 裁判理由
In the effective judgment, the court held that: In accordance with the laws and regulations of China, an institution of higher education has the authority to conduct school roll administration, grant awards, or impose sanction on educatees and has the functions of issuing academic certificates and degree certificates to educatees on behalf of the State. The relationship between an institution of higher education and an educatee is educational administration. Where the educatee raises an objection to the administrative behavior of the institution of higher education involving the basic rights of the educatee, the educatee has the right to file an administrative litigation and the institution of higher education is the eligible defendant in the administrative litigation. 法院生效裁判认为:根据我国法律、法规规定,高等学校对受教育者有进行学籍管理、奖励或处分的权力,有代表国家对受教育者颁发学历证书、学位证书的职责。高等学校与受教育者之间属于教育行政管理关系,受教育者对高等学校涉及受教育者基本权利的管理行为不服的,有权提起行政诉讼,高等学校是行政诉讼的适格被告。
An institution of higher education has corresponding education autonomy according to the law, has the right to formulate school disciplines and rules, and has the right to conduct teaching administration and impose sanction on students for their violation of disciplines; however, the school disciplines and rules it has formulated and the teaching administration and punishment imposed on students for their violation of disciplines based thereon must comply with laws, regulations, and rules and must respect and protect the lawful rights and interests of the parties. In this case, the plaintiff's act of carrying a scrip in the make-up examination was a violation of examination room disciplines and the defendant may impose sanction on the plaintiff in accordance with the relevant laws, regulations, rules and the relevant provisions of USTB; however, the defendant made a decision on ordering the plaintiff to leave school in accordance with No. 068 Notice as formulated by USTB, which was contrary to the statutory conditions for leaving school as prescribed in Article 29 of the Provisions on the Administration of Students in Regular Institutions of Higher Education. Therefore, it was illegal for the defendant to make the decision on ordering the plaintiff to leave school. 高等学校依法具有相应的教育自主权,有权制定校纪、校规,并有权对在校学生进行教学管理和违纪处分,但是其制定的校纪、校规和据此进行的教学管理和违纪处分,必须符合法律、法规和规章的规定,必须尊重和保护当事人的合法权益。本案原告在补考中随身携带纸条的行为属于违反考场纪律的行为,被告可以按照有关法律、法规、规章及学校的有关规定处理,但其对原告作出退学处理决定所依据的该校制定的第068号通知,与《普通高等学校学生管理规定》第二十九条规定的法定退学条件相抵触,故被告所作退学处理决定违法。
The decision on ordering the plaintiff to leave school involved the plaintiff's right of being educated. In order to fully guarantee the rights and interests of the party concerned, the defendant should serve and declare the decision upon the party concerned and should permit the party concerned to propose defending opinions on the basis of the principle of due process; however, the defendant did not handle the matter in compliance with this principle, nor did it actually handle the formalities of deregistering the plaintiff's name from the school roll and rearranging his residential registration or personal file. In September 1996 when the plaintiff lost his student card, the defendant reissued a new one to the plaintiff and registered his name. This factual behavior should be deemed as the defendant having modified the original decision on ordering the plaintiff to leave school and resumed the plaintiff's name in the school roll. Moreover, under the arrangements of the defendant, the plaintiff completed four years of courses in USTB, attended appraisal, practice and graduation design, and passed the oral defense of his thesis. Although the aforesaid acts were committed by the defendant and some teachers of the college and department where the plaintiff studied, they were the exercise of functions and powers. Therefore, the defendant should bear the legal consequence arising from the aforesaid acts. 退学处理决定涉及原告的受教育权利,为充分保障当事人权益,从正当程序原则出发,被告应将此决定向当事人送达、宣布,允许当事人提出申辩意见。而被告既未依此原则处理,也未实际给原告办理注销学籍、迁移户籍、档案等手续。被告于1996年9月为原告补办学生证并注册的事实行为,应视为被告改变了对原告所作的按退学处理的决定,恢复了原告的学籍。被告又安排原告修满四年学业,参加考核、实习及毕业设计并通过论文答辩等。上述一系列行为虽系被告及其所属院系的部分教师具体实施,但因他们均属职务行为,故被告应承担上述行为所产生的法律后果。
The State applies a system of academic certificates. As an institution of higher education established upon approval of the State, the defendant should issue corresponding education certificates to an educatee who had his or her name in the school roll, finished the regular education and study, reached the corresponding level, and met the corresponding requirements so as to acknowledge the corresponding education background that the educatee had. The plaintiff satisfied the aforesaid requirements for graduates of institutions of higher education. The defendant should, in accordance with the provisions of item (5), paragraph 1 of Article 28 of the Education Law of the People's Republic of China and Article 35 of the Provisions on the Administration of Students in Regular Institutions of Higher Education, issue the university graduation certificate to the plaintiff. 国家实行学历证书制度,被告作为国家批准设立的高等学校,对取得普通高等学校学籍、接受正规教育、学习结束达到一定水平和要求的受教育者,应当为其颁发相应的学业证明,以承认该学生具有的相当学历。原告符合上述高等学校毕业生的条件,被告应当依《中华人民共和国教育法》第二十八条第一款第五项及《普通高等学校学生管理规定》第三十五条的规定,为原告颁发大学本科毕业证书。
The State applies a system of academic degree. The degree certificate is a measure for evaluating an individual's academic level. As an institution of higher education authorized by the State to confer the bachelor's degree, the defendant should, by following the statutory procedures, confer persons who have reached a certain academic level or professional technology level the corresponding academic degrees and issue degree certificates to them. In accordance with the requirements of statutory procedures for issuing a certificate of the bachelor's degree as prescribed in Article 4, Article 5, and item (3) of Article 18 of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees, the defendant should first organize the relevant college and department to examine the plaintiff's graduation academic performance, graduation appraisal, and other documents, so as to determine whether the plaintiff has mastered basic theories, professional knowledge, and basic skills of the subject and whether the plaintiff has possessed the preliminary capabilities of engaging in scientific researches or undertaking special technical work; and then decide whether it would nominate the plaintiff to be listed in recipients of the bachelor's degree to the Academic Degree Evaluation Committee. After the Academic Degree Evaluation Committee examined the list, the defendant should confer the bachelor's degree to the plaintiff. 国家实行学位制度,学位证书是评价个人学术水平的尺度。被告作为国家授权的高等学校学士学位授予机构,应依法定程序对达到一定学术水平或专业技术水平的人员授予相应的学位,颁发学位证书。依《中华人民共和国学位条例暂行实施办法》第四条、第五条、第十八条第三项规定的颁发学士学位证书的法定程序要求,被告首先应组织有关院系审核原告的毕业成绩和毕业鉴定等材料,确定原告是否已较好地掌握本门学科的基础理论、专业知识和基本技能,是否具备从事科学研究工作或担负专门技术工作的初步能力;再决定是否向学位评定委员会提名列入学士学位获得者的名单,学位评定委员会方可依名单审查通过后,由被告对原告授予学士学位。
Guiding Case No. 39 指导案例39号
He Xiaoqiang v. Huazhong University of Science and Technology (a case regarding refusal to confer an academic degree) 何小强诉华中科技大学拒绝授予学位案
(Issued on December 25 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: administrative litigation; degree conferment; institution of higher education; academic autonomy 关键词 行政诉讼 学位授予 高等学校 学术自治
Key Points of Judgment 裁判要点
1. An institution of higher education that has the authority to confer academic degrees shall be entitled to examine the application of a degree applicant for conferring an academic degree and decide whether to confer the academic degree on the applicant. Where the applicant files an administrative litigation against the institution of higher education for its decision of not conferring an academic degree on him or her, the people's court shall accept the lawsuit according to law. 1.具有学位授予权的高等学校,有权对学位申请人提出的学位授予申请进行审查并决定是否授予其学位。申请人对高等学校不授予其学位的决定不服提起行政诉讼的,人民法院应当依法受理。
2. The people's court shall support the academic standards for the conferment of an academic degree that is set by an institution of higher education within the scope of academic autonomy in accordance with the relevant provisions of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees and the decision on whether to confer the academic degree made by the institution of higher education on the basis of such academic standards. 2.高等学校依照《中华人民共和国学位条例暂行实施办法》的有关规定,在学术自治范围内制定的授予学位的学术水平标准,以及据此标准作出的是否授予学位的决定,人民法院应予支持。
Relevant Legal Provisions 相关法条
1. Article 4 and paragraph 1 of Article 8 of the Regulations of the People's Republic of China on Academic Degrees 1.《中华人民共和国学位条例》第四条、第八条第一款
2. Article 25 of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees 2.《中华人民共和国学位条例暂行实施办法》第二十五条
Basic Facts 基本案情
Plaintiff, He Xiaoqiang, was an undergraduate (being admitted in 2003) majoring in communication engineering in the third party, Huazhong University of Science and Technology (HUST), Wuchang Branch (hereinafter referred to as “Wuchang Branch”). Wuchang Branch was an independent public institution as a legal person without the qualification of conferring bachelor's degrees. In accordance with the relevant State provisions on the conferment of bachelor's degrees and the agreement between both parties, the defendant, HUST, consented to confer bachelor's degrees to undergraduates of Wuchang Branch who met the requirements for the conferment of bachelor's degrees and the Detailed Rules for the Implementation of the Conferment of Bachelor's Degrees to Undergraduates of HUST, Wuchang Branch were annexed to the agreement. Article 2 of the Detailed Rules provides that “any undergraduate with his or her name in the school roll of HUST, Wuchang Branch who meets the requirements for the conferment of academic degrees in the Detailed Rules may apply for the conferment of the bachelor's degree to the Academic Degree Evaluation Committee of HUST” and Article 3 thereof provides that “… any one who reaches the following level or meets the following requirements, and passes the review of the Academic Evaluation Committee may be conferred the bachelor's degree…. (3) he or she passes the national examination of CET-4.” In December 2006, HUST formulated the Provisions on the Application for Bachelor's Degrees in Wuchang Branch and Wenhua College, which provided that passing the national examination of CET-4 was one of essential conditions for non-English majors to apply for bachelor's degrees. 原告何小强系第三人华中科技大学武昌分校(以下简称武昌分校)2003级通信工程专业的本科毕业生。武昌分校是独立的事业单位法人,无学士学位授予资格。根据国家对民办高校学士学位授予的相关规定和双方协议约定,被告华中科技大学同意对武昌分校符合学士学位条件的本科毕业生授予学士学位,并在协议附件载明《华中科技大学武昌分校授予本科毕业生学士学位实施细则》。其中第二条规定“凡具有我校学籍的本科毕业生,符合本《实施细则》中授予条件者,均可向华中科技大学学位评定委员会申请授予学士学位”,第三条规定“……达到下述水平和要求,经学术评定委员会审核通过者,可授予学士学位。……(三)通过全国大学英语四级统考”。 2006年12月,华中科技大学作出《关于武昌分校、文华学院申请学士学位的规定》,规定通过全国大学外语四级考试是非外国语专业学生申请学士学位的必备条件之一。
On June 30, 2007, He Xiaoqiang obtained the Certificate of Graduation from Regular Institutions of Higher Education issued by Wuchang Branch. Since He Xiaoqiang did not pass the national examination of CET-4 during his undergraduate study, Wuchang Branch did not recommend him to HUST for applying for the bachelor's degree in accordance with the aforesaid Detailed Rules. On August 26 of the same year, He Xiaoqiang applied for the conferment of the Bachelor's Degree in Engineering to HUST and Wuchang Branch. On May 21, 2008, Wuchang Branch issued a written reply to He Xiaoqiang that since he did not pass the national examination of CET-4 and did not meet the requirements for the conferment of a bachelor's degree, HUST could not confer the bachelor's degree on him. 2007年6月30日,何小强获得武昌分校颁发的《普通高等学校毕业证书》,由于其本科学习期间未通过全国英语四级考试,武昌分校根据上述《实施细则》,未向华中科技大学推荐其申请学士学位。8月26日,何小强向华中科技大学和武昌分校提出授予工学学士学位的申请。2008年5月21日,武昌分校作出书面答复,因何小强没有通过全国大学英语四级考试,不符合授予条件,华中科技大学不能授予其学士学位。
Judgment 裁判结果
On December 18, 2008, the People's Court of Hongshan District, Wuhan City, Hubei Province rendered an administrative judgment (No. 81 [2008], First, Administrative Division, Hongshan) to dismiss the claim of plaintiff, He Xiaoqiang, that defendant, HUST, should confer the Bachelor's Degree in Engineering on him. On May 31, 2009, the Intermediate People's Court of Wuhan City, Hubei Province rendered an administrative judgment (No. 61 [2009], Final, Administrative Division, Wuhan) that the appeal should be dismissed and the original judgment should be affirmed. 湖北省武汉市洪山区人民法院于2008年12月18日作出(2008)洪行初字第81号行政判决,驳回原告何小强要求被告华中科技大学为其颁发工学学士学位的诉讼请求。湖北省武汉市中级人民法院于2009年5月31日作出(2009)武行终字第61号行政判决,驳回上诉,维持原判。
Judgment's Reasoning 裁判理由
In the effective judgment, the court held that: The main issues of this case were whether the administrative action alleged was actionable, whether the administrative action alleged was legitimate, and what the scope of judicial review was. 法院生效裁判认为:本案争议焦点主要涉及被诉行政行为是否可诉、是否合法以及司法审查的范围问题。
First, as to the issue of whether the administrative action alleged was actionable, according to the authorization of the Regulations of the People's Republic of China on Academic Degrees你怀了我的猴子 and other relevant laws and administrative regulations, the defendant, HUST had the statutory authority to review and confer bachelor's degrees in regular institutions of higher education. Paragraph 2 of Article 4 of the Interim Measures for the Implementation of Regulations of the People's Republic of China on Academic Degrees provides that “in an institution of higher education that is incapable of conferring any bachelor's degree, the departments thereof shall submit a name list of undergraduates that reach the academic level of bachelors to the institution of higher education and upon approval of the institution of higher education, the institution of higher education shall recommend such undergraduates to an institution of higher education of the system or in the neighborhood that is capable of conferring bachelor's degrees. Where the relevant department of the institution of higher education that is capable of conferring bachelor's degrees holds upon examination and verification that the undergraduates recommended by the institution of higher education that is incapable of conferring bachelor's degrees comply with the Interim Measures and other relevant provisions, the relevant department may nominate such undergraduates to the academic degree evaluation committee of the institution of higher education that is capable of conferring bachelor's degrees and include them in the name list of recipients of bachelor's degrees.” In accordance with the aforesaid provisions and other relevant provisions of national policies for encouraging private colleges and universities to run schools, HUST had the right to confer bachelor's degrees in regular institutions of higher education on undergraduates of private colleges and universities who met the requirements of HUST for the conferment of bachelor's degrees upon examination in accordance with the agreement between it and Wuchang Branch. 一、被诉行政行为具有可诉性。根据《中华人民共和国学位条例》等法律、行政法规的授权,被告华中科技大学具有审查授予普通高校学士学位的法定职权。依据《中华人民共和国学位条例暂行实施办法我我我什么都没做》第四条第二款“非授予学士学位的高等院校,对达到学士学术水平的本科毕业生,应当由系向学校提出名单,经学校同意后,由学校就近向本系统、本地区的授予学士学位的高等院校推荐。授予学士学位的高等院校有关的系,对非授予学士学位的高等院校推荐的本科毕业生进行审查考核,认为符合本暂行办法及有关规定的,可向学校学位评定委员会提名,列入学士学位获得者名单”,以及国家促进民办高校办学政策的相关规定,华中科技大学有权按照与民办高校的协议,对于符合本校学士学位授予条件的民办高校本科毕业生经审查合格授予普通高校学士学位。
In this case, the third party, Wuchang Branch, was a private college that did not obtain the qualification of conferring bachelor's degrees. According to the agreement between it and HUST, Wuchang Branch would recommend its undergraduates that reached the academic level of bachelors to HUST and HUST would decide whether to confer bachelor's degrees on them or not upon review. In accordance with the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees and the agreement on cooperation in running school between HUST and Wuchang Branch, HUST had the statutory duty to review fresh undergraduates recommended by Wuchang Branch and decide whether to confer bachelor's degrees on them. He Xiaoqiang, an undergraduate of Wuchang Branch, filed an administrative lawsuit in the people's court on the ground that HUST failed to confer the Bachelor's Degree in Engineering on him within 60 days as of receipt of his application, which complied with the provisions of paragraph 1 of Article 39 of the Interpretation of the Supreme People's Court on Several Issues concerning the Implementation of the Administrative Litigation Law of the People's Republic of China. Therefore, HUST was an eligible defendant in this case. Where He Xiaoqiang filed a lawsuit against HUST for HUST's failure to confer the bachelor's degree on him, the people's court should accept the lawsuit according to law. 本案中,第三人武昌分校是未取得学士学位授予资格的民办高校,该院校与华中科技大学签订合作办学协议约定,武昌分校对该校达到学士学术水平的本科毕业生,向华中科技大学推荐,由华中科技大学审核是否授予学士学位。依据《中华人民共和国学位条例暂行实施办法》的规定和华中科技大学与武昌分校之间合作办学协议,华中科技大学具有对武昌分校推荐的应届本科毕业生进行审查和决定是否颁发学士学位的法定职责。武昌分校的本科毕业生何小强以华中科技大学在收到申请之日起六十日内未授予其工学学士学位,向人民法院提起行政诉讼,符合《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第三十九条第一款的规定。因此,华中科技大学是本案适格的被告,何小强对华中科技大学不授予其学士学位不服提起诉讼的,人民法院应当依法受理。
Second, the provisions of Article 3 of the Detailed Rules for the Implementation of the Conferment of Bachelor's Degrees on Undergraduates of HUST, Wuchang Branch complied with the provisions of the superordinate law. Article 4 of the Regulations of the People's Republic of China on Academic Degrees provides that “a bachelor's degree shall be conferred on an undergraduate from an institution of higher education who has good academic records and has attained the following academic standards: (1) having a relatively good grasp of basic theories, specialized knowledge, and basic skills….” Article 25 of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees provides that “an academic degree-conferring entity may formulate its detailed rules for the conferment of academic degrees in accordance with the Interim Measures.” The Interim Measures empowered an academic degree-conferring entity with the authority and duty of setting standards for conferring bachelor's degrees within the scope of academic autonomy on the basis of not violating the basic principles for conferring bachelor's degrees as prescribed in the Regulations of the People's Republic of China on Academic Degrees. HUST connected the examination scores of CET-4 with the conferment of bachelor's degrees within the scope of authorization, which fell into the scope of academic autonomy. The exercise of teaching autonomy according to law and the issuance of specific provisions and requirements for the education quality and academic standards of undergraduates by an institution of higher education were elaborated standards for the conferment of bachelor's degrees and did not violate the principle-based provisions of Article 4 of the Regulations of the People's Republic of China on Academic Degrees and Article 25 of the Interim Measures for the Implementation of the Regulations of the People's Republic of China on Academic Degrees. Therefore, He Xiaoqiang's failure to pass the CET-4 did not meet the requirements of HUST for the conferment of bachelor's degrees and Wuchang Branch did not recommend him to HUST to apply for the conferment of the bachelor's degree. Therefore, there was no fact that HUST committed nonfeasance and the claim of He Xiaoqiang should not be supported. 二、被告制定的《华中科技大学武昌分校授予本科毕业生学士学位实施细则》第三条的规定符合上位法规定。《中华人民共和国学位条例》第四条规定:“高等学校本科毕业生,成绩优良,达到下述学术水平者,授予学士学位:(一)较好地掌握本门学科的基础理论、专门知识和基本技能……”。《中华人民共和国学位条例暂行实施办法》第二十五条规定:“学位授予单位可根据本暂行条例实施办法,制定本单位授予学位的工作细则。”该办法赋予学位授予单位在不违反《中华人民共和国学位条例》所规定授予学士学位基本原则的基础上,在学术自治范围内制定学士学位授予标准的权力和职责,华中科技大学在此授权范围内将全国大学英语四级考试成绩与学士学位挂钩,属于学术自治的范畴。高等学校依法行使教学自主权,自行对其所培养的本科生教育质量和学术水平作出具体的规定和要求,是对授予学士学位的标准的细化,并没有违反《中华人民共和国学位条例》第四条和《中华人民共和国学位条例暂行实施办法》第二十五条的原则性规定。因此,何小强因未通过全国大学英语四级考试不符合华中科技大学学士学位的授予条件,武昌分校未向华中科技大学推荐其申请授予学士学位,故华中科技大学并不存在不作为的事实,对何小强的诉讼请求不予支持。
Third, the judicial review on an institution of higher education's conferment of academic degrees followed the principle of legality review. All institutions of higher education determined their respective standards for measuring academic levels for the conferment of bachelor's degrees according to their respective teaching levels and actual circumstances within the scope of statutory basic principles, which were the specific reflection of the principle of academic autonomy in the process of running institutions of higher education. Provided that the conditions for conferment of academic degrees complied with the provisions of laws and regulations, all institutions of higher education should decide whether to set higher academic standards for the conferment of bachelor's degrees or to duly lower the academic standards for the conferment of bachelor's degrees on the basis of their respective philosophy of schooling, actual teaching circumstances, and ideal academic level pursuit. The judicial review on the conferment of bachelor's degrees should not interfere with or affect the principle of academic autonomy for institutions of higher education and the scope of judicial review on administrative litigations regarding the conferment of academic degrees should follow the basic principle of legality review. 三、对学校授予学位行为的司法审查以合法性审查为原则。各高等学校根据自身的教学水平和实际情况在法定的基本原则范围内确定各自学士学位授予的学术水平衡量标准,是学术自治原则在高等学校办学过程中的具体体现。在符合法律法规规定的学位授予条件前提下,确定较高的学士学位授予学术标准或适当放宽学士学位授予学术标准,均应由各高等学校根据各自的办学理念、教学实际情况和对学术水平的理想追求自行决定。对学士学位授予的司法审查不能干涉和影响高等学校的学术自治原则,学位授予类行政诉讼案件司法审查的范围应当以合法性审查为基本原则。
Guiding Case No. 40 指导案例40号
Sun Lixing v. Labor Personnel Bureau of Tianjin High-Technology Industry Park (a case regarding determination of a work-related injury) 孙立兴诉天津新技术产业园区劳动人事局工伤认定案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: administrative; determination of a work-related injury; due to work; workplace; work-related negligence 关键词 行政工伤认定 工作原因 工作场所 工作过失
Key Points of Judgment 裁判要点
1. “Due to work” as prescribed in item (1) of Article 14 of the Regulation on Work-Related Injury Insurance means that there is correlation between the injury of an employee and the work the employee undertakes. 1.《工伤保险条例》第十四条第一项规定的“因工作原因”,是指职工受伤与其从事本职工作之间存在关联关系。
2. “Workplace” as prescribed in item (1) of Article 14 of the Regulation on Work-Related Injury Insurance refers to a place related to the work responsibilities of an employee. Where the employee has multiple workplaces, the reasonable region where the employee commutes between such multiple workplaces within working hours. 2.《工伤保险条例》第十四条第一项规定的“工作场所”,是指与职工工作职责相关的场所,有多个工作场所的,还包括工作时间内职工来往于多个工作场所之间的合理区域。
3. Where an employee has any negligence when engaging in his work, but the negligence does not fell under such circumstances as intentional offense, intoxication or drug taking, and self-mutilation or suicide as prescribed in Article 16 of the Regulation on Work-Related Injury Insurance, the negligence of the employee does not affect the determination of a work-related injury. 3.职工在从事本职工作中存在过失,不属于《工伤保险条例》第十六条规定的故意犯罪、醉酒或者吸毒、自残或者自杀情形,不影响工伤的认定。
Relevant Legal Provisions 相关法条
Item (1) of Article 14 and Article 16 of the Regulation on Work-Related Injury Insurance 工伤保险条例》第十四条第一项、第十六条
Basic Facts 基本案情
Plaintiff, Sun Lixing, alleged that: His fall and injury due to his work in the workplace within the working hours fell under the circumstances as prescribed in the Regulation on Work-Related Injury Insurance. The decision on not determining the injury as a work-related injury made by the Labor Personnel Bureau of Tianjin High-Technology Industry Park (hereinafter referred to as the “Labor Bureau of THIP”) was erroneous in fact finding and improper in the application of law. Sun Lixing requested the court to set aside the Decision on the Determination of a Work-Related Injury as issued by the Labor Bureau of THIP and to order the Labor Bureau of THIP to re-determine the work-related injury. 原告孙立兴诉称:其在工作时间、工作地点、因工作原因摔倒致伤,符合《工伤保险条例》规定的情形。天津新技术产业园区劳动人事局(以下简称园区劳动局)不认定工伤的决定,认定事实错误,适用法律不当。请求撤销园区劳动局所作的《工伤认定决定书》,并判令园区劳动局重新作出工伤认定行为。
Defendant, Labor Bureau of THIP, contended that: Sun Lixing, a salesman of Tianjin C·Power Lightning Protection Technology Co., Ltd. (hereinafter referred to as “C·Power Company”), got injured on business trip, but the injury was not caused by work reasons and he fell and got injured by taking an infirm step when getting downstairs due to his inattention. There was no significant causation between his injury and the work task he accepted. Therefore, the injury of Sun Lixing did not fall under the circumstances where a work-related injury should be determined as prescribed in the Regulation on Work-Related Injury Insurance. The decision on not determining Sun Lixing's injury as a work-related injury as made by the Labor Bureau of THIP was clear in fact finding, sufficient in evidence, and legitimate in procedures, and it should be affirmed. 被告园区劳动局辩称:天津市中力防雷技术有限公司(以下简称中力公司)业务员孙立兴因公外出期间受伤,但受伤不是由于工作原因,而是由于本人注意力不集中,脚底踩空,才在下台阶时摔伤。其受伤结果与其所接受的工作任务没有明显的因果关系,故孙立兴不符合《工伤保险条例》规定的应当认定为工伤的情形。园区劳动局作出的不认定工伤的决定,事实清楚,证据充分,程序合法,应予维持。
The third party, C·Power Company, claimed that: The Company adopted the system of elimination of the least competent and Sun Lixing has been eliminated before the accident happened. Sun Lixing was originally engaged in sales in the Company. Since he was still obliged to recover remaining loans, he occasionally returned to the Company to make phone calls. When the accident happened, Sun Lixing was no longer an employee of the Company and he fell and got injured not within the scope of the Company's workplaces. Therefore, Sun Lixing did not meet the conditions for determining a work-related injury. 第三人中力公司述称:因本公司实行末位淘汰制,孙立兴事发前已被淘汰。但因其原从事本公司的销售工作,还有收回剩余货款的义务,所以才偶尔回公司打电话。事发时,孙立兴已不属于本公司职工,也不是在本公司工作场所范围内摔伤,不符合认定工伤的条件。
After a hearing, the court found that: Sun Lixing was an employee of C·Power Company. On the morning of June 10, 2003, he was assigned by the person in charge of C·Power Company to pick up somebody at the Beijing airport. He got downstairs from the eighth floor of the International Business Center of Huayuan Industrial Park in Nankai District, Tianjin Municipality (hereinafter referred to as the “Business Center”) where C·Power Company was located and was about to drive the Red Flag car parked in the yard of the Business Center. When he got to the steps at the door on the first floor, he took an infirm step and fell onto the ground from the fourth step, and his arms and legs could not move. The hospital diagnosed his injury as hyperextension injury of cervical spinal jointly with cervical nerve strains, contused laceration of the upper lip, and bruises in the left arm and left leg. Sun Lixing filed an application for the determination of his injury as a work-related injury with the Labor Bureau of THIP. On March 5, 2004, the Labor Bureau of THIP issued a Decision on the Determination of a Work-Related Injury (No. 0001 [2004]), which determined that there was no evidence proving that the fall accident of Sun Lixing was due to his work according to the standard for determining a work-related injury as prescribed in item (5), Article 14 of the Regulation on Work-Related Injury Insurance on the basis of the injured employee's application for the determination of a work-related injury, the certificate of medical diagnosis, and the relevant investigation materials. Therefore, the Labor Bureau of THIP decided not to determine the fall and injury of Sun Lixing as a work-related injury. Sun Lixing refused to accept the Decision on the Determination of a Work-Related Injury as issued by the Labor Bureau of THIP and filed an administrative lawsuit in the No. 1 Intermediate People's Court of Tianjin Municipality. 法院经审理查明:孙立兴系中力公司员工,2003年6月10日上午受中力公司负责人指派去北京机场接人。其从中力公司所在地天津市南开区华苑产业园区国际商业中心(以下简称商业中心)八楼下楼,欲到商业中心院内停放的红旗轿车处去开车,当行至一楼门口台阶处时,孙立兴脚下一滑,从四层台阶处摔倒在地面上,造成四肢不能活动。经医院诊断为颈髓过伸位损伤合并颈部神经根牵拉伤、上唇挫裂伤、左手臂擦伤、左腿皮擦伤。孙立兴向园区劳动局提出工伤认定申请,园区劳动局于2004年3月5日作出(2004)0001号《工伤认定决定书》,认为根据受伤职工本人的工伤申请和医疗诊断证明书,结合有关调查材料,依据《工伤保险条例》第十四条第五项的工伤认定标准,没有证据表明孙立兴的摔伤事故系由工作原因造成,决定不认定孙立兴摔伤事故为工伤事故。孙立兴不服园区劳动局《工伤认定决定书》,向天津市第一中级人民法院提起行政诉讼。
Judgment 裁判结果
On March 23, 2005, the No. 1 Intermediate People's Court of Tianjin Municipality rendered the following administrative judgment (No. 39 [2005], First, Administrative Division, No. 1 IPC, Tianjin): 天津市第一中级人民法院于2005年3月23日作出(2005)一中行初字第39号行政判决:
1. The Decision on the Determination of a Work-Related Injury (No. 0001 [2004]) as issued by the Labor Bureau of THIP shall be set aside. 一、撤销园区劳动局所作(2004)0001号《工伤认定决定书》;
2. The Labor Bureau of THIP should, within 60 days after this Judgment comes into force, conduct a specific administrative act again. The Labor Bureau of THIP appealed. On July 11, 2005, the Higher People's Court of Tianjin Municipality rendered an administrative judgment (No. 0034 [2005], Final, Administrative Division, HPC, Tianjin) that the appeal should be dismissed and the original judgment should be affirmed. 二、限园区劳动局在判决生效后60日内重新作出具体行政行为。园区劳动局提起上诉,天津市高级人民法院于2005年7月11日作出(2005)津高行终字第0034号行政判决:驳回上诉,维持原判。
Judgment's Reasoning 裁判理由
In the effective judgment, the court held that: All parties raised no objection to such facts that the Labor Bureau of THIP had the qualification of administrative law enforcement of this case and the statutory authority according to the law, the Decision on the Determination of a Work-Related Injury as issued by the Labor Bureau of THIP complied with the statutory procedures, and Sun Lixing fell and got injured during working hours. The main issues of this case included: (1) whether the place where Sun Lixing fell and got injured was his “workplace”; (2) whether Sun Lixing fell and got injured “due to his work”; and (3) whether the negligence of Sun Lixing for being not cautious enough in the work process affected the determination of a work-related injury. 法院生效裁判认为:各方当事人对园区劳动局依法具有本案行政执法主体资格和法定职权,其作出被诉工伤认定决定符合法定程序,以及孙立兴是在工作时间内摔伤,均无异议。本案争议焦点包括:一是孙立兴摔伤地点是否属于其“工作场所”?二是孙立兴是否“因工作原因”摔伤?三是孙立兴工作过程中不够谨慎的过失是否影响工伤认定?
(1) Whether the place where Sun Lixing fell and got injured was his “workplace” 一、关于孙立兴摔伤地点是否属于其“工作场所”问题
Item (1), Article 14 of the Regulation on Work-Related Injury Insurance provides that “where an employee is injured in an accident within the working hours and in the workplace due to his or her work, the employee shall be determined to have suffered from a work-related injury.” The term “workplace” in this provision refers to a place related to the work responsibilities of the employee. Where there are multiple workplaces, the reasonable region where the employee commutes between such multiple workplaces should also be included. In this case, the office of C·Power Company located on the eighth floor of the Business Center was the workplace of Sun Lixing and the parking lot where the car he needed to drive for completing the work task of picking up a person at the airport was located was another workplace of his. Since the car was parked outside the door of the first floor of the Business Center, to complete the task of driving the car, Sun Lixing must get downstairs from the eighth floor of the Business Center and went to the parking lot outside the door of the first floor. Therefore, the area from the eighth floor of the Business Center to the parking lot was a reasonable region where Sun Lixing commuted between both workplaces and it should be determined as a workplace of Sun Lixing. The contention of the Labor Bureau of THIP that the place where Sun Lixing fell and got injured was not a workplace excluded the reasonable route for Sun Lixing to complete the work task from workplaces, which did not conform to the legislative intention and was contrary to common sense of living. 工伤保险条例》第十四条爱法律,有未来第一项规定,职工在工作时间和工作场所内,因工作原因受到事故伤害,应当认定为工伤。该规定中的“工作场所”,是指与职工工作职责相关的场所,在有多个工作场所的情形下,还应包括职工来往于多个工作场所之间的合理区域。本案中,位于商业中心八楼的中力公司办公室,是孙立兴的工作场所,而其完成去机场接人的工作任务需驾驶的汽车停车处,是孙立兴的另一处工作场所。汽车停在商业中心一楼的门外,孙立兴要完成开车任务,必须从商业中心八楼下到一楼门外停车处,故从商业中心八楼到停车处是孙立兴来往于两个工作场所之间的合理区域,也应当认定为孙立兴的工作场所。园区劳动局认为孙立兴摔伤地点不属于其工作场所,系将完成工作任务的合理路线排除在工作场所之外,既不符合立法本意,也有悖于生活常识。
(2) Whether Sun Lixing fell and got injured “due to his work” 二、关于孙立兴是否“因工作原因”摔伤的问题
“Due to work” as prescribed in item (1) of Article 14 of the Regulation on Work-Related Injury Insurance means that there is correlation between the injury of an employee and the work the employee undertakes, namely, there is a certain correlation between the injury of the employee and the work he or she undertakes. In order to complete the work task of picking up a person by driving a car, Sun Lixing must get downstairs from the office of C-Power Company on the eighth floor of the Business Center to the first floor and enter the automobile cab. Such act was closely related to the work task and was an act that objectively Sun Lixing must complete the work task. It was not an irrelevant individual behavior that exceeded the scope of Sun Lixing's work responsibilities. Therefore, the fall from the steps at the door of the first floor and injury of Sun Lixing were caused for completing the work task. The contention of the Labor Bureau of THIP that Sun Lixing fell and got injured when he went downstairs, there was no direct causation between his injury and the driving task, and his injury was not “due to his work” was not based on facts. In addition, after accepting the task of picking up a person by driving a car as assigned by the leader of his employer, Sun Lixing got downstairs to the first floor from the eighth floor of the Business Center where C·Power Company was located and fell on his way to the parking lot within the yard of the Business Center. At that time, Sun Lixing has not left the yard. It did not fall under the circumstances of “business trip”; instead, it was within the working hours and workplaces. 工伤保险条例》第十四条第一项规定的“因工作原因”,指职工受伤与其从事本职工作之间存在关联关系,即职工受伤与其从事本职工作存在一定关联。孙立兴为完成开车接人的工作任务,必须从商业中心八楼的中力公司办公室下到一楼进入汽车驾驶室,该行为与其工作任务密切相关,是孙立兴为完成工作任务客观上必须进行的行为,不属于超出其工作职责范围的其他不相关的个人行为。因此,孙立兴在一楼门口台阶处摔伤,系为完成工作任务所致。园区劳动局主张孙立兴在下楼过程中摔伤,与其开车任务没有直接的因果关系,不符合“因工作原因”致伤,缺乏事实根据。另外,孙立兴接受本单位领导指派的开车接人任务后,从中力公司所在商业中心八楼下到一楼,在前往院内汽车停放处的途中摔倒,孙立兴当时尚未离开公司所在院内,不属于“因公外出”的情形,而是属于在工作时间和工作场所内。
(3) Whether the negligence of Sun Lixing for being not cautious enough in the work process affected the determination of a work-related injury 三、关于孙立兴工作中不够谨慎的过失是否影响工伤认定的问题
Article 16 of the Regulation on Work-Related Injury Insurance provides three statutory circumstances where the determination of a work-related injury shall be excluded, namely, an employee shall neither be determined nor be regarded to have suffered from a work-related injury due to intentional offense, intoxication or drug taking, and self-mutilation or suicide. The negligence of an employee in the work he or she undertakes does not fall under the aforesaid statutory circumstances where the determination of a work-related injury is excluded and cannot impede the correlation between the injury of the employee and the work the employee undertakes. In an accident of work-related injury, the injured employee sometimes has such negligent acts as carelessness and inattention and the work-related injury insurance is exactly an important system for sharing accident risks and providing labor security. If the subjective negligent act of an employee is deemed as the condition for excluding the determination of a work-related injury, it violates the fundamental principle of “no-fault compensation” of the work-related injury insurance and does not conform to the legislative purpose of the Regulation on Work-Related Injury Insurance for safeguarding the lawful rights and interests of laborers. Based thereon, even though Sun Lixing was actually imprudent to some extent when walking in the work process, it did not affect the conclusion that his fall and injury were "due to his work." The contention of the Labor Bureau of THIP that the fall and injury of Sun Lixing were not “due to his work” on the ground that Sun Lixing fell and got injured due to his inattention other than wet steps because of the rainy and snowy weather lacked legal basis. 工伤保险条例》第十六条规定了排除工伤认定的三种法定情形,即因故意犯罪、醉酒或者吸毒、自残或者自杀的,不得认定为工伤或者视同工伤。职工从事工作中存在过失,不属于上述排除工伤认定的法定情形,不能阻却职工受伤与其从事本职工作之间的关联关系。工伤事故中,受伤职工有时具有疏忽大意、精力不集中等过失行为,工伤保险正是分担事故风险、提供劳动保障的重要制度。如果将职工个人主观上的过失作为认定工伤的排除条件,违反工伤保险“无过失补偿”的基本原则,不符合《工伤保险条例》保障劳动者合法权益的立法目的。据此,即使孙立兴工作中在行走时确实有失谨慎,也不影响其摔伤系“因工作原因”的认定结论。园区劳动局以导致孙立兴摔伤的原因不是雨、雪天气使台阶地滑,而是因为孙立兴自己精力不集中导致为由,主张孙立兴不属于“因工作原因”摔伤而不予认定工伤,缺乏法律依据。
In conclusion, the decision on not determining the injury of Sun Lixing as a work-related injury issued by the Labor Bureau of THIP lacked legal basis and was erroneous in the application of law, and it should be set aside according to the law. 综上,园区劳动局作出的不予认定孙立兴为工伤的决定,缺乏事实根据,适用法律错误,依法应予撤销。
Guiding Case No. 41 指导案例41号
Xuan Yicheng et al. v. Land and Resources Bureau of Quzhou City of Zhejiang Province (a case regarding recovery of the right to use the state-owned land) 宣懿成等诉浙江省衢州市国土资源局收回国有土地使用权案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: administrative litigation; burden of proof; failure to cite specific legal provisions; erroneous application of law 关键词 行政诉讼 举证责任 未引用具体法律条款 适用法律错误
Key Points of Judgment 裁判要点
Where an administrative agency fails to cite specific legal provisions when committing a specific administrative action and fails to prove that such specific administrative action complies with specific legal provisions during litigation, it shall be deemed that such specific administrative action lacks legal basis and the application of law is erroneous. 行政机关作出具体行政行为时未引用具体法律条款,且在诉讼中不能证明该具体行政行为符合法律的具体规定,应当视为该具体行政行为没有法律依据,适用法律错误。
Relevant Legal Provisions 相关法条
Article 32 of the Administrative Litigation Law of the People's Republic of China 中华人民共和国行政诉讼法》第三十二条
Basic Facts 基本案情
Plaintiff, Xu Yicheng, and other 17 persons were residents of the dormitory building for faculty and administrative staff of Quzhou Fushan Middle School located in No. 1 (originally No. 14) Weining Lane, Kecheng District, Quzhou City, Zhejiang Province. On December 9, 2002, according to the report of the third party, China Construction Bank, Quzhou Branch (hereinafter referred to as “Quzhou Branch”), upon examination, the Development Planning Commission of Quzhou City approved the construction project of expanding business occupancies to the south of the former business building by Quzhou Branch. On the same day, the Planning Bureau of Quzhou City offered opinions on the site selection for the construction project. To expand business occupancies, Quzhou Branch planned to purchase and dismantle the dormitory building for faculty and administrative staff of Fushan Middle School with a floor area of 205 m2, and rebuild it to an open parking lot according to the detailed planning drawing. On December 18, the Planning Bureau of Quzhou City also laid out the redline map of construction land for the expansion of business occupancies of Quzhou Branch. On December 20, the Planning Bureau of Quzhou City issued the construction land planning permit, indicating that the area of land for Quzhou Branch's construction project was 756 m2. On December 25, the defendant, Land and Resources Bureau of Quzhou City (hereinafter referred to the “LRB of Quzhou City”) requested for instructions on the recovery of the right to use the state-owned land of 187.6 m2 from residents of the dormitory building for faculty and administrative staff of Quzhou Fushan Middle School and reported to the People's Government of Quzhou City for approval. On December 31, the LRB of Quzhou City issued a Notice on Recovering the Right to Use the State-owned Land (No. 37 [2002], Land and Resources Bureau, Quzhou) (hereinafter referred to as the “Notice”) and notified Xuan Yicheng and other 17 persons that the right to use the state-owned land under their use was to be recovered and they had the right to sue. The Notice specified the name of law for the administrative decision, but it failed to specify specific legal provisions. The plaintiff refused to accept the Notice and filed an administrative lawsuit. 原告宣懿成等18人系浙江省衢州市柯城区卫宁巷1号(原14号)衢州府山中学教工宿舍楼的住户。2002年12月9日,衢州市发展计划委员会根据第三人建设银行衢州分行(以下简称衢州分行)的报告,经审查同意衢州分行在原有的营业综合大楼东南侧扩建营业用房建设项目。同日,衢州市规划局制定建设项目选址意见,衢州分行为扩大营业用房等,拟自行收购、拆除占地面积为205平方米的府山中学教工宿舍楼,改建为露天停车场,具体按规划详图实施。18日,衢州市规划局又规划出衢州分行扩建营业用房建设用地平面红线图。20日,衢州市规划局发出建设用地规划许可证,衢州分行建设项目用地面积756平方米。25日,被告衢州市国土资源局(以下简称衢州市国土局)请示收回衢州府山中学教工宿舍楼住户的国有土地使用权187.6平方米,报衢州市人民政府审批同意。同月31日,衢州市国土局作出衢市国土(2002)37号《收回国有土地使用权通知》(以下简称《通知》),并告知宣懿成等18人其正在使用的国有土地使用权将收回及诉权等内容。该《通知》说明了行政决定所依据的法律名称,但没有对所依据的具体法律条款予以说明。原告不服,提起行政诉讼。
Judgment 裁判结果
On August 29, 2003, the People's Court of Kecheng District, Quzhou City, Zhejiang Province rendered an administrative judgment (No. 8 [2003], First, Administrative Division, Kecheng) that: the Notice on Recovering the Right to Use the State-owned Land (No. 37 [2002], Land and Resources Bureau, Quzhou) as issued by the defendant, Land and Resources Bureau of Quzhou City on December 31, 2002 should be set aside. After the judgment was pronounced, neither party appealed and the judgment has come into force. 浙江省衢州市柯城区人民法院于2003年8月29日作出(2003)柯行初字第8号行政判决:撤销被告衢州市国土资源局2002年12月31日作出的衢市国土(2002)第37号《收回国有土地使用权通知》。宣判后,双方当事人均未上诉,判决已发生法律效力。
Judgment's Reasoning 裁判理由
In the effective judgment, the court held that: When the defendant, LRB of Quzhou City, issued the Notice, although the name of law based on which the Notice was issued was specified, specific legal provisions were not cited. In the court trial, the defendant contended that it took the specific administrative action alleged in accordance with paragraph 1 of Article 58 of the Land Administration Law of the People's Republic of China (hereinafter referred to as the “Land Administration Law”). Paragraph 1 of Article 58 of the Land Administration Law provides that “Under any of the following circumstances, the land administrative department of the relevant people's government shall recover the right to use the state-owned land with the approval of the people's government that originally gives the approval or the people's government with the power of approval: (1) use land for the sake of public interests; (2) use land for adjustment in re-building old city districts in order to implement urban construction plans; ….” As a competent land administrative department, the LRB of Quzhou City had the right to manage and adjust the right to use the state-owned land within its jurisdiction in accordance with the Land Administration Law; however, its exercise of duty must have specific legal basis. When issuing the Notice, the defendant only specified that the Notice was issued in accordance with the Land Administration Law and the relevant regulations of Zhejiang Province; however, specific legal provisions were not cited. Therefore, the specific administrative action lacked specific legal basis and was erroneous in the application of law. 法院生效裁判认为:被告衢州市国土局作出《通知》时,虽然说明了该通知所依据的法律名称,但并未引用具体法律条款。在庭审过程中,被告辩称系依据《中华人民共和国土地管理法》(以下简称《土地管理法》)第五十八条第一款作出被诉具体行政行为。《土地管理法》五十八条第一款规定:“有下列情况之一的,由有关人民政府土地行政主管部门报经原批准用地的人民政府或者有批准权的人民政府批准,可以收回国有土地使用权:(一)为公共利益需要使用土地的;(二)为实施城市规划进行旧城区改建,需要调整使用土地的;……” 衢州市国土局作为土地行政主管部门,有权依照《土地管理法》对辖区内国有土地的使用权进行管理和调整,但其行使职权时必须具有明确的法律依据。被告在作出《通知》时,仅说明是依据《土地管理法》及浙江省的有关规定作出的,但并未引用具体的法律条款,故其作出的具体行政行为没有明确的法律依据,属于适用法律错误。
In this case, the Official Reply of the Development Planning Commission of Quzhou City on Approving the Plan for the Construction Project of Expanding Business Occupancies (No. 35 [2002], Development Planning Commission, Quzhou), the Approval Form for the Opinions on the Site Selection for the Construction Project, the Redline Map of Planned Construction Land for the Expansion of Business Occupancies by China Construction Bank, Quzhou Branch, and other relevant evidence produced by the LRB of Quzhou City failed to prove that the Notice issued by the LRB of Quzhou City fell within the circumstances of “using land for the sake of public interests” or “using land for adjustment in re-building old city districts in order to implement urban construction plans” as prescribed in paragraph 1 of Article 58 of the Land Administration Law and it lacked main evidence. Therefore, the ground on which the defendant claimed that the Notice it issued complied with the Land Administration Law was untenable. In accordance with the Administrative Litigation Law of the People's Republic of China and other relevant judicial interpretations, the defendant should assume the burden of proof for its specific administrative action in the administrative litigation. Where the defendant failed to provide the evidence and basis for taking the specific administrative action, it should be determined that the specific administrative action lacked evidence and basis. 本案中,衢州市国土局提供的衢州市发展计划委员会(2002)35号《关于同意扩建营业用房项目建设计划的批复》《建设项目选址意见书审批表》《建设银行衢州分行扩建营业用房建设用地规划红线图》等有关证据,难以证明其作出的《通知》符合《土地管理法》五十八条第一款规定的“为公共利益需要使用土地”或“实施城市规划进行旧城区改造需要调整使用土地”的情形,主要证据不足,故被告主张其作出的《通知》符合《土地管理法》规定的理由不能成立。根据《中华人民共和国行政诉讼法》及其相关司法解释的规定,在行政诉讼中,被告对其作出的具体行政行为承担举证责任,被告不提供作出具体行政行为时的证据和依据的,应当认定该具体行政行为没有证据和依据。
In conclusion, the defendant's specific administrative action of recovering the right to use the state-owned land lacked main evidence and was erroneous in the application of law. Therefore, such specific administration action should be set aside. 综上,被告作出的收回国有土地使用权具体行政行为主要证据不足,适用法律错误,应予撤销。
Guiding Case No. 42 指导案例42号
Case regarding Application for Compensation for Arrest of an Innocent Person by Zhu Hongwei 朱红蔚申请无罪逮捕赔偿案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: state compensation; criminal compensation; arrest of an innocent person; compensation for mental distress 关键词 国家赔偿 刑事赔偿 无罪逮捕 精神损害赔偿
Key Points of Judgment 裁判要点
1. Where a state organ and its employees infringe upon the personal freedom of a citizen when exercising their functions and powers, which has seriously affected the normal work and life of the victim and resulted in his or her great mental distress, it is serious consequence of mental distress. 1.国家机关及其工作人员行使职权时侵犯公民人身自由权,严重影响受害人正常的工作、生活,导致其精神极度痛苦,属于造成精神损害严重后果。
2. The amount of compensation for mental distress paid by the organ liable for compensation shall be determined comprehensively according to such specific circumstances as the means, occasion, and method of the infringement, the effects and consequences caused by the infringement as well as the local average living standard and other factors. 2.赔偿义务机关支付精神损害抚慰金的数额,应当根据侵权行为的手段、场合、方式等具体情节,侵权行为造成的影响、后果,以及当地平均生活水平等综合因素确定。
Relevant Legal Provisions 相关法条
Article 35 of the State Compensation Law of the People's Republic of China 中华人民共和国国家赔偿法》第三十五条
Basic Facts 基本案情
In the application for compensation, the claimant, Zhu Hongwei, alleged that: The erroneous custody by the procuratorial authority resulted in great material loss and mental distress to him. He filed an application with the Compensation Committee of the Supreme People's Court for affirming the decision that the People's Procuratorate of Guangdong Province should pay him compensation for infringement upon personal freedom and decide that the People's Procuratorate of Guangdong Province should publish an apology on newspapers to eliminate the ill effects and restore the reputation, pay him 2 million yuan as mental distress compensation, and compensate him for losses to the seized vehicle and the auctioned house property. 赔偿请求人朱红蔚申请称:检察机关的错误羁押致使其遭受了极大的物质损失和精神损害,申请最高人民法院赔偿委员会维持广东省人民检察院支付侵犯人身自由的赔偿金的决定,并决定由广东省人民检察院登报赔礼道歉、消除影响、恢复名誉,赔偿精神损害抚慰金200万元,赔付被扣押车辆、被拍卖房产等损失。
The People's Procuratorate of Guangdong Province contended that: Since Zhu Hongwei was under custody of an innocent person for 873 days, the People's Procuratorate of Guangdong Province decided to pay him 124,254.09 yuan as compensation for infringement upon his personal freedom. It has made a face-to-face apology to him, paid visits to the relevant administrations for industry and commerce, and issued remarks on situations to the relevant banks for the purpose of assisting him in recovering business operations. The People's Procuratorate of Guangdong Province did not participate in the seizure of the vehicle involved and thus it should not assume the liability of compensation therefor. Since Zhu Hongwei failed to produce any evidence proving serious consequence of mental distress, the People's Procuratorate of Guangdong Province should not support his claim for compensation for mental distress and other claims were not within the scope of state compensation. 广东省人民检察院答辩称:朱红蔚被无罪羁押873天,广东省人民检察院依法决定支付侵犯人身自由的赔偿金124254.09元,已向朱红蔚当面道歉,并为帮助朱红蔚恢复经营走访了相关工商管理部门及向有关银行出具情况说明。广东省人民检察院未参与涉案车辆的扣押,不应对此承担赔偿责任。朱红蔚未能提供精神损害后果严重的证据,其要求支付精神损害抚慰金的请求不应予支持,其他请求不属于国家赔偿范围。
After a hearing, the court found that: On July 25, 2005, Zhu Hongwei was subject to criminal detention because he was suspected of committing a crime of contract fraud and on August 26 of the same year, he was released on bail. On May 26, 2006, the People's Procuratorate of Guangdong Province approved the arrest of Zhu Hongwei by issuing a written review decision (No. 4 [2006], People's Procuratorate, Guangdong). On June 1 of the same year, Zhu Hongwei was arrested. On September 11, 2008, the Intermediate People's Court of Shenzhen City, Guangdong Province rendered a judgment that Zhu Hongwei should be acquitted due to insufficient evidence. On June 19, Zhu Hongwei was released. Zhu Hongwei has been taken into custody for 875 days in total. On March 15, 2011, Zhu Hongwei filed an application for state compensation with the People's Procuratorate of Guangdong Province on the ground of arrest of an innocent person. On July 19 of the same year, the People's Procuratorate of Guangdong Province issued a decision on criminal compensation (No. 1 [2011], People's Procuratorate, Guangdong) that: it was to pay Zhu Hongwei 124,254.09 yuan (142.33 yuan x 873 days) as compensation for infringement upon personal freedom according to the national standard of average daily wages for employees in 2010; make an oral apology to Zhu Hongwei and provide convenience for Zhu Hongwei to resume production within the scope of its functions according to law; and not support Zhu Hongwei's claim for compensation for mental distress. 法院经审理查明:因涉嫌犯合同诈骗罪,朱红蔚于2005年7月25日被刑事拘留,同年8月26日被取保候审。2006年5月26日,广东省人民检察院以粤检侦监核〔2006〕4号复核决定书批准逮捕朱红蔚。同年6月1日,朱红蔚被执行逮捕。2008年9月11日,广东省深圳市中级人民法院以指控依据不足为由,判决宣告朱红蔚无罪。同月19日,朱红蔚被释放。朱红蔚被羁押时间共计875天。2011年3月15日,朱红蔚以无罪逮捕为由向广东省人民检察院申请国家赔偿。同年7月19日,广东省人民检察院作出粤检赔决〔2011〕1号刑事赔偿决定:按照2010年度全国职工日平均工资标准支付侵犯人身自由的赔偿金124254.09元(142.33元×873天);口头赔礼道歉并依法在职能范围内为朱红蔚恢复生产提供方便;对支付精神损害抚慰金的请求不予支持。
It was also found that: (1) Zhu Hongwei's daughter surnamed Zhu was under 18 years old When Zhu Hongwei was under criminal detention and she was still not recovered from depressive disorder up to 2012. (2) Zhu Hongwei has served as the Chairman of the Board of Directors and the legal representative of Shenzhen Yihe Industry Co., Ltd. since 2004 and the Company has not participated in annual inspections since 2005. (3) Zhu Hongwei applied for compensating damages arising from the seized vehicle to the Public Security Bureau of Shenzhen City in another case. The Compensation Committee of the Higher People's Court of Guangdong Province decided to deny Zhu Hongwei's application for compensation on the ground that Zhu Hongwei had no evidence to prove that he was the owner of the vehicle involved and he had actual damage. (4) On September 5, 2011, the Higher People's Court of Guangdong Province, the People's Procuratorate of Guangdong Province, and the Public Security Department of Guangdong Province jointly issued the Summary of Minutes of the Symposium on Several Issues on the Application of Compensation for Mental Distress in the Work of State Compensation (No. 382 [2011], Higher People's Court, Guangdong). After the Summary of Minutes was issued, the People's Procuratorate of Guangdong Province stated that it may pay the compensation for mental distress on the basis thereof. 另查明:(1)朱红蔚之女朱某某在朱红蔚被刑事拘留时未满18周岁,至2012年抑郁症仍未愈。(2)深圳一和实业有限公司自2004年由朱红蔚任董事长兼法定代表人,2005年以来未参加年检。(3)朱红蔚另案申请深圳市公安局赔偿被扣押车辆损失,广东省高级人民法院赔偿委员会以朱红蔚无证据证明其系车辆所有权人和受到实际损失为由,决定驳回朱红蔚赔偿申请。(4)2011年9月5日,广东省高级人民法院、广东省人民检察院、广东省公安厅联合发布粤高法〔2011〕382号《关于在国家赔偿工作中适用精神损害抚慰金若干问题的座谈会纪要》。该纪要发布后,广东省人民检察院表示可据此支付精神损害抚慰金。
Judgment 裁判结果
On June 18, 2012, the Compensation Committee of the Supreme People's Court rendered a decision on state compensation (No. 4 [2011], Compensation Committee, Supreme People's Court) that: item (2) of the decision on criminal compensation (No. 1 [2011], People's Procuratorate, Guangdong) as issued by the People's Procuratorate of Guangdong Province should be affirmed; items (1) and (3) of the decision on criminal compensation (No. 1 [2011], People's Procuratorate, Guangdong) should be reversed; the People's Procuratorate of Guangdong Province should pay Zhu Hongwei 142, 318.75 yuan as compensation for infringement upon personal freedom; the People's Procuratorate of Guangdong Province should pay Zhu Hongwei 50,000 yuan as compensation for mental distress; and other compensation claims of Zhu Hongwei should be dismissed. 最高人民法院赔偿委员会于2012年6月18日作出 (2011)法委赔字第4号国家赔偿决定:维持广东省人民检察院粤检赔决〔2011〕1号刑事赔偿决定第二项;撤销广东省人民检察院粤检赔决〔2011〕1号刑事赔偿决定第一、三项;广东省人民检察院向朱红蔚支付侵犯人身自由的赔偿金142318.75元;广东省人民检察院向朱红蔚支付精神损害抚慰金50000元;驳回朱红蔚的其他赔偿请求。
Judgment's Reasoning 裁判理由
The Supreme People's Court held that: On March 15, 2011, compensation claimant, Zhu Hongwei, filed a claim for compensation with the organ liable for compensation, People's Procuratorate of Guangdong Province. This case should be governed by the amended State Compensation Law of the People's Republic of China. Zhu Hongwei has actually been detained for 875 days. The calculation of 873 days by the People's Procuratorate of Guangdong Province was erroneous and should be corrected. In accordance with the provisions of Article 6 of the Interpretation of the Supreme People's Court on Several Issues concerning the Implementation of the State Compensation Law of the People's Republic of China by People's Courts, where the Compensation Committee modified the compensation decision as issued by the organ liable for compensation that has not come into force, the compensation standard should be subject to the national standard of average daily wages for employees of 162.65 yuan in 2011, which was the previous year when such compensation decision was issued. Therefore, the People's Procuratorate of Guangdong Province should pay Zhu Hongwei 142,318.75 yuan as compensation for infringement upon personal freedom for 875 days according to the national standard of average daily wages for employees in 2011. After Zhu Hongwei was acquitted, the People's Procuratorate has made a decision on making an oral apology to Zhu Hongwei and providing convenience for his resumption of production, so as to eliminate ill effects and restore the reputation within the scope of infringement. This decision should be affirmed. Zhu Hongwei's claim for a published apology on newspapers of the People's Procuratorate of Guangdong Province should not be supported. 最高人民法院认为:赔偿请求人朱红蔚于2011年3月15日向赔偿义务机关广东省人民检察院提出赔偿请求,本案应适用修订后的《中华人民共和国国家赔偿法》。朱红蔚被实际羁押时间为875天,广东省人民检察院计算为873天有误,应予纠正。根据《最高人民法院关于人民法院执行〈中华人民共和国国家赔偿法〉几个问题的解释》第六条规定,赔偿委员会变更赔偿义务机关尚未生效的赔偿决定,应以作出本赔偿决定时的上年度即2011年度全国职工日平均工资162.65元为赔偿标准。因此,广东省人民检察院应按照2011年度全国职工日平均工资标准向朱红蔚支付侵犯人身自由875天的赔偿金142318.75元。朱红蔚被宣告无罪后,广东省人民检察院已决定向朱红蔚以口头方式赔礼道歉,并为其恢复生产提供方便,从而在侵权行为范围内为朱红蔚消除影响、恢复名誉,该项决定应予维持。朱红蔚另要求广东省人民检察院以登报方式赔礼道歉,不予支持。
During those 875 days when Zhu Hongwei was detained, his normal family life and company operation were affected, which caused his great mental distress and it should be determined that the mental distress consequence was serious. The amount of compensation for mental distress as claimed by Zhu Hongwei was determined 50,000 yuan on the basis of the failure of normal business operation of Shenzhen Yihe Industry Co., Ltd. and the non-healing of depressive disorder of Zhu Hongwei's daughter since 2005 when Zhu Hongwei was detained as well as the reference standard for compensation for mental distress in Guangdong Province as specified in the Summary of Minutes of the Symposium on Several Issues concerning the Application of Mental Distress Compensation in the Work of State Compensation (No. 382 [2011], HPC, Guangdong) and in light of the compensation negotiation and coordination and the local average living standard. Other claims filed by Zhu Hongwei should not be supported. 朱红蔚被羁押875天,正常的家庭生活和公司经营也因此受到影响,导致其精神极度痛苦,应认定精神损害后果严重。对朱红蔚主张的精神损害抚慰金,根据自2005年朱红蔚被羁押以来深圳一和实业有限公司不能正常经营,朱红蔚之女患抑郁症未愈,以及粤高法〔2011〕382号《关于在国家赔偿工作中适用精神损害抚慰金若干问题的座谈会纪要》明确的广东省赔偿精神损害抚慰金的参考标准,结合赔偿协商协调情况以及当地平均生活水平等情况,确定为50000元。朱红蔚提出的其他请求,不予支持。
Guiding Case No. 43 指导案例43号
Case regarding Application for Compensation for Erroneous Execution by Guotai Junan Securities Co., Ltd., Haikou Binhai Avenue (Tianfu Hotel) Securities Business Department 国泰君安证券股份有限公司海口滨海大道(天福酒店)证券营业部申请错误执行赔偿案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: state compensation; judicial compensation; erroneous execution; recovery of execution 关键词 国家赔偿 司法赔偿 错误执行 执行回转
Key Points of Judgment 裁判要点
1. Where a compensation claimant applies for state compensation on the ground that a people's court falls into the illegal infringement circumstances as prescribed in Article 38 of the State Compensation Law of the People's Republic of China, the people's court shall examine whether the judicial act alleged by the compensation claimant is illegal and whether the people's court should assume the liability for state compensation. 1.赔偿请求人以人民法院具有《中华人民共和国国家赔偿法》第三十八条规定的违法侵权情形为由申请国家赔偿的,人民法院应就赔偿请求人诉称的司法行为是否违法,以及是否应当承担国家赔偿责任一并予以审查。
2. Where, in the hearing of a case involving objection to execution, a people's court revokes the ruling on the original act of execution because the implementation of the settlement agreement by the parties on which the original act of execution is based infringes upon the lawful rights and interests of a person not involved in the case, and reverts the property subject to execution to the state before the execution, the revocation of the ruling and the recovery of execution are not erroneous execution as prescribed in Article 38 of the State Compensation Law of the People's Republic of China. 2.人民法院审理执行异议案件,因原执行行为所依据的当事人执行和解协议侵犯案外人合法权益,对原执行行为裁定予以撤销,并将被执行财产回复至执行之前状态的,该撤销裁定及执行回转行为不属于《中华人民共和国国家赔偿法》第三十八条规定的执行错误。
Relevant Legal Provisions 相关法条
Article 38 of the State Compensation Law of the People's Republic of China 中华人民共和国国家赔偿法》第三十八条
Basic Facts 基本案情
In its application, compensation claimant, Guotai Junan Securities Co., Ltd, Haikou Binhai Revenue (Tianfu Hotel) Securities Business Department (hereinafter referred to as “Haikou Guotai Business Department”) alleged that: Without legally reviewing the original effective judgment and the rulings through retrial procedure (Nos. 9-10, 9-11, 9-12, and 9-13 [1999], HPC, Hainan) (hereinafter referred to as “Nos. 9-10, 9-11, 9-12, and 9-13 rulings”), the Higher People's Court of Hainan Province (hereinafter referred to as the “HPC of Hainan”) rendered the ruling (No. 9-16 [1999], HPC, Hainan) (hereinafter referred to as “No. 9-16 ruling”), executed recovery based thereon, and revoked original Nos. 9-11, 9-12, and 9-13 rulings, which caused the loss of property the Haikou Guotai Business Department has legally acquired. The acts of the HPC of Hainan should be confirmed illegal and Haikou Guotai Business Department should be granted state compensation. 赔偿请求人国泰君安证券股份有限公司海口滨海大道(天福酒店)证券营业部(以下简称国泰海口营业部)申请称:海南省高级人民法院(以下简称海南高院)在未依法对原生效判决以及该院(1999)琼高法执字第9-10、9-11、9-12、9-13号裁定(以下分别简称9-10、9-11、9-12、9-13号裁定)进行再审的情况下,作出(1999)琼高法执字第9-16号裁定(以下简称9-16号裁定),并据此执行回转,撤销原9-11、9-12、9-13号裁定,造成国泰海口营业部已合法取得的房产丧失,应予确认违法,并予以国家赔偿。
The HPC of Hainan contended that: No. 9-16 ruling only corrected errors in previous rulings without changing the original execution basis. Therefore, it was unnecessary to follow the trial supervision procedure. No. 9-16 ruling and the recovery of execution of the HPC of Hainan made the property under dispute restore to the state when the execution of the case started on the basis that the objection to execution raised by a person not involved in the case was tenable upon examination. There was no causation among the recovery of execution, the creditor's rights of Haikou Guotai Business Department as determined through judgment, and the unclear damage claim. The claim of Haikou Guotai Business Department for compensation was untenable and should be dismissed. 海南高院答辩称:该院9-16号裁定仅是纠正此前执行裁定的错误,并未改变原执行依据,无须经过审判监督程序。该院9-16号裁定及其执行回转行为,系在审查案外人执行异议成立的基础上,使争议房产回复至执行案件开始时的产权状态,该行为与国泰海口营业部经判决确定的债权,及其尚不明确的损失主张之间没有因果关系。国泰海口营业部赔偿请求不能成立,应予驳回。
After a hearing, the court found that: On September 21, 1998, the HPC of Hainan rendered a civil judgment (No. 8 [1998], First, Economic Division, HPC, Hainan) for the case of Haikou Guotai Business Department v. Hainan International Leasing Co., Ltd. (hereinafter referred to as “Hainan Leasing Company”) for disputes over securities repurchase. According to the judgment, Hainan Leasing Company should pay Haikou Guotai Business Department the principal of securities repurchase of 36.20 million yuan and the interest thereof up to November 30, 1997 of 16,362,296 yuan; Hainan Leasing Company should pay Haikou Guotai Business Department the interest of the principal of securities repurchase of 36.20 yuan, and the interest from December 1, 1997 to the day the principal being paid off would be calculated at the annual interest rate of 18%. 法院经审理查明:1998年9月21日,海南高院就国泰海口营业部诉海南国际租赁有限公司(以下简称海南租赁公司)证券回购纠纷一案作出(1998)琼经初字第8号民事判决,判决海南租赁公司向国泰海口营业部支付证券回购款本金3620万元和该款截止到1997年11月30日的利息16362296元;海南租赁公司向国泰海口营业部支付证券回购款本金3620万元的利息,计息方法为:从1997年12月1日起至付清之日止按年息18%计付。
In December 1998, Haikou Guotai Business Department applied for the execution of the aforesaid judgment to the HPC of Hainan. After accepting the application, the HPC of Hainan issued a notice on execution to Hainan Leasing Company and found that Hainan Leasing Company had no property subject to execution. Hainan Leasing Company stated that it enjoyed mature creditor's rights of the third party, Hainan Zhongbiao Property Development Co., Ltd. (hereinafter referred to as “Zhongbiao Company”). Zhongbiao Company recognized the aforesaid statement of Hainan Leasing Company and was willing to directly offset some house property of Jingrui Building to Haikou Guotai Business Department to compensate partial debt it owed to Hainan Leasing Company. On June 13, 2000, the HPC of Hainan rendered No. 9-10 ruling, seized some house property of Jingrui Building, and made a public announcement on the same day. On June 29 of the same year, Haikou Guotai Business Department, Hainan Leasing Company, and Zhongbiao Company jointly concluded an Agreement on Execution Reconciliation, which stipulated that Hainan Leasing Company and Zhongbiao Company paid the debt owed to Haikou Guotai Business Department with some house property of Jingrui Building owned by Zhongbiao Company. Therefore, on June 30 of the same year, the HPC of Hainan rendered No. 9-11 ruling, which recognized the Agreement on Execution Reconciliation. 1998年12月,国泰海口营业部申请海南高院执行该判决。海南高院受理后,向海南租赁公司发出执行通知书并查明该公司无财产可供执行。海南租赁公司提出其对第三人海南中标物业发展有限公司(以下简称中标公司)享有到期债权。中标公司对此亦予以认可,并表示愿意以景瑞大厦部分房产直接抵偿给国泰海口营业部,以偿还其欠海南租赁公司的部分债务。海南高院遂于2000年6月13日作出9-10号裁定,查封景瑞大厦的部分房产,并于当日予以公告。同年6月29日,国泰海口营业部、海南租赁公司和中标公司共同签订《执行和解书》,约定海南租赁公司、中标公司以中标公司所有的景瑞大厦部分房产抵偿国泰海口营业部的债务。据此,海南高院于6月30日作出9-11号裁定,对和解协议予以认可。
In the process of handling transfer formalities, parties not involved in the case, Hainan Development Bank, Liquidation Team (hereinafter referred to as “Liquidation Team of HDB”) and Hainan Chuangren Real Estate Co., Ltd. (hereinafter referred to as “Chuangren Company”) raised an objection to execution on the grounds that the house property that was used to offset the debt in No. 9-11 ruling of the HPC of Hainan was owned by them and the ruling damaged their lawful rights and interests. Upon examination, the HPC of Hainan rendered No. 9-12 ruling and No. 9-13 ruling to deny such objection. On March 14, 2002, in accordance with No. 9-11 ruling, Haikou Guotai Business Department changed and registered the property right of the aforesaid house property under its name, and paid corresponding taxes. After Liquidation Team of HDB and Chuangren Company filed a complaint, the HPC of Hainan hold upon reexamination that: No. 9-11 ruling treated the house property that was purchased by the original Jintong Urban Credit Cooperative (latter incorporated into HDB) from Zhongbiao Company and most of whose payment has been made as the house property of Zhongbiao Company to offset the debt owed to Haikou Guotai Business Department, which damaged the interests of Liquidation Team of HDB. No. 9-11 ruling was actually improper, the ground for the Liquidation Team of HDB's objection was tenable, and Chuangren Company's objection should be resolved through judicial proceedings. Therefore, on July 31, 2003, the HPC of Hainan rendered No. 9-16 ruling to set aside Nos. 9-11, 9-12, and 9-13 rulings and to revert and transfer the house property that was used to offset the debt in the original ruling to the state before the execution. 在办理过户手续过程中,案外人海南发展银行清算组(以下简称海发行清算组)和海南创仁房地产有限公司(以下简称创仁公司)以海南高院9-11号裁定抵债的房产属其所有,该裁定损害其合法权益为由提出执行异议。海南高院审查后分别作出9-12号、9-13号裁定,驳回异议。2002年3月14日,国泰海口营业部依照9-11号裁定将上述抵债房产的产权办理变更登记至自己名下,并缴纳相关税费。海发行清算组、创仁公司申诉后,海南高院经再次审查认为:9-11号裁定将原金通城市信用社(后并入海南发展银行)向中标公司购买并已支付大部分价款的房产当作中标公司房产抵债给国泰海口营业部,损害了海发行清算组的利益,确属不当,海发行清算组的异议理由成立,创仁公司异议主张应通过诉讼程序解决。据此海南高院于2003年7月31日作出9-16号裁定,裁定撤销9-11号、9-12号、9-13号裁定,将原裁定抵债房产回转过户至执行前状态。
On December 18, 2004, the Intermediate People's Court of Haikou City (hereinafter referred to as the “IPC of Haikou”) rendered a civil judgment (No. 37 [2003], Civil Retrial, IPC, Haikou) for the case regarding disputes over confirmation of housing property right with Liquidation Team of HDB as plaintiff, Zhongbiao Company as defendant, and Chuangren Company as third party and confirmed that the house property that was originally used to offset debt was owned by Chuangren Company and Liquidation Team of HDB. This judgment has come into force. In June 2005, Haikou Guotai Business Department applied for tax refund to the local taxation bureau of Haikou City and the local taxation bureau of Haikou City refunded the deed tax to it. On August 4, 2006, the HPC of Hainan rendered a civil ruling (No. 9-18 [2006], HPC, Hainan) and ruled to terminate the execution of the civil judgment (No. 8 [1998], First, Economic Division, HPC, Hainan) on the grounds that Hainan Leasing Company has been ruled to get bankrupt for debt repayment and Liquidation Team of Hainan Leasing Company requested to terminate the execution. 2004年12月18日,海口市中级人民法院(以下简称海口中院)对以海发行清算组为原告、中标公司为被告、创仁公司为第三人的房屋确权纠纷一案作出(2003)海中法民再字第37号民事判决,确认原抵债房产分属创仁公司和海发行清算组所有。该判决已发生法律效力。2005年6月,国泰海口营业部向海口市地方税务局申请退税,海口市地方税务局将契税退还国泰海口营业部。2006年8月4日,海南高院作出9-18号民事裁定,以海南租赁公司已被裁定破产还债,海南租赁公司清算组请求终结执行的理由成立为由,裁定终结(1998)琼经初字第8号民事判决的执行。
In July 2004, the creditor's rights involved in the civil judgment (No. 8 [1998], First, Economic Division, HPC, Hainan) were transferred to Guotai Junan Investment Management Co., Ltd. (hereinafter referred to as “Guotai Investment Company”) through agreement. On November 29, 2005, Hainan Leasing Company filed an application for insolvent liquidation with the IPC of Haikou. In the hearing of the insolvency case, Guotai Investment Company declared to the manager of Hainan Leasing Company the relevant creditor's rights, including the creditor's rights as affirmed in the civil judgment (No. 8 [1998], First, Economic Division, HPC, Hainan). On March 31, 2009, the HPC of Haikou rendered a civil judgment (No. 4-350 [2005], IPC, Haikou) to rule the termination of the insolvent liquidation procedure. The creditor's rights of Guotai Investment Company were not satisfied. (1998)琼经初字第8号民事判决所涉债权,至2004年7月经协议转让给国泰君安投资管理股份有限公司(以下简称国泰投资公司)。2005年11月29日,海南租赁公司向海口中院申请破产清算。破产案件审理中,国泰投资公司向海南租赁公司管理人申报了包含(1998)琼经初字第8号民事判决确定债权在内的相关债权。2009年3月31日,海口中院作出(2005)海中法破字第4-350号民事裁定,裁定终结破产清算程序,国泰投资公司债权未获得清偿。
On December 27, 2010, Haikou Guotai Business Department filed an application for state compensation with the HPC of Hainan on the ground that No. 9-16 ruling and the act of the HPC of Hainan was illegal, and the HPC of Hainan should return the house property that was ruled to offset debt in No. 9-11 ruling or compensate for the relevant losses. On July 4, 2011, the HPC of Hainan issued a decision on compensation (No. 1 [2011], HPC, Hainan) and decided not to compensate Haikou Guotai Business Department. Haikou Guotai Business Department refused to accept the decision and requested the Compensation Committee of the Supreme People's Court to render a compensation decision. 2010年12月27日,国泰海口营业部以海南高院9-16号裁定及其行为违法,并应予返还9-11号裁定抵债房产或赔偿相关损失为由向该院申请国家赔偿。2011年7月4日,海南高院作出(2011)琼法赔字第1号赔偿决定,决定对国泰海口营业部的赔偿申请不予赔偿。国泰海口营业部对该决定不服,向最高人民法院赔偿委员会申请作出赔偿决定。
Judgment 裁判结果
On March 23, 2012, the Compensation Committee of the Supreme People's Court issued a decision on state compensation (No. 3 [2011], Compensation Committee, Supreme People's Court) that the decision on compensation (No. 1 [2011], HPC, Hainan) as issued by the HPC of Hainan should be affirmed. 最高人民法院赔偿委员会于2012年3月23日作出 (2011)法委赔字第3号国家赔偿决定:维持海南省高级人民法院(2011)琼法赔字第1号赔偿决定。
Judgment's Reasoning 裁判理由
The Supreme People's Court held that: Person subject to execution, Hainan Leasing Company, was incapable of paying off debts. It enjoyed mature creditor's rights of the third party, Zhongbiao Company, which raised no objection to such mature creditor's rights and confirmed that it would pay off the debts; however, Zhongbiao Company concealed the fact that it has concluded a housing sales contract with a party not involved in the case and has collected most of house property payment and arrived at a Written Execution Reconciliation with Haikou Guotai Business Department and Hainan Leasing Company. Based thereon, the HPC of Hainan rendered No. 9-11 ruling, but the aforesaid agreement on execution reconciliation infringed upon the lawful rights and interests of the party not involved in this case and the house property under dispute obtained by Haikou Guotai Business Department based thereon should not be protected by the law. On the basis that the objection to execution as raised by the party not involved in the case during the execution procedure was tenable upon examination, No. 9-16 ruling as rendered by the HPC of Hainan set aside the original No. 9-11 ruling and reverted the house property under dispute that has been executed to the state before the execution. No. 9-16 ruling and the recovery of execution did not violate legal provisions and were confirmed by the content as determined in the effective civil judgment (No. 37 [2003], Civil Retrial, IPC, Hainan) and the substantial disposition was not improper. The substantial reason for the failure of Haikou Guotai Business Department to realize its creditor's rights was that Hainan Leasing Company was incapable of paying off debts. Although Haikou Guotai Business Department and the transferee of such creditor's rights declared creditor's rights in the bankruptcy of Hainan Leasing Company, such creditor's rights still failed to be paid off. There was no legal causation between the failure to realize such creditor's rights, No. 9-16 ruling of the HPC of Hainan, and the recovery of execution thereof. Therefore, No. 9-16 ruling of the HPC of Hainan and the recovery of execution thereof did not fall under the circumstances of erroneous execution as prescribed in the State Compensation Law of the People's Republic of China and the corresponding judicial interpretations. 最高人民法院认为:被执行人海南租赁公司没有清偿债务能力,因其对第三人中标公司享有到期债权,中标公司对此未提出异议并认可履行债务,中标公司隐瞒其与案外人已签订售房合同并收取大部分房款的事实,与国泰海口营业部及海南租赁公司三方达成《执行和解书》。海南高院据此作出9-11号裁定。但上述执行和解协议侵犯了案外人的合法权益,国泰海口营业部据此取得的争议房产产权不应受到法律保护。海南高院9-16号裁定系在执行程序中对案外人提出的执行异议审查成立的基础上,对原9-11号裁定予以撤销,将已被执行的争议房产回复至执行前状态。该裁定及其执行回转行为不违反法律规定,且经生效的海口中院(2003)海中法民再字第37号民事判决所认定的内容予以印证,其实体处理并无不当。国泰海口营业部债权未得以实现的实质在于海南租赁公司没有清偿债务的能力,国泰海口营业部及其债权受让人虽经破产债权申报,仍无法获得清偿,该债权未能实现与海南高院9-16号裁定及其执行行为之间无法律上的因果联系。因此,海南高院9-16号裁定及其执行回转行为,不属于《中华人民共和国国家赔偿法》及相关司法解释规定的执行错误情形。
Guiding Case No. 44 指导案例44号
Case regarding Application for Compensation for Illegal Criminal Recovery by Bo Xinguang 卜新光申请刑事违法追缴赔偿案
(Issued on December 25, 2014 as adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过 2014年12月25日发布)
Keywords: state compensation; criminal compensation; criminal recovery; return of illicit property 关键词 国家赔偿 刑事赔偿 刑事追缴 发还赃物
Key Points of Judgment 裁判要点
The return of the illicit property that is ordered to be reverted to the victim entity by a public security authority according to an effective criminal judgment as rendered by a people's court does not infringe upon the lawful rights and interests of the compensation claimant and it does not fall under the circumstances as prescribed in item (1) of Article 18 of the State Compensation Law of the People's Republic of China and the public security authority shall not assume the state compensation liability. 公安机关根据人民法院生效刑事判决将判令追缴的赃物发还被害单位,并未侵犯赔偿请求人的合法权益,不属于《中华人民共和国国家赔偿法》第十八条第一项规定的情形,不应承担国家赔偿责任。
Relevant Legal Provisions 相关法条
Article 18 of the State Compensation Law of the People's Republic of China 中华人民共和国国家赔偿法》第十八条
Basic Facts 基本案情
Compensation claimant, Bo Xinguang, filed an application for compensation with the Compensation Committee of the Supreme People's Court on the grounds that the decision on criminal compensation (No. 01 [2011], Public Security Department, Anhui) as issued by the Public Security Department of Anxin Province and the reconsideration decision on criminal compensation (No. 1 [2011], Ministry of Public Security) as issued by the Ministry of Public Security of the People's Republic of China (hereinafter referred to as the “Ministry of Public Security”) were contrary to facts and improper in the application of law. Bo Xinguang alleged that the Public Security Department of Anxin Province disposed of economic disputes beyond its authority and it was illegal for the Public Security Department of Anxin Province to order him to offset his bank debts by the “land of Shenkeng Village” he purchased. He raised such compensation claims that the Public Security Department of Anxin Province should pay him 3.166 million yuan as compensation for economic losses. 赔偿请求人卜新光以安徽省公安厅皖公刑赔字〔2011〕01号刑事赔偿决定、中华人民共和国公安部(以下简称公安部)公刑赔复字〔2011〕1号刑事赔偿复议决定与事实不符,适用法律不当为由,向最高人民法院赔偿委员会提出赔偿申请,称安徽省公安厅越权处置经济纠纷,以其购买的“深坑村土地”抵偿银行欠款违法,提出安徽省公安厅赔偿经济损失316.6万元等赔偿请求。
After a hearing, the court found that: A case has been placed on file for investigation by the Public Security Department of Anxin Province against compensation claimant, Bo Xinguang, because he was suspected of committing the crimes of forging a company seal, illegally issuing financial instruments, and embezzling funds. On September 5, 1999, Bo Xinguang was arrested and before the arrest, he was the General Manager of Shenzhen Xinhui Industrial Development Co., Ltd. (hereinafter referred to as “Xinhui Company”). On November 20, 2001, the Intermediate People's Court of Hefei City rendered a criminal judgment (No. 68 [2001], First, Criminal Division, Hefei), which determined that during the period of contracted management of Anxin Trust and Investment Company, Shenzhen Securities Business Department (hereinafter referred to as “Anxin Trust and Securities Department”) as of January 1995, without the authorization of Anxin Trust and Investment Company (hereinafter referred to as “Anxin Trust Company”), Bo Xinguang arranged his employees to privately engrave and use the seal for the exclusive use of AnxinTrust Company, forged the power of attorney authorized by the legal person of Anxin Trust Company, the certificate of the legal representative, and the guarantee documents to Shenzhen Stock Exchange by using the fake seal, and acquired the operational qualification of Anxin Trust and Securities Department. The acts of Bo Xinguang constituted the crime of forging a seal; during the period of contracted management of Anxin Trust and Securities Department, Bo Xinguang issued false credit certificates to other persons twice in violation of the financial administration regulations, which caused significant economic losses of 10.32 million yuan. The acts of Bo Xinguang also constituted the crime of illegally issuing financial instruments; in the process of contracted management, as the General Manager of Anxin Trust and Securities Department, Bo Xinguang directly or indirectly embezzled the funds of Anxin Trust and Securities Department amounting to 91.732286 million yuan to be used in the investments and various expenses of Xinhui Company he owned by taking advantage of his position, being not associated with AnxinTrust and Securities Department in business operation, but AnxinTrust and Securities Department and AnxinTrust Company assumed the legal liability for the economic losses caused. It should be deemed that Bo Xinguang embezzled the funds of AnxinTrust and Securities Department for his personal use. The acts of Bo Xinguang constituted the crime of embezzling funds. After the case was exposed, the Public Security Department of Anxin Province recovered the illicit money of 16.8905 million yuan and the illicit property and housing amounting to 16.27 million yuan; and seized the housing worth 28.40 million yuan as invested by Xinhui Company and the right to use land worth 19.50 million yuan, 81.0605 million yuan in total. Bo Xinguang committed several crimes and should be subject to the joinder of penalties. Therefore, the court rendered the following judgment: 法院经审理查明:赔偿请求人卜新光因涉嫌伪造公司印章罪、非法出具金融票证罪和挪用资金罪被安徽省公安厅立案侦查,于1999年9月5日被逮捕,捕前系深圳新晖实业发展有限责任公司(以下简称新晖公司)总经理。2001年11月20日,合肥市中级人民法院作出(2001)合刑初字第68号刑事判决,认定卜新光自1995年1月起承包经营安徽省信托投资公司深圳证券业务部(以下简称安信证券部)期间,未经安徽省信托投资公司(以下简称安信公司)授权,安排其聘用人员私自刻制、使用属于安信公司专有的公司印章,并用此假印章伪造安信公司法人授权委托书、法定代表人证明书及给深圳证券交易所的担保文书,获得了安信证券部的营业资格,其行为构成伪造印章罪;卜新光在承包经营安信证券部期间,违反金融管理法规,两次向他人开具虚假的资信证明,造成1032万元的重大经济损失,其行为又构成非法出具金融票证罪;在承包经营过程中,作为安信证券部总经理,利用职务之便,直接或间接将安信证券部资金9173.2286万元挪用,用于其个人所有的新晖公司投资及各项费用,与安信证券部经营业务没有关联,且造成的经济损失由安信证券部、安信公司承担法律责任,应视为卜新光挪用证券部资金归个人使用,其行为构成挪用资金罪。案发后,安徽省公安厅追回赃款1689.05万元,赃物、住房折合1627万元;查封新晖公司投资的价值2840万元房产和1950万元的土地使用权,共计价值8106.05万元。卜新光一人犯数罪,应数罪并罚,遂判决:
(1) Bo Xinguang should be sentenced to a fixed-term imprisonment of two years for the crime of forging a company seal; to a fixed-term imprisonment of eight years for the crime of illegally issuing financial instruments; and to a fixed-term imprisonment of ten years for the crime of embezzling funds; and the court decided to execute the fixed-term imprisonment of 15 years. 一、卜新光犯伪造公司印章罪,判处有期徒刑二年;犯非法出具金融票证罪,判处有期徒刑八年;犯挪用资金罪,判处有期徒刑十年,决定执行有期徒刑十五年。
(2) The court should recover the illicit money and property amounting to 81.0605 million yuan in total. Bo Xinguang refused to accept this Judgment and appealed. On February 22, 2002, the Higher People's Court of Anxin Province rendered a criminal ruling (No. 34 [2002], Final, Criminal Division, HPC, Anhui) to dismiss the appeal and affirm the original judgment. The right to use land that was determined to be seized and ordered to be recovered in the aforesaid criminal judgment was the right to use the “land of Shenkeng Village.” On August 4, 2009, Bo Xinguang was released after serving the sentence. 二、赃款、赃物共计8106.05万元予以追缴。卜新光不服,提起上诉。安徽省高级人民法院于2002年2月22日作出(2002)皖刑终字第34号刑事裁定,驳回上诉,维持原判。上述刑事判决认定查封和判令追缴的土地使用权即指卜新光以新晖公司名义投资的“深坑村土地”使用权。2009年8月4日,卜新光刑满释放。
It was also found that: After the case involving Bo Xinguang's criminal offense was exposed, on December 28, 1999, Shenzhen Development Bank, Renmin Bridge Sub-branch (originally Business Department of Shenzhen Development Bank, hereinafter referred to as “Shenzhen Development Bank”) filed a civil lawsuit with the Intermediate People's Court of Shenzhen City on the ground that there were debt disputes over the lending of 25 million yuan between it and Bo Xinguang, Anxin Trust and Securities Department, and Anxin Trust Company. The case number was No. 72 [2000], First, IPC, Shenzhen; on March 10, 2000, Shenzhen Development Bank also filed a civil lawsuit in the People's Court of Luohu District, Shenzhen City on the ground that there were disputes over a guaranteed loan, an interbank lending contract, and an agreement on margin deposits between it and Anxin Trust and Securities Department, and Anxin Trust Company. The People's Court of Luohu District, Shenzhen City placed the case on file and heard it. The case numbers were No. 372 [2000], First, Economic Division 1, Luohu and No. 373 [2000], First, Economic Division 1, Luohu. On April 19, 2000, the Public Security Department of Anxin Province wrote to the Intermediate People's Court of Shenzhen City and the People's Court of Luohu District, Shenzhen City and requested both courts to suspend the hearing of both civil cases and legally transferred them to the Public Security Department of Anxin Province for uniform investigation in accordance with the provisions of Article 12 of the Provisions of the Supreme People's Court on Several Issues concerning Suspected Economic Crimes in the Trials of Economic Dispute Cases. On July 15, 2000, the People's Court of Luohu District, Shenzhen City transferred the civil cases (No. 372 [2000], First, Economic Division 1, Luohu) and (No. 373 [2000], First, Economic Division 1, Luohu) it accepted to the Public Security Department of Anxin Province. On August 24, 2000, the Criminal Police Forces of the Public Security Department of Anxin Province seized the “land of Shenkeng Village.” After the hearing of the case of Shenzhen Development Bank v. Anxin Trust and Securities Department and Anxin Trust Company regarding debt disputes over the lending of 25 million yuan (No. 72 [2000], First, IPC, Shenzhen), the Intermediate People's Court of Shenzhen City held that the case was suspected of involving a criminal offense. On September 21, 2001, the Intermediate People's Court of Shenzhen City transferred the case to the Public Security Department of Anxin Province for investigation and handling and at the same time, informed Shenzhen Development Bank, Anxin Trust Company, and Anxin Trust and Securities Department that it has transferred the civil case to the Public Security Department of Anxin Province. After the criminal judgment (No. 68 [2001], First, Criminal Division, Hefei) as rendered by the Intermediate People's Court of Hefei City took effect, the Public Security Department of Anxin Province removed the seizure of the “land of Shenkeng Village” and returned the recovered right to use land to the victim entity, Anxin Trust and Securities Department, for offsetting the debt of 25 million yuan that was borrowed by Bo Xinguang in the name of Anxin Trust and Securities Department in the civil case (No. 72 [2000], First, Economic Division, IPC, Shenzhen) under the investigation of the Public Security Department of Anxin Province. 又查明:在卜新光刑事犯罪案发后,深圳发展银行人民桥支行(原系深圳发展银行营业部,以下简称深发行)以与卜新光、安信证券部、安信公司存在拆借2500万元的债务纠纷为由,于1999年12月28日向深圳市中级人民法院提起民事诉讼,案号为(2000)深中法经调初字第72号;深发行还以与安信证券部、安信公司存在担保借款纠纷,拆借资金合同和保证金存款协议纠纷为由,于2000年3月10日,同时向深圳市罗湖区人民法院提起民事诉讼,该院立案审理,案号分别为(2000)深罗法经一初字第372号、(2000)深罗法经一初字第373号。2000年4月19日,安徽省公安厅致函深圳市中级人民法院、罗湖区人民法院,请法院根据最高人民法院《关于在审理经济纠纷案件中涉及经济犯罪嫌疑若干问题的规定》第十二条的规定,对民事案件中止审理并依法移送安徽省公安厅统一侦办。2000年7月15日,罗湖区人民法院将其受理的(2000)深罗法经一初字第372号、(2000)深罗法经一初字第373号民事案件移送安徽省公安厅。2000年8月24日,安徽省公安厅刑事警察总队对“深坑村土地”进行查封。对(2000)深中法经调初字第72号深发行诉安信证券部、安信公司的拆借金额2500万元债务纠纷案件,深圳市中级人民法院经审理认为,该案涉嫌刑事犯罪,于2001年9月21日将该案移送安徽省公安厅侦查处理,同时通知深发行、安信公司、安信证券部已将该民事案件移送安徽省公安厅。安徽省公安厅在合肥市中级人民法院(2001)合刑初字第68号刑事判决生效后,对“深坑村土地”予以解封并将追缴的土地使用权返还被害单位安信证券部,用于抵偿安徽省公安厅侦办的(2000)深中法经调初字第72号民事案件中卜新光以安信证券部名义拆借深发行2500万元的债务。
It was further found that: After the case involving Bo Xinguang's criminal offense was exposed, Shenzhen Development Bank held that Anxin Trust and Securities Department financed 20 million yuan from it, Anxin Trust and Securities Department only paid off 12 million yuan, with the remaining 8 million yuan unpaid and overdue. Shenzhen Development Bank filed a lawsuit in the Intermediate People's Court of Shenzhen City against Bo Xinguang, Anxin Trust and Securities Department, and Anxin Trust Company for disputes over the agreement on securities repurchase and requested that Anxin Trust and Securities Department and Anxin Trust Company should assume the joint and several liability for repayment of the debt of 8 million yuan and the interest of 3 million yuan. On November 9, 1999, the Intermediate People's Court of Shenzhen City rendered a civil judgment (No. 311 [1998], First, Economic Division, IPC, Shenzhen) that: Bo Xinguang should return 2,570,016 yuan and the interest generated during the period when 20 million yuan was used to Shenzhen Development Bank; and when the property of Bo Xinguang was insufficient to pay off the debt, Anxin Trust and Securities Department and Anxin Trust Company should assume the liability of supplementary debt repayment. In the enforcement of the civil judgment, Shenzhen Development Bank and Anxin Trust Company reached a settlement to repay the debt with other property of Anxin Trust Company. 再查明:在卜新光刑事犯罪案发后,深发行认为安信证券部向该行融资2000万元,只清偿1200万元,余款800万元逾期未付,以债券回购协议纠纷为由,向深圳市中级人民法院起诉卜新光及安信证券部、安信公司,要求连带清偿欠款800万元及利息300万元。深圳市中级人民法院1999年11月9日作出(1998)深中法经一初字第311号民事判决:卜新光返还给深发行2570016元及使用2000万元期间的利息;卜新光财产不足清偿债务时,由安信证券部和安信公司承担补充清偿责任。该民事判决在执行中已由深发行与安信公司达成和解,以其他财产抵偿。
Judgment 裁判结果
On November 24, 2011, the Compensation Committee of the Supreme People's Court issued a decision (No. 1 [2011], Compensation Committee, Supreme People's Court) that both the decision on criminal compensation (No. 01 [2011], Public Security Department, Anhui) as issued by the Public Security Department of Anxin Province and the reconsideration decision on criminal compensation (No. 1 [2011], Ministry of Public Security) as issued by the Ministry of Public Security should be affirmed. 最高人民法院赔偿委员会于2011年11月24日作出(2011)法委赔字第1号赔偿委员会决定:维持安徽省公安厅皖公刑赔字〔2011〕01号刑事赔偿决定和中华人民共和国公安部公赔复字〔2011〕1号刑事赔偿复议决定。
Judgment's Reasoning 裁判理由
The Supreme People's Court held that: During the period of contracted management of Anxin Trust and Securities Department, without the authorization of Anxin Trust Company, Bo Xinguang privately engraved the seal of Anxin Trust Company and falsely used it, issued false credit certificates to other persons in violation of the financial administration regulations, and embezzled the funds of Anxin Trust and Securities Department amounting to 91.732286 million yuan. It was determined in the criminal judgment (No. 68 [2001], First, Criminal Division, IPC, Hefei) as rendered by the Intermediate People's Court of Hefei City that the acts of Bo Xinguang constituted the crime of forging a seal, the crime of illegally issuing financial instruments, and the crime of embezzling funds, and it was ordered to recover the illicit money and illicit property worth a total of 81.0605 million yuan (wherein the right to use land was worth 19.50 million yuan), including the right to use the “land of Shenkeng Village” invested by Bo Xinguang in the name of Xinhui Company. The ground of Bo Xinguang that some right to use the land contributed and purchased by Xinhui Company was his personal legal property was untenable. In the effective criminal judgment, the people's court has recovered the right to use the “land of Shenkeng Village” worth 19.50 million yuan as invested by Xinhui Company as one part of the illicit money and property in the crime of embezzling funds committed by Bo Xinguang. Bo Xinguang had no right to demand state compensation against the property that has been recovered in the effective judgment of the people's court. 最高人民法院认为:卜新光在承包经营安信证券部期间,未经安信公司授权,私刻安信公司印章并冒用,违反金融管理法规向他人开具虚假的资信证明,利用职务之便,挪用安信证券部资金9173.2286万元,已被合肥市中级人民法院(2001)合刑初字第68号刑事判决认定构成伪造印章罪、非法出具金融票证罪、挪用资金罪,对包括卜新光以新晖公司名义投资的“深坑村土地”使用权在内的、共计价值8106.05万元(其中土地使用权价值1950万元)的赃款、赃物判决予以追缴。卜新光以新晖公司出资购买的该土地部分使用权属其个人合法财产的理由不成立,人民法院生效刑事判决已将新晖公司投资的“深坑村土地”价值1950万元的使用权作为卜新光挪用资金罪的赃款、赃物的一部分予以追缴,卜新光无权对人民法院生效判决追缴的财产要求国家赔偿。
For the claim of Bo Xinguang that the repayment of the debt of 8 million yuan he owed to Shenzhen Development Bank with the “land of Shenkeng Village” by the Public Security Department of Anxin Province caused him the direct property loss of 3.166 million yuan, after the case involving Bo Xinguang's suspected crime was exposed, Shenzhen Development Bank filed a lawsuit against Bo Xinguang, Anxin Trust and Securities Department, and Anxin Trust Company for the agreement on securities repurchase worth 8 million yuan. The Intermediate People's Court of Shenzhen City rendered a civil judgment (No. 311 [1998], First, Economic Division = 1 \* ROMAN, IPC, Shenzhen) and the civil judgment has been enforced. This case, the case (No. 72 [2000], First, IPC, Shenzhen) that was transferred to the Public Security Department of Anxin Province for investigation by the Intermediate People's Court of Shenzhen City, and the case of Shenzhen Development Bank v. Bo Xinguang, Anxin Trust and Securities Department, and Anxin Trust Company regarding debt disputes over the lending of 25 million yuan were not the same civil case. After the criminal judgment took effect, the Public Security Department of Anxin Province returned the right to use the “land of Shenkeng Village” worth 19.50 million yuan that was ordered to be recovered in the criminal judgment to the victim entity in the case under its investigation where Bo Xinguang borrowed the funds of 25 million yuan from Shenzhen Development Bank in the name of Anxin Trust and Securities Department, which was based on facts and did not impair the interests of Bo Xinguang. The claim of Bo Xinguang that the Public Security Department of Anxin Province repaid the debt of 8 million yuan it owed to Shenzhen Development Bank with the “land of Shenkeng Village” was contrary to facts and his claim that the Public Security Department of Anxin Province should compensate him for the losses of 31.66 million yuan caused by the illegal return of the “land of Shenkeng Village” lacked factual and legal basis. 关于卜新光主张安徽省公安厅以“深坑村土地”抵偿其欠深发行800万元,造成直接财产损失316.6万元的主张。在卜新光涉嫌犯罪案发后,深发行起诉卜新光及安信证券部、安信公司800万元债券回购协议案,深圳市中级人民法院作出(1998)深中法经一初字第311号民事判决并已执行。该案与深圳市中级人民法院于2001年9月21日移送安徽省公安厅侦办的(2000)深中法经调初字第72号,深发行起诉卜新光及安信证券部、安信公司拆借2500万元的债务纠纷案,不是同一民事案件。安徽省公安厅在刑事判决生效后,将判决追缴的价值1950万元的“深坑村土地”使用权发还给其侦办的卜新光以安信证券部名义拆借深发行2500万元资金案的被害单位,具有事实依据,没有损害其利益。卜新光主张安徽省公安厅以“深坑村土地”抵偿其欠深发行800万元,与事实不符。卜新光要求安徽省公安厅赔偿违法返还“深坑村土地”造成其316.6万元损失无事实与法律依据。
In conclusion, the “land of Shenkeng Village” has been recovered on the basis of the criminal ruling (No. 34 [2002], Final, Criminal Division, HPC, Anhui) as rendered by the Higher People's Court of Anxin Province. The claim of compensation claimant, Bo Xinguang that the illegal return of the land by the Public Security Department of Anxin Province has caused the losses of 31.66 million yuan to him lacked legal basis, and other claims lacked factual basis and did not comply with the provisions of the State Compensation Law. Therefore, the aforesaid claims should not be supported. 综上,“深坑村土地”已经安徽省高级人民法院(2002)皖刑终字第34号刑事裁定予以追缴,赔偿请求人卜新光主张安徽省公安厅违法返还土地给其造成316.6万元的损失没有法律依据,其他请求没有事实根据,不符合国家赔偿法的规定,不予支持。
     
     
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