The decision to terminate the investigation was made on January 17, 2023, but it was not served on the plaintiff until February 13, 2023, which was procedurally unlawful

Shanghai Railway Transport Court

Administrative Judgments

(2023) Hu 7101 Xingchu No. 263

Plaintiff Chen1.

Entrusted agent Chen 2.

The defendant, the North Sichuan Road Police Station of the Hongkou Branch of the Shanghai Municipal Public Security Bureau, is domiciled in Hongkou District, Shanghai.

The person in charge, Sun, is the director of the North Sichuan Road Police Station of the Hongkou Branch of the Shanghai Municipal Public Security Bureau.

Zhou, the person in charge of the administrative organ who appeared in court to respond to the lawsuit, and the deputy director of the North Sichuan Road Police Station of the Hongkou Branch of the Shanghai Municipal Public Security Bureau.

Entrusted agent Li, a staff member of the Hongkou Branch of the Shanghai Municipal Public Security Bureau.

Plaintiff Chen X 1 sued the defendant Sichuan North Road Police Station of the Hongkou Branch of the Shanghai Municipal Public Security Bureau (hereinafter referred to as the North Sichuan Road Police Station) to terminate the investigation of the case, and filed an administrative lawsuit with this court. After the case was filed on April 6, 2023, this court served a copy of the complaint, a notice to respond, and a notice to present evidence to the defendant Sichuan North Road Police Station within the statutory time limit. This court formed a collegial panel in accordance with the law and heard the case in open court on June 12, 2023. Chen X 2, the entrusted agent of plaintiff Chen X 1, Zhou X , the person in charge of the administrative organ who appeared in court to respond to the lawsuit of the defendant Sichuan North Road Police Station, and the entrusted agent Li X appeared in court to participate in the litigation. The case is now closed.

On January 17, 2023, the defendant Sichuan North Road Police Station made a decision to terminate the investigation of the case (hereinafter referred to as the "Decision to Terminate the Investigation") of Hu Gonghong (Chuan) Xing Termination Decision Zi [2023] No. 00004 (hereinafter referred to as the "Respondent Decision to Terminate the Investigation"), holding that because there were no illegal facts in the case of illegal residential trespass reported by Chen, the 2nd decided to terminate the investigation in accordance with the provisions of Article 259, Paragraph 1 of the "Procedural Provisions on the Handling of Administrative Cases by Public Security Organs" (hereinafter referred to as the "Procedural Provisions").

The plaintiff claimed that the original tenant of the housing in this city (hereinafter referred to as the house involved in the case) was the plaintiff's mother-in-law, Song Moumou, and the plaintiff became the lessee of the house involved in the case in December 2022. The plaintiff had been living in the pavilion since she married her husband Chen Mou3 in 1982, and the plaintiff's household registration was also in the house in question. After the death of the plaintiff's husband on February 20, 2020, the plaintiff's husband's younger brother Chen4 insulted and threatened the plaintiff due to a dispute over the division of the estate, causing the plaintiff to leave the house involved in the case at the end of February of the same year and live outside. On April 2, 2021, the plaintiff, accompanied by his elder brother Chen XX2 and younger brother Chen XX5, went to the house involved in the case, the plaintiff did not go upstairs, and after the plaintiff's elder brother and younger brother went upstairs, Chen XX4 threw three long white wooden planks into the plaintiff's pavilion in succession, and then forcibly broke into the plaintiff's pavilion with a wooden stick, and beat people and property with weapons. After the plaintiff called the police on the same day, the defendant Sichuan North Road Police Station did not make a decision on the handling for a long time. Later, after the plaintiff wrote several letters, the defendant Sichuan North Road Police Station accepted the case in November 2022 and did not make a decision to terminate the investigation until January 17, 2023, which obviously exceeded the statutory time limit for handling the case.

On February 13, 2023, after the decision to terminate the investigation was made, the defendant Sichuan North Road Police Station conducted the first interrogation of the plaintiff and served the plaintiff with the decision to terminate the investigation, violating the case-handling procedures and service procedures of "investigation first, decision later". Chen's illegal act of invading the plaintiff's residence has all the elements to constitute it, and his legal responsibility should be pursued in accordance with law, and the defendant Sichuan North Road Police Station found that he did not have the facts of the violation, and there was an error in the determination of facts. Therefore, the court was requested to make a judgment to revoke the decision to terminate the investigation and order the defendant North Sichuan Road Police Station to make a new decision on the case of the illegal intrusion of the offender Chen X 4 into another person's residence.

The defendant argued that there had been a civil dispute within the plaintiff's family over the right to lease the house in question. On April 2, 2021, the plaintiff's elder brother Chen XX2 reported to the defendant that he had a dispute with Chen XX4, and after receiving the report, the defendant judged that the dispute claimed by the plaintiff in the police was a civil dispute rather than an illegal and criminal act. Later, because the plaintiff wrote a letter to the defendant clearly stating that Chen XX4 had illegally trespassed into the plaintiff's residence on April 2, 2021, the defendant contacted the plaintiff to report the case to the defendant again on November 17, 2022. After the defendant accepted the case the next day, after investigating with the plaintiff's brother, the property management company, the neighborhood committee, etc., it was ascertained that the house involved in the case was inhabited by Chen XX4 at the time of the incident, and the tenant was Song Ruyi, the mother of Chen4, and the plaintiff's mother-in-law, and the plaintiff moved out of the house after her husband died in 2020. Chen4's residence in the house involved in the case as the tenant's son did not constitute an illegal act of trespassing on another person's residence, so the defendant determined that Chen4 did not have the illegal facts of illegally trespassing on another person's house as claimed by the plaintiff, and decided to terminate the investigation. The facts found in the decision to terminate the investigation are clear and the evidence is conclusive. Considering that the plaintiff's brother came forward during the handling of the incident, the defendant questioned the plaintiff on February 13, 2023 to further verify the plaintiff's true opinion. The court was requested to dismiss the plaintiff's claim.

After the trial, it was ascertained that on April 2, 2021, the plaintiff and his elder brother Chen 2 and younger brother Chen 5 went to the house involved in the case, and the plaintiff's brother and younger brother had a dispute with Chen 4 on the second floor, and the plaintiff called the police. After receiving the report, the defendant Sichuan North Road Police Station questioned Chen X 2, Chen X 5, and Chen X 4 on the same day and issued a notice of injury examination to Chen X 2 and Chen X 4, Chen X 2 claimed that the plaintiff and Chen X 4 had a dispute for a long time, and had called the police many times and mediated through the neighborhood committee and community police, and on April 2, 2021, when he accompanied the plaintiff to the house involved in the case to pick up things, he and his younger brother had a dispute with Chen X 4, and Chen X 4 had the behavior of scolding, throwing things, and kicking his knees with his legs. On November 17, 2022, Chen X 2 went to the defendant Sichuan North Road Police Station to report that Chen X 4 illegally trespassed into another person's house on April 2, 2021. On the same day, the defendant Sichuan North Road Police Station questioned Chen X 2, and Chen X 2 claimed that he asked the public security organs to punish Chen X 4 for illegally trespassing into the plaintiff's apartment and pavilion in accordance with the provisions of Article 40 (3) of the "Public Security Administration Punishment Law of the People's Republic of China". After the defendant Sichuan North Road Police Station accepted the case on November 18, 2022, it questioned Chen4 and conducted an investigation with the XX company and the neighborhood committee to which the house involved in the case belonged. On December 17, 2022, the defendant Sichuan North Road Police Station extended the time limit for handling the case by 30 days after approval. On January 17, 2023, the defendant Sichuan North Road Police Station made a decision to terminate the investigation, finding that there were no illegal facts in the case of illegal residential invasion reported by Chen, and decided to terminate the investigation. On February 13, 2023, the defendant Sichuan North Road Police Station served the plaintiff with a decision to terminate the investigation.

It was also ascertained that the original tenant of the house involved in the case was the plaintiff's mother-in-law, Song Ruyi (reported dead on December 18, 1997). Chen X 4 and the plaintiff's husband Chen X 3 (reported dead on February 20, 2020) are Song Ruyi's sons. After the death of her husband, the plaintiff moved out of the pavilion where she lived. In December 2022, the tenant of the house involved in the case was changed from Song Ruyi to the plaintiff.

The above facts include the plaintiff's notice of Chen X 2's injury examination, the decision to terminate the investigation of the defendant, the receipt of the case (matter) receipt on November 17, 2022, the case registration form submitted by the defendant Sichuan North Road Police Station, the decision to terminate the investigation of the defendant, the notice of injury examination of Chen X 2, the notice of injury examination of Chen X 4, the record of Chen X 2's inquiry, the record of Chen X 4's inquiry 2, the record of Chen X 5's questioning, the video CD, the description of the situation, the work situation, the report on the petition for extension of the case handling period, and other evidence, as well as the plaintiff, Proof of the defendant's statements.

This court is of the opinion that, in accordance with the provisions of Article 259, Paragraph 1 of the "Procedural Provisions", if it is found that there are no illegal facts in an administrative case after investigation, the investigation shall be terminated with the approval of the person in charge of the public security police station. The defendant in this case, the North Sichuan Road Police Station, is responsible for the management of public security in the region, and has the statutory duty to make the decision to terminate the investigation.

The focus of the dispute in this case is whether the defendant Sichuan North Road Police Station's decision to terminate the investigation is legal, and whether the evidence is sufficient to determine that "there are no illegal facts". According to the investigation, due to family disputes, the plaintiff and her husband Chen3's family have been out of harmony for a long time, and have been mediated by the neighborhood committee and the community police many times. When the dispute occurred on April 2, 2021, the plaintiff had not actually lived in the house involved in the case for a long time, and the tenant of the house involved in the case at that time was the mother of Chen X 4, and the defendant Sichuan North Road Police Station determined that there was a family civil dispute in the plaintiff's household after verifying the relevant interrogation records, including the video evidence submitted by the plaintiff to the defendant Sichuan North Road Police Station, but there was no evidence to prove that Chen X 4 had committed an illegal act of "forcibly entering the residence inhabited by others without the permission of the owner of the house without the permission of the owner of the house without legal basis or justifiable reason". , and then made a decision to terminate the investigation of the defendant, and found that the facts were clear.

According to article 36 of the "Procedural Provisions" on the service of legal documents, where other administrative disposition decisions are served, the public security organs' delivery of the decision within 7 days of making the decision is the relevant basis for service in accordance with law. In this case, the decision to terminate the investigation was made on January 17, 2023, but the defendant Sichuan North Road Police Station did not serve the plaintiff until February 13, 2023, which was far beyond the time limit for service, and the defendant Sichuan North Road Police Station did not explain that there was a legitimate reason, so this court held that the decision to terminate the investigation was procedurally illegal, but did not have an actual impact on the plaintiff's rights. The plaintiff asserted that the defendant Sichuan North Road Police Station should accept the case on April 2, 2021 instead of November 18, 2022, in this regard, this court held that according to the evidence submitted by both parties, the interrogation record and the injury examination notice on April 2, 2021 all pointed to "beating people" and there was no content of "illegally trespassing into other people's residences", and then the plaintiff Fang XX2 reported the situation to the defendant Sichuan North Road Police Station by letter, and on November 17, 2022, Chen2's interrogation record stated "What did you do today?" I have come to reflect the content of Chen X 4's illegal invasion of other people's residences", so this court adopts the proposition of the defendant Sichuan North Road Police Station that he accepted the case on November 18, 2022 and was approved to extend the time limit for handling the case on December 17, 2022. In summary, in accordance with Article 74, Paragraph 1 (2) of the Administrative Litigation Law of the People's Republic of China and Article 96, Paragraph 2 of the Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:

1. It is confirmed that the administrative act of the defendant Shanghai Municipal Public Security Bureau Hongkou Branch Sichuan North Road Police Station on January 17, 2023 to terminate the investigation of the case by Hu Gonghong (Chuan) Xing Termination Decision Zi [2023] No. 00004 is unlawful.

2. Plaintiff Chen1's other litigation claims are rejected.

The case acceptance fee of 50 yuan is to be borne by the defendant Sichuan North Road Police Station of the Hongkou Branch of the Shanghai Municipal Public Security Bureau.

If you are not satisfied with this judgment, you may file an appeal with this court within 15 days from the date of service of the judgment, and submit copies according to the number of opposing parties, and appeal to the Shanghai No. 3 Intermediate People's Court.

Presiding Judge Shen Jie

People's assessor Gu Qun

People's Assessor Wang Xuezhi

July 28, 2023

Judge's Assistant: Su Wanyue

Judge's Assistant: Zhou Yingqing

Clerk: Zhai Shujing

Attached: Relevant legal provisions

I. Administrative Litigation Law of the People's Republic of China

Article 74:In any of the following circumstances, the people's court is to make a judgment confirming the illegality of an administrative act, but not revoking the administrative act:

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(2) The administrative act procedure is slightly unlawful, but does not have an actual impact on the plaintiff's rights.

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II. Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China

Article 96:In any of the following circumstances, and there is no substantial harm to the plaintiff's lawful enjoyment of important procedural rights such as hearings, statements, and defenses, it is a "minor procedural violation" as provided for in item 2 of the first paragraph of article 74 of the Administrative Litigation Law:

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(2) Minor violations of procedures such as notification and service;

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Transferred from Falu Idiot