The reform of comprehensive forestry administrative law enforcement urgently needs to establish rules for evidence investigation

The reform of comprehensive forestry administrative law enforcement urgently needs to establish rules for evidence investigation

Author: Zhong Huayou Source: China Green Times September 28, 2007

As everyone knows, the backward link in the building of the mainland's legal system is law enforcement. Undoubtedly, the implementation of comprehensive forestry administrative law enforcement reform aims to solve the chronic problem of multiple law enforcement and duplicate law enforcement, reduce law enforcement and disturb the people, and improve law enforcement efficiency. However, the author believes that from the current situation of forestry administrative law enforcement and the pilot of reform, it is far from enough to rely on the integration of existing forestry administrative law enforcement agencies and other measures to implement the comprehensive forestry administrative law enforcement reform in order to solve the above problems. In other words, even after solving the problems of too many levels of law enforcement, overlapping functions, bloated personnel, and disjointed powers and responsibilities, it does not necessarily mean that the problems of backward law enforcement, such as lax and inaccurate law enforcement, will be solved. Moreover, strict law enforcement and scientific law enforcement are also related to or even more directly related to the personal and property interests of administrative counterparts. Therefore, in the process of improving the reform of comprehensive forestry administrative law enforcement, as a foothold for the implementation of strict law enforcement and scientific law enforcement, we attach great importance to the evidence investigation of forestry law enforcement and even formulate relevant rules, which has become a new topic that we must face.

　　Influenced by legal traditions, the mainland is a country with extremely underdeveloped evidence law. In the minds of ordinary people, including in the writings of many legal scholars, cases accepted by law enforcement agencies are "legal disputes". In fact, such "statements" can easily lead to misunderstandings and may even lead to deviations in law enforcement activities. Strictly speaking, the vast majority of cases accepted by law enforcement agencies are not "legal disputes" in the first place, but "factual disputes". Although legal disputes also occupy a primary place in some cases, the resolution of these "legal disputes" is always based on the ascertainment and proof of the facts of the case. The general term for the various investigative activities related to the collection, review, and use of evidence mentioned here is the evidence investigation that I would like to mention. Due to the mainland's legal and cultural tradition of "heavier punishment and less emphasis on civilians," the issue of evidence investigation in civil, economic, and administrative cases has not received due attention.

　　At present, with the advancement of the process of building the legal system, on the one hand, the parties to the case have greatly strengthened their awareness of evidence, and the relevant stakeholders of some administrative decisions, when the content of the handling decision is irrefutable, often want to find "flaws" in the procedures of evidence investigation; On the other hand, judicial and forestry administrative law enforcement personnel in strengthening the awareness of evidence at the same time, in the process of handling the case how to prevent the infringement of administrative power on the counterpart, but also through the fair evidence investigation procedures to accept the supervision of the counterpart, in order to reduce and eliminate unnecessary disputes and friction, must first start from the specific implementation of forestry laws and norms of the law enforcement personnel themselves - pay more attention to the evidence investigation work, with open and transparent evidence procedural rules to challenge the existing improper "unspoken rules" in forestry law enforcement.

　　Evidence is the basis for ascertaining the facts of a case, and accurate determination of facts is the basis for the correct application of law. Practical experience has proved that many wrongful cases of forestry administration occur not because of improper application of law, but because of errors in the determination of facts. In practice, it is not difficult for us to find that the forestry authorities do not comply with the statutory evidence investigation procedures and ignore the procedural rules of evidence investigation when enforcing the law, which exists to a certain extent in both abstract administrative acts and specific administrative acts, especially in specific administrative acts. In specific administrative acts, administrative penalties and administrative licenses are particularly important. Some forestry law enforcement officers often have a great deal of arbitrariness in the collection and use of evidence, and even ignore certain rules of evidence and despise evidence investigation. Some law enforcement personnel even mistakenly believe that the procedure of conducting evidence investigation will affect the efficiency of handling cases, resulting in the problem of infringing on the legitimate rights and interests of the counterpart from time to time, so that it has increasingly become the "reason" for ordinary people to fight administrative lawsuits.

　　The investigation and evidence collection are simple, rough and the facts are not clear

　　It is believed that as long as there are interrogation records, on-site investigation records, and some evidence provided by the illegal parties, law enforcement officers will consider the evidence to be conclusive, but there are often the following problems: for the relevant witness testimony, the approval and identification of the competent and qualified departments and other evidence have not been collected; In the interrogation record, some relatively important facts and bases were not confirmed or known to the parties, and some key issues were not repeatedly asked and in-depth questioning, and our law enforcement personnel determined the facts of the violation, such as the calculation of illegal gains, only listened to the statements of the person under investigation, and did not conduct multi-party investigation and verification, and made self-righteous determinations and punished on this basis; There is arbitrariness in the determination of the time of violation, and there is a lack of rigorous evidence collection and verification; The identification of the illegal entity is not accurate, such as who the investor is, how much is invested, in whose name is the declaration, whether it is a joint construction or leasing relationship, and so on.

　　The punishment procedure is not perfect

　　In order to protect the legitimate rights and interests of the parties, the Administrative Punishment Law, the Administrative Litigation Law and other relevant laws and regulations have made clear and strict provisions, requiring administrative organs to strictly implement the punishment of administrative violations in accordance with the provisions. The people's court may make a final judgment to revoke or not enforce the case if the number of investigators, the number of persons holding the certificate and presenting the law enforcement certificates, the notice (the notice of punishment, the notice of hearing, the notice of reconsideration and the notification of the right to sue), the collective countersigning and trial, and the service, etc., are not handled in strict accordance with the procedures and requirements provided for in laws, regulations, rules, etc.

　　Handling cases and applying for enforcement beyond the prescribed time limit

　　The "Administrative Punishment Law", "Interpretation of the Supreme People's Court on Several Issues Concerning the Enforcement of the Administrative Litigation Law of the People's Republic of China" and other laws and regulations have clear provisions on the investigation and handling of cases of forestry administration violations and the application for enforcement.

　　Undoubtedly, the above-mentioned problems deprive the counterparts and stakeholders of their substantive and procedural rights such as the right to know, the right to participate and the right to remedy, and even have an impact on the correctness of law enforcement acts, which may damage and affect the public interest and social order. There are many reasons for these problems, but the essence and importance of the legitimacy of the evidence investigation procedure in forestry administrative law enforcement are not well understood, and the professional practical experience of evidence investigation in forestry administrative law enforcement - such as illegal logging, indiscriminate felling of trees and destruction of forest land resources, etc., these seemingly trivial evidence investigation process details are systematically summarized and studied insufficiently, which is one of the key factors.

　　As far as the establishment of evidence investigation rules for the forestry industry is concerned, the author believes that even if it cannot be rejuvenated, it will at least have a value-added effect. The author has reason to believe that taking the opportunity of the reform of comprehensive forestry administrative law enforcement and the implementation of the "Property Law", how to establish and improve the evidence investigation rules of forestry administrative law enforcement will be more in-depth research and wider application - because, when people face forest-related disputes, when forestry law enforcement personnel deal with forestry cases...... although the evidence is not omnipotent, but no evidence is absolutely impossible!