As deputies to the people's congresses of the two places, why is it "legal but inappropriate"
Www.thebeijingnews.com June 3, 2008 7: 28: 33 Source: Beijing News.
Liang Guangzhen, a deputy to the People's Congress of Yunfu City, Guangdong Province, was put on file for investigation on suspicion of misappropriating public funds. However, because he is still a representative of Baise Municipal People's Congress in Guangxi, the Standing Committee of Baise Municipal People's Congress disagreed with Yunfu Procuratorate's compulsory measures against him, and the case was forced to be shelved. The relevant person in charge of the Guangdong Provincial People's Congress Standing Committee asked the the National People's Congress Standing Committee (NPCSC) Municipal Law Committee for advice, and the answer was, "Although it is legal to be elected as a representative of both places at the same time, it is not appropriate." (June 2, Procuratorate Daily)
Then, under the current legal framework and social environment in China, how to treat this "legal but inappropriate" phenomenon?
First of all, what's wrong with being elected as a representative of both places at the same time? The fifth chapter of China's electoral law specifically stipulates "constituency division"; Article 51 stipulates that "if deputies to local people's congresses at various levels are transferred or moved out of their administrative areas during their term of office, their qualifications for deputies shall be terminated by themselves, and the vacancies shall be elected separately." This clearly reflects the close relationship between the delegates and their administrative regions.
The reason why regionality is emphasized is that legislation is not always a grand family portrait, and a legislative process in which the interests of all parties compete and compromise with each other is the normal state of a modern society ruled by law. There are both industries and regions in the game. Deputies to the National People's Congress cannot fully speak for local interests when they move out of the local area, and they lose the reason to be trusted by local voters. While working as deputies to people's congresses in different administrative regions, those who have the ability may work harder to benefit the beauty of all parties. But once the interests of the two places conflict and need to speak for the interests of the region, what should I do?
It is at this point that Liang Guangzhen, who is also a representative of Yunfu City, Guangdong Province and Baise City, Guangxi Province, is "inappropriate". The key to the problem is not whether the two places are at the same level, but that they belong to different administrative regions and therefore represent different interests. Liang Guangzhen can become a representative of different levels in Guangdong Province because of the existence of subordinate relationship, which makes the interests of the counties and cities he represents inclusive step by step. However, there is no administrative affiliation between Yunfu in Guangdong and Baise in Guangxi, and the interests of the two places not only do not cross, but may also conflict. Seeing this clearly, Liang Guangzhen, as an entrepreneur and a deputy to the people's congresses of the two places, can easily come to the conclusion that it is "inappropriate".
However, "inappropriate" does not mean breaking the law. Jurisprudential analysis cannot replace the explicit provisions of the law. Article 34 of the Constitution clearly stipulates that citizens have the right to vote and stand for election, and citizens can do things that are not prohibited by law. No state organ can do anything without legal authorization. In other words, the restriction of citizens' basic rights can only be carried out by the national legislature through the enactment of laws.
The electoral law does not restrict citizens from being elected to the National People's Congress in both places. Liang Guangzhen is the representative of the two places, which was completed under the framework of the existing electoral law. The procedure is impeccable, and his status as a deputy to the National People's Congress is legally true and effective. Since the representative's identity is legal, Guangdong Yunfu Procuratorate certainly cannot take compulsory measures against him. As a representative of Baise Municipal People's Congress in Guangxi, he is not subject to any arrest or criminal trial without the consent of the Standing Committee of Baise Municipal People's Congress. Article 30 of the Representative Law also strongly supports this point. This is not a dilemma for procuratorial organs, but that judicial personnel should strictly abide by the explicit laws.
The basic rights enjoyed by a person should be respected and protected as long as they do not violate the law, which is the bottom line ethics that human society must adhere to.
No matter to what extent human rationality advances, legal flaws and loopholes are always inevitable; But in a modern society ruled by law, patience and respect for the law are more important than rationality. As far as this case is concerned, it is suggested that the National People's Congress should pay attention to the "inappropriate" degree of this phenomenon, and amend the law or legislative interpretation as soon as possible to clearly stipulate that citizens should not concurrently serve as deputies to the National People's Congress in different administrative regions without affiliation. But we must wait before the law is updated.
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The case of a billionaire who committed a crime as a deputy to the people's congresses of the two places was forced to be shelved.
Procuratorial Daily 2008-06-02 13:25:07[ Comment]
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Xinhua News Network News Liang Guangzhen, a billionaire in Yunfu City, Guangdong Province, was put on file for investigation on suspicion of misappropriating public funds. In view of his status as a representative of Yunfu Municipal People's Congress, the Standing Committee of Yunfu Municipal People's Congress approved the procuratorate to take compulsory measures against him and transferred him to the court for criminal trial. However, the Standing Committee of Baise Municipal People's Congress in Guangxi expressed different opinions, because Liang Guangzhen is also a representative of Baise Municipal People's Congress. Without his permission, Yunfu City Procuratorate cannot take compulsory measures against him and cannot transfer him to the court for criminal trial. Can a person concurrently serve as a deputy to the people's congresses of both places? The organs of the NPC Standing Committees in the two places disagreed, and the procuratorial organs were at a loss, so the case was forced to be shelved. ...
On April 23rd, the reporter went to Guanglong Group in Yunan County, Yunfu City, Guangdong Province. Yuan Yongshu, vice president of the group, told reporters, "Liang Guangzhen will go to Hong Kong today and transfer to the United States for a 30-to 45-day inspection." Yuan Yongshu said that Liang Guangzhen's assets in Longlin County, Baise City, Guangxi Province reached more than 300 million yuan.
A "libel case" triggered a "rich businessman" misappropriation of public funds.
Liang Guangzhen, 46, comes from a peasant family in Shuisonggen Village, Ducheng Town, Yun 'an County, Guangdong Province, and was re-elected as the representative of Yunfu City's Third National People's Congress. A libel case unrelated to him led to an old case more than ten years ago.
In July 2006, a libel case against the secretary of Yunfu Municipal Party Committee was uncovered. Jiang Gang, then a member of the Party Committee of Yunfu Public Security Bureau, and Huang Weiming, once a member of the Standing Committee of Luoding Municipal Committee and the director of the Public Security Bureau of a county-level city under Yunfu City, were arrested on suspicion of libel by Yunfu City Procuratorate.
Soon, the fact that Huang Weiming and Jiang Gang were suspected of duty crimes also surfaced. "Huang Weiming is suspected of seven counts, and Jiang Gang is suspected of four counts: corruption, bribery, misappropriation of public funds and defamation." A judicial personage told the reporter, "In April 2007, Yunfu Intermediate People's Court sentenced Jiang Gang and Huang Weiming to 20 years' imprisonment for several crimes in the second instance. "
In addition, the procuratorate found out that Jiang Gang was the "brother-in-law" of Guangdong and Guangxi towns. 1In September, 1997, Liang Guangzhen transferred the confiscated income of 3 million yuan from the Public Security Bureau to the working capital of the enterprise through Jiang Gang, and returned the money at 65438 on February 30th of that year.
"According to the provisions of Article 384 of the Criminal Law, Liang Guangzhen knew that 3 million yuan was public funds and conspired with Jiang Gang to misappropriate it. They constitute accomplices in the crime of misappropriation of public funds, and the circumstances are' serious' and should be sentenced to more than five years in prison. " A judicial person told reporters.
"Liang Guangzhen and Jiang Gang should have been dealt with together, but since Liang Guangzhen is a deputy to Yunfu Municipal People's Congress, they have been put on hold for the time being and will be dealt with after the trial of Jiang Gang." People in the judicial circles said that at the beginning of last year, when Jiang Gang and other suspected libel cases entered the trial procedure, Yunfu City Procuratorate filed an investigation on Liang Guangzhen's alleged misappropriation of public funds, and reported to the Standing Committee of Yunfu Municipal People's Congress to take compulsory measures against Liang according to procedures. The Standing Committee of Yunfu Municipal People's Congress has a clear attitude, resolutely supports the procuratorial organs in handling cases according to law, and allows any compulsory measures to be taken against him and transferred to the court for criminal trial.
As representatives of the two places, the case was forced to be shelved.
However, in March this year, Tan Zhenqiu, deputy director of the Standing Committee of Baise Municipal People's Congress in Guangxi, came to Yunfu Procuratorate with the decision of the Standing Committee of the Municipal People's Congress, and told Li Qingxie, the chief procurator, that because Liang Guangzhen was a representative of Baise Municipal People's Congress, Yunfu Procuratorate had to take compulsory measures against Liang Guangzhen and transfer him to the court for criminal trial without the permission of the Standing Committee of Baise Municipal People's Congress, which was a "serious violation of the law".
A seemingly simple embezzlement case, because the protagonist is a billionaire with huge investments in both places, and he is also a deputy to the people's congresses in both places, the case becomes complicated.
"Without the permission of the Standing Committee of Baise Municipal People's Congress, Guangdong cannot handle the Liang Guangzhen case. Although the Standing Committee of Yunfu Municipal People's Congress approved it, the judicial organs can neither take any coercive measures nor try Liang Guangzhen. Even if sentenced, you can't go to jail. What's the point? " Yang, deputy director of the Election Liaison and Personnel Appointment and Removal Committee of the Standing Committee of Guangdong Provincial People's Congress, said, "Representatives are not special citizens and cannot be exempted from punishment."
However, Lu Xiao, secretary-general of the Standing Committee of Baise Municipal People's Congress, believes that the so-called misappropriation of public funds was 10 years ago, and the money was not used to do illegal things, so it was returned soon. Therefore, even if it is a crime, it is minor, not to mention that the case in which Liang was suspected of committing a crime did not happen there. If it was committed there, it must be allowed. Lu Xiao said: "The state has a policy to let the developed coastal areas in the east help the backward areas in the west to develop their economies. Liang Guangzhen has contributed to the economic and social development of Baise. If compulsory measures are allowed to be taken against Liang Guangzhen and transferred to the court for criminal trial, the impact on enterprises will be too great. "
Regarding Lu Xiao's point of view, Huang Guankun, director of the Legal Affairs Committee of Yunfu Municipal People's Congress Standing Committee, expressed different views: "Jiang Gang, an accessory, has been sentenced to nine years' imprisonment for misappropriating public funds. How can it be said that it is a minor crime? The Standing Committee of Yunfu Municipal People's Congress believes that the practice of the procuratorate is legal and correct, and compulsory measures should be allowed to be transferred to criminal trial. "
Faced with the same fact, the NPC Standing Committee of Guangdong and Guangxi made diametrically opposite decisions, and Yunfu City Procuratorate was at a loss.
The two places are tit for tat: the election is legal.
Liang Guangzhen was elected to the National People's Congress in two places. Yang believes that "this is inappropriate" because voters at the same level (prefecture level) only have the right to vote and stand for election once.
"Liang Guangzhen was re-elected as the third NPC deputy in Yunfu City," Zhu Zuqiu, director of the liaison personnel appointment and removal working committee of Yunfu Municipal People's Congress Standing Committee, told reporters. "He was elected as the representative of the Municipal People's Congress in Yunnan County."
"It is a matter of course that Liang Guangzhen was elected as a representative of Yunfu Municipal People's Congress. You can also be elected as a representative in your place of residence and work, but you can't be a representative of both places at the same time. " Yang said, "The representative elected for the first time in Yunfu City, after being known by Baise Municipal People's Congress, should not choose Liangguang Town again. Liang Guangzhen clearly knows that he is already a representative of Yunfu Municipal People's Congress and should resign as a representative of Baise. "
"In June 5438 +2006 10, Liang Guangzhen was elected as the representative of Baise Municipal People's Congress." Lu Xiao told reporters, "Liang Guangzhen is a businessman from Guangdong, and the aluminum factory in Longlin County was restructured. He invested hundreds of millions to buy it. His representative is not our hat, but elected by Longlin County. "
"We know that Liang Guangzhen is a representative of Yunfu Municipal People's Congress, but he can also be elected as a representative of Baise Municipal People's Congress." Contrary to the view of Guangdong National People's Congress, Lu Xiao thinks that "Liangguang Town invests and develops here. Although his registered permanent residence is not here, he can be elected as a representative. Didn't Guangdong also choose representatives of migrant workers to go to the National People's Congress? There is no law that stipulates that representatives cannot be elected across regions. "
"The state does not advocate part-time jobs for representatives of the two places, nor does it advocate cross-employment, mainly to meet and ensure the time for representatives to participate in and discuss state affairs." Yang believes.
"I agree that one person is not encouraged to be a NPC deputy at multiple levels, but a part-time job at the same level does not have much impact." Lu Xiao believes that "if the two places hold meetings at the same time, delegates can take time off. Now that the traffic is developed, you can run on behalf of two places. Moreover, representatives can also entrust their opinions, but if there is a conflict in voting time, it may be affected because the voting rights cannot be entrusted. "
"In theory, one person can also serve as a deputy to the five-level people's congresses at the same time, but he cannot serve as a deputy to the people's congresses in two places (no affiliation) at the same time." A prosecutor suggested that "the National People's Congress can solve this problem through legislation".
Neither side would budge: the argument was deadlocked.
"I asked the Third Room (Law Office) of the the National People's Congress Standing Committee (NPCSC) Legal Work Committee, and the answer was that although it is legal to be elected as a representative of both places at the same time, it is' inappropriate'." Yang told reporters, "Liang Guangzhen can resign as the representative of Guangdong and Guangxi. If Liang Guangzhen does not resign, he can recall his representative position in one place. "
According to the reporter's understanding, Guangdong has asked the Standing Committee of Baise Municipal People's Congress to remove Liang Guang from his post as a representative of Baise Municipal People's Congress. However, a staff member of the Standing Committee of Baise Municipal People's Congress said: "The reasons for dismissing deputies are all legal. It is definitely illegal to propose a recall just because you are elected as a deputy to the people's congresses of the two places. Besides, if the representative does not have an accident, he will generally not propose a recall case. "
"The fact that Liang Guangzhen is suspected of misappropriating public funds is clear and the evidence is indeed sufficient. This is indisputable. " At present, the file materials about Liang Guangzhen's alleged crime have been reported to the Guangdong Provincial Procuratorate. A prosecutor of the Guangdong Provincial Procuratorate told the reporter, "This kind of thing has never happened before. In the face of the application of the same content of the procuratorate, the Standing Committee of the National People's Congress in one place allows it, and the Standing Committee of the National People's Congress in another place does not allow it. "
"The Baise Municipal People's Congress Standing Committee does not allow it. In fact, there are two reasons. One is that Yunfu City Procuratorate violated the provisions of Article 30 of the Law on Deputies to the National People's Congress and Local People's Congresses at Various Levels. The other is to protect Liang Guangzhen's investment in Baise City. " Huang Guankun analyzed that Article 13 of the "Measures for the Implementation of the Representative Law" promulgated by the Guangdong Provincial People's Congress stipulates that the executive organ must report to the presidium or the Standing Committee of the people's congress at or above the county level for arrest, criminal trial and other measures to restrict personal freedom before implementation. Where the above-mentioned restrictions on personal freedom are imposed on representatives who hold two or more representative positions at the same time, the executing organ shall report to the presidium or the standing committee of the relevant people's congress respectively, and implement them after being approved by the presidium or the standing committee of the people's congress at the highest level. According to this regulation, if Baise is a county-level city and Yunfu is a prefecture-level city, then the procuratorate can implement the approval decision of the Standing Committee of Yunfu Municipal People's Congress in accordance with the provisions of the Guangdong Provincial People's Congress, regardless of whether the Standing Committee of Baise Municipal People's Congress approves it or not. But the problem is that Baise is also a prefecture-level city, and the Guangdong Provincial People's Congress has no specific provisions on the licensing issues encountered by the Standing Committee of the People's Congress at the same level.
It is suggested to amend the electoral law and the representative law.
"In the face of the disapproval of the Standing Committee of Baise Municipal People's Congress, what kind of relief channels should the procuratorial organs seek?" A prosecutor expressed confusion that the disapproval of the Standing Committee of Baise Municipal People's Congress was tantamount to indirectly denying the authority of the Standing Committee of Yunfu Municipal People's Congress. More importantly, with the development of economy, attracting investment from all over the world will attract a large number of "Guangdong and Guangxi towns" private entrepreneurs. If entrepreneurs invest in many places and become deputies to people's congresses in many places, it will be particularly complicated to investigate and deal with crimes.
"Baise Municipal People's Congress Standing Committee disagreed. Is there any other way? " Zhu Zuqiu told reporters, "I propose to solve this problem through legislation. In different regions, people cannot be elected to the National People's Congress at the same time. " In the face of this bizarre case, Yang said, "This is the first time I have encountered it, which is of great research value." Yang is investigating the case and hopes to promote relevant legislation. His legislative proposal is: "the National People's Congress Standing Committee (NPCSC) should amend the Election Law of the National People's Congress and Local People's Congresses and the Law on Deputies to the National People's Congress and Local People's Congresses, and clearly stipulate that voters can only exercise the right to vote and stand for election once in the election of deputies at the corresponding level. Those who are elected as deputies to the National People's Congress in two places at the same time shall resign as deputies in one place; If you refuse to resign, your election will be invalid in the future. "
The reporter learned from the investigation that whether Liang Guangzhen is suspected of committing a crime and needs to be investigated has attracted high-level attention. "Although the opinions of the power organs of Guangdong and Guangxi are difficult to be unified for a while, which makes the procuratorial organs at a loss, the laws in China are unified." A prosecutor told reporters, "The case can't be dragged on for a long time. I hope all parties can work together to solve the problem."
At the end of the interview, Lu Xiao changed the subject: "The Standing Committee of Baise Municipal People's Congress has not made a final decision on the issue of Guangdong and Guangxi, and we have to reach a consensus with Guangdong."