Administrative appeal
Appellant: Yang Bin.
Appellee (defendant of first instance): Guangzhou Lawyers Association.
Legal representative:
Third person in the original trial: Guangdong Datong Law Firm.
Person in charge:
Appellant Yang Bin refused to accept the administrative ruling of Guangzhou Yuexiu District People's Court (20 15) No.413 of Sui Yue Fa Chu Hang Zi on the case of suing the appellee Guangzhou Lawyers Association (hereinafter referred to as Guangzhou Lawyers Association) for failing to perform the statutory duties of internship registration, and appealed to the Guangzhou Railway Transport Intermediate Court.
Appeal request
The administrative ruling No.413 of Guangzhou Yuexiu District People's Court (20 15) was revoked, and the case was ordered to continue to be heard by the First Court of Guangzhou Railway Transportation.
Facts and reasons
Yang Bin, the appellant, was originally a prosecutor of Guangzhou People's Procuratorate and won the honor of "201KLOC-0/China Justice Person". 20 1 1, Guangdong Provincial People's Procuratorate made a decision to study in Yang Bin. On March 201May 18, Yang Bin applied to the competent authority for resignation because he wanted to change his career as a lawyer, and was approved. On March 20th, 20 15, the Standing Committee of Guangzhou Municipal People's Congress decided to remove Yang Bin from the post of chief procurator of Guangzhou Municipal People's Procuratorate. 2065438+At the beginning of April 2005, Yang Bin signed a labor contract with the third party, Guangdong Datong Law Firm (hereinafter referred to as Datong Law Firm). 2065438+On April 27th, 2005, Yang Bin applied for internship registration with the appellee Guangzhou Lawyers Association through Datong Law Firm, and submitted the internship application, internship agreement, notice of resignation of civil servants, legal professional qualification certificate and certificate of no criminal record issued by Huanghuagang Police Station of Yuexiu Branch of Guangzhou Public Security Bureau. On the same day, Guangzhou Lawyers Association received the above application materials for internship registration. Upon examination, it is considered that Yang Bin's application lacks the proof that he has no criminal record during the period from 14 to 1992 10 4, and the application materials are incomplete. So, I sent a fax to Datong Law Firm, telling Yang Bin that he needed to supplement the above supporting materials at one time. If they are incomplete, internship registration cannot be granted. Since then, Yang Bin has nothing to add, and the Guangzhou Lawyers Association has not made a decision on internship registration.
Yang Bin believed that Guangzhou Lawyers Association did not perform its statutory duties of internship registration and infringed on its legitimate rights and interests. On July 24, 20 15, he filed an administrative lawsuit with Yuexiu District People's Court in Guangzhou, demanding that Guangzhou Lawyers Association make an administrative decision on plaintiff Yang Bin's application for internship registration within a time limit. On July 30, 20 15, after five months of closed-door hearing, the court made (20 15) administrative ruling No.413 of Sui Yue Fa Chu on February 2815. The action taken by the Lawyers Association against interns is not an administrative act, and the appellant's request is not an administrative trial.
Appellant Yang Bin thinks: 1, the original trial ruled that the appellant's behavior did not belong to administrative behavior and could not be established. 2. The application of law in the original judgment was wrong. There are no obstacles to the appellant's prosecution. Now it is divided into:
First, the original trial ruled that the appellant's alleged behavior was not an administrative act and could not be established.
First of all, because the appellee Guangzhou Lawyers Association did not make a decision on the appellant's internship application within the time limit, the appellant was not even an intern. Therefore, the original trial ruled that the behavior of the lawyers association towards interns was not administrative, which was related to this case, but not extensive. Secondly, the expression of the ruling of the original trial contains the following meanings: the Lawyers Association has not made a decision on the intern's internship application (such as the Guangzhou Lawyers Association's decision not to register the internship within the time limit complained by Yang Bin), made a decision not to approve the internship registration, or issued an unqualified opinion to the intern, which is not an administrative act. None of these meanings can be established. Because: firstly, according to Article 1 of all china lawyers association's Administrative Rules for Internship of Lawyers (hereinafter referred to as the Administrative Rules), the reason why the Lawyers' Association has the right to make a decision on whether to approve the internship registration of internship applicants and issue an assessment and handling opinion on whether the interns are qualified is because of the provisions of Paragraph 1 of Article 46, Item 5 of the People's Republic of China (PRC) Lawyers Law (hereinafter referred to as the Lawyers Law) and the Ministry of Justice's Practice of Lawyers. The above decisions, assessments and opinions are open, definite, binding and enforceable, so they belong to administrative actions. Secondly, from the provisions of Article 6, paragraph 1, item 2 of the Lawyers Law and Article 35, paragraph 1 of the Administrative Rules, it can be seen that the behavior of lawyers' associations in exercising these functions and powers is the pre-behavior of lawyers' practice license in judicial administrative organs, an indispensable part of the management mechanism of lawyers' practice license, with the nature of administrative management and an administrative act in public law. Judging from the legal consequences, it is also an administrative act for the Lawyers Association not to make a decision on the internship application, to make a decision not to approve the internship registration, or to issue an unqualified opinion to the interns. Because these behaviors can produce negative legal consequences that make interns and interns unable to obtain the administrative license of practicing lawyers, and the consequences obviously belong to the administrative legal effect. Therefore, the ruling in the original trial held that the statement that "the lawyers' association only implemented the self-discipline management behavior of the industry, not the administrative behavior authorized by laws, regulations and rules according to their administrative duties" could not be established.
Second, the original ruling was wrong in applying the law
Because: According to Item 5, Paragraph 1, Article 46 of the Lawyers Law, Guangzhou Lawyers Association, the appellee, is responsible for organizing and managing the internship activities of Guangzhou applicants. This kind of management responsibility has the nature of national administrative authority, and practice registration is the proper meaning of this kind of management responsibility, which is essentially an administrative act in public law. Therefore, Yang Bin's behavior that Guangzhou Lawyers Association fails to make an internship registration decision within the time limit is an act made by a social organization, but it is an administrative act made by an organization authorized by law, which conforms to the provisions of Article 2, paragraph 2 of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Administrative Procedure Law). Yang Bin's recourse to the court of first instance within the statutory time limit for prosecution conforms to the provisions of Article 2, paragraph 2, Article 12, paragraph 1 (12) of the Administrative Procedure Law and Article 1, paragraph 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Interpretation). The court of first instance rejected Yang Bin's prosecution by invoking the first item of the first paragraph of Article 44 of the Interpretation, on the grounds that the behavior of the Lawyers Association towards interns was not an administrative act, and the appellant's request was not within the administrative jurisdiction, which was an error in the applicable law.
In addition, the Guangzhou Lawyers Association believes that Yang Bin's application for internship registration lacks proof that he has no criminal record from 14 to 1992+00.4. According to the provisions of Item 1 of Article 11 of the Public Prosecutors Law of People's Republic of China (PRC), it can be concluded that Yang Bin had never been subjected to criminal punishment before being appointed as a public prosecutor by the Standing Committee of the Guangzhou Municipal People's Congress (including the above-mentioned period, of course). In fact, the criminal record is the information held by the public security organ, and the public security organ has no legal duty to issue a certificate of no criminal record to citizens. However, the Guangzhou Lawyers Association ignored the legal effect of the above-mentioned appointment by the Guangzhou Municipal People's Congress Standing Committee, and insisted on refusing to make a decision on Yang Bin's application for internship registration on the grounds that Yang Bin had not submitted the proof materials issued by the public security organs that he had no criminal record during the period from 14 to 1992+00 4. The overbearing feudal bureaucratic yamen style of Guangzhou Lawyers Association is different from that of a tiger with teeth. Therefore, the original trial rejected the appellant's lawsuit and did not try the Guangzhou Lawyers Association prosecuted by the yamen. This is not only a mistake in the application of the law, but also a violation of the requirement that "the association is now a tiger with teeth, and the court should take charge" put forward by a leader of the the National People's Congress Standing Committee (NPCSC) Law Committee at the "Video Training Course on Administrative Procedure Law of the National Court System" held in the Supreme People's Court on March 20 15.
Three, the appellant's prosecution without any obstacles.
According to the second paragraph of Article 10 of the Administrative Rules, the ruling of the original trial held that it was unfair to say that "if the applicant disagrees with the decision not to register the internship, he can only exercise the right of relief through examination". Because Item 10 of Article 8 of the Legislative Law of People's Republic of China (PRC) stipulates that "the following matters can only be formulated as laws: 10 litigation and arbitration system", and the above management rules are not laws, the provisions of Article 10, paragraph 2, of the rules on application for review cannot limit the interns' right to appeal. In this case, the appellee Guangzhou Lawyers Association did not make a decision on the appellant's internship registration, so this provision has nothing to do with this case. Even if Guangzhou Lawyers Association decides not to grant the appellant internship registration, the appellant has the right to bring an administrative lawsuit according to law.
To sum up, the original trial ruled that the applicable law was wrong, and the appellant Yang Bin's prosecution met the statutory conditions, and requested the court of second instance to make a ruling according to law. Thank you.
I am here to convey
Guangzhou Railway Transportation Intermediate Court
Petitioner
20 16 years 1 6 months
Attachment:
Two copies of the appeal, one original ruling and one copy of the appellant's identity card.