Case Description

On January 12, 2023, a police briefing issued by the Jing'an Branch of the Shanghai Public Security Bureau quickly rushed to various major platforms for hot searches. The main reason for the hot search was that the "Wang Mou who has committed an illegal act of beating others" identified in the police briefing was a public figure Wang Sicong, and the police made a punishment decision of "administrative detention for 7 days and a fine of 500 yuan" in accordance with the Public Security Management Penalty Law. However, in the author's opinion, the legal issues involved in this case are more worthy of public attention, and the legal knowledge and regulations involved can even eliminate the "disaster of imprisonment" if properly applied.

The police briefing stated: "Due to the administrative penalty decision made by Mr. Wang and other four people to the public security organ, the public security organ has requested administrative reconsideration, and the public security organ has suspended the execution of administrative detention for Mr. Wang and other four people in accordance with the law. Next, the public security organ will implement the administrative reconsideration according to the results of the administrative reconsideration." Looking at this, I am not only puzzled, but also wondering whether it is possible to suspend the execution after receiving the administrative detention penalty decision and requesting administrative reconsideration? Isn't there a provision that "specific administrative actions shall not be suspended during administrative reconsideration"? Is police law enforcement fair and impartial? Let's take a look at how the law regulates this.

Lawyer Analysis

Article 21 of the Administrative Reconsideration Law stipulates: "During the period of administrative reconsideration, the execution of a specific administrative act shall not be suspended; however, under any of the following circumstances, the execution may be suspended: (1) the respondent deems it necessary to stop the execution; (2) the administrative reconsideration organ deems it necessary to stop the execution; (3) the applicant applies for stopping the execution, and the administrative reconsideration organ considers its request reasonable and decides to stop the execution; and (4) "The execution of the law is suspended."

Article 107 of the Law on Administrative Penalties for Public Security stipulates that: "If the punished person refuses to accept the decision on administrative detention punishment and applies for administrative reconsideration or brings an administrative lawsuit, he may apply to the public security organ for suspending the execution of administrative detention. If the public security organ believes that the suspension of administrative detention will not cause social danger, the punished person or his near relatives shall provide a guarantor that meets the conditions specified in Article 108 of this Law, or pay a deposit of 200 yuan per day for administrative detention. Administrative detention "The punishment decision of" is suspended. "

According to the above legal provisions, "the specific administrative act shall not be suspended during the administrative reconsideration period" is only a principle provision. As long as there are four special circumstances specified in Article 21 of the Administrative Reconsideration Law, the implementation can be suspended; Article 107 of the "Public Security Management Penalty Law" belongs to the fourth special situation among them. The suspension of administrative detention by the police has a clear legal basis.

It should also be borne in mind that once a person is subjected to administrative detention for violating public security management, he/she should apply for administrative reconsideration as soon as possible, and apply to the public security organ for a suspension of administrative detention. At the same time, a guarantor who meets the conditions specified in Article 108 of the Public Security Management Penalty Law (i.e., (1) is not involved in the case; （2） Enjoying political rights and unrestricted personal freedom; （3） Having a permanent residence and fixed residence in the local area; （4） Have the ability to fulfill the guarantee obligation) or propose to pay a deposit of 200 yuan per day for administrative detention. If the public security organ believes that the suspension of administrative detention will not cause social danger, the punishment decision on administrative detention will be suspended. If the decision on administrative detention punishment is revoked by the administrative reconsideration organ (or the people's court) in the future, the decision on administrative detention punishment will not be executed from beginning to end, and the perpetrator's "disaster of imprisonment" will be exempted.