The "Reconsideration Decision" made by the Ministry of Public Security (part). Photo courtesy of respondents
On February 22nd, The Paper learned from the agent of Ma Guanghui, a businessman from Gansu Province that on February 18th, the Ministry of Public Security made a reconsideration decision on criminal compensation (hereinafter referred to as "Reconsideration Decision"), and ordered the organ liable for compensation, namely the Public Security Department of Qinghai Province, to return the gold to Ma Guanghui within 60 days from the date of receiving the Reconsideration Decision .51173.1111111111815
Zhang Xinyu, Ma Guanghui’s agent and lawyer of Beijing Zhang Tieyan Law Firm, told The Paper that his client received the "Reconsideration Decision" on the morning of 22nd and is now considering whether to obey the decision.
If the claim for compensation is rejected, the party concerned applies to the Ministry of Public Security for reconsideration.
The Paper previously reported that in August 1994, the Qinghai Provincial Public Security Bureau seized Ma Guanghui, believing that he was suspected of selling gold, and decided to take him in for examination. On January 17th of the following year, the Qinghai Provincial Public Security Department lifted the detention review of Ma Guanghui, and did not pursue criminal responsibility or make other decisions. In the process of handling the case, the Public Security Department of Qinghai Province seized the gold carried by Ma Guanghui, and then sold the seized gold to the Qinghai Branch of the People’s Bank of China.
On May 21st, 2016, Ma Guanghui applied to the Qinghai Provincial Public Security Department for criminal compensation, requesting the Qinghai Provincial Public Security Department to return more than 7,800 grams of illegally seized gold. The Qinghai Provincial Public Security Department failed to make a decision according to law after receiving the application. Ma Guanghui refused to accept the Qinghai Provincial Public Security Bureau’s failure to make a decision within the time limit, and applied to the Ministry of Public Security for criminal compensation reconsideration, requesting a compensation decision according to law.
The Ministry of Public Security made a decision on September 25, 2020, ordering the Qinghai Provincial Public Security Department to make a decision within two months from the date of receiving the decision.
According to the Reconsideration Decision, the Qinghai Provincial Public Security Department reviewed Ma Guanghui’s application for compensation and identified it as an application for administrative compensation. It believed that Ma Guanghui’s compensation was not confirmed by sufficient evidence, and the claim for compensation could not be established, and the claim for compensation had exceeded the statutory time limit. On November 25, 2020, it made a decision on administrative compensation.
Ma Guanghui refused to accept the Decision on Administrative Compensation, applied to the Ministry of Public Security for reconsideration of criminal compensation, requested to cancel the Decision on Administrative Compensation according to law, and ordered the Qinghai Provincial Public Security Department to return the illegally seized gold according to law.
Ministry of Public Security: illegal seizure, does not support the relevant claims of Qinghai Provincial Public Security Department.
The "Reconsideration Decision" shows that this organ believes that according to Article 18 of the State Compensation Law, if criminal seizure measures are taken against property in violation of the law, the victim has the right to obtain compensation. In this case, the Qinghai Provincial Public Security Department handled Ma Guanghui’s suspected gold trafficking case and seized the gold involved and sold it to the local people’s bank. However, due to the lack of original evidence, it was impossible to prove the legality of the seizure and sale of the gold involved, which should be regarded as illegal seizure. This organ supports Ma Guanghui’s claim to return the seized gold.
On the question of whether the limitation of compensation claim is exceeded. The Qinghai Provincial Public Security Department believes that the case was committed in August 1994, and the gold was confiscated and turned over on August 27, 1994. The specific administrative act has been implemented, and it has been more than two years since Ma Guanghui applied for state compensation in June 2016. This organ believes that although the seizure of the gold involved occurred before the implementation of the State Compensation Law on January 1, 1995, the Qinghai Provincial Public Security Department did not provide evidence to prove that the gold involved had been disposed of and the decision on the disposal was sent to Ma Guanghui, which should be regarded as a continuous state of seizure of the gold involved, and it should be considered that Ma Guanghui applied for compensation under the State Compensation Law, and the time limit for claiming compensation did not exceed. This organ does not support this claim of Qinghai Provincial Public Security Department.
On the nature of the application for compensation. The Qinghai Provincial Public Security Department believes that the handling of the gold involved in the case is an administrative confiscation, and the detention review of Ma Guanghui is a compulsory administrative review measure. The law enforcement in this case belongs to administrative law enforcement and does not belong to the scope of criminal compensation. This organ believes that the Qinghai Provincial Public Security Department has failed to provide evidence to prove that it has made an administrative confiscation decision on the gold involved; According to Article 5 of the 1987 Notice of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice on Severely Cracking down on the Crime of Selling and Smuggling Gold, which should be implemented at that time, and the amount of gold seized by the original police, the Qinghai Provincial Public Security Department should handle the case as a criminal case and have no right to make an administrative confiscation decision on the gold involved. In addition, it is impossible to determine the nature of law enforcement in this case on the basis of the nature of the detention review. In addition, the evidence provided by Qinghai Provincial Public Security Bureau can prove that its law enforcement behavior is a criminal investigation behavior. To sum up, this organ does not support the above claims of Qinghai Provincial Public Security Department.
On the amount of gold seized and the amount of compensation for gold. The opinions and statements of Ma Guanghui and Qinghai Provincial Public Security Bureau on the amount of gold seized are inconsistent. This organ does not judge the amount of gold actually seized, but only determines the amount of compensation for gold according to legal provisions and evidence on file. In this case, Ma Guanghui claimed to return more than 7,800 grams of gold, and there is no evidence to prove it. Ma Guanghui also claimed that the value of gold seized was 450,000 yuan, which was equivalent to 5,183.496 grams according to the value of 500,000 yuan and the purchase price of 96.46 yuan/gram by the People’s Bank of China at that time, which was basically consistent with the original police officer Zhou Wenlong’s statement that the gold seized was about 5,000 grams, equivalent to 450,000 to 460,000 yuan, and the gross weight of gold stated in the list on August 27, 1994 was 461.620 grams and the amount was 427,176.87 yuan.
The "Reconsideration Decision" shows that, in summary, this organ decided as follows: The Qinghai Provincial Public Security Department was ordered to return 5,183.496 grams of gold (pure gold) to Ma Guanghui within 60 days from the date of receiving the "Reconsideration Decision".
Zhang Xinyu, Ma Guanghui’s agent and lawyer of Beijing Zhang Tieyan Law Firm, told The Paper that his client received the "Reconsideration Decision" on the morning of 22nd and is now considering whether to obey the decision.