周某诉某公安分局不履行法定职责案评析

发布时间：2018-02-10 18:15

本文关键词： 噪声扰民不履行法定职责公权力管控　出处：《湖南大学》2014年硕士论文　论文类型：学位论文

【摘要】：广场舞作为民间流行的一种健身形式，在全国各地蓬勃发展，给人们的身心健康带来积极的作用。然而随之而来的负面影响也日益突显，噪声扰民已成为近年来人们反映投诉的热点，这一行为构成了对公民休息权的侵害，已不容忽视，这就向公权力提出了必须加强噪声扰民的管控要求。在实务中如何作为才能切实维护公民的合法权益，是本文进行探讨的出发点。本文选取的案例系一城市居民周某因其所住小区楼栋下附近居民跳广场舞产生的音响声音过大，影响了其生活，报警求助公安机关，尽管公安机关在受理后多方展开调查、协调，但周某报警反映的事情一直没有处理结果，周某将该公安分局诉至人民法院。近年来，侵权受害者因噪声扰民多采取私力自救，此案则成为因广场舞噪声扰民诉公权力部门的第一案。一方面说明我国公民法律意识逐渐增强；另一方面，更重要的是公权力对此类扰民行为不能再放任不管，任其发展，必须采取有效措施加以管理。在此类案件中，行政机关和行政相对人通常会就查处噪声扰民行为是否属于法定职责、行政处罚是否适用此类案件等问题产生分歧。我们以这一系列争议焦点为出发点展开论述，对噪声扰民行为进行定义，对公权力部门查处噪声扰民行为的法定职责进行解读，从不履行法定职责的四种表现形式以及区别行政不作为和行政不履行法定职责对本案的行政执法主体行为进行界定，对履职程度进行分析判断，提出本案中公安机关查处噪声扰民行为属于不完全履行法定职责，，应当在法定期限内对公民就广场舞噪声扰民报警依法完全履行法定职责的结论。针对我国对广场舞噪声扰民的法律规制存在不完善之处，现行法律运行中存在诸多问题，公权力行政管控乏力，因此，本案的主要研究意义还在于如何加强公权力对噪声行为的管控能力。在分析的基础上，我们提出了应当对噪声扰民行为进行法律规制以及从立法层面加强制定配套的规范性文件、明确各行政主体的职责、加强执法监督、完善救济措施、提升政府对城市公共空间的管控能力等对策。
[Abstract]:Square dance, as a popular form of fitness, has been developing vigorously all over the country and has brought positive effects to people's physical and mental health. However, the negative impact has become increasingly prominent. Noise disturbing people has become a hot spot for people to respond to complaints in recent years. This behavior constitutes an infringement of citizens' right to rest and cannot be ignored. This puts forward to the public power the need to strengthen the control and control of noise disturbing the people. In practice, how can we effectively safeguard the legitimate rights and interests of citizens? This is the starting point of this discussion. The case selected in this paper is a case of a city resident Zhou Mou who, because of the sound sound produced by residents dancing in a square dance under the building of his residential district, has affected his life and called the police to seek help from the public security organ. Although the public security organs carried out investigations and coordinated in various ways after accepting the report, the incident reported by Zhou to the police has not been dealt with. Zhou took the public security bureau to the people's court. In recent years, the victims of infringement have taken private efforts to help themselves because of the noise that disturbs the people. This case became the first case in which the square dance noise disturbed the people v. the public power department. On the one hand, it showed that our citizens' legal consciousness was gradually increasing; on the other hand, what was more important was that public power could no longer allow this kind of disturbing behavior to go unchecked, allowing it to develop. It is necessary to take effective measures to manage such cases. In such cases, administrative organs and administrative counterparts usually have differences on whether it is a legal duty to investigate and deal with acts of noise and disturbance, and whether administrative penalties are applicable to such cases. We start with this series of controversy as the starting point, define the behavior of noise disturbing people, and interpret the statutory duty of the public power department to investigate and deal with the behavior of noise disturbing people. From the four manifestations of failure to perform legal duties and the distinction between administrative omission and administrative failure to perform statutory duties, the main acts of administrative law enforcement in this case are defined, and the degree of performance of duties is analyzed and judged. It is proposed that the investigation and punishment by public security organs of acts of noise and disturbance in this case are not fully performed in accordance with their statutory duties. The conclusion that citizens should fully perform their legal duties in accordance with the law should be given within the legal time limit. In view of the imperfections in the legal regulation of noise disturbance in square dancing in our country, there are many problems in the current legal operation. The administrative control of public power is weak, therefore, the main research significance of this case lies in how to strengthen the public power's ability to control noise behavior. We put forward that we should regulate the behavior of noise disturbance by law, strengthen the formulation of supporting normative documents from the legislative level, clarify the responsibilities of each administrative body, strengthen the supervision of law enforcement, and improve the relief measures. Improve the government's ability to control urban public space and other countermeasures.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1

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