尹琛琰诉卢氏县公安局110报警不作为行政赔偿案

　　原告：尹琛琰，女，24岁，卢氏县百纺公司下岗职工，住河南省卢氏县城关镇。
　　被告：卢氏县公安局，住所地：河南省卢氏县城新建路。
　　法定代表人：刘永章，该局局长。
　　原告尹琛琰开办的“工艺礼花渔具门市部”发生盗窃时，卢氏县公安局“110指挥中心”接到报警后没有受理，尹琛琰认为，卢氏县公安局的失职造成其财产损失，遂向河南省卢氏县人民法院提起行政诉讼。
　　原告诉称；2002年6月26日夜，我在卢氏县东门开办的“工艺礼花渔具门市部”被盗。小偷行窃时惊动了门市部对面“劳动就业培训中心招待所”的店主和旅客。他们即向卢氏县公安局“110指挥中心”报案，但接到报警的值班人员拒不处理。20多分钟后，小偷将所盗物品装上摩托车拉走。被盗货物价值 24546．5元，被毁坏物品折价455元，共计25001．5元。被告卢氏县公安局接到报警后不出警，违反了职责，是行政不作为。事后，我虽多次交涉，要求被告赔偿损失，但其一直推拖不赔。请求法院根据国家赔偿法的规定，责令被告赔偿其全部损失。
　　原告尹琛琰提供的证据有：
　　1．申请材料一份，证明其起诉前曾要求卢氏县公安局予以赔偿，卢氏县公安局一直不予赔偿。
　　2．证人吴古栾、程新发、任春风书面证言及卢氏县公安局卢公字(2002)68号文件，证明卢氏县公安局接到报警后不出警行为的存在。
　　3．“工艺礼花渔具门市部”进货数、销货数、存货数、修复门等发票3张，证明自己的损失数额。
　　被告卢氏县公安局辩称：“110指挥中心”接到报案后未出警是事实，但对原告尹琛琰主张的损失数额有异议。请求法院划清其承担损失的责任。
　　卢氏县公安局未提供证据。
　　在法庭调查中，被告卢氏县公安局对原告尹琛琰提供的证据的质证意见为：对证据2无异议，承认接警不出警违法事实的存在；对证据1虽无异议，但认为这属于法律规定的赔偿范围，尹琛琰起诉不符合国家赔偿法规定的程序；对证据3证明的数额有异议，认为1辆摩托车无法装运这些东西。卢氏县人民法院认为，原告尹琛琰提供的3份证据符合法律的规定，和本案事实相关联，内容真实，可以作为本案的定案依据。
　　卢氏县人民法院经审理查明：
　　2002年 6月27日凌晨3时许，原告尹琛琰位于卢氏县县城东门外的“工艺礼花渔具门市部”(以下简称门市部)发生盗窃，作案人的撬门声惊动了在街道对面“劳动就业培训中心招待所”住宿的旅客吴古栾、程发新，他们又叫醒了该招待所负责人任春风，当他们确认有人行窃时，即打电话110向警方报案，前后两次打通了被告卢氏县公安局“110指挥中心”并报告了案情，但卢氏县公安局始终没有派人出警。20多分钟后，作案人将盗窃物品装上1辆摩托车后驶离了现场。尹琛琰被盗的物品为渔具、化妆品等货物，价值总计24546．50元人民币。案发后，尹琛琰向卢氏县公安局提交了申诉材料，要求卢氏县公安局惩处有关责任人，尽快破案，并赔偿其损失。卢氏县公安局一直没有作出答复。
　　卢氏县人民法院认为：
　　《中华人民共和国人民警察法》第二条规定：“人民警察的任务是维护国家安全，维护社会治安秩序，保护公民的人身安全、人身自由和合法财产，保护公共财产，预防、制止和惩治违法犯罪活动。”第二十一条规定：“人民警察遇到公民人身、财产安全受到侵犯或者处于其他危难情形，应当立即救助；对公民提出解决纠纷的要求，应当给予帮助；对公民的报警案件，应当及时查处。”
　　《中华人民共和国国家赔偿法》(以下简称国家赔偿法)第二条规定：“国家机关和国家机关工作人员违法行使职权侵犯公民、法人和其他组织的合法权益造成损害的，受害人有依照本法取得国家赔偿的权利。”
　　依法及时查处危害社会治安的各种违法犯罪活动，保护公民的合法财产，是公安机关的法律职责。被告卢氏县公安局在本案中，两次接到群众报警后，都没有按规定立即派出人员到现场对正在发生的盗窃犯罪进行查处，不履行应该履行的法律职责，其不作为的行为是违法的，该不作为行为相对原告尹琛琰的财产安全来说，是具体的行政行为，且与门市部的货物因盗窃犯罪而损失在法律上存在因果关系。因此，尹琛琰有权向卢氏县公安局主张赔偿。
　　国家赔偿法第十三条规定：“赔偿义务机关应当自收到申请之日起两个月内依照本法第四章的规定给予赔偿；逾期不予赔偿或者赔偿请求人对赔偿数额有异议的，赔偿请求人可以自期间届满之日起三个月内向人民法院提起诉讼。”
　　原告尹琛琰在门市部被盗窃案发后，向被告卢氏县公安局提交了书面申诉材料，要求给予赔偿，符合法律规定的申请国家赔偿程序。卢氏县公安局在国家赔偿法规定的两个月的期间内没有任何意见答复尹琛琰，尹琛琰以卢氏县公安局逾期不受理为由提起行政诉讼，符合行政诉讼的受理程序。
　　原告尹琛琰主张的损失数额，有合法的依据，被告卢氏县公安局虽然对具体数额表示怀疑，但由于没有提供相关的具体证据予以否认，因此，对尹琛琰主张的财产损失数额应予以认定。尹琛琰门市部的财产损失，是有人进行盗窃犯罪活动直接造成的，卢氏县公安局没有及时依法履行查处犯罪活动的职责，使尹琛琰有可能避免的财产损失没能得以避免，故应对盗窃犯罪造成的财产损失承担相应的赔偿责任。尹琛琰的门市部发生盗窃犯罪时，尹琛琰没有派人值班或照看，对财产由于无人照看而被盗所造成的损失，也应承担相应的责任。
　　综上，卢氏县人民法院根据《中华人民共和国行政诉讼法》第六十七条第一款、第二款，第六十八条之规定，于2002年12月12日判决如下：
　　卢氏县公安局赔偿尹琛琰25001．5元损失的50％，即12500．75元，在判决生效后10日内给付。
　　宣判后，双方当事人均未上诉。
 

Ying Chenyan v. the Public Security Bureau of Lushi County
(Case on the Administrative Compensation for Nonfeasance upon 110 Case-reporting)

Plaintiff: Yin Chenyan, female, 24 years old, laid-off worker of Baifang Co., Ltd. of Lushi County, dwelling in Chenguan Town, Lushi County, Henan Province.
Defendant: the Public Security Bureau of Lushi County, domiciled in Xinjian Road, Lushi County, Henan Province.
Legal Representative: Liu Yongzhang, director of the Bureau.

When a theft occurred in the Salesroom of Arts and Crafts, Flowers and Fishing Gears (hereinafter referred to as the Salesroom) as run by Yin, the “110 Command Center” of the Public Security Bureau of Lushi County (hereinafter referred to as the Bureau) failed to accept the case. Yin believed that it was the Bureau’s breach of duty that led to her property losses and thus filed an administrative action with the People’s Court of Lushi County, Henan Province.

The plaintiff alleged that: On the night of June 26, 2002, her Salesroom in Dongmen, Lushi county was stolen. The theft shocked the owner and travelers of the “Guest House of the Labor and Employment Training Center” (hereinafter referred to as the Guest House) on the opposite side of the road. They immediately reported the case to the “110 Command Center” of the Bureau, whereas the functionary on duty who received the report refused to handle it. About 20 minutes later or more, the thief loaded all the articles he had stolen onto a motorcycle and ran away. The stolen goods were evaluated as 24, 546. 5 yuan and the damaged goods were converted into 455 yuan, which came up to 25, 001. 5 yuan. The Bureau refused to dispatch its police force upon receiving the case report, which is an administrative nonfeasance in violation of their functions and duties. Afterwards, although Yin negotiated with the Bureau for several times and requested it to compensate for her losses, the Bureau, however, delayed the compensation. Therefore, Yin pleaded the court to order the defendant to compensate for all her losses according to the provisions of the State Compensation Law.

Yin presented the following evidences:
(1) An application material, certifying that Yin had requested the Bureau to make compensation before filing an action and the Bureau failed to make it so far;
(2) Written testimony of witnesses, Wu Guyi, Cheng Xinfa and Ren Chunfeng as well as the Document No. 68 [2002] of the Bureau, proving that the Bureau’s nonfeasance upon receiving the case report; and
(3) 3 invoices of stock, sales volume, inventory and door maintenance of the Salesroom, proving the amount of losses he had suffered.

The Bureau argued that: It is true that the Center did not dispatch any police force upon receiving the case report. However, the Bureau had different opinions on the amount of losses Yin had claimed for and thus pleaded the court to define its liabilities to bear losses.
The Bureau did not present any evidence.

During the court investigation, the Bureau produced the following opinions regarding the proofs as presented by Yin upon cross-examination: The Bureau had no different opinion on Evidence No. 2 and admitted its failure to dispatch any police force upon receiving the case report; although the Bureau had no different opinion on Evidence No. 1, it believed that the case fell within the scope of compensation as prescribed by law and that Yin’s action failed to comply with the procedures as prescribed by the State Compensation Law; the Bureau had different opinions on the amount as certified by Evidence No. 3 and believed that these stuffs could not be loaded only by 1 motorcycle. The People’s Court of Lushi County deemed that the 3 pieces of evidence as presented by Yin comply with the provisions of law and are related to the case facts and are authentic as well, thereby can be applied as the basis for the ruling of the case.

The People’s Court of Lushi County found through hearing that:

Around 3 am in the morning of June 27, 2002, a theft occurred in Yin’s Salesroom, which was located beyond Dongmen, Lushi County, the sound of prying when the offender committed a theft was heard by Wu Guyi, Chengfaxin, who were, at that time, accommodated in the Guest House on the opposite side of the road. They woke up Ren Chunfeng, the person-in-charge of the Guest House thereafter. Upon confirming that somebody was stealing, they immediately called 110 to report the case to the police. They reached the Center of the Bureau for twice, yet the latter failed to dispatch any police force after receiving the call. 20 minutes later, the offender loaded the stolen articles onto a motorcycle and ran away from the criminal spot. The stolen articles included the fishing gear and cosmetics, etc., which were evaluated as 24, 546. 50 yuan in total. When the case was reported, Yin submitted to the Bureau the relevant complaint materials, requesting the Bureau to punish the relevant liable person, uncover the case as soon as possible and compensate for the losses. The Bureau did not make any reply thereon.

The People’s Court of Lushi County held that:

Article 2 of the Law of the People’s Republic of China on the People’s Police prescribes that: The task of the people’s police is to safeguard the state security, preserve the social security order, protect the personal safety, personal freedom and legitimate properties of citizens, protect the public properties, prevent, check and punish illegal activities.” Article 21 prescribes that: If any citizen’s person or property is injured or subject to any dangerous emergency, the Police shall offer rescue immediately. Where any citizen requests for settling a dispute, the Police shall provide help. As to any case report made by any citizen, the Police shall conduct investigation and punishment in a timely manner.”

Article 2 of the State Compensation Law of the People’s Republic of China (hereinafter referred to as the State Compensation Law) prescribes that: Where any State organ or State functionary, in violation of the law, abuses its or his functions and powers by infringing upon the lawful rights and interests of any citizen, legal person or any other organization, thereby causing damage to the latter, the victims shall have the right to state compensation in accordance with the Law.

It is the statutory functions and duties of the public security organ to investigate into and punish all the illegal activities against public security according to law and protect the legitimate properties of citizens. The Bureau, however, failed to dispatch its functionaries to the spot to investigate into and stop the on-going theft at that time according to the relevant provisions, failed to perform its statutory functions and duties as due, therefore its nonfeasance is illegal and is, as to the safety of Yin’s properties, a specific administrative act, which has a causal relationship with the losses as incurred by the theft of goods from the Salesroom. Therefore, Yin has the right to claim for compensation from the Bureau.

Article 13 of the State Compensation Law prescribes that: The organ liable for compensation shall, within two months as of the date when the application is received, pay the compensation in accordance with the provisions of Chapter IV of the Law. If payment has not been made within the period, or if the claimant is not satisfied with the amount of compensation, he may bring a suit with the people's court within three months as of the expiration of the period.

After the theft occurred in Yin’s Salesroom, he submitted written materials of complaint to the Bureau, requesting for compensation, which complies with the procedures for applying for state compensation as prescribed by law. The Bureau failed to make any reply thereon within 2 months as prescribed by the State Compensation Law and thus Yin’s act of filing an administrative action on the ground that the Bureau failed to accept the case within the time limit complies with the procedures for accepting an administrative action.
There is statutory basis for Yin to claim for the above-mentioned compensatory amount. Although the Bureau had some doubt over the specific amount, it failed to provide relevant specific evidences to support its allegation. Therefore, the compensatory amount that Yin claimed shall be confirmed. The property losses in Yin’s Salesroom were directly incurred by the theft, whereas the Bureau failed to perform its functions and duties of investigating into the illegal activities in a timely manner according to law, which made it impossible to exempt Yin from any property loss. Therefore, the Bureau shall be subject to the relevant liabilities of compensation corresponding to the property losses as incurred by the theft. Yet Yin failed to dispatch any person to keep on watch or take care of her Salesroom when the theft was going on, and shall therefore bear the relevant liabilities.

In conclusion, the People’s Court of Lushi County adjudicated as follows on December 12, 2002 according to the provisions of paragraphs 1 and 2 of Article 67 and Article 68 of the Administrative Litigation Law of the People’s Republic of China:
The Bureau shall compensate for 50% of Yin’s property losses of 25, 001. 5 yuan, namely 12, 500. 75 yuan, which shall be paid within 10 days as of the day when the judgment comes into force.

After the judgment was announced, neither of the parties concerned filed any appeal.