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溆浦县中医院诉溆浦县邮电局不履行法定职责案 原告：湖南省溆浦县中医院。
法定代表人：李启军，院长。
委托代理人：张平，溆浦县司法局桥江司法所所长。
被告：湖南省溆浦县邮电局。
法定代表人：贺继良，局长。
委托代理人：李启洪，溆浦县邮电局干部。
委托代理人：张琪，湖南鹤洲律师事务所律师。
原告湖南省溆浦县中医院（以下简称县中医院）认为被告湖南省溆浦县邮电局（以下简称县邮电局）不履行“１２０”急救专用电话（以下简称“１２０”急救电话）开通职责，向湖南省溆浦县人民法院提起行政诉讼。
原告诉称：原告根据上级文件的规定和主管部门批准，向被告申请开通“１２０”急救电话，被告拒不作为，致使原告购置的急救车辆和其他设施至令不能正常运转，损失惨重。请求判令被告立即履行开通“１２０”急救电话的职责，并赔偿原告的经济损失８万元。
被告辩称：湖南省卫生厅、省邮电局（１９９７）１５号《关于规范全省“１２０”医疗急救专用电话管理的通知》（以下简称１５号文件）规定，邮电与卫生行政部门对开通“１２０”急救电话有确定权。原告申请“１２０”急救电话，不符合１５号文件的规定。“１２０”急救电话属于全社会，不属于原告。根据１５号文件的规定，被告对溆浦县开通“１２０”急救电话承担义务，但是不承担对某一医院开通“１２０”急救电话的义务。事实上，被告已经开通了溆浦县的“１２０”急救电话，不存在不履行义务的问题。邮电局是公用企业，不是行政机关，不具备行政诉讼中的被告资格，也没有法规授权给县邮电局行使行政职权。被告对原告未做出任何具体行政行为，原告无从提起行政诉讼。原告如果认为是湖南省邮电局委托被告作出具体行政行为的，那么本案的被告应该是湖南省邮电局，而不是溆浦县邮电局。原告的诉讼请求不符合行政诉讼法律规定，法院应予驳回。
溆浦县人民法院经审理查明：１５号文件规定医疗机构申请开办急救中心、开通“１２０”急救电话的程序是：经当地卫生行政部门指定并提交书面报告，由地、市卫生行政部门审核批准后，到当地邮电部门办理“１２０”急救电话开通手续。１９９７年８月１５日，湖南省卫生厅确认原告县中医院是一所功能较全、急诊科已达标的二级甲等综合医院，具备设置急救中心的条件。同年１２月８日，溆浦县卫生局指定县中医院开办急救中心，开通“１２０”急救电话。同日，县中医院向被告县邮电局提交了《关于开通“１２０”急救专用电话的报告》，并经县长和主管副县长批示同意。同年１２月１３日，县邮电局为县中医院安装了“１２０”急救电话，并在《市内电话装拆移换机及改名过户工作单》上写明：１２月１６日安装完毕，装机工料费按３３２３２０８计收，但是该电话一直未开通。１９９８年７月２０日，县邮电局为没有经过卫生行政主管部门指定和审批的溆浦县人民医院开通了“１２０”急救电话。７月２４日，县中医院向怀化市卫生局提出《关于请求设置“１２０”医疗急救专用电话的报告》。７月２５日，该报告得到市卫生局批准。７月２７日，县中医院再次书面请求县邮电局开通“１２０”急救电话，县邮电局仍拒不开通。
上述事实有１５号文件，县中医院的报告，省卫生厅、溆浦县卫生局、怀化市卫生局的文件和县邮电局的《市内电话装拆移换机及改名过户工作单》等证明。以上证据均经过当庭质证确认，确实充分，足以认定。
溆浦县人民法院认为，被告县邮电局是企业单位，不具有通讯管理的行政职能，没有给原告县中医院开通“１２０”急救电话的法定义务，县中医院的诉讼请求不能成立。据此，溆浦县人民法院于１９９８年９月９日判决：驳回县中医院的诉讼请求。诉讼费１７００元，由县中医院负担。
第一审宣判后，县中医院不服，以县邮电局对开通“１２０”急救电话负有行政上的职责，上诉人的诉讼请求依据充分、程序合法为由提起上诉，请求二审撤销原判，判令被上诉人县邮电局履行给县中医院开通“１２０”急救电话的职责，赔偿县中医院因“１２０”急救电话未开通而造成的损失，并承担本案诉讼费用。
怀化市中级人民法院经审理认为：
长期以来，我国对邮电部门实行政企合一的管理模式。邮电部门既具有邮电行政主管机关的职权，又参与邮电市场经营。经过改革，目前虽然邮政和电信初步分离，一些电信部门逐渐成为企业法人，但是由于电信行业的特殊性，我国电信市场并未全面放开，国有电信企业仍然是有线通讯市场的单一主体，国家对电信方面的行政管理工作，仍然要通过国有电信企业实施。这些国有电信企业沿袭过去的作法行使行政管理职权时，应视为《中华人民共和国行政诉讼法》第二十五条第四款所指的“由法律、法规授权的组织”。
开办“１２０”急救中心，是医疗机构救死扶伤的一项公益事业。鉴于此举能给医疗机构带来一定收益，为使责任专一，趋利避害，防止因混乱而耽误抢救病人，政府对“１２０”急救事业实施行政管理，规定在一个行政区域只允许一家医疗机构开办“１２０”急救中心、开通“１２０”急救电话。“１２０”急救电话不是只要交纳安装费就能装的普通电话，因此省卫生厅、省邮电局联合下发的１５号文件规定，只有功能较全，医疗急救水平较高，且急诊科已达标的综合医院，在经县卫生局指定并报地、市卫生行政主管部门批准后，才能获得开通“１２０”急救电话的特许权。联合文件还规定，邮电部门对开通“１２０”急救电话只收电话安装费，免费安装影示系统和电脑自答系统，免收电话费。这些明显不同于企业营利行为的优惠政策，既体现了政府支持举办此项公益事业的行政意志，也表明了政府对此项事业进行统一规范和管理。
１５号文件下发给地、市和县级的卫生行政主管部门以及邮电局，正说明政府要通过这些职能部门对“１２０”急救电话的开通实施行政管理。邮电局执行这个文件时与被审查的医疗机构之间发生的关系，不是平等的民事关系，而是特殊的行政管理关系。它们之间因此发生争议而引起的诉讼，不是民事诉讼，而是行政诉讼。尽管行政诉讼中的被告通常是行政机关，但是为了维护行政管理相对人的合法权益，监督由法律、法规授权的组织依法行政，将其列为行政诉讼的被告，适用行政诉讼法解决其与管理相对人之间的行政争议，有利于化解社会矛盾、维护社会稳定。
按照１５号文件的分工，确定哪一家医疗机构有开办“１２０”急救中心的资格，由卫生行政主管部门负责；而审查申请开通“１２０”急救电话的医疗机构是否符合１５号文件的规定，决定是否给其开通“１２０”急救电话，则由邮电局负责。上诉人县中医院是被批准开办“１２０”急救中心的合格单位。县中医院向被上诉人县邮电局提出开通“１２０”急救电话的申请后，县邮电局即着手安装。该局后来又以“１２０”急救电话的开通应由邮电与卫生行政部门共同确定为由，拒绝对县中医院履行开通职责，却私自为另一家未经审批的医院开通“１２０”急救电话。这一事实说明，所谓“应由邮电与卫生行政部门共同确定”，只是县邮电局为达到与卫生行政部门分享开通确定权的目的而对１５号文件的曲解；当其分权目的无法达到时，就不再坚持共同确定的主张，单方行使“１２０”急救电话的开通权力。
综上所述，被上诉人县邮电局在接到上诉人县中医院的申请后拒不开通“１２０”急救电话，是不履行职责的错误行政行为，应当纠正。县邮电局为推卸责任而提出的县中医院申办不符合文件规定、自己已经履行了开通“１２０”急救电话的义务、不具备行政诉讼被告资格等辩解理由，均不能成立。县中医院的主要上诉理由成立，应当采纳。县中医院请求县邮电局赔偿购置的急救车辆和其他设施不能正常运转的损失问题，鉴于急救车辆和急救设备没有投入急救使用，这项损失不宜按《中华人民共和国国家赔偿法》第二十八条（七）项规定的“直接损失”计算，因此依法不予支持。原审法院认定事实清楚，但适用法律错误，应予改判。据此，怀化市中级人民法院依照行政诉讼法第五十四条（三）项的规定，于１９９８年１０月２８日判决：
一、撤销溆浦县人民法院（１９９８）溆行初字第６６号行政判决；
二、限被上诉人溆浦县邮电局从接到本判决书的次日起１５天内为上诉人溆浦县中医院履行法定职责。
本案一、二审诉讼费３４００元，由被上诉人溆浦县邮电局负担。
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Xupu County Hospital v. Xupu County
Post Office
(Case of Failure to Perform Statutory Duties)
Plaintiff: Xupu County Hospital of Hunan Province.
Legal Representative: Li Qijun, head of this hospital.
Authorized Agent: Zhang Ping, director of Qiaojiang Justice
Office of Xupu County Justice Bureau.
Defendant: Xupu County Post Office of Hunan Province.
Legal Representative: He Jiliang, director of this post
office.
Authorized Agent: Li Qihong, cadre of this post office.
Authorized Agent: Zhang Qi, attorney-at-law of Hunan Hezhou
Law Firm.
Xupu County Hospital of Hunan Province (hereinafter referred
to as Xupu Hospital) deemed that Xupu County Post Office of
Hunan Province (hereinafter referred to as Xupu Post Office)
failed to perform the duty of opening up the “120” emergency
line, and thus lodged an administrative lawsuit to the
People’s Court of Xupu County, Hunan Province.
Xupu Hospital complained that: it had applied to Xupu Post
Office for opening up the “120” emergency line according to
the provisions in the document formulated by the
higher-level departments and upon approval of the competent
department, however, Xupu Post Office refused to do so,
which made it impossible for the ambulances and other
facilities it had purchased to be operated normally up to
the present and thus brought about heavy losses. Xupu
Hospital pleaded to the court to order Xupu Post Office to
immediately perform the duty of opening up the “120”
emergency line and compensate 80,000 yuan of economic losses
to it.
Xupu Post Office defended that: the Notice No. 15 [1997] of
the Health Department and the Post & Telecommunications
Bureau of Hunan Province on Regulating the Administration of
“120” Emergency Lines within the Whole Province (hereinafter
referred to as the Document No. 15) prescribes that: the
post office and the health administrative department have
the right to determine whether or not to open up “120”
emergency lines. The “120” emergency line applied for by
Xupu Hospital was not in conformity with the Document No.
15. The “120” emergency line belonged to the whole society
instead of Xupu Hospital. According to the Document No. 15,
Xupu Post Office had the duty of opening up the “120”
emergency line for the Xupu County, however, it had no duty
to set up the “120” emergency line for any specific
hospital. In actual fact, it had already opened up the “120”
emergency line for the Xupu County, so the problem of
failure to perform the duty did not exist. The post office
is a public enterprise and not an administrative organ,
therefore, it had no capacity to be taken a defendant in an
administrative lawsuit and had never been authorized by the
laws to exercise administrative powers. Xupu Hospital had
never committed any specific administrative act for Xupu
Hospital and Xupu Hospital had no basis to file an
administrative lawsuit. In case Xupu Hospital deemed that
the Post & Telecommunications Bureau of Hunan Province
entrusted this post office to commit any administrative act,
then the defendant of this case should be the Post &
Telecommunications Bureau of Hunan Province, not this post
office. Thus, the claims of Xupu Hospital did not meet the
laws on administrative litigation, and should be rejected by
the court.
Upon trial, the People’s Court of Xupu County found that:
the procedures for a medical institution to apply for
opening up an emergency center or “120” emergency line
prescribed in the Document No. 15 are: the local health
administrative department firstly designates an emergency
center or “120” emergency line, the applicant files a
written application, the health administrative department at
the level of a districted city examines and approves the
application, and then the applicant goes through the
formalities for opening up the “120” emergency line at the
local post office. On August 15, 1997, the Health Department
of Hunan Province affirmed that Xupu Hospital was a Class-2
and Level-A general hospital with fairly complete functions
and a qualified emergency department, and met the conditions
for opening up an emergency center. On December 8, 1997, the
Health Office of Xupu County designated Xupu Hospital to
open up an emergency center and “120” emergency line. On the
same day, Xupu Hospital submitted a Report on Opening up the
“120” Emergency Line, which had been approved by the head
and deputy head in-charge of Xupu County. On December 13,
1997, Xupu Post Office set up the “120” emergency line for
Xupu Hospital and indicated on the List for Opening up,
Removing and Transferring Local Telephones, and the Change
of the Names of Owners of Local Telephones that: the “120”
emergency line had been opened on December 16, and the
charges for installation were collected according to
3323208, but the said telephone number had not been opened
up yet. On July 20, 1998, Xupu Post Office opened the “120”
emergency line for the People’s Hospital of Xupu County that
had not been designated or approved by the health
administrative department. On July 24, Xupu Hospital
submitted the Report on Requiring to Set up the “120”
Emergency Line to the Health Bureau of Huaihua City. On July
25, the said Report had been approved by the Health Bureau
of Huaihua City. On July 27, Xupu Hospital requested Xupu
Post Office to open up the “120” emergency line again,
however, Xupu Post Office still refused to do so.
The aforesaid facts were verified by the Document No. 15,
the reports of Xupu Hospital, the documents of the Health
Department of Hunan Province, the Health Administration of
Xupu County and the Health Bureau of Huaihua City, the List
of Xupu Post Office for Opening up, Removing and
Transferring Local Telephones, and the Change of the Names
of Owners of Local Telephones, etc. The aforesaid evidences
were found as truthful and sufficient upon cross-examination
in the court, so they could be affirmed.
The People’s Court of Xupu County held that: Xupu Post
Office was an enterprise, it had no telecommunication
administrative power, and thus had no statutory duty to open
up the “120” emergency line for Xupu Hospital, so the claims
of Xupu Hospital could not be established. Based thereon,
the People’s Court of Xupu County adjudicated on September
9, 1998 that: the claims of Xupu Hospital should be rejected
and the 1,700 yuan of litigation costs should be borne by
Xupu Hospital.
After the pronouncement of the judgment of the first
instance, Xupu Hospital was not satisfied with it and filed
an appeal for the reasons that Xupu Post Office had the
administrative duty to open up the “120” emergency line, the
basis for the claims of Xupu Hospital was sufficient and the
procedures were lawful, and pleaded the court of second
instance to overrule the original judgment and order Xupu
Post Office to fulfill the duty to open up the “120”
emergency line for Xupu Hospital, compensate the losses
resulted from the failure to open up the “120” emergency
line and assume the litigation costs of this case.
Upon trial, the Intermediate People’s Court of Huaihua City
held that:
For a long time in the past, our country had implemented
the management model of the combination of government
functions and enterprise functions to the post offices. The
post offices not only had the authorities of the postal
administrative department but also participated in the
business operations in the postal market. Although the post
and the telecommunications had been preliminarily separated
for the time being upon reform, and some telecommunications
departments gradually have become enterprise legal persons,
the telecommunications market of our country had not been
completely opened up due to the particularity of the
telecommunications industry, and the State-owned
telecommunications enterprises still were the single subject
of the wire communications market, and the administrative
work of the State in the aspect of telecommunications was
still conducted through State-owned telecommunications
enterprises. When these State-owned telecommunications
enterprises followed the old practice and exercised
administrative powers, they should be regarded as “other
organizations empowered by the laws and regulations” as
prescribed in Paragraph 4 of Article 25 of the
Administrative Procedure Law of the People’s Republic of
China.
The open-up of a “120” emergency line is a public
undertaking of medical institutions to heal the wounded and
rescue the dying. Considering that it would bring about a
certain of incomes to the medical institution, in order to
make it devoted to its work, avoid undue seeking of profits
and the evasion of anything unfavorable to it, and prevent
any delay in the saving of patients due to poor management,
the government carried out administrative management to the
“120” emergency undertaking and prescribed that only one
medical institution was allowed to open a “120” emergency
center and the “120” emergency line in one administrative
region. The “120” emergency line was not a common telephone
that could be installed just after paying the installation
charges, so the Health Department and the Post &
Telecommunications Bureau of Hunan Province jointly
promulgated the Document No. 15 to the lower levels and
prescribed that only a general hospital with fairly
comprehensive functions, fairly higher medical emergency
level and a qualified emergency department could obtain a
license for opening a “120” emergency line after it was
designated by the county health administration and be
reported to the health administrative department at the
level of the districted city for approval. The Document No.
15 still prescribes that: the post office shall only collect
the installation charges for the “120” emergency line, and
install the video-recording system and the computer
auto-answering system free of charge, and could not collect
telephone charges, which was clearly different from the
preferential policies of the enterprises about profit-making
acts, not only embodied the administrative wills of the
government to support such a public undertaking, but also
showed the uniform regulation and management of the
government to the said undertaking.
The delivery of the Document No. 15 to the health
administrative departments at the level of districted city
and the county as well as the post offices showed that the
government intended to conduct the administration to the
opening of “120” emergency lines by such functional
departments. So the relationship between the post office and
the medical institution being examined for the
implementation of the Document No. 15 was not a civil
relation between equal subjects but a special administrative
relationship. The litigation for the dispute incurred
between them was not a civil lawsuit but an administrative
lawsuit. Although the defendant in an administrative lawsuit
was generally the administrative organ, yet, in order to
maintain the legitimate rights and interests of
administrative counterparts, and supervise over the
organizations empowered by the laws and regulations to
conduct the administration according to law, the listing of
the post office as the defendant of an administrative
lawsuit and the application of the Administrative Procedure
Law to the administrative disputes between the post office
and the administrative counterpart was good for dissolving
social conflicts and maintaining social stability.
According to the division of functions in the Document No.
15, the decision on which medical institution had the
qualification to open a “120” emergency center should be in
the charge of the health administrative department, and the
examination on whether the medical institution that applied
for opening up the “120” emergency line met the requirements
in the Document No. 15 and the decision on whether or nor to
open up the “120” emergency line for the applicant should be
in the charge of Xupu Post Office. Xupu Hospital was a
qualified institution that had been approved to open up a
“120” emergency center. After Xupu Hospital applied to Xupu
Post Office for opening a “120” emergency line, Xupu Post
Office immediately began to install it. However, but later
Xupu Post Office refused to perform the duty of opening the
“120” emergency line for Xupu Hospital for the reason that
the open-up of the “120” emergency line should be jointly
decided by the post office and the health administrative
department, and could not privately opened a “120” emergency
line for a hospital that had not been examined and approved.
This shows that the “joint decision by the post office and
the health administrative department” was only the
distortion of Xupu Post Office to the Document No. 15 so as
to enjoy the right of decision together with the health
administrative department; and when its purpose for power
division could not be reached, it did not insist on the
joint decision, but exercised the power of opening the “120”
emergency line alone.
In sum, Xupu Post Office refused to open up the “120”
emergency line upon receipt of the application of Xupu
Hospital, which was a wrong administrative act of failure to
perform duties and should be corrected. The reasons for
defenses of Xupu Post Office that the application of Xupu
Hospital did not meet the prescriptions in the Document No.
15, it had performed the duty of opening a “120” emergency
line and it could not be taken as a defendant of the
administrative lawsuit could not be established. The main
reasons for the appeal of Xupu Hospital could be established
and adopted. With respect to the losses incurred from the
impossibility of ambulances and other facilities purchased
by Xupu Hospital to be operated normally, since such
ambulances and other facilities had not been put into use,
it was improper to calculate the said losses as “direct
losses” according to Item (7) of Article 28 of the State
Compensation Law of the People’s Republic of China, so the
claim of Xupu Hospital for compensating the said losses
could not be supported. Since the facts were clearly
ascertained but the laws were not correctly applied by the
court of original trial, the original judgment should be
overruled. Based thereon, the Intermediate People’s Court of
Huaihua City adjudicated as follows on October 28, 1998
according to Item (3) of Article 54 of the Administrative
Procedure Law:
I. The No. 66 [1998] Administrative Judgment of the People’s
Court of Xupu County should be overruled; and
II. Xupu Post Office should perform the statutory duty for
Xupu Hospital within 15 days upon receipt of this judgment.
The 3,400 yuan of litigation costs for the first and second
instances should be borne by Xupu Post Office. |
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