 Fang Hong holding the administrative verdict outside of the Chongqing No. 3 Intermediate People's Court. Photo credit: nfpeople.com |
Fang Hong served one year of “reeducation through labor” (RTL) for online expression, but after his release in April 2012, he successfully challenged his detention. In the administrative verdict (translated below), the court rules that the RTL decision against Fang was illegal on both substantive and procedural grounds.
Police detained Fang in April 2011 after the civil servant used his microblog to post scatological comments criticizing then Chongqing Party Secretary Bo Xilai and police chief Wang Lijun. Police initially decided to reprimand Fang with 10 days of administrative detention but, on the same day, reneged and issued a decision of one year of RTL. By the time Fang was released, both Bo and Wang were under investigation (following Wang’s defection to the US consulate in Chengdu), and Gong Hanzhou, another Chongqing citizen put in RTL for similar allegations of disorderly Internet conduct, had won his first administrative lawsuit.
Fang and his lawyers sued the Chongqing RTL management committee two weeks after Fang’s release, arguing that the regulations authorizing RTL were not properly enacted by the legislature and, as they conflict with state laws, should be invalidated. As a secondary challenge, they argued that even if the legal basis for his RTL was deemed valid, Fang’s comments did not meet the conditions for punishment.
The court largely avoided the first challenge, saying only that, if Fang believed the RTL provisions to be in conflict with other law, he could seek legislative review through the proper channels. (Left unstated is the fact that, in practice, the channels for seeking this type of legislative interpretation are virtually closed.) Given that Chinese courts are principally authorized to apply laws in specific cases rather than issue general rulings about whether statutes conflict with the law or the constitution, this is perhaps unsurprising.
The court’s key finding—that Fang’s comments did not constitute a serious threat to social order—is more significant insofar as it articulated a potential standard against which to judge critical comments involving government officials: “State civil servants ought to maintain a restrained, tolerant, and modest attitude toward citizen criticisms of their official actions.” As Yuan Yulai, one of Fang’s lawyers, notes on his blog, the court’s statement is reminiscent of the legal standard of “actual malice” set out by the US Supreme Court in New York Times Co. v. Sullivan—namely, that libel against a public official or public figure must be shown to have been carried out "with knowledge that it was false or with reckless disregard of whether it was false or not.” Even though the Chongqing court’s ruling in Fang’s case is not applicable to other cases in the same way that the Supreme Court's ruling is in the United States, the intermediate court’s willingness to set a higher threshold for restrictions on speech aimed at officials could, if the idea becomes more widely accepted by Chinese jurists, have more long-term implications for the boundaries of free speech in China.
Chongqing No. 3 Intermediate People’s Court
Administrative Verdict
(2012) CQ 3d Int. Court Adm. 1st Instance No. 00010
Plaintiff is Fang Hong; male; born April 1, 1966; Han ethnicity; employee of the Chongqing Municipality Fuling District Forestry Bureau; resides at [Omitted—Ed.], Fuling District, Chongqing Municipality; citizen identification number [Omitted—Ed.].
Legal counsel is Yuan Yulai, lawyer with the Zhejiang Zhixing Law Firm.
Legal counsel is Si Weijiang, lawyer with the Shanghai Dabang Law Firm.
Defendant is the Chongqing People’s Government Reeducation through Labor (RTL) Management Committee, located at 555 Huanglong Road, Yubei District, Chongqing Municipality.
Legal representative is Wang Aizu, head.
Legal counsel is Du Mingwu, civil servant with the Chongqing People’s Government RTL Management Committee.
Legal counsel is Yao Gangtao, civil servant with the Chongqing People’s Government RTL Management Committee.
Plaintiff Fang Hong did not accept the RTL decision issued by defendant Chongqing People’s Government RTL Management Committee and filed an administrative lawsuit with this court on May 8, 2012. After accepting the case on May 14 of the same year, this court delivered to the defendant on May 17 a copy of the bill of complaint, a notice calling for response, and a notice to produce evidence. This court formed a collegiate bench in accordance with the law and held an open hearing for this case on June 29, 2012. Appearing before the court to take part in the proceedings were plaintiff Fang Hong and his legal counsel Yuan Yulai and Si Weijiang and the defendant’s legal counsel Yao Gangtao. This trial has now concluded.
On April 28, 2011, defendant Chongqing People’s Government RTL Management Committee issued RTL Decision RTL Rev. (2011) No. 1662, which found that Fang Hong, between April 19 and April 22, 2011, had gone online to disseminate rumors on the Tencent microblog [platform] multiple times using the screen name “Bamboo Shoot Fang,” and that the facts were clear and the evidence was reliable and sufficient that he caused a serious disruption to social management order. In accordance with the State Council Decision on the Issue of Reeducation through Labor and Article 3 of the State Council Supplementary Regulations on Reeducation through Labor, both of which were approved by the National People’s Congress Standing Committee, and Article 10.4 and related provisions of the Trial Measures on Reeducation through Labor, the defendant decided to send Fang Hong to RTL for one year.
In support of its litigation position, the defendant provided this court within the statutory deadline with the following evidence concerning the specific administrative act at issue:
- The Chongqing People’s Government RTL Management Committee’s Hearing Notice; RTL Decision; RTL Notice; transcript of the questioning of Fang Hong at 11:48 p.m. on April 24, 2011; and the delivery receipt for the RTL Decision. These items intend to show that the Chongqing People’s Government RTL Management Committee followed lawful procedure in issuing its RTL decision.
- A transcript of the Chongqing Municipality Fuling District Public Security Bureau’s questioning of Fang Hong between 5:40 p.m. and 6:50 p.m. on April 24, 2011; a screenshot of the [micro]blog of “Bamboo Shoot Fang,” in which four posts read: “Bamboo Shoot Fang: This time Boqilai [Bo Xilai] made a big pile of shit and told Wang Lijun to eat it. Wang Lijun brought it to the procuratorate, the procuratorate brought it to the court, and the court told Li Zhuang to eat it. Li Zhuang, the former lawyer, said he said he wasn’t hungry and that whoever made it should eat it. It got sent back to Dr. Wang, and if he doesn’t eat what his boss made, who will?”; and proof of Fang Hong’s permanent resident status. These items intend to establish the fact that Fang Hong went online and used the Tencent microblog [platform] multiple times to disseminate rumors under the screen name “Bamboo Shoot Fang” and disrupted social management order.
The defendant provided this court with the normative documents upon which the specific administrative act at issue was based, namely: State Council Decision on the Issue of Reeducation through Labor and Article 3 of the State Council Supplementary Regulations on Reeducation through Labor, both of which were approved by the National People’s Congress Standing Committee, and Article 4(1) and 10.4 of the Trial Measures on Reeducation through Labor.
Plaintiff Fang Hong’s complaint makes [the following] statements: The plaintiff is a cadre of the Chongqing Municipality Fuling District Forestry Bureau and an Internet enthusiast who expressed his views on public matters online. On the third day of the first-instance trial in part two of the “Li Zhuang evidence fabrication case,” when the prosecution requested that the court withdraw the indictment, the plaintiff posted a comment on his Tencent microblog on April 22, 2011, under the name “Bamboo Shoot Fang”: “Boqilai [Bo Xilai] made a big pile of shit and told Wang Lijun to eat it. Wang Lijun brought it to the procuratorate to eat, the procuratorate brought it to the court to eat, and the court told Li Zhuang to eat it. Li Zhuang’s lawyer said Li Zhuang wasn’t hungry and that whoever made it should eat it.” After publishing the aforementioned microblog post, Unit Leader Xu of the Chongqing Municipality Fuling District Public Security Bureau notified the plaintiff to come to his office, where he made some notes and requested that the plaintiff delete the microblog post. The plaintiff went home and deleted the microblog post. At approximately 8 p.m. on April 24, 2011, the Chongqing Municipality Fuling District Public Security Bureau decided to place the plaintiff under administrative detention for 10 days, but later this decision was revoked. On that same day, the defendant delivered to the plaintiff a Hearing Notice from the Chongqing People’s Government RTL Management Committee, which stated that because the plaintiff had “fabricated facts and disrupted public order” it had been decided to send him to RTL for one year in accordance with Article 10.4 of the Trial Measures on Reeducation through Labor. After signing his name, the plaintiff was sent to the Chongqing Municipality Fuling RTL and Drug Treatment Center. On April 24, 2012, the plaintiff was released at the end of his term after receiving a one-day extension. The plaintiff maintains that the basis for the defendant’s administrative act is the Trial Measures on Reeducation through Labor, which were enacted by the Ministry of Public Security and reissued by the State Council, and that these measures should be considered null and void because they contravene the provisions of the Legislation Law of the People’s Republic of China (PRC), which is superior law. Even according to Article 10.4 of the Trial Measures on Reeducation through Labor, the plaintiff’s behavior is not something that is covered by RTL. The defendant’s administrative act is completely without legal basis. [The plaintiff] requests annulment of the defendant’s RTL Decision RTL Rev. (2011) No. 1662 issued on April 28, 2011.
Plaintiff Fang Hong provided this court with the following evidence: 1. The hearing notice from the Chongqing People’s Government RTL Management Committee; 2. A notice from the Chongqing Municipality Fuling RTL and Drug Treatment Center and a transmission form for documents related to detainee Fang Hong from the Fuling RTL and Drug Treatment Center Procuratorial Office of the Chongqing People’s Procuratorate No. 3 Branch Procuratorate. This evidence is intended to show that the plaintiff’s complaint meets the statutory criteria.
The defendant argued in defense that: Between April 19 and April 22, 2011, Fang Hong went online to disseminate rumors on the Tencent microblog [platform] multiple times using the screen name “Bamboo Shoot Fang,” causing a serious disruption to social management order. Based on the facts of Fang Hong’s illegal acts, on April 28, 2011, our committee decided, in accordance with the State Council Decision on the Issue of Reeducation through Labor and Article 3 of the State Council Supplementary Regulations on Reeducation through Labor, both of which were approved by the National People’s Congress Standing Committee, and Article 10.4 and related provisions of the Trial Measures on Reeducation through Labor, to send Fang Hong to RTL for one year for disrupting social management order. [The defendant] requests that the court make a fair ruling in accordance with the law.
The aforementioned evidence was cross-examined by the court and this court finds that all of the evidence produced by the defendant and the evidence submitted by the plaintiff falls under the category of documentary evidence. According to the requirements for documentary evidence in the Regulations on Evidence in Administrative Litigation, submitted documentary evidence should be the master copy, an original copy, or a duplicate copy that has been verified as accurate against the master copy. The aforementioned documentary evidence provided by the plaintiff and the defendant in this case consists of duplicates that have been verified as accurate against master copies, and they possess the authenticity, legality, and connectedness of evidence and should be considered credible and able to serve as evidence upon which to decide this case.
In the course of the trial, it was found that: Plaintiff Fang Hong is an employee of the Chongqing Municipality Fuling District Forestry Bureau. Between April 19 and April 22, 2011, Fang Hong used the screen name “Bamboo Shoot Fang” multiple times to make comments on the Tencent microblog [platform]. On April 22, 2011, when the plaintiff learned that the court had ruled to approve the prosecution’s request to withdraw the indictment against Li Zhuang for “overlooked crimes,” he posted an item on the Tencent microblog [platform] under the screen name “Bamboo Shoot Fang,” which said: “This time Boqilai [Bo Xilai] made a big pile of shit and told Wang Lijun to eat it. Wang Lijun brought it to the procuratorate, the procuratorate brought it to the court, and the court told Li Zhuang to eat it. Li Zhuang, the former lawyer, said he said he wasn’t hungry and that whoever made it should eat it. It got sent back to Dr. Wang, and if he doesn’t eat what his boss made, who will?” On April 24, 2011, the Chongqing Municipality Fuling District Public Security Bureau questioned the plaintiff and then decided to place him under administrative detention for 10 days before later revoking that decision. On April 24, 2011, the defendant delivered to the plaintiff a hearing notice from the Chongqing People’s Government RTL Management Committee, which informed plaintiff Fang Hong that [the committee] decided, in accordance with Article 10.4 of the Trial Measures on Reeducation through Labor, to send him to RTL for one year for fabricating facts that disrupted public order and, among other things, that the plaintiff had the right to apply for a hearing and retain counsel to provide legal aid. The plaintiff never applied for a hearing. On April 28, 2011, the defendant issued RTL Decision RTL Rev. (2011) No. 1662, which found that in the case of Fang Hong’s disruption of social management order, the facts were clear and the evidence was reliable and sufficient. In accordance with the State Council Decision on the Issue of Reeducation through Labor and Article 3 of the State Council Supplementary Regulations on Reeducation through Labor, both of which were approved by the National People’s Congress Standing Committee, and Article 10.4 and related provisions of the Trial Measures on Reeducation through Labor, it was decided to send Fang Hong to RTL for one year. On April 29, 2011, the defendant telephoned Fang Hong’s son, Fang Di, to notify him of the aforementioned RTL decision and then transferred the plaintiff to the Chongqing Municipality Fuling RTL and Drug Treatment Center to carry out RTL. On April 24, 2012, the plaintiff was released from RTL. On May 8, 2012, the plaintiff filed an administrative lawsuit with this court.
It was also found that the defendant never provided this court with evidence concerning matters such as case filing or verification [procedures associated with] RTL and that the issued RTL Decision RTL Rev. (2011) No. 1662 failed to specify the commencement and conclusion dates for enforcement of RTL for one year.
This court finds that: The State Council Decision on the Issue of Reeducation through Labor and the State Council Supplementary Regulations on Reeducation through Labor are both valid and current normative documents implemented after being approved by the National People’s Congress Standing Committee. The Trial Measures on Reeducation through Labor enacted by the Ministry of Public Security and reissued by the State Council are concretizations of the aforementioned valid normative documents. Article 4(1) of the Trial Measures on Reeducation through Labor state: “RTL management committees formed by people’s governments of provinces, autonomous regions, directly administered municipalities, and large and medium-sized cities provide leadership and management of RTL work and review, approve, and take custody of persons subject to RTL.” Defendant Chongqing People’s Government RTL Management Committee has the standing to issue the specific administrative act at issue in this case.
According to Article 5 of the Administrative Litigation Law of the PRC, a people’s court shall, in trying an administrative case, conduct an examination of the legality of a specific administrative act. If the plaintiff considers the Trial Measures on Reeducation through Labor to be in conflict with superior law, it may, in accordance with the relevant laws and regulations, submit a recommendation for review to an authorized body.
Looking at the legal facts revealed through investigation in this case, though the comments made by plaintiff Fang Hong under the screen name “Bamboo Shoot Fang” on the Tencent microblog [platform] were expressed indecently, they cannot be considered dissemination of rumors and did not cause any serious consequences of disrupting social management order and even less did they meet the basic criterion of a “serious threat to social order and state interests.” State civil servants ought to maintain a restrained, tolerant, and modest attitude toward citizen criticisms of their official actions. With respect to plaintiff Fang Hong’s act of posting on the Tencent microblog [platform] under the name “Bamboo Shoot Fang,” the defendant has no evidence to show that this act meets the circumstances of “disruptions of social order such as mass brawling, creating a serious disturbance, or instigating turmoil, where the act does not warrant criminal punishment” under Article 10.4 of the Trial Measures on Reeducation through Labor. Therefore, the facts are unclear and the evidence is insufficient for the defendant to issue a decision of RTL for one year against plaintiff Fang Hong for fabrication of facts and disruption of social management order. At the same time, the defendant’s failure to provide evidence concerning things such as the case filing and verification [procedures] and failure in the issued RTL decision to specify the commencement and conclusion dates for RTL constitute procedural illegality.
In summary, with respect to the RTL decision at issue, the facts are unclear, the evidence is insufficient, and the procedure was illegal. Because enforcement of the compulsory administrative measure has already concluded, there is nothing that can be annulled and, in accordance with the law, the RTL decision ought to be confirmed as illegal. Plaintiff Fang Hong has the right, in accordance with the law, to apply for administrative compensation. Based on this, in accordance with Article 57(2)(2) of the Supreme People’s Court Interpretation on Several Questions Regarding Implementation of the Administrative Litigation Law of the PRC, [this court] rules as follows:
To confirm that RTL Decision RTL Rev. (2011) No. 1662 issued by defendant Chongqing People’s Government RTL Management Committee on April 28, 2011, is illegal.
The filing fee of 50 yuan in this case is to be borne by the Chongqing People’s Government RTL Management Committee.
If this verdict is not accepted, an appeal may be made to the Chongqing High People’s Court by delivering an appellate complaint to this court within 15 days of delivery of this verdict, along with a number of copies equal to the number of opposing parties to the suit.
Presiding Judge: Yang Yu
Deputy Judicial Officer: Tan Xiaoqi
Deputy Judicial Officer: Liu Houyong
[Seal of Chongqing No. 3 Intermediate People’s Court]
June 29, 2012
[Stamp that reads: “This document has been verified as accurate against the master copy”]
Clerk: Qu Xia
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重庆市第三中级人民法院 (2012) 渝三中法行初字第 00010 号 原告方洪，男，1966 年4月1日出生，汉族，重庆市涪陵区林业局职工，住重庆市涪陵区 [编者略] ，公民身份号码 [编者略] 。 委托代理人袁裕来，浙江之星律师事务所律师。 委托代理人斯伟江，上海市大邦律师事务所律师。 被告重庆市人民政府劳动教养管理委员会，住所地重庆市渝北区黄龙路555号。 法定代表人王爱祖，主任。 委托代理人杜明武，重庆市人民政府劳动教养管理委员会公务员。 委托代理人姚岗涛，重庆市人民政府劳动教养管理委员会公务员。 原告方洪不服被告重庆市人民政府劳动教养管理委员会作出的劳动教养决定，于2012年5月8日向本院提起行政诉讼。本院同年5月14日受理后，于5月17日向被告送达了起诉状副本、应诉通知书及举证通知书，并依法组成合议庭，于2012年6月29日公开开庭审理了本案。原告方洪及其委托代理人袁裕来、斯伟江，被告的委托代理人姚岗涛到庭参加了诉讼。本案现已审理终结。 被告重庆市人民市政府劳动教养管理委员会于2011年4月28日作出劳教审（2011）字第1662号劳动教养决定书，认定方洪于2011年4月19日至4月22日，在互联网上多次用网名“方竹笋”在腾讯微博中散布谣言，严重扰乱社会治安秩序的事实清楚，证据确实充分。被告根据全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第十条第（四）项及有关规定，决定对方洪劳动教养一年。 被告为支持其诉讼主张，在法定期限内向本院提供了作出被诉具体行政行为的如下证据：
被告向本院提供作出被诉具体行政行为的规范性文件有：全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第四条第一款、第十条第（四）项。 原告方洪诉称：原告系重庆市涪陵区林业局干部，互联网爱好者，并在互联网上发表对公共事务的看法。“李庄伪证罪”二季一审第三天，公诉机关向法庭提请撤回起诉，原告便于2011年4月22日在腾讯微博上以“方竹笋”为网名发表了一则评论：“勃起来屙了一坨屎，叫王立军吃，王立军端给检察院吃，检察院端给法院吃，法院叫李庄吃，李庄的律师说李庄不饿，谁屙的谁吃”。上述微博发出后，重庆市涪陵区公安局徐支队长通知原告到他办公室，作了笔录并要求原告删除微博。原告回家后删除了微博。2011年4月24日晚8时许，重庆市涪陵区公安局决定对原告行政拘留10日，嗣后又予以撤销。当日，被告向原告送达《重庆市人民政府劳动教养管理委员会聆询告知书》，该告知书以原告“虚构事实扰乱公共秩序”为由，依据《劳动教养试行办法》第十条第（四）项的规定，决定对原告劳动教养一年。签完字后，原告被送进重庆市涪陵劳动教养戒毒所。2012年4月24日，原告期满后又被延长一天释放。原告认为，被告作出行政行为的依据是国务院转发公安部制定的《劳动教养试行办法》，该办法违背了上位法《中华人民共和国立法法》的规定，应属无效。即便根据《劳动教养试行办法》第十条第（四）项的规定，原告的行为也不属于劳动教养对象。被告作出的行政行为完全没有法律依据，请求撤销被告于2011年4月28日作出的劳教审（2011）字第1662号劳动教养决定。 原告方洪向本院提交的证据有：1、重庆市人民政府劳动教养管理委员会聆询告知书；2、重庆市涪陵劳动教养戒毒所告知书、重庆市人民检察院第三分院派驻涪陵劳动教养戒毒所检察室被监管人方洪材料传递单。拟证明原告起诉符合法定条件。 被告辨称：2011年4月19日至4月22日，方洪在互联网上多次用网名“方竹笋”在腾讯微博中散布谣言，严重扰乱社会治安秩序。基于方洪的违法事实，我委于2011年4月28日根据全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第十条第（四）项及有关规定，对方洪以扰乱社会治安秩序作出劳动教养一年的决定。请求法院依法公正判决。 上述证据经庭审质证，本院认为被告举出的全部证据，以及原告提供的证据均系书证，根据行政诉讼证据规则对书证的要求，提供书证应当是原本、正本、或与原件核对无异的复印件。本案原，被告提供的以上书证是与原件核对无异的复印件，具有证据的真实性、合法性、关联性，均应以采信，可作为本案定案依据。 经审理查明：原告方洪系重庆市涪陵区林业局职工。2011年4月19日至22日，方洪在腾讯微博上多次用网名“方竹笋”发表言论。2011年4月22日，原告获悉法院裁定准许公诉机关撤回李庄“漏罪”案起诉的消息后，在腾讯微博上以网名“方竹笋” 发表一则言论，内容是“这次就是勃起来屙了一坨屎叫王立军吃，王立军端给检察院，检察院端给法院，法院叫李庄吃，李庄原律师说他不饿，谁屙的谁吃，这不退给王博士了，他主子屙的他不吃谁吃”。2011年4月24日，重庆市涪陵区公安局经询问原告后决定对原告行政拘留10日，嗣后又予以撤销。2011年4月24日，被告向原告送达了重庆市人民政府劳动教养管理委员会聆询告知书，该告知书告知原告方洪因虚构事实扰乱公共秩序，根据《劳动教养试行办法》第十条第（四）项的规定，拟决定对原告劳动教养一年；原告有申请聆询和聘请代理人提供法律帮助的权利等。原告未提出聆询申请。2011年4月28日，被告作出劳教审（2011）字第1662号劳动教养决定书，认定方洪扰乱社会治安秩序一案事实清楚，证据确实充分。根据全国人民代表大会常务委员会批准的《国务院关于劳动教养问题的决定》、《国务院关于劳动教养的补充规定》第三条和《劳动教养试行办法》第十条第（四）项及有关规定，决定对方洪劳动教养一年。2011年4月29日，被告通过电话方式向方洪之子方迪告知了前述劳动教养决定后，将原告送进重庆市涪陵劳动教养戒毒所执行劳动教养。2012年4月24日，原告被解除劳动教养。2012年5月8日，原告向本院提起行政诉讼。 另查明，被告未向本院提供劳动教养立案、审核等方面的证据；作出的劳教审（2011）字第1662号劳动教养决定书中未明确执行劳动教养一年的起止期限。 本院认为：《国务院关于劳动教养问题的决定》和《国务院关于劳动教养的补充规定》是经全国人民代表大会常务委员会批准执行的现行有效的规范性文件。国务院转发公安部制定的《劳动教养试行办法》是前述有效规范性文件的具体化。《劳动教养试行办法》第四条第一款规定：“省、自治区、直辖市和大中城市人民政府组成的劳动教养管理委员会，领导和管理劳动教养工作，审查批准收容劳动教养人员”。被告重庆市人民政府劳动教养管理委员会具有作出本案被诉具体行政行为的主体资格。 《中华人民共和国行政诉讼法》第五条规定，人民法院审理行政案件，对具体行政行为的合法性进行审查。原告认为《劳动教养试行办法》与上位法相抵触，可按相关法律规定向有权机关提出审查建议。 从本案调查的法律事实看，原告方洪用网名“方竹笋”在腾讯微博上发表的言论，虽言辞不雅，但不属于散布谣言，也未造成扰乱社会治安秩序的严重后果，更不具备“严重危害社会秩序和国家利益”这一基本条件；国家公务人员对公民基于其职务行为的批评，应保持克制、包容、谦恭的态度。原告方洪用网名“方竹笋”在腾讯微博上发表言论的行为，被告没有证据证明该行为符合《劳动教养试行办法》第十条第（四）项规定的“聚众斗殴、寻衅滋事、煽动闹事等扰乱社会治安，不够刑事处分的”的情形。故被告以原告方洪虚构事实扰乱社会治安秩序对其作出劳动教养一年的决定事实不清，证据不足。同时，被告未提供立案、审核等方面的证据，以及作出的劳动教养决定未明确执行的起止期限，属于程序违法。 综上，被诉劳动教养决定事实不清，证据不足，程序违法。由于该行政强制措施已执行完毕，不具有可撤销内容，依法应当确认该劳动教养决定违法。原告方洪依法享用申请行政赔偿的权利。据此，依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十七条第二款第（二）项之规定，判决如下： 确认被告重庆市人民政府劳动教养管理委员会于2011年4月28日作出的劳教审（2011）字第1662号劳动教养决定违法。 本案案件受理费50元，由重庆市人民政府劳动教养管理委员会负担。 如不服本判决，可在判决书送达之日起十五日内提起上诉，向本院递交上诉状，并按对方当事人的人数递交上诉状副本，上诉于重庆市高级人民法院。
[图章: “重庆市第三中级人民法院”] [印章: “本件与原本核对无异”]
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