问题 单项选择题

某地工商管理部门在对市场进行检查时,发现个体户刘某所卖干货中有价值3000元左右的假酱菜、假味精,因而作出没收所售所有干货、吊销刘某的营业执照,并对刘某处以1000元罚款的行政决定。刘某不服,向其上一级工商行政管理部门申请行政复议,复议机关作出撤销没收刘某的合法货物的处罚,对其他处罚决定予以维持;并且赔偿因违法没收刘某合法货物所造成的损失1000元的复议决定。刘某对该复议决定不服,向人民法院提起行政诉讼,受理法院判决将罚款降到500元,其他处罚决定予以维持。对于本案中的行为,下列看法正确的是:( )

A.对相对人没有提起行政赔偿请求,复议机关不应当直接适用行政赔偿决定

B.人民法院不能代替行政机关直接变更罚款数额,本案中法院将罚款数额降低的行为是违法的

C.人民法院认为本案中的罚款数额明显失当,可以直接作出变更决定,但对其他处罚决定不得直接变更

D.人民法院认为罚款明显不当,可以直接作出变更决定,而且对其他的行政处罚决定认为明显不当时也可以直接进行变更

答案

参考答案:D

解析:考点: 行诉判决
  讲解:《行政复议法》第29条规定:“申请人在申请行政复议时可以一并提出行政赔偿请求,行政复议机关对符合国家赔偿法的有关规定应当给予赔偿的,在决定撤销、变更具体行政行为或者确认具体行政行为违法时,应当同时决定被申请人依法给予赔偿。
  申请人在申请行政复议时没有提出行政赔偿请求的,行政复议机关在依法决定撤销或者变更罚款,撤销违法集资、没收财物、征收财物、摊派费用以及对财产的查封、扣押、冻结等具体行政行为时,应当同时责令被申请人返还财产,解除对财产的查封、扣押、冻结措施,或者赔偿相应的价款。”
  由该条第2款可以得知,虽然申请人没有提出行政赔偿请求,但在某些情形下,也可以直接适用行政赔偿的决定。而本题正是属于这样的请求,因此复议机关直接适用行政赔偿决定是合法的。
  《行政诉讼法》第54条规定:“人民法院经过审理,根据不同情况,分别作出以下判决:
  (一)具体行政行为证据确凿,适用法律、法规正确,符合法定程序的,判决维持。
  (二)具体行政行为有下列情形之一的,判决撤销或者部分撤销,并可以判决被告重新作出具体行政行为:
  1、主要证据不足的;
  2、适用法律、法规错误的;
  3、违反法定程序的;
  4、超越职权的;
  5、滥用职权的。
  (三)被告不履行或者拖延履行法定职责的,判决其在一定期限内履行。
  (四)行政处罚显失公正的,可以判决变更。”
  其中第四项就是关于行政诉讼变更之诉的规定,变更的范围包括所有行政处罚而不只限于罚款,所以B、C项错误。

阅读理解

Self-employed private physicians who charge a fee for each patient visit are the foundation of medical practice in the United States. Most physicians have a contract relationship with one or more hospitals in the community. They send their patients to this hospital, which usually charges patients according to the number of days they stay and the facilities(operating room, tests, medicines that they use). Some hospitals belong to a city, a state or, in the case of veteran's hospitals, a federal government agency. Others are operated by religious orders(教会) or other non-profit groups.

Some medical doctors are on salary. Salaried physicians may work as hospital staff members, or residents, who are often still in training. They may teach in medical schools, be hired by corporations to care for their workers or work for the federal government's Public Health Service.

Physicians are among the best paid professionals in the United States. In the 1980s, it was not uncommon for medical doctors to earn incomes of more than $ 100 000 a year. Specialists, particularly surgeons, might earn several times that amount. Physicians list many reasons why they deserve to be so well rewarded for their work. One reason is the long and expensive preparation required to become a physician in the United States. Most would be physicians first attend college for four years, which can cost nearly $ 20 000 a year at one of the best private institutions. Prospective physicians then attend medical school for four years. Tuition alone can exceed $ 10 000 a year. By the time they have obtained their medical degrees, many young physicians are deeply in debt. They still face three to five years of residency(实习阶段) in a hospital, the first year as an apprentice physician. The hours are long and the pay is relatively low.

Setting up a medical practice is expensive, too. Sometimes several physicians will decide to establish a group practice, so they can share the expense of maintaining an office and buying equipment. These physicians also take care of each other's patients in emergencies.

Physicians work long hours and must accept a great deal of responsibility. Many medical procedures, even quite routine ones, involve risk. It is understandable that physicians want to be well rewarded for making decisions which can mean the difference between life and death.

1. According to the passage, it is very unlikely that an American hospital is owned by _______.

A. a church     B. a corporation     C. a city         D. a state

2. The expenses for becoming a doctor are spent on _______.

A. schooling and retraining          B. practice in a hospital

C. facilities he or she uses            D. education he or she receives

3. According to the passage, how long does it take for a would-be physician to become an independent physician in the USA?

A. About seven years.                  B. Eight years.

C. Ten years.                               D. About twelve years.

4. Sometimes several physicians set up a group medical practice mainly because _______.

A. there are so many patients that it is difficult for one physician to take care all of them

B. they can take turns to work long hours

C. facilities may be too much of a burden for one physician to shoulder

D. no one wants to assume too much responsibility

5. Which of the following statements could fully express the author's view towards physicians’ payment in the USA?

A. For their expensive education and their responsibility, they deserve a handsome pay.

B. It is reasonable for physicians to have a large income because their work is very dangerous.

C. Physicians should be better paid because they work long hours under bad conditions.

D. Physicians have great responsibility, so it is understandable that they should be well rewarded.

单项选择题