问题 单项选择题

甲餐馆因在门前乱丢弃垃圾和乱倒废水被城管部门工作人员口头罚款500元,并要求当,场缴纳。餐馆老板要求城管部门工作人员出具书面处罚决定和罚款收据,城管人员认为该餐馆老板系无理取闹,拒绝听其申辩。关于该处罚的程序和结果,下列哪种说法是正确的

A.该处罚决定违法,餐厅老板可以拒绝缴纳罚款

B.该处罚决定违法,餐厅老板可以在缴纳罚款之后申请复议或者提起诉讼

C.该处罚决定不成立,餐厅老板可以在缴纳罚款之后申请复议或者提起诉讼

D.该处罚决定无效,餐厅老板可以拒绝奶.

答案

参考答案:C

解析: 该题综合考查行政行为的成立和生效要件、行政行为的效力。根据《行政处罚法》第32条第1款当事人有权进行陈述和申辩。行政机关必须充分听取当事人的意见,对当事人提出的事实、理由和证据,应当进行复核;当事人提出的事实、理由或者证据成立的,行政机关应当采纳。同法第33条规定,违法事实确凿并有法定依据,对公民处以50元以下、对法人或者其他组织处以1000元以下罚款或者警告的行政处罚的,可以当场作出行政处罚决定。同法第34条第1款规定,执法人员当场作出行政处罚决定的,应当向当事人出示执法身份证件,填写预定格式、编有号码的行政处罚决定书。行政处罚决定书应当当场交付当事人。同法第49条规定,行政机关及其执法人员当场收缴罚款的,必须向当事人出具省、自治区、直辖市财政部门统一制发的罚款收据;不出具财政部门统一制发的罚款收缴的,当事人有权拒绝缴纳罚款。在该案中,城管人员对餐馆进行500元的罚款属于可以当场作出行政处罚决定的情形,但是根据《行政处罚法》的规定,在作出罚款时应遵循最重要的程序便是要告知、听取陈述和申辩,交付书面处罚决定书,并交付法定的罚款收据,而本案中城管人员的行为明显程序违法。 无效行政行为包括两种情形:该行政行为没有法律依据或者程序不合法。虽然该处罚行为不合法,但是根据《行政处罚法》第42条的规定,行政机关及其执法人员在作出行政处罚决定之前,不依照本法第31条、第32条的规定向当事人告知给予行政处罚的事实、理由和依据,或者拒绝听取当事人的陈述、申辩,行政处罚决定不能成立;当事人放弃陈述或者申辩权利的除外。该行为属于不能成立的行政行为。根据《行政处罚法》第 35条的规定,当事人对当场作出的行政处罚决定不服的,可以依法申请行政复议或者提起行政诉讼。因此该餐厅老板可以申请复议或者提起诉讼。

单项选择题


In 1957 a doctor in Singapore noticed that hospitals were treating an unusual number of influenza-like cases. Influenza is sometimes called "flu" or a "bad cold". He took samples from the throats of patients in his hospital and was able to find the virus of this influenza.
There are three main types of the influenza virus. The most important of these are type A and B, each of them having several subgroups. With the instruments at the hospital, the doctor recognized that the outbreak was due to a virus in group A, but he did not know the subgroup. Then he reported the outbreak to the World Health Organization in Geneva. WHO published the important news alongside reports of a similar outbreak in Hong Kong, where about 15-20 percent of the population had become ill.
As soon as the London doctors received the package of throat samples, doctors began the standard tests. They found that by reproducing itself with very high speed, the virus had grown more than a million times within two days. Continuing their careful tests, the doctors checked the effect of drugs against all the known subgroups of virus type A. None of them have any protection. This, then, was something new, a new influenza virus, against which the people of the world had no help whatever.
Having found the virus they were working with, the two doctors now dropped it into the noses of some specially selected animals, which get influenza much as human beings do. In a short time the usual signs of the disease appeared. These experiments proved that the new virus was easy to catch, but that it was not a killer. Scientists, like the general public, call it simply Asian flu.
The first discovery of the virus, however, was made in China before the disease had appeared in other countries. Various reports showed that the influenza outbreak started in China, probably in February 1957. By the middle March it had spread all over China. The virus was found by Chinese doctors early in March. But China is not a member of the WHO and therefore does not report outbreaks of disease to it. Not until two months later, when travelers carded the virus into Hong Kong, from where it spread to Singapore, did the news of the outbreak reach the rest of the world. By this time it was well on its way around the world.

One interesting thing about the virus in the story was that it ______.

A.was especially weak

B.was similar to other viruses

C.could reproduce with great speed

D.had samples frozen and packed in dry ice

单项选择题