全国首起火灾原因认定行政争议案代理实录

----周显根律师

一纸通知：引发全国首例火灾原因认定行政诉讼

临海市公安局消防大队于2001年9月29日针对本市张家渡村金某家火灾的事实，作出（临）公消（2001）第012号火灾原因认定书，载明：2001年8月25日5时10分，金某开办的光芒电器商店发生火灾。烧毁商店商品及室内的家具、电器及生活用品，烧毁屋二间。

根据《消防法》第39条规定，火灾原因认定如下：

1、起火时间：2001年8月25日5时10分；

2、起火部位：商店一楼南侧南北摆放的电视机架第二层南端；

3、起火原因：南端第一台29寸长虹电视机故障引起。作为利害关系人的四川长虹电器股份有限公司（下称长虹公司）在得知火灾原因系其生产的电视机故障引起，不服临海市公安局消防大队所作的火灾原因认定，向台州市公安局消防大队提出复议申请，台州市公安局消防大队于2001年12月12日经过审查作出维持决定书。长虹公司不服火灾原因认定，于2002年4月26日向法院提起不服火灾原因行政认定全国首例行政诉讼。

诉辩焦点：电视机故障能否引起火灾

长虹公司在起诉时认为：火灾原因认定书认定南端第一台29寸长虹电视机故障引起本案火灾，没有依据予以证实，因为：

1、据以认定引起火灾的电视机根本没有留有长虹标志；

2、到底是何种型号的29寸长虹电视机，火灾原因认定没有予以查实；

3、对引起燃烧的电视机残骸，没有依法予以鉴定；

4、故障到底是什么原因的故障；故临海市公安局消防大队所作的火灾原因认定，没有事实依据，且对残骸没有依法进行鉴定，程序违法，要求法院予以撤销。

针对长虹公司的起诉，临海市公安局消防大队代理律师周显根答辩认为：

1、根据当事人金某及其家人的陈述，当夜只有南端一台长虹电视机处于通电状态，并对起火部位、时间作了相应的陈述；

2、根据到场救火邻居汪某等人证人证言证实：在起火前，他们在商店观看电视，金某一般是用长虹29寸电视机进行播放，当夜也是该台电视机进行播放并处于通电状态；

3、现场勘查笔录证实29寸长虹电视机位置燃烧严重，摆放铁架，弯曲严重，可以证实该部位为起火部位。至于残骸，本案中已无鉴定价值和必要，故本案火灾原因认定事实清楚、证据充分，程序合法，要求驳回长虹公司的起诉。

事实依据：电视机故障是否成立

由于火灾原因的特殊性和火灾现场的破坏性，公安消防部门在对火灾原因进行认定时，往往采用排除法确定起火的原因和部位等，有时也借助技术鉴定和火灾现场模拟复原等确定火灾原因。针对本案南端第一台29寸长虹电视机故障能否成为火灾原因，周显根律师发表了如下意见：

一、在本案中，根据当事人陈述和证人证言及现场勘查情况，可以证明本案火灾的发生不存在生活用火和纵火、线路老化等原因引起火灾的可能性；长虹公司也没有提供证据证明本案火灾的发生是由其他原因引起的可能。

二、认定本案火灾是否由长虹29寸电视机引起，应从起火部位、起火部位押放物品、该物品能否引起燃料等进行调查确定。在本案中，消防部门向法庭提供的证据可以证实其火灾原因认定的正确性。1、关于起火部位的认定，从最初到达现场的汪某、王某等证言看，汪称：在铁架上面着火，靠南侧方向；王称：下层没起火，靠左边也就南侧第一只、第二只电视机火势较大，货架前侧和后侧没有起火。从现场勘查笔录证实：南侧货架比北侧货架燃料后毁损严重，尽管证人证言在一些细节问题上有不同的表述，但得出的结论是同一即起火部位是南一楼南侧摆放电视机货架位置，这与火灾现场照片证据相互印证。2、关于起火部位摆放物品认定，根据金某及其家人和章某、许某等人陈述可以证实：货架南端摆放的是长虹29寸电视机，这与当事人自已对三层货架摆放物品所画的示意图相符合。3、关于29寸长虹电视机当夜处于通电状态认定。证人章某称：平时，一般都是从下往上数第二层靠我家方向的那只29寸长虹电视机进行播放；证人许某称：21寸电视机放货架第三层，底层是灯管、电线等物品，平时都是二层南侧的29寸长虹电视机在播放，电线是接好的。当事人金某及其儿子陈述：当夜29寸长虹电视机他们看过，该台电视机放货二层南侧，我们大概看到23时40分，是用遥控器关的。因而上述事实和证据足以认定本案系由长虹29寸电视机故障引起火灾。

三、长虹公司提出要求对残骸进行鉴定，以便确定故障原因问题。周显根律师认为：根据《火灾事故调查规定》第21条的规定，公安消防机构对提取的痕迹物证，是否进行技术鉴定，由公安消防机构予以确定。在本案中由于提取的电视机残骸仅有塑料件部分痕迹，中间的元器件已全部烧毁，因而在本案中已失去鉴定价值，故长虹公司要求确定故障是代号种零部件引的，在本案中已失去实质性意义，并不存在程序违法之行为。

综上，临海市公安局消防大队根据本案有关证据，认定火灾原因系南端第一台29寸长虹电视机故障引起并无不当。

本案问题：缺陷的程序

本案经过一审、二审和审判监督程序，长虹公司的诉称均被驳回；但在代理过程中，发现公安消防部门在处理相关问题时，存在以下几方面的程序缺陷：

1、在案件未了结以前，公安消防部门对电视机残骸作了处理，这在消防部门的火灾原因认定可作为可诉性情况下，对保存物证进行处理是不当的。而消防部门认为：火灾原因认定具有可诉性，是在2002年6月20日最高人民法院行政庭以（2002）行他字第4号作出答复之后发生的，在此前，火灾原因认定是作为勘验鉴定的技术性文件加以处理，故对现场提取的电视机残骸进行处理并无不当。

2、有关调查笔录，注明是二人调查，但笔录从头至尾只有一人记录、签字，该笔录证据在形成上存在形式不当。

3、火灾调查员的资格问题。根据《火灾事故调查规定》第10条规定，火灾事故调查员应当取得岗位资格证书，目前虽实行了资格证书统一资格考试，但至今未颁发岗位资格证书，这是公安消防管理中的一大缺点。

The agency record of the first administrative dispute case for determining the cause of a fire in China

----Lawyer Zhou Xiangen

One Paper Notice: Triggering the First Administrative Litigation for Determining the Cause of a Fire in China

On September 29, 2001, the Fire Brigade of the Public Security Bureau of Linhai City issued the (Lin) Gong Xiao (2001) No. 012 Fire Cause Determination Letter regarding the fact of a fire at the Jin family in Zhangjiadu Village, Linhai City. It stated that on August 25, 2001, at 5:10 am, a fire broke out at the Guangguang Electrical Appliance Store operated by Jin. Burn down shop merchandise and indoor furniture, appliances, and daily necessities, and burn down two rooms.

According to Article 39 of the Fire Protection Law, the cause of the fire is determined as follows:

1. Time of fire: 5:10 am on August 25, 2001;

2. The location of the fire: the southern end of the second floor of the TV rack placed north and south on the south side of the first floor of the store;

3. Reason for the fire: The first 29 inch Changhong TV in the southern end malfunctioned. As an interested party, Sichuan Changhong Electrical Appliances Co., Ltd. (hereinafter referred to as Changhong Company), upon learning that the cause of the fire was caused by a malfunction of the television set produced by it, refused to accept the fire cause determination made by the Fire Brigade of Linhai Public Security Bureau and submitted a reconsideration application to the Fire Brigade of Taizhou Public Security Bureau. After examination, the Fire Brigade of Taizhou Public Security Bureau made a decision to maintain the fire on December 12, 2001. Changhong Company refused to accept the determination of the cause of the fire and filed the first administrative lawsuit in China against the administrative determination of the cause of the fire with the court on April 26, 2002.

Focus of defense: Can a TV malfunction cause a fire

During the lawsuit, Changhong Company believed that the fire cause determination document determined that the first 29 inch Changhong TV set in the southern end malfunctioned and caused the fire in this case, and there was no basis to prove it because:

1. It is believed that the television set that caused the fire did not have a rainbow sign at all;

2. What type of 29 inch Changhong TV is it? The cause of the fire has not been confirmed;

3. The wreckage of the TV set that caused the fire was not identified in accordance with the law;

4. What is the cause of the malfunction; Therefore, the fire cause determination made by the Fire Brigade of Linhai Public Security Bureau has no factual basis, and the wreckage has not been identified in accordance with the law. The procedure is illegal, and the court is requested to revoke it.

In response to the lawsuit filed by Changhong Company, Zhou Xiangen, the acting lawyer of the Fire Brigade of Linhai Public Security Bureau, defended that:

1. According to the statement of the party involved, Jin and his family, only one Changhong TV set in the southern end was in a live state that night, and corresponding statements were made on the location and time of the fire;

2. According to the testimony of witnesses such as Wang, who were present to fight the fire, it was confirmed that before the fire broke out, they were watching TV in the store. Jin usually played it on a Changhong 29 inch TV, which was also on that night and was in a live state;

3. The on-site investigation records confirmed that the position of the 29 inch Changhong TV set was severely burned, with an iron frame placed and severely bent, which can be confirmed as the location of the fire. As for the wreckage, there is no longer any appraisal value or necessity in this case. Therefore, the facts for determining the cause of the fire in this case are clear, the evidence is sufficient, and the procedure is legal. We request that the lawsuit of Changhong Company be dismissed.

Fact basis: Is the TV malfunction established

Due to the particularity of the cause of the fire and the destructive nature of the fire scene, the public security fire department often uses exclusion methods to determine the cause and location of the fire when identifying the cause of the fire. Sometimes, technical identification and fire scene simulation restoration are also used to determine the cause of the fire. Regarding whether the malfunction of the first 29 inch Changhong TV set at the southern end of this case can be the cause of the fire, Lawyer Zhou Xiangen expressed the following opinion:

1、 In this case, based on the statements of the parties involved, witness testimony, and on-site investigation, it can be proven that the occurrence of the fire in this case did not have the possibility of fire caused by household fires, arson, aging of the line, and other reasons; Changhong Company also did not provide evidence to prove that the fire in this case may have been caused by other reasons.

2、 To determine whether the fire in this case was caused by the Changhong 29 inch television, an investigation should be conducted to determine the location of the fire, the storage of items at the location of the fire, and whether the item can cause fuel. In this case, the evidence provided by the fire department to the court can confirm the correctness of its determination of the cause of the fire. 1. Regarding the identification of the location of the fire, based on the testimony of Wang, Wang, and others who initially arrived at the scene, Wang stated that the fire broke out on the iron frame, facing south; Wang said: There was no fire on the lower floor, and the first and second televisions on the south side on the left were on a large fire. There was no fire on the front and rear sides of the shelves. From the on-site investigation records, it was confirmed that the southern shelf was more severely damaged than the northern shelf after fuel consumption. Although the witness's testimony had different statements on some details, the conclusion was that the same location where the fire broke out was the TV shelf on the south side of the first floor, which is mutually confirmed by the evidence from the fire scene photos. 2. Regarding the identification of items placed at the location of the fire, according to statements by Jin, his family, Zhang, Xu, and others, it can be confirmed that the southern end of the shelf is a Changhong 29 inch TV set, which is consistent with the schematic diagram drawn by the parties themselves for the placement of items on the third floor shelf. 3. Regarding the determination that the 29 inch Changhong TV was in a powered on state that night. Witness Zhang said: Usually, it is played on the 29 inch Changhong TV set located in the direction of my home on the second floor from bottom to top; Witness Xu claimed that the 21-inch TV is placed on the third floor of the shelf, with items such as lamps and wires on the bottom floor. Usually, the 29-inch Changhong TV on the south side of the second floor is playing, and the wires are connected properly. The party involved, Jin and his son, stated that they had seen the 29 inch Changhong TV set that night. The TV set was placed on the south side of the second floor and we saw it at around 23:40, which was turned off using a remote control. Therefore, the above facts and evidence are sufficient to determine that the fire was caused by a malfunction of the Changhong 29 inch TV.

3、 Changhong Company has requested an appraisal of the wreckage in order to determine the cause of the malfunction. Lawyer Zhou Xiangen believes that according to Article 21 of the "Fire Accident Investigation Regulations", whether the public security fire department conducts technical appraisal on the extracted trace evidence shall be determined by the public security fire department. In this case, due to the fact that the extracted TV wreckage only had some traces of plastic parts, and all the components in the middle had been burned, it had lost its appraisal value. Therefore, Changhong Company requested to determine that the fault was caused by the code type component, which has lost its substantive significance in this case and there is no procedural violation.

In summary, the Fire Brigade of Linhai Public Security Bureau, based on relevant evidence in this case, determined that the cause of the fire was due to the malfunction of the first 29 inch Changhong TV set in the southern end and was not improper.

Problem in this case: Procedure for defects

This case has gone through the first, second, and trial supervision procedures, and the claims of Changhong Company have all been rejected; However, during the agency process, it was found that the public security and fire department had the following procedural deficiencies when dealing with related issues:

1. Before the case was concluded, the public security fire department handled the wreckage of the television set, which was inappropriate for the preservation of physical evidence in the context of the fire department's determination of the cause of the fire as actionable. The fire department believes that the determination of the cause of the fire is actionable and occurred after the administrative division of the Supreme People's Court issued a response in the form of (2002) Xingtazi No. 4 on June 20, 2002. Prior to this, the determination of the cause of the fire was processed as a technical document for inspection and appraisal, so there was no improper handling of the TV wreckage extracted from the scene.

2. Regarding the investigation record, it is indicated that it was conducted by two people, but there was only one person recording and signing the record from beginning to end, indicating that the evidence in the record was improperly formed.

3. Qualification issues for fire investigators. According to Article 10 of the Fire Accident Investigation Regulations, fire accident investigators should obtain job qualification certificates. Although a unified qualification examination for qualification certificates has been implemented, no job qualification certificate has been issued yet, which is a major drawback in public security fire management.