On The Perfection Of The Legal System Of Administrative Hearing Of China

The trend of the development of the modern administrative legal system shows that the participation in administration is the kernel of the administrative procedure and the system of hearing has become the center of participation in administration. In the Law on Administrative Punishment promulgated in 1996 in China, the system of hearing was first established, which has become another new landmark of the administrative legal construction of our country following the Law on Administrative Proceedings. Although the system of hearing is set up in our country, the regulations are too fundamental, general and of careless content as well as of inconvenient operation in practice. The author makes an attempt to seek the theoretic basis of the administrative hearing and discuss the perfection of the administrative hearing. Firstly, the concept of the administrative hearing of witness is defined and the origin, occurrence and development of the hearing are dealt with. Secondly, the present situation of legislation of the administrative hearing in our country is analyzed and evaluated and the current problems existing in the theory and practice of hearing. Finally, in line with the problems and with the use of the legislation and practice of the foreign administrative hearing for reference, the suggestions of perfecting the system of administrative hearing of witness of our country are put forward. This paper is divided into three parts. Part 1 is about the introduction of the administrative hearing, consisting of three problems. Firstly, viewed from the history of the legal system, the occurrence and development of the hearing are examined and the concept of the administrative hearing is defined. The author thinks that the administrative hearing refers to the procedural legal system of the governmental administrative departments hearing the opinions of the interest-related persons on the relevant problems of legal facts and the problems applicable to the law prior to making the decisions influencing the rights and obligations of the administrative objects by exercising the administrative rights. According to the different criteria, the procedure of hearing can be generally divided into the following four categories: the first includes the formal hearing and the informal hearing according to the strictness and complexity or simplicity; the second includes the hearing before the event, the hearing after the event and the combined hearing according to the temporal order; the third includes the written hearing and the oral hearing according to the ways the interest-related person present their opinions; the fourth includes the hearing by authority and the hearing by application according to the requisites of starting the procedure. And the three basic characteristics of the administrative hearing are concluded: the first is judicature, the second is legality and the third is universal applicability. Secondly, the basic principles of the administrative hearing are dealt with and it is pointed out that the procedure of hearing is supported by various special legal principles. All these principles, which are not only the essential requirements of the procedure of hearing but also the fundamental criteria of the hearing from other procedures, mainly include the principle of opening to the public, the principle of separation of functions, the principle of informing in advance and the principle of exclusivity of cases. In addition, there are the principles of avoidance, the principle of prohibiting the unilateral contact and the principle of reading cases as well as the principle of agency by agreement, etc. All these principles, which are as important as the above four principles, are well-known by the people because they are the general principles of the administrative procedure and will not be dealt with in details. Thirdly, the values of practice of the administrative hearing are analyzed and evaluated. It is pointed out that the administrative hearing is the demand of respecting the personal dignity of the administrative object and improving the extent to which the administrative actions are acceptable, the demand of protecting the legal rights of the administrative objects and restricting the abuse of the administrative rights and the demand of improving the transparency of exercising the administrative rights and realizing the rights of informing the citizens. Part 2 is about the present situation of legislation and defectsof the administrative hearing of our country, consisting of the three problems. Firstly, in drawing up the Law on Administrative Punishment of our country, great disputes over whether the procedure of hearing should be stipulated are caused in the academic sector and the administrative executive departments. During the disputes, the two main positive and negative ideas are formed. In practice, it is shown that it is timely and necessary to establish and develop the system of administrative hearing, which plays an important role of promoting the democratic and legal construction of our country. However, the negative idea is still held in the activities of hearing today. Secondly, the present situation of legislation of the administrative hearing is dealt with and analyzed. The system of hearing of our country uses the relevant regulations on the system of hearing of the western countries for reference, but has the direct sources from the constitution, with its principles agreeing with the spirits of the constitution of our country and bringing new vigor to the development of the constitution and the administrative law of our country. In the aspect of concrete regulations, by the chance of promulgating the Law on Administrative Punishment, the system of administrative hearing is first determined in the form of law, and afterwards in the Price Law and the Law on Administrative Permit, the range of hearing is further expanded and in the Legislation Law expands the system of administrative hearing to the field of administrative legislation. Thirdly, in the level of practice, the defects existing in the system of administrative hearing of our country are pointed out, which are shown as follows: the first is that the applicable scope of the hearing is narrow; the second is that the person in charge of the administrative hearing has no independent legal status; the third is that the range of the subjects present in the administrative hearing is limited; the fourth is that the effectiveness of the notes of hearing is not made clear; the fifth is that the information of the governmental administrative departments in the administrative hearing is not adequately opened to the public. In Part 3, the suggestions of perfecting the system of administrative hearing of our country are presented by analyzing and evaluating therelevant foreign legislation and practice, with five problems included. Firstly, the unified, complete and systemic code on the administrative procedure applicable to each field of management should be established, stipulating some problems such as the basic principles of the administrative hearing of witness, the status and authority of the person in charge of the hearing, the rights and obligations of the parties present in the hearing in the procedure of hearing, the concrete process and steps of the hearing as well as notes and effectiveness of the hearing, etc. The feasible method can be made in the three steps: the first is to establish the practical and feasible methods and rules of implementation on the basis of the Law on Administrative Punishment, the Price Law and the Law on Administrative Permit as well as the Legislation Law and carried out by each department in each area; the second is that the lawmaking departments should establish the independent administrative procedural laws on the aspects closely connected with the citizens'personal interests and urgent to be resolved in practice, with matured conditions; the third is that the unified code on the administrative procedure should be promulgated as soon as possible to establish the legal system of administrative hearing , based on the Law on the Administrative Procedure and various independent laws and regulations. Secondly, the applicable scope of the hearing should be appropriately expanded. The author does not advocate that each administrative punishment should be put in the procedure of hearing, which will seriously influence the working efficiency of the governmental administrative departments. The scope of the concrete administrative actions applicable to the procedure of hearing should be gradually enlarged. The other concrete administrative actions possibly influencing the legitimate rights and benefits of the citizens, the legal persons and other organizations should be put in the procedure of administrative hearing by legislation. In principle, all the unfavorable actions possibly infringing upon the rights owned by the objects, such as administrative judgment, administrative compulsion, administrative charging and other actions setting up obligations, should be brought into the scope of the hearing. The authorized administrative actions, such as permit, registration and approval, etc., should be determined whether they infringe5upon the "rational expectations"of the applicants. For the actions refusing the application for continuation of show and annual inspection, the parties concerned should be entitled the rights of asking for the hearing. After the Price Law and the Legislation Law are carried out, some concrete regulations on the hearing for the abstract administrative actions are made in some local areas. As far as the development in the future, it is necessary and possible to bring the abstract administrative actions into the scope of hearing. Thirdly, the system of the third party for the hearing should be established. No regulations are made on whether there exists the third party in the procedure of hearing in the relevant laws. Viewed from the purposes of setting up the procedure of hearing, the third party and the protection of rights and benefits exist objectively. The trend of the mutual conversion of the roles of the party concerned and the third party occurs. Thirdly, the system of the person in charge of the hearing should be perfected. The independence of the person in charge of the hearing should be protected, with the protecting measures in law mainly including the three restrictive legal systems of the separation of functions, avoidance and prohibition of unilateral contact. In reference to the US system of the centralized use of the judges of hearing, the collective organization of the persons in charge of hearing should be established. The organization can be a non-standing agency, which can be set up in an area, each system or the integration of some systems. The persons in charge of hearing in the organization are chosen from the administrative executives of all the governmental administrative departments. When the administrative cases occur to the governmental administrative departments, no persons in charge of hearing are independently designated, and the requirement for the persons in charge of hearing should be submitted to the organization and the persons in charge of hearing should be sent uniformly by the organization. Finally, the notes and the effectiveness of the hearing should be determined. The notes of the hearing of our country should include the content universally stipulated in all the countries and absorb the valid parts with unique characteristics, but should combine with the practice of hearing and pay great attention to operability. The notes of hearing should beregarded as the only ground for the punishment made by the governmental administrative departments, which is also the principle of exclusivity of hearing of the cases being determined in theory. The exclusivity of the cases refers to that the file of cases consisting of the notes of hearing, evidence and all the writings and applications presented in the procedure is the only ground for judgment. Such a principle, which is the certain representation of the legal values of the procedure of hearing itself, has the core lying in preventing the governmental administrative departments from investigation and collection of evidence as well as making the decisions of administrative punishment by the subsequent evidence after the hearing is over.