Study On The Administrative Hearing System In China

Administrative hearing system is a procedural legal system which prescribes that the administrative organ listens to the opinions of the party concern before making laws and regulations which influence the legal rights of the party concern. 1996 Administrative Penalties Law prescribes administrative penalty hearing system and initiates administrative hearing legislation in China 1997 Price Law, 2000 Legislation Law, 2004 Administrative Permission Law prescribe hearing system of price management, Legislation hearing system, administrative license hearing system and so on. Administrative hearing system becomes one of the hot issues in the field of legality building and jurisprudence theoretical research. This thesis chooses this subject in order to analyze the current situation of executive procedure of the system in China, to discuss the existing problems from the theoretical aspect.This thesis consists four parts. First, theoretically defines the concept of administrative hearing system and then discusses the value of it. Second, analyzes the current situation of administrative hearing system in China from practical angle, and then points out the problems exist in current. Last, proposes some measures to improve our administrative hearing system based on the relevant legislations abroad.The first part of the thesis describes administrative hearing system briefly. First, it contrasts and sets demarcation of the connotation of administrative hearing system from the angles of history, two law systems and different points of view between China and west. Second, expounds common, widespread and basic principles which apply to variousadministrative hearing from four aspects of doctrine of publicity, doctrine of function separation, doctrine of intimation beforehand, and doctrine of file exclusiveness. Last, analyses the intrinsic and extrinsic value of administrative hearing system. Justice and efficiency is the inherent value and quality, is the guideline of the formation of administrative hearing system, and directly decides the main contents of the administrative hearing system. Order value epitomizes the extrinsic value of administrative hearing system. As the core of Administrative Procedure Act, the value of administrative hearing system is the unification of intrinsic and extrinsic.Part two use administrative hearing system abroad for reference. Three classic countries, America, Germany and Japan, was selected to analyze from three aspects including hearing scope, manager system and legal effect of a record of hearing .On hearing scope, America prescribes two ranges, administrative organ constitutes laws and regulations hearing and administration verdicts concrete events. Germany brings forward that "before issue administrative action which influence participants' right, should bestow client chance to state important facts which affect the decision". Meanwhile, Germany enumerates six situations that not adopt the rule. Japan prescribes the hearing scope and the situations not adapt to the rule.On manager system, Associated Procedure of Administration in the United States makes explicit provisions for hearing manager system. Administration gownsmen possess comparatively independence on law; have charge of hearing in turn and not under administrative organ chancellor's direct control. The prescript of authority of hearing compeer was at large, hearing compeer is granted the rights of presiding hearing and make initial judgment. Germany and Japan systematize no qualification forthe hearing officer, and set no clear regulation about the position and status of the hearing officer. Both of the two countries prescribe the hearing officer has preside hearing authority, but do not regulate the officer has preliminary adjudicative right nor adjudicative advise right. On the legal effect of a record of hearing, America is a classic country of doctrine of file exclusiveness. Administrative organ works out decision following the formal procedure must only according to the files. On the contrary, Japanese record system, same as continental law system like Germany, Korea and Swiss, the administrative organ should consider the record but do not has base the decision on the record.Part three analyzes the status in quo of administrative hearing system in China. The system is imported into China a short period, so compare to the administrative hearing system abroad, it still has something to be improved in legislation field that epitomizes in the following aspects. First, the application scope of it is too narrow. Hearing of administrative penalty just confined to order for suspension of production or business, withdraw certificate of authority or license and large quantity of fine. Hearing of non-punishment administrative action just confined to part of government permitted and government price-fixing administration decisions. Hearing of abstract administrative action just confined to the constitution of administrative regulation and rule. Second, the prescription of validity of administration records of a hearing lack of completeness. The Administrative Punishment Law does not ordain the effect of administration records of a hearing. The Administrative Permission Law prescribes clearly the effect of administration records of a hearing, but still has to be improved. Third, the legal status of hearing officer is not clear. The current laws do not have explicit and universal prescript about the hearing officer's qualificationand power and also do not have complete relative securing system about fairness of hearing. Fourth, the supervisory and relief machines are not mature.Part four some measures are proposed to improve the existing problems in current. First, enlarge the scope of the system application to a proper extent. Crystallize the principle and criterion of the application scope and enlarge the application range to other kind of administrative penalty, to non-punishment administrative action, administrative charge and other administrative decision hearing and to administrative justice. Second, clarify the legal effect of administrative records of hearing. Make explicit prescription in legislation that the record is the only foundation for the administrative organ to make decision and ordain the responsibility must be taken if someone acts against it. Third, clarify the independent position of the hearing officer and the rights, qualification and responsibilities of the officer. Establish supervisor mode which adapt to national conditions. Fourth, constitute the supervisory and relief machines. Establish multiple stage administrative hearing supervisory machines, including supervision of legislation, judicial supervision and social supervision. Crystallize the responsibility that be taken the subject of administration infract the right to learn the truth and the right of pleadings. Establish administration hearing duty charging system and remedies machine. Fifth, perfect the jurisprudence of administrative hearing system. According to the current legal system in China, legislature can constitute one way administrative procedure law on one hand and on the other hand, it is necessary to establish universal administrative procedure law to standardize China administrative hearing activities under proper condition...