Analysis Of The Legal Effect Of Administrative Hearing Transcripts

From the point of view of the existing legislation, Chinese laws and regulations have made the the relevant provisions for the force of law of the administrative hearing transcripts. But the provisions are not uniform, clear and specific, leading to endless problems in practice. So it is necessary to clarify the force of law of the administrative hearing transcripts in administrative legislation, administrative decisions, administrative reconsideration and administrative proceedings to protect the administrative counterpart’s legitimate rights and interests and restrict the administration to administrate according to law in practice. In administrative legislation, administrative hearing transcripts have the force of law of evidence,which is decided by the particularity of the subject of administrative legislation itself and the universality of the participants in administrative legislation. So the subject of administrative legislation can make administrative legislative decisions by combining with other materials such as related policies, but it needs to make obligatory public explanation about the reasons for adopting certain views and not adopting certain views by the subject of administrative legislation. Especially, it needs to give a detailed explanation and description for adopting the opinions except for the hearing transcripts by the subject of administrative legislation. When necessary, the subject of administrative legislation should also explain the reason for such exercise of discretion. In administrative decisions, the administrative hearing transcripts is the only basis for administration to make administrative decisions, which can also learn from the American "official recognition rules" to supplement. In administrative reconsideration, for the administrative decisions made by formal hearings, applicants only need to submit the hearing transcripts and the organizations for administrative review only need to review the hearing transcripts. For the administrative decisions which haven’t been made by the formal hearing process, organization for administrative review should hear the case in the way of the hearing trial, and the burden of proof is upon the respondent. In the administrative proceedings, when the court is reviewing the administrative actions after the formal hearing procedure, the court should only review the hearing transcripts by the administrative hearing process, which has the only the force of law in the proceedings. But when the court is reviewing the administrative actions without a formal hearing procedure, the court should hear the case in the way of holding hearings. This is because the informal hearing procedures are the lack of cross-examination and debate between the parties and the administrative decisions made by administration are a combination of files and other factual materials, resulting in the fact that the hearing transcripts have not the only force of law.