Research On The Scope Of Application Of Administrative Penalty Hearing In China

In article 42 of the law on administrative punishment,the scope of application of the administrative penalty hearing stipulated by enumeration is "order to suspend production or business,revoke license or license,fine of a large amount,etc.",because the provisions of the article on "etc." are not clear,there are two differences of views that "etc." is enumeration stop or incomplete enumeration.Moreover,in practice,many administrative organs tend to limit the scope of hearing application,which leads to more and more disputes in administrative litigation,which is not conducive to the value play of hearing procedure,but also leads to the waste of administrative and judicial resources.After analyzing the two viewpoints,the author thinks that "etc." which is not fully enumerated conforms to the requirements of realizing the value of hearing procedure and improving the administrative efficiency.In order to demonstrate its rationality,the article first punishments effect under the specification of the analysis of the provisions of the scope of hearing,and found that both adopt strict regulations on specification,and the specification of the scope of hearing by similarity criteria "substandard" expansion,and regulations of more directly in the provisions to expand or expansion of the scope,in the form of out terms shows that as the due process of law binding force of the administrative penalty practice,administrative organs no longer blindly to deprive the other party's hearing rights,expand the hearing scope is the administrative organ in the inevitable choice of administration according to law under the guidance of due process to follow.Then this article from the perspective of judicial investigation,discovered that part of the court still adhere to the "such as" subject matters within hearing,but the combination of the Supreme People's Court reply,6 cases of referee reasons such as can be seen that the judicial,have made it clear that "such as" for the incomplete list,and is property confiscated large amount shall be deemed a hearing.However,the supreme people's court did not further expand the scope of hearing after the release of no.6 guidance case because the scope of hearing was not clearly defined in the legislation and the expansion of the scope of hearing had a great impact on the operation of the executive power.However,judging from a large number of relatively new court decisions,many courts have grasped the spiritual essence of guiding cases,and adopted "standard of conduct" and "equity" standards in the trial to affirm that many "other" matters should be heard.So judicial practice is also expanding the scope of hearing.Then the article explains the realistic basis and significance of expanding the scope of hearing and proves that expanding the scope of hearing is the inevitable requirement of social development.Finally,it puts forward Suggestions to improve the scope of application of hearing in China,integrate the concept of adhering to due process into the process of administrative punishment,respect the principal position of the administrative counterpart,and protect its legitimate rights and interests.Secondly,the enumeration provisions in the current punishment law can be modified to generalize the provisions according to the equity standard.Then,the scope of hearings can be expanded in a standardized way by strengthening the accumulation of legislative interpretation,judicial interpretation and judicial cases,so as to give full play to the procedural value of hearings and promote the process of rule of law in China.