Research On The Construction Of Administrative Detention Hearing System In China

Administrative detention means that the public security organs impose short-term administrative punishment on the violators who violate the obligations of administrative laws and regulations in order to maintain the social security order.The system has no clear and standardized procedural guidelines in both legislation and practice,which is contrary to the legal concept of prohibiting depriving citizens' personal freedom without any due process.It is an important measure to carry out the necessary and reasonable procedure regulation to administrative detention to promote the progress of administrative rule of law in China.The particularity of administrative detention and the incompleteness of the restriction standard make it a hardest-hit area for the abuse of administrative power.From the perspective of practical operation process,the current administrative detention system at least has the following "stubborn diseases":Firstly,the public security organs abuse the power of administrative detention for a long time and has not been significantly improved;Secondly,there is no coordination between administrative detention punishment and other punishments applicable to hearing procedures.Thirdly,the suspension of execution system is lack of universal operation,and its implementation effect is not satisfactory.The introduction of administrative detention hearing system has strong theory appeal and realistic demand,which is necessary to standardize the procedure of administrative detention.In essence,the hearing procedure is a rational communication process of"exchange of views",which is conducive to urging the administrative organs to exercise their power correctly through the regulation of law enforcement procedures,and enhancing the sense of approval of administrative counterparts to the decision of administrative detention.The fundamental purpose of introducing the hearing procedure into the administrative detention system is to realize the self-regulation of the administrative detention right and to limit the illegal expansion and abuse of the administrative detention right.The administrative detention hearing system refers to a legal system constituted by procedures such as informing the decision reasons and hearing rights,hearing the opinions of the administrative counterpart,accepting evidence and making corresponding decisions before the administrative organ makes the decision on administrative detention.The construction of this system is feasible under the current historical background.Firstly,the construction of the administrative detention hearing system has sufficient legal basis and institutional experience.Secondly,with the development of modern administrative law theory,some of people's ideas have been updated and changed.Thirdly,countries outside the region have different attitudes towards the hearing of measures or punishments that restrict personal freedom.Fourthly,the change of The Times and the improvement of the environment also provide external.conditions for the application of hearing procedure in administrative detention.On the basis of summarizing the experience of administrative penalty hearing system and.drawing the reasonable factors from outside,the construction of administrative detention hearing system could be carried out in the following three aspects:Firstly,the scope of accepting cases of administrative detention hearing system of designation shall meet "two basic.requirements":the administrative efficiency and the balance of the interests,and then comprehensively consider the degree of urgency of violations,illegal behavior person of the actual situation of each particular case,the illegal cases such as"three factors" to be sure.By referring to the negative legislative system of foreign countries,certain situations shall be excluded the application of hearing such as cases that clearly violate the public interest from the hearing because the circumstances are urgent,the very simple case with clear facts,sufficient evidence and little dispute.Secondly,for the form of administrative detention hearing,the operation mode of informal hearing and formal hearing should be adopted.The cases that.apply to the formal hearing of administrative detention should be strictly limited in legislation,and only apply to the cases with relatively large disputes,such as the complicated and unclear illegal facts and the major questioning of evidence materials.However,there is hardly any limitation on the scope of application of informal hearing,which is usually applicable to those cases of administrative detention where the case is relatively simple,the impact on the parties is relatively slight,and the facts and evidence are not subject to major disputes.Thirdly,the supporting design of the hearing system of administrative detention is mainly carried out from five aspects:establishing the procedure of informing the hearing system,implementing the system of hearing host,constructing the system of strict file exclusivity,perfecting the system of explaining reasons,establishing the hearing legal supervision mechanism and responsibility mechanism.