On the Basic Principles of Administrative Hearing Procedure

Administrative hearing procedure is the legislation of our country.

The introduction of the new system plays an important role in promoting the administration of administrative organs according to law and fair law enforcement, and is the core content of the administrative procedure law. China's Administrative Punishment Law stipulated this system for the first time. This paper draws lessons from foreign related.

Legislation and practice, put forward specific ideas and suggestions to improve China's administrative hearing system. In particular, it puts forward four basic principles that must be followed in administrative hearing, namely, the principle of openness, the principle of separation of functions, the principle of prior notification and the principle of exclusive files. Combined with domestic and foreign legislation, this paper analyzes the specific requirements of each principle and puts forward some suggestions and ideas to improve the administrative hearing procedure in China.

Key words: the basic principles of administrative hearing procedure are openness, separation of functions and prior notice.

Hearing procedure refers to the procedure of cross-examination and refutation of specific matters by state organs before making a decision, which provides opportunities for interested parties to express their opinions and produce evidence. Its essence is listening.

Opinions of interested parties. Hearing in a broad sense includes legislative hearing, judicial hearing and administrative hearing. The procedure for the legislature to formulate laws and solicit opinions from relevant parties is called legislative hearing. The facts of judicial hearing

In fact, it is the procedure for the court to hear cases. The administrative hearing studied in this paper is a procedural system specially suitable for administrative organs. Under this procedural system, before making a decision that affects the rights and interests of the administrative counterpart, the administrative organ has the obligation to inform the counterpart of the reasons for making the decision and the right to a hearing. The administrative counterpart has the right to express opinions and provide evidence on facts and applicable laws, and the administrative organ has the obligation to listen to and adopt them, so as to achieve the purpose of correctly implementing administrative acts in an open, democratic way.

Administrative hearing procedure is the product of modern democratic politics and the core content of administrative procedure law. In recent decades, it has received special attention from many countries in the world. All countries with administrative procedure laws adopt hearing procedures in different procedures. In common law countries, the hearing procedure originated from the ancient "natural justice principle" in Britain. This principle is "the principle that when the Royal Court of England exercises its supervisory power over the lower courts and administrative organs, it requires them to exercise their power fairly." It is a "procedural rule for regulating the activities of administrative organs" and a "minimum principle of justice", which includes two basic procedural rules: (1) Any person or group must listen to the opinions of others when exercising power, and everyone has the right to defend himself and defend himself; (2) No one or group can be a judge in their own cases. ① The former procedural rule is the hearing rule. In the United States, hearing is not only an important principle in common law, but also a requirement of due process clause in the Constitution. Article 5 of the constitutional amendment stipulates: "No one shall be deprived of life, freedom or property without due process of law". The meaning of due process of law is to exercise power fairly. When an administrative organ makes a decision that is not conducive to the parties, it must listen to the opinions of the parties, and the parties have the right to request a hearing. ② The United States 1946 Federal Administrative Procedure Law clearly stipulates the hearing obligation of administrative organs. In civil law countries, the perfection of the theory of governing the country according to law, especially the theory of administration according to law, provides a legal basis for the administrative hearing system in these countries. Although German administrative hearing procedure has no direct basis in the Constitution, it is regarded as an important principle of unwritten law in a country ruled by law. ③ The German Administrative Procedure Law passed in1976 clearly stipulates the hearing procedure. In addition, the Austrian Administrative Procedure Law 1950, the Spanish Administrative Procedure Law 1958, the Korean Administrative Procedure Law 1987 and the Japanese Administrative Procedure Law 1993 all stipulate the hearing procedure.

China's administrative punishment law promulgated by 1996 stipulates the hearing procedure for the first time, which is a beneficial attempt to introduce advanced foreign legal systems and experiences and is of great significance in the history of democracy and legal system in China. Although we can find the legal basis of the hearing procedure from the spirit of our Constitution, the second paragraph of Article 27 of the Constitution stipulates that "all state organs and state functionaries must rely on the support of the people, always keep close contact with the people, listen to their opinions and suggestions, accept their supervision and strive to serve them". But the hearing procedure is different from the general working principles of "taking the mass line" and "listening to the opinions of the masses". It has its own special rules and scope of application, and can play a very unique role. In order to further understand the essential characteristics and fully understand the significance of hearing procedure, this paper analyzes and studies the basic principles of hearing procedure on the basis of basic theory and legislative practice at home and abroad, in order to help improve the administrative hearing procedure in China.

The reason why the hearing procedure is different from the usual working methods such as "listening to opinions" and "listening to others' opinions" is that it is a procedure supported by many special legal principles. These principles and systems are the inevitable requirements of the hearing procedure. This is also the fundamental standard that distinguishes it from other programs. Although countries have different understandings and expressions of the principle of hearing, they generally have the following principles:

First, the principle of openness

Openness is the premise of the smooth progress of the hearing procedure, and it is also a powerful guarantee to prevent arbitrary methods from exercising power. Article 42 of China's Administrative Punishment Law stipulates: "The hearing shall be held in public unless it involves state secrets, commercial secrets or personal privacy". The purpose of the hearing is to listen to the opinions of the other party. How can we ensure that the opinions of the parties are fully and truly listened to? The most important thing is to disclose the relevant materials to the parties at the beginning of the hearing, so that they can defend themselves before making a decision, so as to avoid being "in the dark" by the respondents. (4) Specifically, the principle of openness requires that the hearing procedure be conducted in public, and an announcement shall be issued before the hearing is held to inform the interested parties of the time, place and cause of action of the hearing procedure; Allow the masses and journalists to attend, and allow journalists to cover and report; During the hearing, the parties have the right to make statements and arguments at the place where the public hearing is held, put forward their own opinions and evidence, and refute the other party's opinions and evidence; The factual basis of an administrative organ's decision must be made public and cross-examined by the parties, and evidence that is not known to one party cannot be used as the factual basis of the decision; The contents of administrative decisions made according to the transcripts of hearings must also be made public. The openness of the hearing procedure can not only ensure that the administrative decision is more just, comprehensive and objective, but also help to strengthen the social and public opinion supervision of the administrative organs and improve citizens' awareness of obeying the law. As the Franks Committee of the United Kingdom pointed out in the Report of the Administrative Tribunal and Public Investigation, in order to reach a fair verdict, all adjudication activities must be guided by the three principles of openness, fairness and impartiality. Among these three principles, the principle of openness ranks first. ⑤

Of course, the principle of openness is not an absolute requirement of the hearing procedure. All matters involving state secrets and personal privacy can be heard in private, which is the practice in many countries, and some countries even stipulate that hearings are held in private. For example, Japan's "Administrative Procedure Law" stipulates that "the hearing should generally be held in private, but if the presiding hearer thinks that the public hearing will not adversely affect the social interests or the legitimate rights and interests of others, the hearing can also be held in public." ⑥ The German Administrative Procedure Law also stipulates that "the oral debate should be held in camera" and that "the presiding hearer may allow others to participate if the parties do not raise objections". Of course, closed-door hearings are the practice of individual countries after all. "A few closed-door hearings are exceptions and exist to protect relevant private interests." For example, the formal hearing in the United States must be open, and the administrative organ has greater discretion over the informal hearing procedure, which is not necessarily open. Usually, the request of the administrative organ to the parties for a closed hearing is to make a decision on whether to allow it after considering personal interests and public interests and balancing the interests of all parties. ⑧

Second, the principle of energy separation

The principle of separation of functions means that in the course of trial, institutions or personnel engaged in trial and trial hearing cannot engage in activities incompatible with trial and trial to ensure the fairness of trial. Pet-name ruby China's "administrative punishment law" article 42 1 paragraph 4 stipulates this principle, that is, "the hearing shall be presided over by investigators other than the case designated by the administrative organ, and if the parties think that the moderator has a direct interest in the case, they have the right to apply for withdrawal".

The principle of separation of functions comes from the ancient principle of natural justice. This principle advocates that "everyone can't be himself."

The judge of the case ",it applies not only to judicial positions, but also to administrative positions. The book "British Administrative Law" has a more comprehensive introduction to this. "When a citizen's rights and reasonable interests are adversely affected by administrative decisions, he not only has the right to defend himself, but also has the right to demand that his opinions must be decided by impartial administrative officials. Administrative decisions cannot be made by people who have an interest in the decision, which is the requirement of the principle of natural justice for administrative procedures. "No one can be the same.

The incident is both a prosecutor and a magistrate, because this situation is also a judge of his own case. " ⑩

Of course, the administrative organ is different from the judicial organ. It is not a specialized judicial organ. In view of the fact that the problems handled by administrative organs involve complex professional knowledge and technology, in order to improve efficiency and avoid increasing financial expenditure, it is impossible for legislation to require that the prosecution and investigation functions of administrative organs be completely separated from the hearing and trial functions and be exercised by an independent institution. What can be achieved is the separation of internal functions, that is, in the same administrative organ, people who perform the functions of investigation and prosecution are not allowed to preside over the hearing and participate in the ruling. This is also the specific practice of hearing procedures in many countries. The reason why legislation in various countries attaches so much importance to the separation of functions is that if a person who conducts investigation and prosecution in advance participates in the ruling, he will inevitably focus on the evidence he investigated as the basis for the ruling, ignoring the evidence presented by the parties.

Evidence that contradicts opinions, even if the investigation conducted by the prosecutor in secret is not confronted with the parties, may also be the basis of the ruling, which is very unfair to the parties. It is difficult for those who investigate and prosecute in advance to be detached from the objective psychological state in handling cases, which is a necessary condition for a fair trial and ruling. If the investigation and prosecution personnel are combined with the personnel presiding over the hearing and the judges, even if the personnel presiding over the hearing and trial are unbiased, it is difficult for the parties to believe that they have obtained a fair judgment. ( 1 1)

Article 42 of China's Administrative Punishment Law embodies the principle of separation of functions, but it is too principled, because the scope of "non-case investigators" is very wide, which can be other responsible personnel of the case investigation department, heads of organs and personnel of other departments of organs. The administrative punishment law was promulgated.

After that, many administrative agencies

When formulating relevant implementation measures, the presiding hearer is mostly positioned as the staff of the legal institution of the administrative organ. However, the contact and influence between such personnel and investigators are still unavoidable. This situation can be avoided, especially when the personnel of the legal institution are themselves the investigators of the case. In order to ensure the real implementation of the principle of separation of functions, it is necessary to establish the relatively independent and fair legal status of the hearing host. The experience of the United States in this regard can be used for reference. Before 1946, the person presiding over the hearing could only exercise the authority granted by the organ, and had no special status and could not gain the trust of the parties. 1946 the federal administrative procedure law clearly stipulates the hearing examiner system, which was changed to administrative judge after 1972. The administrative judge is independent and not directly controlled by the head of the administrative organ. Administrative judges cannot be removed from their posts unless there are just reasons stipulated and confirmed by the Civil Service Commission. The administrative organ has no right to appoint administrative judges by itself, and can only choose the appointees from the list of qualified personnel confirmed by the Civil Service Commission. In terms of staffing, they are the staff of their organs, and are not controlled by their organs in terms of appointment, dismissal and salary. 198 1 the revised model of the state administrative procedure law stipulates the centralized use system of administrative judges, that is, an administrative hearing bureau is set up in the state administrative department, and administrative judges can serve in different organs according to the assignment of the hearing bureau.

Like the principle of public hearing, the principle of division of functions is not absolute. Especially at the top of the administrative organs, functional integration is still allowed. (12) and in some special fields, there are some exceptions to the division of functions. For example, in the decision-making process of applying for the original license, the procedures involving the legality and selection of prices, or the procedures involving public utilities, public transport facilities and business activities cannot be separated, but should be allowed to be relatively integrated. ( 13)

Third, the principle of prior notice.

Before an administrative organ holds a hearing and makes an administrative decision, it shall inform the counterpart of the main matters involved in the hearing and the time and place of the hearing, so as to ensure that the counterpart can effectively exercise the defend oneself, thus ensuring the appropriateness and legitimacy of the administrative decision. Failure to be informed in time and insufficient preparation time mean that the parties have no chance to obtain evidence and prepare for the debate. Because they don't understand the main issues involved in the hearing, they can't make the necessary preparations for the hearing, and it is difficult for them to exercise their right to defend themselves. Therefore, Article 42 of China's Administrative Punishment Law stipulates that the administrative organ shall inform the parties of the right to request a hearing before making an administrative punishment decision such as ordering to stop production or business, revoking the license or imposing a large fine. The administrative organ shall notify the parties of the time and place of the hearing seven days before the hearing.

The principle of prior notification is one of the core contents of the hearing system. The principle of hearing is included in the legal principles and procedural laws of many countries. According to the principle of natural justice in Britain, the principle that administrative organs must listen to each other's opinions includes three contents: (1) citizens have the right to be informed before a reasonable time; (2) Citizens have the right to know the arguments and basis of administrative organs; (3) Citizens have the right to defend themselves. The first two items are the embodiment of the principle of prior notice. Article 15 of Japan's Administrative Procedure Law stipulates that when an administrative organ makes an unfavorable punishment, it shall set aside a considerable period in advance and notify the counterpart in writing of the unfavorable punishment. The written notice shall include: (1) the content of adverse punishment and the basis of relevant laws and regulations; (two) the facts that constitute the cause of adverse punishment; (3) the date and place of the hearing; (4) the name and location of the institution responsible for the hearing. In addition, the administrative procedure laws of the United States and Germany also stipulate more detailed disclosure principles. This principle mainly solves the following problems:

(a) to inform the object. Before the administrative organ holds a hearing, it shall inform the relative person of the hearing matters, time and place. The scope of the relative person, that is, the object of notification, has different definitions in different countries. China's administrative punishment law defines it as a "party", that is, the punished person, while American law defines it as an "interested party", that is, a party whose rights and obligations are directly affected by the hearing results. German administrative procedure law defines it as "relative person or related person". Because the purpose of hearing is to listen to the opinions of interested parties, not just the opinions of the punished person or the parties, the objects of hearing should be wider than the parties, including the relative person and other interested parties.

(2) Time of notification. The purpose of informing before the hearing is to facilitate the interested parties to participate in the hearing or prepare their opinions and debates. Therefore, when informing the hearing right and hearing time, the interested parties should be given some preparation time in advance, that is, the time between informing and hearing should not be too short, otherwise it will affect the preparation of relevant personnel, but it should not be too long to avoid wasting time and energy. The length of time depends on the distance between the parties and the relevant personnel and the complexity of the case. (14) Every country's legislation requires "timeliness".

(Article 554 of the Federal Administrative Procedure Law of the United States) or issue a notice within a certain period before the court session (Article 15 of the Administrative Procedure Law of Japan). China's administrative punishment law stipulates that it is 7 days. As for the notification time of other administrative acts, there is no provision at present, which must be made clear in the administrative procedure law.

(3) the contents of the notice. The contents to be informed before the hearing shall include the right of the parties to request a hearing, the general contents of the hearing and the important matters involved, as well as the time, place and organ of the hearing. China's "Administrative Punishment Law" has no detailed provisions on this, and all localities and departments have further refined this in the implementation measures of the hearing, adding "the name of the party, the illegal act, the reasons and basis for the administrative punishment and the administrative punishment decision to be made" and other contents.

( 15)

(4) the way of notification. There are usually three ways to inform before the trial: one is direct delivery in writing, the other is notice by mail, and the third is service by announcement. China's "Administrative Punishment Law" does not make provisions, but the specific measures for implementing the administrative punishment law in various localities and departments, in addition to the above three delivery methods, include entrusted delivery and oral notification (also recorded in the record).

Fourth, the principle of file exclusivity.

The principle of file exclusivity means that the decision made by the administrative organ in accordance with the formal hearing procedure can only be based on the file, but not on the facts that the parties do not know or demonstrate. The purpose is to ensure that the parties can effectively exercise the right to state their opinions and the right to refute the evidence against them. The court can only review the legality of administrative decisions according to the records in the case file, and the administrative organs can also make decisions independently on this ground. Item 7 of Article 42 1 of China's Administrative Punishment Law stipulates: "The hearing shall be recorded and signed or sealed by the parties after verification." However, it is not stipulated that the hearing record is the only basis in the decision, and even the role of the record in the punishment decision is not mentioned at all. The "Measures for the Implementation of Hearing" of various localities and departments have made some supplements to this. For example, Article 26 of the Trial Provisions of Shanghai Municipality on Administrative Punishment Hearing Procedure stipulates that "the hearing record shall be used as the basis for the administrative organ to make the decision on administrative punishment". Article 16 of the Provisions on the Hearing Procedure of Labor Administrative Punishment stipulates that "the labor administrative department shall not take the evidence without hearing as the basis of administrative punishment".

At present, the controversial question is: what is the role of hearing transcripts in administrative decision-making? One view is that we should fully learn from the principle of absorbing the exclusiveness of files, especially its essence. "The facts and reasons identified by the administrative organ shall be known and debated by the parties concerned; If the administrative organ adopts facts and evidence other than the transcripts of the hearing, it shall provide the parties with an opportunity to understand and debate these materials. " ( 16)

In other words, the hearing record should be the main basis for administrative decisions.

Another point of view is that the hearing record can only be used as one of the bases for administrative decisions, because the supplementary evidence after the hearing cannot be considered invalid and should still be used as the basis, and the parties may not have submitted relevant evidence, so they cannot produce all the evidence at the hearing and confirm it after cross-examination. Especially when the parties give up the hearing, it is untenable in jurisprudence and impossible in practice to require all the evidence to be cross-examined at the hearing. Judging from the application of the hearing system in China at present, on the one hand, the role of the hearing record has not been paid enough attention, and the administrative organ, as the initiator and judge of the procedure, still enjoys great discretion in using the hearing record, and the evidence and facts that have not been heard still play a very important role in the administrative decision, which is far from the requirements of the principle of file exclusivity of the hearing procedure itself; On the other hand, the hearing record is a phased product of administrative procedures. The final formation of administrative decisions depends on the ruling of the Chief Executive. After the hearing, it is still inevitable to adopt evidence and find out the facts. In addition, administrative decisions are not final and are subject to judicial review. Therefore, in order to achieve the purpose pursued by the hearing procedure itself,

We agree that the hearing record is the main basis of administrative decisions.

The above are the main principles and systems of the hearing procedure, in addition to the principles of avoidance, prohibition of unilateral contact, file reading and principal-agent principle. These principles are no less important than the above four principles, but because they are mostly general principles of administrative procedures, people are more familiar with them, so they will not be discussed in detail here.

① Attending Wang Mingyang: English Administrative Law, China University of Political Science and Law Press, 1987, March, 152, 153- 154.

(America) Jerome Barron, Thomas Delos: Introduction to the Constitution of the United States, translated by Liu Ruixiang, China Social Sciences Press, 1995, pp. 102 and 108.

(3) See Comparative Study on Administrative Procedure Laws of Various Countries (Taiwan Province) compiled by the Research and Development Inspection Committee of the Executive Yuan, p. 168.

(4) Margaret arras, Introduction to Australian Administration.

Butterworth1990,265 pages.

⑤ (1 1) Wang Mingyang: American Administrative Law, China Legal Publishing House, 1993, p. 433, p. 437, p. 438.

⑥ Zhang Jiansheng: Comparative Study of Administrative Procedure Law, Hangzhou University Press, 1997, p. 0/08.

⑧ Yang Huiji: Theory and Practice of Hearing Procedure, Shanghai People's Publishing House, 1997, p. 225.

(12) See Bernard Schwartz: Administrative Law, translated by Xu Bing, People's Publishing House, 1986, p. 303.

(13) see article 554 of the federal administrative procedure law of the United States 1946.

(14)( 16) Liu Mianyi and Jiang Yong: Research and Application of Administrative Hearing Procedure, Police Education Press, 1997, p. 47.

(15) See Article 12 of the Trial Provisions of Shanghai Municipality on Administrative Punishment Hearing Procedure.