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A Study on Our Country’s Administrative Hearing System

Author: XuYanQun
Tutor: ZhouWeiZuo
School: East China University of Politics and Law
Course: Constitutional and Administrative Law
Keywords: Administrative hearing significance analysis of current situation perfection
CLC: D922.1
Type: Master's thesis
Year: 2005
Downloads: 402
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Abstract

Administrative hearing is a kind of legal procedure which always happens beforethe administrative organs making to influence administration relative people’slegitimate rights and interests. It contains the following parts: administrative organ’sinforming relative people of their rights; relative people’s participation in the hearing,expressing opinions and acceptance of evidence. As it’s not only the product ofmodern democratic politics but also the key content If Administrative Procedure Law,Administrative Hearing System has been paid special attention by many countries forseveral years. All the countries who have administrative procedure law have adoptedhearing procedure to different extent.As the kernel of Administrative Procedure Law’s basic, principle, hearing systemhas a significant meaning which can be reflected in the following points: Firstly, interms of theory, its establishment not only prevents administration relative people’srights from being infringed on but also ensures the realization of administrativeorgans under the supervision of relative people in order to stop arbitrary andperfunctory use of administrative power. In other words it prevents the abuse ofadministrative common power to the maximum extent and effectively balances thecommon rights and private rights; Secondly from the economics point of view, it canavoid higher administrative cost caused by illegal administrative objectives which iscontributive the appreciation of administrative anticipation; Thirdly in terms ofadministrative legal system, hearing procedure is an indispensable part ofAdministrative Procedure law and the lack of it will definitely result in the seriousincompletion of the whole administrative legal system; Fourthly, as we’re a countryrun by law ,we can increase the openness and transparency of administrative decisionsthrough the hearing procedure ,thus reach the goal of protecting administrativerelative people’s legitimate rights and legalizing administrative behavior; Fifthly, asChina entrys into the WTO ,the establishment of Administrative Hearing System is anobjective demand of WTO regulation.Compared with developed countries, our country’s Administrative HearingSystem enjoys a very short history of only ten years.《Administrative PenaltyLaw》,which was passed by National People’s Congress held in March 1996,Stipulated administrative penalty hearing procedure for the first time. This thesisanalyses current hearing procedures included in these laws, namely《Constitution》,《Administrative Penalty Law》,《Price Law》,《Legislative Law》,《Law ofEnvironmental Impact Assessment》and《Law of Administrative Licensing》.throughsome typical cases it finds out many problems existing both in legislation and in itsimplementation which can be concluded as follows: The legislation lays particularstress on administrative entity’s rights and ignores the supervision of itsimplementation; Basic principles the hearing procedure should abide by are notintegrated; The application of hearing procedure is too limited; On one hand, therange of its participants is not defined and on the other hand participants’ rights andobligations are not dear; Legal status of hearing host is not independent; Hearing procedure itself lacks supervision mechanism and so on. So we should perfect ourcountry’s administrative hearing procedure on the combination of western developedcountries’ related stipulations and practical. Situation of China. Author’s basis conceptis as follows: Firstly, we should define the basic principles of Administrative HearingSystem and include "legal, fair, open, effective, free of charge" as the basic criterionwhich should be followed during the hearing procedure ; Secondly, we shouldexpand the scope of its application from several concrete administrative behaviors toother ones and even to some abstract administrative behaviors beyond theadministrative legislation; Thirdly, we should adopt various kinds of hearing withinformal one and uniting pre—hearing; Fourthly, we should perfect relativeprovisions about hearing participants, which contains setting up provisions concerninghearing party and perfecting stipulations regarding hearing agent and hearing host;Last but not least, we should set up censorship towards hearing procedure.Legal system is so rigorous that a slight modification of it will bring aboutredistribution of interests. It’s also true of hearing procedure which is so complicatedthat its existing problems can’t be completely solved just by a master’s academicthesis. With am eye to out country’s legislative defects, this article puts forward someproposals, some of which haven’t been practically proved feasible and some problemsstill exist. Anyhow, the author hopes it can bring about more discussion about relativeissue in order to perfect our country’s administrative hearing procedure which is alsobeneficial to the legal construction of our country.

A Study on Our Country’s Administrative Hearing System

Abstract

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