Exploration of Administrative Hearing Procedure Rules_5428.doc

Exploration of Administrative Hearing Procedure Rules Countries around the world towards rule of law in the process of a very prominent legal phenomenon is the core of the rule of law as an administrative system of the administrative procedures for the rise and development. Chinas legal reform of administrative procedures have also institutionalized attempt to achieve its outstanding performance that is a fair administrative procedures, the establishment of the administrative hearing procedure, this procedure is based on the establishment in 1996, Administrative Punishment Law and 1998 Price Act promulgated and implemented as the hallmark. Since then, the law on this platform, relevant laws and regulations, rules and regulations have been proposed, in order to refine the power of this new mode of operation - administrative hearings. However, when we are encouraged should be aware of the practice of clear procedures for the hearing is not satisfactory, and sometimes even a mere formality, no hearing procedure will be the function to play out, or at least not into full play. The reason, I believe that although the law for us to introduce the administrative hearing process, but it is only just a legal framework, specifically actionable articles missing quite serious. To this end this paper, the existing legal framework, from the administrative hearing rules of procedure to set the value basis, to explore the specific administrative hearing rules of procedure set up to regulate the hearing procedure to ensure normal operation of the hearing process to realize the value of administrative hearing functions. An administrative hearing procedure the meaning and significance of (A) the meaning of the Administrative Hearing Procedures. Administrative hearing procedure means that the executive authorities to make major That affect the relative rights and obligations of people before the decision to listen to the parties statements, defense, and cross-examination, and then both cross-examination to verify the material to make a program of administrative decisions. Administrative hearing procedure aims to clarify the facts, find the truth, given the fact that the parties express their opinions on important opportunities. Its essence is the use of the statutory right of citizens to resist the executive authorities of possible improper administrative actions, reduce the citizens of these vulnerable groups unequal status between the Executive and the enormous contrast. Is generally believed that the Administrative Hearing Procedures from English law of natural justice (natural justice), while the United States established by the Constitutions due process of law to further deepened. This process requires the implementation of the field in the administrative notice, hearing, the parties argued three grounds for the procedure, the hearing process is the core content. The administrative hearing procedures for civil law countries is generally believed that the theory comes from the rule of law in the country. Enacted in 1996 in China, Administrative Punishment Law, the official introduction of the administrative hearing procedures. Administrative Punishment Law Article 42 stipulates that the executive authorities to make ordered to cease, revoke a permit or license, a relatively large amount of penalties before a decision, it shall inform the parties have the right to request a hearing; party requests a hearing, the administrative organ shall organize the hearing. May 1, 1998 come into operation on the Price Law of The Peoples Republic of China also on the price of the hearing made clear. Adopted in 2000, the Legislation Law provides that: In the administrative law drafting process for a wide range to hear their views could be taken in the form of hearings. Is generally believed that the Chief Justice of the hearing was a sign of administrative acts, with quasi-judicial of. Countries can be divided into administrative hearing procedures for a formal hearing procedure, and informal hearing procedures; pre-hearing, and afterwards several types of hearings. Throughout the West the more developed countries, administrative procedures, administrative hearing procedures generally involve the following elements: (1) Hearing; (2) the party system; (3) the scope of the hearing; (4) evidence system; (5) dossier system; (6) The agent system; and the specific administrative hearing procedure, covering the executive and legislative, law enforcement and other fields. (B) the meaning of the Administrative Hearing Procedures 1, from a theoretical point of view the significance of the Administrative Hearing Procedures. It is often the right to be divided into two kinds: Public power and private rights. The executive power belongs to the public is clearly the right kind. Duguit said there is no national rights because of the presence of a private right is different from the spirit of the so-called public law, France is only a kind of spirit, and that is the spirit of fairness. And in the legal system, to maintain this spirit of fairness, balance the public authority with the private rights of law can be roughly divided into two categories. One is the substantive law, and the other is a procedural law. Substantive law, which regulates the relationship between rights and obligations between the parties, procedures, laws to make this the relationship between rights and obligations to be implemented. Even if the substantive laws of a country sound again, there is no strict procedures to protect it is also equal to zero. In previous years, with Western countries compared with the phenomenon of great importance to the proceedings according to our study of jurists in the legal system building, too much emphasis on the orders without exception focused on the substantive aspects of the law, but for the modern legal system ought to occupy an important position in legal proceedings but lack of attention to and understanding. Therefore, the administrative hearing procedures for the establishment of the system, so that the interests of the executive counterpart from abuse. At the same time, it protects the administration goals. Included in the administrative body to oversee the context of the relative in order to prevent the executive autocracy and arbitrary. Limit the administrative body to maximize the abuse of public power, in the public power and private right to find one another between the starting point for the best balance. 2, from an economic point of view the significance of the Administrative Hearing Procedures. Property economist Coase believes that Producers goal is to try to save transaction costs to the lowest cost in exchange for the maximum profit. Similarly, in the field of administrative law still exists the issue of cost, namely, administrative efficiency. Administrative law had been born, from the perspective of economic law, can be attributed to a rational allocation of social resources. The efficiency of administrative activities depends on various factors: the choice of administrative behavior, the rational part of the arrangements, the process of science portfolio. The most important is the programs settings. On the surface, administrative hearing procedure is set not only failed to reduce costs, but increased the burden on the executive. But the fact is not true, consultation process is set, rather than through obedience to win. As part of an administrative decision to the interests of deprivation, must be the counterpart of the understanding and recognition, so that the relative in procedure is completed, can be reluctant to to obey the decision. Administrative hearings procedures in cases of executive authorities investigating illegal contractors and the relative participation of people, by the executive accountable for its decision was based on the burden of proof, the parties cross-examination. Both sides a reasonable sharing of the burden of proof and the parties of their statements of opinion, defend, and further verify the evidence, find out the facts. In this way, the relative might know of some previously did not know their own matters, the whole legality of administrative acts and rationality have a better understanding. When the counterpart is indeed aware of their violation of the relevant provisions of administrative law, they may abandon the administrative review or litigation, this does not mean that the restrictions on the relative rights, but retained the original parties to the rights of the administrative remedies at the same time, greatly improve administrative efficiency. At the same time, as the executive authorities to make a final administrative decision, through the hearing procedure to further establish the facts and the legitimate rights and interests of relative relief in advance, will protect the interests of the counterpart to a new level, but also as much as possible to avoid the result of state compensation law administration which led to the unnecessary increase in costs. That is, through the advance payment of less transaction costs, replacement of more costly due to illegal administrative transaction costs, while effectively promoting the goals of the administration, the executive is expected to contribute to proliferation. Second, administrative hearing to set the value of the basis of procedural rules Administrative hearing on the rules of procedure which is the hearing procedure to run the inner form of protection, the rules set reasonable, healthy or not, will have a direct bearing on the hearing procedures that can be implemented, whereas the rules set up to obey and serve to set the value of the hearing process itself foundation, and therefore the discussion of specific rules set up administrative hearing process before the hearing procedure is necessary to clarify the establishment of basic values, and as a set of specific rules for the establishment of a value to content. Hearing procedures should be based on the value set consists of two aspects: (A) civil proceedings through the administrative hearing in this form of democratic participation in order to restrict the rights of executive power. Alexis de Tocqueville in his Democracy in America, a book has mentioned that the reason why the U.S. can maintain a lasting democracy, in addition to the power authority to impose restrictions other than the rights of citizens play an important role. Well-known American political scientist Robert Dahl argued that the most core elements of democracy is not power for power constraints, but the power of social constraints, that is, political parties, public opinion, social organizations, enterprises and individual citizens of the factors on the power constraints, In these constraints, the key role played by the social organizations, enterprises and individual citizens. From the rights of property point of view, the rights of citizens have the right to restrict the executive power. The executive power is different from the individual private rights, personal private rights belong to individuals of all, can and should be by an individual the free exercise of their will; while the executive power belongs to the public rights, the right to belong to the people. People will be handed over executive power as the representatives of the executive authorities the use of time, but does not mean that the executive can be shared by the people in the use of executive power, just as the exercise of private rights as individuals with my arbitrary, two types of power operating mechanism is different from The. People will exercise the executive power by the executive authorities, but there the use of constraints, that restrict the executive according to the common will of the people (legal) to the use of executive power, and the law to make such restrictions and procedures for the specific direction provisions. Administrative hearing process is the core of the value of the expression. (B) civil rights and executive power is the pursuit of the perfect combination of social justice, promote social development, the best way. Civil rights are clearly constraints on executive power needs and necessary because the executive authority has the power to property, easy to corrupt and expansion. But the executive power should not just proceed from the evil powers of the executive power of the good side. Bernard Schwartz believes that the American people began to use modern means to consider the positive role of government, that is the main guarantee that everyone has the right conditions of human existence, so the power of the implementation of such a government must be from the above objectives to find the ultimate ideal of a society is necessarily a continuous extension of the right of signs. second half of the 20th century, the new benefits are almost never pushed the law, require that the form of legal rights be recognized. Furthermore, the executive power source on civil rights, the ultimate aim is to serve in the civil rights, two kinds of rights are inherent harmony. Executive powers in setting, running is the process of realization of rights of citizens, which is the highest executive power sources of law - the essential requirement of the Constitution because the Constitution is fundamentally speaking, the full expression of civil rights. Thus, civil rights are fully involved in the operation of the process of administrative power, not only so, the rights of citizens to fully penetrate the legal system will ensure that executive power along the track to run and maintain social justice, promote the healthy development of society. Administrative hearings process was built on such values, based on the procedures for administrative hearings to set all the rules must also be services, subject to this. The following rules of procedure for all administrative hearings to explore is precisely based on this value basis. Third, the specific administrative hearing rules of procedure Administrative powers in regulating and maintaining both the value of social justice, regulation, administrative hearing procedures for breaking through the traditional administrative law executive efficiency first principle, co-existence of justice and efficiency, will just put a leading position. Thus, the hearing rules of procedure in general, showing a judicial of the rules of procedure of the situation. Throughout the West the more developed countries, administrative procedures, administrative hearing rules of procedure generally involves the following elements: (A) hearing the host selection rules. Hearing the activities of the organization is responsible for hearing the work of regulation and control are hearings in accordance with legal procedures to complete the legal staff, their neutrality is one of the minimum requirements for a fair hearing. Chinas Administrative Punishment Law provides that the Hearing designated by the executive authority; based on the Price Law established Interim Measures for the governments price policy-making hearings, provides that the Hearing decisions by the price of the competent authority. Can be seen in our selection of the host hearing entirely by the executive within the executive authorities in the selection, though not the executive decision makers or decision-maker itself, but the hosts could not avoid a direct connection between the executive authorities, thus, no good reason to convince the public that they can out of control, independent of the host hearings. This is true. Moderator lack of neutrality, it can not be objective and fair in the state of mind, resulting in hearing the obvious bias. From the outside perspective, the practice of different countries, but the general guiding principle is to maintain the neutrality of the Hearing. Administrative hearing procedures for hosts belonging to the British court, administrative tribunal independent of the ordinary courts, but also independent of the executive, with its status of neutrality to conduct the hearing, according to the facts and the law to rule on the case. U.S. Administrative Hearing Host also known as Chief Executive, They are produced by the selection system for professional achievement, the system requires outstanding performance in a competitive examination and specific experience in managing projects; they may not be assigned to fulfill their judicial functions incompatible duties, they belong to a term of an employee, unless there are reasonable grounds, not to be dismissed or subjected to punishment. (B) the selection rules of the hearing participants. To participate in a broad sense include: host of the hearing, Hearing, secretaries, administrative relative and their agents, other interested parties, case investigators, as well as such witnesses, experts, translators person. 7 the narrow sense refers only to participants to participate in a hearing outside the exception of administrative counterpart interested. This article narrow far as participants for discussion. Participants recognized the election of the administrative adjudicatory hearing (ie, the taking of administrative measures of the hearing, an administrative penalty in China is mainly conduct the hearing), because the scope of stakeholders and easy to determine the priority and importance is less clear ; and hearing in the administrative decision-making (including the executive and the legislature and the executive decisions on major issues), the interested party is not only a broad scope, but also the relationship between the interests of the complexity of the rules of fair and equitable selection of problems have surfaced. In this regard, the Japanese public hearing (similar to the hearing) on the public reference person (similar to the pa