Procedural Protection Of Administrative Penalty Law

Hearing right owned by people is the product of the development of modern democratic politics.It is based on the principle of natural justice and the principle of due process,and it has its own unique function of ex ante relief compared with the administrative reconsideration procedures and administrative litigation procedures.The administrative hearing procedure is considered to be the core system of modern administrative procedure law.China first established the hearing procedure system through the Administrative Penalty Law in 1996,in addition to the Administrative Penalty Law,China has also established hearing procedures in the Pricing Law and Administrative Licensing Law and some other laws,which make the hearing procedure has been further applied in different legal areas.That is a major step forward towards the rule of law in China.However,compared to the United States and some other countries,the time for implementing the hearing system in China is still too short to be applied widely,and there still remains many procedural loopholes.This paper focuses on the analyses of the hearing procedure in the Administrative Penalty Law,because it gives the administrative organs the power to impose administrative penalty decisions on people,which may impose direct and great impacts on them.Under this circumstance,people shall have urgent need to exercise their hearing right to prevent their loss in time.Before the administrative organ makes a decision on penalty,people have the right to make a statement and defense through the hearing procedure,and ascertain the facts of the case,so that the administrative organ can almost make correct decisions and reduce the administrative and judicial costs of subsequent administrative reconsideration and administrative litigation,and filters the contradictions and disputes during the hearing procedure,thus forming a virtuous circle of dispute resolution mechanisms in the field of administrative law.Above all,the first chapter of this paper introduces the legal basis,basic principles implementation patterns and value of the hearing right.Then,on the one hand,through the relevant legal basis and the basic systems of the hearing procedure in China,the second chapter of this paper introduces current legal protection of the hearing right on administrative penalty in China in the aspect of laws;on the other hand,through the study of relevant judicial cases,this chapter also analyses the protection level of the right to hearing on administrative penalty in China in the aspect of judicial practice.Generally speaking,compared with the hearing procedures in other administrative laws in China and the original legislative intention of hearing procedure,the relevant provisions of hearing procedure in the Administrative Penalty Law are very vague.This not only result from the fact that our country lacks experience in applying such procedures under its special conditions,but also result from the consideration of providing amendments' space for follow-up legal updates.In December 2018,the National Development and Reform Commission promulgated the newly revised Government Formulation of Price Hearing Measures,which will be implemented on 10 January,2019,in which the relevant hearing procedures have been refined and indicating further emphasis on the hearing procedure and the legislative trend of improvement.Honestly,more than 20 years have passed since the publication of the Administrative Penalty Law,whose area may directly affect people's interests,the hearing procedure on administrative penalty needs to keep pace with the times.The third chapter of this paper analyzes the reasons of loopholes in the protection of the hearing right on administrative penalty in China through the demonstration about three different stages during the hearing procedure which consists of application,debate and decision-making stages and find out that the main reasons for the failure to use the hearing procedure are as follows:(1)the hearing application procedure is unclear,including that the notification procedure and the period of acceptance is unknown,the scope of the application procedure is unclear,and the subject of the application procedure is limited;(2)during the debate stage,burden of persuasion and the powers and responsibilities of the hearing chairman are unknown;(3)The basis for making the hearing decision is unclear,neither the content of the basis nor the validity of the hearing record is prescribed.Through the analyses of relevant domestic regulations and the comparison of foreign relevant hearing procedures,the fourth chapter of this paper analyzes the above-mentioned procedural defects and puts forward some suggestions for the above-mentioned procedural loopholes,which aims at enabling Chinese to actively apply their right to hearing,eliminating procedural obstacles as much as possible,and ensuring the hearing procedure does not flow in form and realizes its legislative intention and value.