| Article 42 of the Administrative Penalty Law stipulates: “ An administrative organ,before making a decision on administrative penalty that involves ordering for suspension of production or business,rescission of business permit or license or imposition of a comparatively large amount of fine,shall notify the party that he has the right to request a hearing;if the party requests a hearing,the administrative organ shall arrange for the hearing.” That is,not all administrative penalties have the right to file a hearing before they are made.Only " ordering for suspension of production or business,rescission of business permit or license or imposition of a comparatively large amount of fine " may apply hearing procedures.The starting point of the article is based on this.The hearings in the Administrative Penalty Act include formal hearings and informal hearings.The formal hearing is marked by the holding of a hearing and there is a limit to the scope of application.It corresponds to Article 42 of the Administrative Penalty Act.Informal Hearings do not hold hearings and there is no restriction on the scope of application.They correspond to articles 31 and 32 of the Administrative Penalty Act.The hearing discussed here refers to a formal hearing.The theoretical and practical circles have different understandings of whether the “etc.” in Article 42 of the “Administrative Penalty Law” should be made up within the meaning of“onlythree items” or “more than three items” leading to administrative penalties in different areas and sectors.The determination of the hearing scope is not uniform,which is not conducive to preventing the abuse of administrative power and protecting the legitimate rights and interests of the parties.Concerning the disputes concerning the scope of administrative Penalty hearings in practice,combining the authoritative interpretation of the Supreme People's Court,the judicial reply and the gist of the guiding cases,the changes of legislative data,the legislative purpose of the“Administrative Penalty Law” and the value of the hearing,etc.The word "etc." in Article 42 of the "Law of Penalty" should be understood as "more than three items" that is,the scope of the hearing for administrative Penalty includes not only the three types of administrative penalty orders for suspending production,suspending business,revoking licenses or licenses,and a large amount of fines.Should include other administrative penalties.The understanding of "more than three items" is conducive to more protection of the legitimate rights and interests of the parties,to the promotion of the administrative organs' administration in accordance with the law and to the prevention of further expansion of administrative disputes.By sorting out the scope of administrative penalty hearings in the regulations,we can find out the understanding of the word "etc." in Article 42 of the "Administrative Penalty Act." The norms are divided into three situations: The first is "only three items" Reducing the scope of the hearing under the "Administrative Penalty Act";the second is "more than three items" which expands the scope of the hearing under the "Administrative Penalty Act." The third is not to make any provision for the "etc." Article 42 of the Act expresses exactly the same scope of the hearing.From the perspective of horizontality and verticality,we examined the characteristics of other administrative penalty hearings in terms of time dimensions,geographic scope,and industry fields,and found that the scope of the hearing has continued to expand from time to time.The scope of regional hearings and the level of regional economic development have been positive.Related,the expansion of the scope of hearings in the industry is mainly reflected in the establishment of more types of penalties.There are two categories of other hearings in the specification.The first is the elaboration oflisted items,such as the revocation of various licenses or licenses,but in fact it does not expand the scope of an express hearing,and the second is a substantive expansion,such as Larger amounts of confiscation,industry prohibition,temporary seizure of various types of licenses or licenses,etc.The court's opinions can be divided into three categories.The first category is not directly responding to parties' disputes;the second category is to limit the scope of hearings to the “Executive Penalty Act” for express hearings;the third category is to expand the scope of hearings beyond the scope of the “Administrative Penalty Act”express hearings.The matters,which are divided into the court's affirmation of the way in which the executive organ held the hearing of the parties and the court's refusal of the practice that the administrative agency did not hold hearings.Summarizing norms and cases in the expansion of the scope of administrative penalty hearings,a "similarity" standard has been established in the standards,and those who are "ordered to suspend production,suspend business licenses,revoke permits or licenses,and impose large fines" have affected the rights of the parties.Similar administrative penalty decisions were included in the hearing.In the case,the "equity" standard was formed,that is,if a penalty decision may have a significant impact on the legitimate rights and interests of the parties,whether or not it is similar to the "inside" hearing,it should be included in the scope of the hearing.Both standards have legitimacy and rationality,but the "equity" standard expands the scope of the hearing more widely than the "similarity" standard.Due to the lack of legal effectiveness of the two standards,in the future development of administrative Penalty hearings,the “Administrative Penalty Law” should be amended or legislative explanations and judicial interpretations should be strengthened,and general rules should be used in place of enumerative ones.Considered "The significant impact on parties ' rights" factor,and through the continuous accumulation of judicial cases,elaborate the range of administrative Penalty hearings. |
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