A Study On The Time Element Of Administrative Hearing Procedures

Due process of law requires the administrative hearing to be held at an appropriate time.No matter when the hearing is held,its basic procedural function is to listen to the other party’s opinions and avoid mistakenly depriving the other party of his or her legitimate rights and interests.If the hearing can not be conducted in advance,or when it is impractical in advance,the post hearing also meets the requirements of due process of law.As a procedural element,hearing can be transformed between the integrated administrative prior procedure and the administrative post procedure.In addition,the two kinds of administrative decisions made successively without hearing and after hearing have the rank structure of "light before and heavy after".The hearing after the event can not only "supplement" the pre procedural elements without hearing,but also "correct" the fact finding errors in the previous administrative decisions,and finally make the administrative hearing procedure of integration before and after the hearing legitimate.In the case of emergency,the administrative organs of our country do not listen to the opinions of the opposite party before the implementation of emergency measures,extraordinary measures and immediate coercion,and before making some administrative decisions that are not permitted,which naturally can not guarantee the accuracy of adverse administrative decisions.Moreover,due to the lack of time rules and post hearing system of administrative hearing in China,the counterpart can not timely express his opinions to the administrative organs that make adverse decisions afterwards.Therefore,in order to improve the system of hearing after the event,we must first make it clear: should the administrative hearing required by a case be conducted in advance or after the event? In order to extract some universally applicable interpretation framework,we can find the answer from the logic of "interest measurement standard" used by courts in foreign advanced countries under the rule of law.From a large number of classic cases in the United States,it is not difficult to find that there is a rule for the court to apply the three elements of "interest measurement standard" to clarify the implementation time of hearing.The first step of the court is to judge whether there is legal interest of absolute priority protection;the second step is to weigh the interests of government and private;the third step is to judge the risk of depriving private rights and interests by mistake of existing procedures.According to the three steps and the different conclusions of each step,an analytical interpretation framework can be constructed.According to this,three kinds of interpretation path of post hearing can be generalized,one of which is prior hearing.When constructing the system of hearing after the event,we should first clarify the procedural function of the hearing after the event.Secondly,the administrative organs of our country can use the above four interpretation paths to fulfill the hearing obligation at an appropriate time.The most important thing is that the legislator can bring the administrative act of infringement without hearing into the scope of hearing afterwards.First,immediate action aimed at safeguarding the legal interests of absolute priority protection.For example,emergency measures and emergency measures are suitable for emergencies;immediate enforcement measures and immediate enforcement measures are applicable to administrative investigation stage.Second,according to objective standards or technical norms,the facts of the case are clear and there is no factual dispute,and it is unlikely to wrongly deprive private rights and interests without prior hearing.For example,according to the standards and specifications of the equipment,facilities or products,or based on the inspection and quarantine results,the licensing authority decides on the spot that no further technical analysis is needed.Third,the administrative automatic decision-making system makes adverse administrative decisions instantaneously according to the pre-set "programmed algorithm".