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深圳经济特区行政处罚听证程序试行规定 Proposed Rules of Shenzhen Special Economic Zone on the Hearing Procedures of the Administrative Penalties

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深圳市人民政府令第60号
(Adopted at the 54th standing congress of the second session of the Shenzhen Municipal People‘s Government, promulgated by Decree No. 60 of the Shenzhen Municipal People’s Government on March 25, 1997.)
颁布日期:19970325  实施日期:19970325  颁布单位:深圳市人民政府

  Chapter Ⅰ General Provisions

  Article 1 In order to standardize the hearing procedures of the administrative penalties, ensure and supervise the administrative organ to effectively impose the administrative penalties, safeguard the public interests and social orders, and protect the lawful rights and interests of citizens, legal persons and other organizations, these rules are formulated in accordance with the Administrative Penalty Law of the People‘s Republic of China and the actual circumstances of special zone.

  Article 2 “Hearing” in these rules refers to the procedural activities that the non-investigating personnel preside over a meeting to hear the facts and evidences that the investigating personnel propose to prove that the party has violated the laws and hear the party‘s statements, adducing evidences, cross-examination, defenses and opinions before the administrative organ makes the decisions on administrative penalties according to the Administrative Penalty Law of the People’s Republic of China.

  Article 3 Before the administrative organ gives such important administrative penalties as suspension of production or business, rescission of licenses or permits, or imposition of fines or confiscations with relatively large amounts, it shall go through the hearing procedures according to the laws and regulations relevant to the administrative penalty and these rules.

  “Fines and confiscations with relatively large amounts” in the preceding paragraph refer to the fines and confiscations that are 5,000 yuan or above imposed upon individuals or that are 50,000 yuan or above imposed upon legal persons or other organizations, unless laws and regulations have special provisions.

  If relevant departments of the Municipal Government consider that the amount of fine and confiscation provided in the preceding paragraph need to be increased or decreased, they shall file a written application to state the reasons and basis. The amount may not be increased or decreased, until the application has been examined and checked by the administrative competent department for legal affairs of the Municipal Government as well as been approved by the Municipal Government.

  “Confiscation” in the second paragraph includes the confiscation of money, material or other properties.

  Article 4 The hearing shall observe the principles of fairness, openness and independence.

  The hearing shall be held in public except that it involves state secrets, business secrets and individual privacy.

  The hearing shall be completed at one time; If the circumstances are specially complicated, it may be held for several times.

  Article 5 The administrative competent department for legal affair of the Municipal Government is the competent department of hearing, and shall supervise and examine the hearing activities. The administrative competent department for legal affairs of any district government shall supervise and examine the hearing activities within its administrative division.

  Relevant citizens, legal persons and other organizations have rights to report the malfeasances in the hearing to the administrative competent department for legal affairs of the Municipal Government.

  Chapter Ⅱ The Hearing Organization and Hearing Personnel

  Article 6 If the administrative organ plans to make the decisions on administrative penalty, to which the hearing procedures shall be applied, it shall organize the hearing.

  For the decisions on the administrative penalty that are made in the name of the municipal or district government, and the decisions on the administrative penalty that are signed the definite opinions on disposal by the leaders of the municipal or district government, the administrative competent department for legal affairs of the Municipal Government or the working body for legal affairs of the district government shall organize the hearing. If the delegated organization that impose the administrative penalties according to Article 18 of the Administrative Penalty Law of the People‘s Republic of China plans to make the decisions on the administrative penalty to that the hearing procedures shall be applied, the delegating administrative organ shall organize the hearing. The delegated organization shall not organize the hearing by itself.

  The administrative organ shall not delegate other departments or organizations to organize the hearing.

  Article 7 The hearing shall be presided over by the hearing group organized by the administrative organ or the sole hearing person.

  If the administrative organ plans to impose such the administrative penalties as suspension of production or business, rescission of licenses or permits, imposition of fines or confiscations with 300,000 yuan or above and so on, it shall establish the hearing group to implement the hearing activities. The hearing group shall consist of the chief hearing person and 2 or more than 2 hearing persons.

  For other administrative penalties to that the hearing procedure shall be applied except those stipulated in the preceding paragraph, the sole hearing person shall preside over the hearing.

  Article 8 The chief hearing person or sole hearing person shall appoint the clerk who is responsible for making the records of hearing and other affairs.

  The clerk shall be the working staff of the administrative organ and have the academic credentials of the junior college or higher academic credentials.

  Article 9 The hearing person shall be uniformly trained and examined, and be certified.

  The personnel of the working body for legal affairs of the administrative organ or the full-time legal working staff who are responsible for the legal affairs and other professional personage of law may serve as the hearing person.

  The administrative competent department for legal affairs of the Municipal Government shall be responsible for uniform training and examination to the hearing person and issuing the certificate of hearing person. The certificate of hearing person shall be examined every 2 year.

  The functional departments of the Municipal Government shall report the name list of the planned hearing persons to the administrative competent department for legal affairs of the Municipal Government; The functional departments of the district government shall report the name list of planned hearing person to working body for legal affairs of the district government, which shall gather the name list and report it to the administrative competent department for legal affairs of the Municipal Government.

  Article 10 The director of the administrative organ shall appoint the personnel of the working body for the legal affairs or full time legal working staff or other professional personage of law of this organ to serve as the hearing person or sole hearing person.

  The person in charge of the organ that organizes the hearing shall appoint the working staff of this department or other professional personage of law to serve as the chief hearing person.

  Article 11 The main functions and duties of the chief hearing person or sole hearing person are the followings:

  (1) to decide the time, location and way of hearing;

  (2) to decide to suspend, terminate or postpone the hearing;

  (3) to decide whether the hearing person or clerk shall withdraw;

  (4) to decide the witness to show up and testify;

  (5) to serve in time relevant notices to the participants of hearing such as the parties, investigating personnel of the case, expert witnesses, interpreters;

  (6) to inquire about the facts of the case, the basis and reasons of the planned administrative penalty to that the hearing procedures shall be applied;

  (7) to require the participants of hearing to provide or supplement the evidences;

  (8) to direct the hearing activities, maintain the hearing orders and prevent the act that violates the hearing disciplines;

  (9) to check and approve the records of hearing, and make the recommendation for administrative penalty on whether and how to impose penalty based on the penalty suggestions proposed by the investigating personnel.

  The hearing person shall assist the chief hearing person to perform the functions and duties stipulated in the fifth, sixth and seventh subparagraphs of the first paragraph.

  Article 12 In one of the following circumstances, the chief hearing person, sole hearing person or the clerk shall withdraw:

  (1) He is one of the investigating personnel of the case;

  (2) He is one of the parties of the case or the close relative of a party, agent ad litems or investigating personnel of the case;

  (3) He is one of the personnel who have direct interests with the settlement of the case;

  (4) He has some other relationship with party of the case, which may affect the impartial hearing of the case.

  The provisions of the preceding paragraph are applicable to the interpreters, expert witness or inspectors.

  Article 13 If a parties files the application of withdrawal, he shall explain the reasons and file the application ahead of the beginning of the hearing. If the incident origin of withdrawal is known after the hearing has begun, he may file the applications ahead of the end of hearing.

  The person who is applied to withdraw shall temporarily stop participating in the hearing work before the administrative organization makes the decisions on whether he shall withdraw or not.

  Article 14 The withdrawal of chief hearing person and sole hearing person shall be decided by the director of the administrative organ; The withdrawal of other personnel shall be decided by the chief hearing person or sole hearing person.

  Article 15 For the application of withdrawal filed by the parties, the administrative organ shall make written decision within 3 days from the date when the application is filed. If the applicant is not satisfied with the decision, he may apply for reconsideration, which shall be granted only once, when receiving the decision. During the period of reconsideration, the person who is applied to withdraw shall not stop participating in the hearing work. The administrative organ shall make the reconsideration decision to the application of reconsideration and inform the applicant of reconsideration within 3 days.

  Chapter Ⅲ The Participants of Hearing

  Article 16 The participants of hearing refer to the party and his agent ad litem, investigating personnel of the case, the third party, witness, expert witness, inspector and interpreter.

  Article 17 The participants of hearing shall attend the hearing meeting at the time and location appointed by the administrative organ, observe the hearing discipline, and answer the questions of chief hearing person, hearing person or sole hearing person truly.

  The parties failing to attend the hearing meeting without reasons shall be considered to disclaim the hearing right.

  Article 18 The parties refer to the citizens, legal persons or other organizations who are notified in advance that they will be imposed the administrative penalty.

  Other citizens, legal persons or organizations having interests in the hearing case may apply for participating in hearing to the chief hearing person or sole hearing person as the third parties or may be informed to participate in hearing by the chief hearing person or sole hearing person.

  Article 19 For any person having no disposing capacity, his guardian shall represent him to participate in hearing as his legal agent. If the legal agents prevaricate their representing duties, the administrative organ shall appoint one of them to represent the party to participate in hearing.

  Article 20 The party, third party and legal agent may authorize one or two persons to be the agents ad litem of hearing, besides they participate in hearing by themselves.

  A lawyer or other citizens may be authorized as the agent ad litem of hearing.

  If the administrative penalties to be imposed may cause important influences on the party‘s interests, while the party can’t afford to retain a lawyer as his agent ad litem, the administrative organ shall appoint a lawyer as his agent ad litem. If the party would not accept, he may refuse. The agency fee for the appointed lawyer shall be born by the administrative organ.

  Article 21 If the participants of hearing authorize others as agent ad litem to participate in hearing, they shall submit the authorized letter of attorney signed or sealed by the principal to the administrative organization.

  The authorized letter of attorney shall clearly state the entrusted matters.

  The authorized letter of attorney delivered through post or delegation from abroad by the citizens of the People‘s Republic of China residing abroad, foreigners and foreign legal persons or other organizations shall be certified by the embassy or consulate of the People’s Republic of China in this country; If there is no embassy or consulate, it shall be certified by the embassy or consulate of a third country that has diplomatic relation with the People‘s Republic of China, then be certified by the embassy or consulate of the People’s Republic of China in the third country or be certified by a local patriotic overseas Chinese organization.

  Article 22 If the party or third party revokes the power of the agent ad litem in hearing, he shall inform the administrative organ in writing.

  Article 23 The party enjoys the following rights:

  (1) to claim or disclaim a hearing;

  (2) to apply for withdrawal;

  (3) to authorize a lawyer or other person to act as the agent ad litem in hearing;

  (4) to state, adduce evidence, cross-examine and defend himself;

  (5) to check and approve the records of hearing;

  (6) to acquire all the copies of the case files at cost price.

  Article 24 The investigating personnel of a case refer to the personnel of a certain administrative organ who investigate and obtain the evidence of the administrative case.

  During the hearing, the investigating personnel of the case shall put forward the facts and evidences proving that the party has violated the law, and the suggestions of administrative penalties to that the hearing procedures shall be applied, cross-examine and debate with the parties and their agent ad litems.

  Article 25 All units and individuals knowing the facts of a case have the obligation to attend the hearing meeting. The person in charge of relevant units shall support the witnesses to give testimony. If the witness has difficulty indeed and cannot participate in hearing, he may submit a written testimony.

  The person having no disposing capacity shall not give testimony.

  Article 26 The legal verification institution or the verification institution and expert witness appointed by the administrative organ have rights to get known the materials of the case needed for verification, and may inquire of the party and witness when necessary.

  The verification institution and expert witness shall submit a written verification conclusion signed or sealed by them. If it is verified by the expert witness, the verification conclusion shall be sealed by the unit that the expert witness belongs to in order to prove the identity of the expert witness.

  Chapter Ⅳ Notification, Application of Hearing and Acceptance

  Article 27 If the administrative organ plans to impose administrative penalties to that the hearing procedures shall be applied, it shall notify the party that he has the rights to demand a hearing. The party shall be notified in the way of serving a written notification of hearing.

  The written notification of hearing shall clearly list the following matters:

  (1) the name or title of the party;

  (2) the abstract of the party‘s malfeasance, legal basis of administrative penalty and the planned administrative penalty;

  (3) the right of the party to be heard;

  (4) the period of applying for hearing and the department organizing the hearing.

  The written notification of hearing shall be sealed by the administrative organization.

  The written notification of hearing may be directly served or served through delegation or registered mail. If the party signs for it, he shall fill in the receipt for service. The administrative organization shall bear the burden of proof for the service.

  Article 28 If the party demands a hearing, he shall file a written application within 3 days from receipt of the written notification of hearing. If the party files the application through the registered mail, the time of applying shall be the date on which the mail is sent. If the period for applying is delayed for force majeure or other special circumstances, the party may apply for extending the period within 3 days from the date on which the impediment vanishes. The administrative organ shall decide whether to extend the period or not.

  If the party disclaims the right of hearing in writing or fails to file the application of hearing within the prescribed period, he shall not again apply for hearing regarding the same case.

  Article 29 If the party applies for hearing, the administrative organ shall accept it and issue the receipt of acceptance, except that the application has exceeded the period. If the application shall not be accepted according to the laws, regulations and these rules, the administrative organ shall notify the party in writing within 3 days that the hearing is not granted.

  Chapter Ⅴ The Holding of Hearing

  Article 30 If the administrative organ decides to grant hearing, it shall notify the investigating personnel to prepare the written recommendation for administrative penalty. The written recommendation for administrative penalty shall abstract and explicitly record the main facts of the violation to law, titles of evidences and suggestions of penalty. The chief hearing person or sole hearing person shall determine the time, location and way to hold the hearing within 3 days from the date on which the party applies for hearing, and serve the notice of hearing on the party and the third party within 7 days before the hearing is held.

  The notice of hearing shall include the following contents:

  (1) the name or title of the party;

  (2) the time and location of the hearing to be held, the malfeasances and main matters involved in hearing, and legal basis;

  (3) the name and work unit of the hearing person;

  (4) the party‘s rights and obligations in hearing;

  (5) the matters that the party preparing the evidences and informing the witness.

  A duplicate of the written recommendation for administrative penalty prepared by the investigating personnel of the case shall be attached to the notice of hearing as its appendix.

  The notice of hearing shall be sealed by the administrative organ and be signed by the chief hearing person or sole hearing person. The notice of hearing shall state clearly the time when it is made.

  If the party needs to change the time of hearing for special circumstances, he shall file an application within 3 days before the hearing is held. The administrative organ shall decide whether the application is approved or not.

  Article 31 The hearing person shall complete the following work in the preparatory period before the hearing is formally held:

  (1) to check the identities of the participants of hearing:

  (2) to announce the discipline of hearing;

  (3) to announce the rights and duties of the participants of hearing;

  (4) to inquire the parties whether they apply for the withdrawal of the hearing persons, expert witnesses, inspectors or interpreters.

  Article 32 The chief hearing person or sole hearing person shall preside over and direct the hearing activities.

  The basic method of hearing activities is the hearing meeting.

  Article 33 The procedures of holding hearing are the followings:

  (1) the chief hearing person or sole hearing person declares the beginning of hearing;

  (2) the investigating personnel of the case put forward the facts proving that the party has violated the law and adduce evidences;

  (3) the investigating personnel of the case ask for the witness to make statement, the expert witness to read out the conclusion of verification, the on-site examiner to read out the record of investigation, and make corresponding explanations.

  (4) the investigating personnel of the case invoke and explain the articles of relevant laws, regulations and rules as the basis, and put forward the recommendation for administrative penalty;

  (5) the party makes statement, adduces evidences and defends himself;

  (6) the third party makes speech, the party asks for the witness to make statement and the expert witness to read out the conclusion of verification, and then the party make corresponding explanation;

  (7) the party cross-examines with the investigating personnel; having been required by the party and been permitted by the chief hearing person or sole hearing person, expert witness and inspector may make brief explanations or supplementary explanations;

  (8) the chief hearing person and other hearing person or sole hearing person ask supplementary questions to the investigating personnel of the case and the party in order to clarify further the key facts and evidences;

  (9) both parties debate each other about the facts, evidences, legal basis and recommendations for penalty;

  (10) the party makes the final statement to the facts, evidences and recommendations for penalty;

  (11) the chief hearing person or sole hearing person declares the end of the hearing meeting;

  (12) the participants of hearing read the records of hearing and sign their names. They may amend and supplement the records of their speech and make commentary and statement to the records of other person‘s speech.

  Article 34 The evidences of hearing include the followings:

  (1) documentary evidence;

  (2) material evidence;

  (3) testimony of the third party and witness;

  (4) expert conclusions;

  (5) records of examination;

  (6) records made on the scene;

  (7) audio-visual reference material;

  (8) party‘s statements.

  All the above evidences that are related to the case shall be presented in the hearing and be affirmed after being cross-examined.

  The party shall put forward a written opinion on the facts, evidences, legal basis and recommendation for penalty and submit it to the chief hearing person or sole hearing person within 3 days from the end of hearing; If he fails to submit them, it shall not affect the chief hearing person or sole hearing person to make the hearing person‘s written recommendation for administrative penalty according to law.

  Article 35 The investigating personnel shall bear the burden of proof to their opinions and provide the evidences of making the recommendation for administrative penalty.

  Article 36 The investigating personnel shall point out the articles of laws and regulations, according to which the recommendation for penalty is made, and provide the rules and normative documents on which the recommendation for the penalty is based.

  Article 37 The activities of hearing shall all be recorded in the records. The records of hearing shall explicitly record the following matters:

  (1) the cause of action;

  (2) the names of the chief hearing person, hearing persons, sole hearing person and clerk;

  (3) the name, title, address and telephone number of the participants of hearing;

  (4) the time, location and way of the hearing held;

  (5) the facts, evidences, legal basis and recommendation for administrative penalty proposed by the investigating personnel of the case;

  (6) the party‘s statement, adduction of evidences, cross-examination and defenses;

  (7) the debate between the parties;

  (8) the signature and seal of the participants of hearing.

  Article 38 The hearing person shall refer the records of hearing to the investigating personnel, parties and other participants of the case to read, which shall be signed or sealed by them after being affirmed to have no mistake. In case anyone who refuses to sign or seal, the chief hearing person or sole hearing person shall state the circumstances in the records of hearing.

  The participants of hearing may rectify, supplement the records of their respective speech, and may make commentary and statement to the records of other persons‘ speech and their rectification and supplement.

  The chief hearing person or sole hearing person shall check and approve the records of hearing and sign or seal it.

  Article 39 The hearing shall be suspended under one of the following circumstances:

  (1) the party is dead or dissolved and it is necessary wait for the determination of the heir of the rights and obligations.

  (2) the party or the investigating personnel of the case cannot participate in hearing for force majeure;

  (3) it is necessary to reinvestigate or reverify relevant evidences;

  (4) other circumstances for suspending the hearing.

  After the circumstances for suspending the hearing are eliminated, the chief hearing person or sole hearing person shall resume the hearing.

  Article 40

  The hearing shall be terminated under one of the following circumstances:

  (1) The heir of the rights and obligations has not been determined in 2 months since the party is dead or dissolved;

  (2) other circumstances for termination of the hearing.

  Chapter Ⅵ The Hearing Person‘s Written Recommendation for Administrative Penalty

  Article 41 The chief hearing person or sole hearing person shall complete the hearing person‘s written recommendation for administrative penalty within 10 days from the date on which the hearing or the last hearing ends.

  If a hearing person‘s opinion is inconsistent with the opinion of the chief hearing person, it shall be briefly stated in the hearing person’s written recommendation for administrative penalty. The chief hearing person and the hearing person or the sole hearing person shall sign at the end of the hearing person‘s written recommendation for administrative penalty.

  The written recommendation for administrative penalty shall explicitly record the contents from the first to the forth subparagraph of the first paragraph of Article 39 of the Administrative Penalty Law of the People‘s Republic of China.

  If the chief hearing person or sole hearing person believes that the party shall not be imposed the administrative penalty, the contents of the written recommendation for administrative penalty shall not be restrained by the second paragraph of this Article, but it shall explicitly state the facts and reasons.

  Article 42 The chief hearing person or sole hearing person shall refer the written recommendation for administrative penalty to the director of the administrative organ for determining the planned decision on the administrative penalty.

  Chapter Ⅶ The Supervision of Hearing

  Article 43 The administrative competent department for legal affairs of the Municipal Government and the working body for legal affairs of the district government shall accept the informer‘s exposures and charges against the malfeasances in the activities of hearing and in charge of investigation. They shall report the investigating conclusions to the leading cadre of government of the same level and answer the informer in time.

  Article 44 If the organization of hearing violates the legal procedures, the administrative competent department for legal affairs of the Municipal Government and the working body for legal affairs of the district government shall order the organ that organizes the hearing to reorganize or rectify.

  Article 45 If relevant organ shall organize hearing, while it fails to do, the administrative competent department for legal affairs of the Municipal Government and the working body for legal affairs of the district government shall order it to organize hearing.

  Article 46 If there are serious malfeasances in the hearing, or relevant organ shall organize hearing while it fails to do, and the decision on administrative penalty has already been made, the administrative competent department for legal affairs of the Municipal Government or the working body for legal affairs of district government shall put forward the opinion of quashing the made decision on administrative penalty and report it to the municipal or district government for approval.

  Article 47 If the working staff of an administrative organ violates these rules, he shall be given administrative sanction according to relevant provisions.

  Chapter Ⅷ Supplementary Provisions

  Article 48 The expenses for organizing hearing shall be born by the administrative organ.

  Expenses such as the appraisal fees, charges for loss of working time of the witness, travel fees and fees for meal shall be paid for firstly by the consigners or providers. If the investigating personnel‘s recommendation for administrative penalty is tenable, the expenses shall be born by the party; If the investigating personnel’s recommendation for administrative penalty is not tenable, the expenses shall be born by the administrative organ; If the investigating personnel‘s recommendation for administrative penalty is partially tenable, the expenses shall be shared between the party and the administrative organ according to certain proportion.

  Article 49 The administrative competent department for legal affairs of the government of Shenzhen Municipality shall be in charge of explaining these rules.

  Article 50 The documents involved in these rules shall be uniformly printed by the municipal administrative competent department for legal affairs; Other matters that aren‘t exhausted in these rules shall be governed by the supplementary provisions made by the municipal administrative competent department for legal affairs.

  Article 51 These rules shall go into effect as of the date of promulgation.

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