Provisions of Shanghai Municipality on Administrative Penalty Hearing Procedures

 2018-10-18  1090


(Promulgated by Decree No. 35 of Shanghai Municipal People's

 Government on November 16, 2015)

 

Chapter I  General Provisions

 

Article 1 (Purposes and Basis)

With a view to standardizing the administrative penalty hearing procedures and protecting the legitimate rights and interests of citizens, legal persons or other organizations, these Provisions are formulated in accordance with the provisions of the Administrative Penalty Law of the People's Republic of China, and in the light of the actual circumstances of this Municipality.

Article 2 (Application Scope)

These Provisions apply to the municipal administrative organs as well as the organizations that have public affairs management functions authorized by laws and regulations to carry out administrative penalty hearings (hereinafter referred to as the administrative organs).

Article 3 (Hearing Scope)

Prior to making an administrative penalty decision to cease, revoke a permit or license, imposing a large amount of fines or confiscating a large amount of illegal gains or a large amount of illegal properties and other administrative penalties (hereinafter generally referred to as the "administrative penalty applicable for hearing procedure"), administrative organs shall inform the concerned parties of the right to request a hearing. In case the concerned party requests a hearing, the administrative organ shall have it organized.

In case that the ways of applicable hearing procedures of administrative penalty specified by the related department of the State Council go beyond the hearing scope of the preceding article, the provisions of the related department shall prevail.

Article 4 (Standard for Relatively Large Amount)

The relatively large amount refers to over 5,000 yuan (or the equivalent value of goods) for individuals; over 50,000 yuan (or the equivalent value of goods) for legal persons or other organizations. The Municipal People's Government is capable to adjust the aforementioned relatively large amount standard in line with the circumstances of economic and social development and make it public.

The administrative organ may specify the standard lower than the relatively large amount in the preceding clause and make it public.

When Shanghai-located organs of the State Council departments impose administrative penalties in accordance with the laws, administrative regulations or departmental rules, the relatively large amount standard applicable for hearing procedure, if specified by the State Council departments, shall be followed.

 

Chapter II  Hearing Organizing Body, Hearing Personnel and Participants

 

Article 5 (Hearing Organizing Body)

Administrative organ that will impose administrative penalties applicable for hearing procedures shall organize the hearing.

When the agency authorized by the organization according to law is to impose administrative penalties applicable for hearing procedure, such a hearing shall be organized by the administrative organ that renders authorization.

Administrative organs shall not authorize other institutions or organizations to organize a hearing.

Article 6 (Scope of Hearing Personnel)

Hearing personnel includes chairperson of the hearing, hearing officers and court clerk.

Article 7 (Scope of Hearing Participants)

Hearing participants include the concerned parties and their agents, case investigators, witnesses, interpreters, expert witnesses, inspectors and other relevant personnel.

The concerned parties mentioned in the preceding clause refer to the individuals, legal persons or other organizations that are informed in advance to be given administrative penalties applicable for hearing procedures; case investigators refer to the staff within the administrative organs that undertake administrative penalty cases investigation for evidence.

Article 8 (Appointment of Chairperson)

Chairperson of the hearing shall be appointed by the chief of the administrative organ and shall be the person within the organ that is not involved in the case investigation. Chairperson is generally a person from the legal affairs office within the organ or a professional legal personnel.

Article 9 (Functions of Chairperson)

Chairperson of the hearing shall exercise the following functions:

1. determine time, venue and ways of the hearing;

2. suspend or terminate the hearing;

3. make a decision for avoidance of hearing officers, clerks, interpreters, expert witnesses, inspectors; and

4. decide on-spot testimony by witnesses.

Article 10 (Obligations of Chairperson)

Chairperson of the hearing shall perform the following duties:

1. deliver in a timely manner the relevant notification to the concerned parties, case investigators, interpreters, expert witnesses, inspectors and other relevant hearing participants;

2. make inquiries of the facts related to the case, the reasons and basis for administrative penalties applicable for hearing procedures;

3. require the participants of the hearing to provide or supplement evidence;

4. maintain order in the hearing and stop the behavior in violation of hearing discipline; and

5. review the hearing record and forward audit opinions.

Article 11 (Hearing Officers and Clerks)

Administrative organ shall appoint 1-2 persons as needed within its workplace that are not involved in the case investigation to be hearing officers in assisting the chairperson to organize the hearing.

One hearing clerk that is not involved in the case investigation is responsible for the written transcripts of the hearing and other matters.

Article 12 (Obligations of Hearing Participants)

Hearing participants shall reach the designated place on time for attendance, observe the hearing discipline and truthfully answer inquiries of the chairperson.

Article 13 (Rights of the Concerned Parties)

The concerned parties have the following rights:

1. request or waiver the hearing;

2. apply for avoidance when regarding the hearing officers, interpreters, expert witnesses and inspectors to be one of the people, listed in Article 14 of these Provisions ;

3. entrust 1-2 person as a proxy to attend the hearing, and issue a letter of authorization, clarify limits of authority;

4. make statements, arguments and cross-examination; and

5. review the transcripts of the hearing.

Article 14 (Avoidance)

When the hearing officers, interpreters, expert witnesses and inspector are one of the following persons, they should take the initiative to make avoidance:

1. a close relative of the concerned party or the case investigators; or

2. any other persons that has direct interest with the case.

 

Chapter III  Notification, Request and Processing of Hearing

 

Article 15 (Notification of Hearing)

For the administrative penalty cases applicable for hearing procedures, administrative organ shall deliver written notification of hearing to the concerned parties, prior to imposing the administrative penalty decision.

The written notification of hearing shall include the following major items:

1. name or title of the concerned parties;

2. the illegal behavior of the concerned parties, the reasons and basis for administrative penalties, and decision to be made;

3. notification to the concerned parties of the right to request a hearing; and

4. notification of the timeframe of hearing and the organizing body.

The hearing notification shall be stamped with the seal of the administrative organ.

The hearing notification can be directly delivered, delivered by mandate, by postal registered letter, by lien service or by public notice and other means.

Article 16 (Hearing Request)

The concerned party that requests a hearing shall make a written application to the administrative organ within 3 working days upon reception of the hearing notification. The hearing request made by the concerned party in a registered letter through postal service is subject to the date of postmark in terms of time limit.

The concerned party that makes hearing waived or does not make hearing request within the time limit is not allowed to re-raise hearing requests on the current case, but they may make statements and arguments.

Article 17 (Acceptance of Hearing)

The administrative organ shall handle the hearing request by the concerned parties and organize a hearing once the case complies with the hearing requirements; for the case that is not in conformity with the requirements, the administrative organ shall, within 3 working days upon reception of the hearing request, notify the parties in writing of unavailability of holding a hearing.

Article 18 (Notice of Hearing)

The administrative organ that organizes the hearing should serve the hearing notice to the concerned parties within 7 working days prior to the hearing, and inform the hearing participants of the time, venue.

Notice of hearing shall contain the following:

1. name or title of the concerned parties;

2. time, venue and ways of hearing;

3. name of the hearing officer;

4. notification to the parties of the right to apply for avoidance; and

5. notification to the parties for preparation of evidence, notification to the witnesses and other matters.

Notice of hearing shall be stamped with the seal of the administrative organ.

 

Chapter IV  Holding a Hearing

 

Article 19 (Ways of Hearing)

Except for involving the state secrets, commercial secrets or individual privacy, the hearing shall be held in an open manner.

The main points of case, time and venue of the hearing shall be publicized by the administrative organ 7 working days prior to the hearing.

Article 20 (Preliminary Hearing) 

Hearings personnel shall complete the preliminary items before hearing:

1. verify the identity of participants;

2. read the hearing disciplines; and

3. consult the parties whether to apply for avoidance of the hearing personnel, interpreters, expert witnesses and inspectors.

In case the concerned party applies for avoidance of the hearing chairperson, the chairperson has to declare a moratorium on the hearing, submit it to administrative organ for decision whether such avoidance is to be implemented; in case the application requires avoidance of hearing officers, court clerks, interpreters, expert witnesses, and inspectors, the chairperson makes a decision on sport.

Article 21 (Hearing Investigation)

When conducting a hearing investigation, the case investigators shall put forward the illegal facts of the concerned parties, the evidence and administrative penalties applicable for hearing procedures, and the concerned parties make statements, arguments and cross-examination.

Article 22 (Evidence of Hearing)

Evidences of hearing include documentary evidence, physical evidence, witness testimony, expert opinion, inquests, field notes, audio-visual materials, electronic data, statements of the concerned parties.

All the evidences related to the facts of the case shall be presented at the hearing and be confirmed after cross-examination later.

Article 23 (Hearing Record)

The hearing shall be made in writing. Transcripts of the hearing shall contain the following:

1. main points of a case;

2. name or title and address of the hearing participants;

3. names of hearing personnel;

4. time, place and ways of the hearing;

5. facts, evidences and administrative penalties proposal applicable for hearing procedures, raised by the case investigators;

6. statements, arguments and cross-examination by the concerned parties; and

7. sign or stamp of the hearing participants.

Article 24 (Review of Hearing Written Record)

After the hearing, the officer shall hand over the transcripts of the hearing to the concerned parties as well as to the case investigators for sign or stamp after they review it to be correct. In case that the parties refuse to sign or stamp, the chairperson shall explain the situation in the hearing record.

Hearing transcripts of witness testimony shall be handed over to the witness for review of its correctness and be signed or stamped.

Chairperson of the hearing shall review the transcripts of the hearing, put forward audit opinion and sign or stamp.

Article 25 (Effectiveness of Hearing Written Record)

Written transcripts of the hearing shall serve as a basis for penalty decision by an administrative organ.

Article 26 (Suspension of Hearing)

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

1. the need to be waiting for the rights and obligations of inheritor due to death or dissolution of the concerned parties;

2. force majeure situation that prevents the concerned parties or case investigators from participation in hearing;

3. the related evidences need to be re-investigated or identified, inspected in the hearing process; or

4. other circumstances that require suspension of the hearing.

After elimination of the suspension, chairperson shall resume the hearing.

Article 27 (Termination of Hearing)

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

1. the rights and obligations of inheritor are not determined for duration of over three months after the death or dissolution of the concerned parties;

2. non-participation of the concerned parties in hearing without any justifiable reason; and

3. other circumstances that require termination of hearing.

 

Chapter V  Supplementary Provisions

 

Article 28 (Expenses of Hearing)

Expenses of organizing the hearing shall be borne by the administrative organ.

Article 29 (Calculation of Relatively Large Amount)

When relatively larger amount is calculated in accordance with Article 4, the fines, confiscated illegal incomes, and confiscated illegal properties can be calculated separately.

Article 30 (Applicable Special Provisions)

Unless otherwise specified, laws and regulations on the hearing procedures shall prevail.

Article 31 (Effective Date)

These Provisions shall be effective as of January 1, 2016.