Laws of the Guangdong Province

Measures of Shenzhen Municipality on Administrative Hearing

 (Adopted at the 38th Meeting of the Standing Committee of the fourth Shenzhen Municipal People' s Government on September 15, 2006, Promulgated by Decree No.159 of Shenzhen Municipal People' s Government on October 1, 2006.)

Chapter I   General Provisions

Article 1 In accordance with relevant provisions of laws and rules, these measures are enacted for the purpose of standardizing administrative hearing procedure, promoting the effective exercise of administration, according to laws, by administrative organs, protecting the lawful rights and interests of natural persons, legal persons and other organizations in the light of the practical situation of Shenzhen municipality.

   Article 2 These measures apply to the administrative organs of Shenzhen municipality, the organizations authorized by laws and rules and the organizations entrusted by administrative organs in accordance with laws (hereinafter referred to as administrative organs) that intend to conduct the following administrative acts and request a hearing:

   1) such concrete administrative acts as administrative penalty, administrative permission, and others;

   2) important administrative decisions relating to great social public interests or great interests of natural persons, legal persons and other organizations;

   3) such abstract administrative acts as enacting local draft rules, regulations, standardized documents and etc;

   4) other administrative acts that request a hearing in accordance with laws, rules and regulations.

   Article 3 A administrative hearing shall abide by the principles of openness, fairness, convenience for people, and independent hearing.

   Article 4 The legal organization under Shenzhen municipal people' s government is in charge of guiding, coordinating and supervising the administrative hearing in the whole city, the legal organization under district people' s government is in charge of guiding, coordinating and supervising the administrative hearing in this district.

   Chapter II   Organs arranging hearing and Officers of hearing

   Article 5 An administrative organ that intends to conduct administrative acts is the organ arranging hearing; and the administrative organ that intends to jointly conduct administrative acts is also the organ arranging hearing. In view of this matter, one organ from these administrative organs shall be chosen to be the organ arranging hearing by means of coordinating and harmonizing. The people' s government at this level may also designate other governmental organ to arrange hearing if it is necessary.

   Where an administrative organ that intends to conduct administrative acts is under Shenzhen municipal people' s government or district people' s government, the legal organizations under Shenzhen municipal people' s government or district people' s government or other administrative organs designated by Shenzhen municipal people' s government or district people' s government shall arrange hearing.

   Article 6 The outlay needed for arranging a hearing by an administrative organ shall be listed in the budget; no disguised fee may be collected from the participants of hearing or the persons auditing a hearing.

   Article 7 A hearing shall be presided over by a sole officer designated by an administrative organ, or a group that consists of 3 or 5 officers designated by an administrative organ (hereinafter referred to as a hearing group). In the case of constituting a hearing group, the organ arranging hearing shall decide on the chief officer for the hearing group.  

   The officers who are engaged in a hearing on concrete administrative acts shall be trained by the legal organization under municipal people' s government and obtain the qualification for hearing officers; the concrete measures shall be formulated separately by the legal organization under municipal people' s government.

   Article 8 The organ arranging hearing must organize a hearing group to preside a hearing which is held for the following conditions:

1)          intending to enact local draft rules, regulations, and standardized documents;

2)          intending to conduct concrete administrative acts relating to great social public interests or great interests of natural persons, legal persons and other organizations;

3)          other conditions stipulated in laws, rules, and regulations.

   Article 9 A hearing group and a sole hearing officer shall implement the following duties:

1) to preside a hearing, keep the order of a hearing, check the acts violating the discipline of hearing;

   2) to decide on terminating or postponing a hearing in accordance with these measures;

   3) to request the participants of a hearing to furnish or replenish evidence;

   4) to inquire of the participants of a hearing;

   5) to propose independently recommendations of hearing and opinions on disposition;

   Article 10 The organ arranging hearing shall designate the personnel of State' s organs to hold the post of a clerk who is in charge of routine affairs relating to hearing, such as making the records of hearing, receiving and dispatching documents for hearing, liaising for hearing, etc.

   Article 11 The participants of a hearing consist of representor and his attorney, witness, referee, inquest clerk and interpreter.

   Article 12 Representors, these persons who shall provide relevant facts and evidences relating to the matter of hearing, represent relevant basis and reason of laws, and participate in relevant activities of hearing, include department representors and non-department representors.

   Article 13 Non-department representors may entrust one or two persons to participate in a hearing as the attorney, and submit an authorized trust deed signed or sealed by the trustor to the organ arranging hearing.

   Chapter III   Ordinary provisions of Administrative Hearing

   Article 14 A hearing shall be held openly, except the following conditions:

1)      where State secrets, business secrets or private affairs are involved;

2)          where the target of such concrete administrative acts as administrative penalty is a minor who or the guardian of whom requests that the hearing shall not be held openly;

3)          where other non-department representors request that the hearing shall not be held openly.

   Natural persons, legal persons and other organizations may apply to participate in a hearing held openly to audit.

   Article 15 A hearing shall be going on in accordance with the following procedure:

1)          The clerk ascertains the identity of the participants of the hearing and the condition of their presentation, and then declares the discipline of hearing and relevant matters relating to the hearing room.

2)          After declaring the beginning of the hearing, the chief officer or the sole hearing officer introduces the officers and the clerks, declares the matters and the content of the hearing, and notifies the rights and duties of the participants of hearing.

3)          The department representor represents opinions, reasons and bases.

4)          The non-department representor represents opinions, reasons and bases.

5)          Where the matters of the hearing request the representors of both sides to query and debate, the hearing group or the sole hearing officer shall preside over the query and debate.

6)          The chief officer or the sole hearing officer declares the end of the hearing.

   Article 16 A clerk shall take down a record of the whole procedure of a hearing.

   The record affirmed, complemented, or corrected by the participants of the hearing shall be signed or sealed by the participants of the hearing. Where the participants of the hearing refuse to sign or seal the record for some inappropriate reasons, the clerk shall write down a record and attach it to the files.

   The officers and the clerks shall sign on the records.

   Article 17 The participants of a hearing shall be present at the hearing in accordance with the time and place of the hearing determined by the organ arranging the hearing and answer questions of the officers accurately.

   The representor and his attorney who are not present at a hearing without any appropriate reason or withdraw from the hearing without any permission shall be regarded as abandoning the right of hearing.

   Article 18 The participants of a hearing and the persons auditing a hearing shall abide by the discipline of the hearing.

   The officers of a hearing may dissuade the persons who violate the discipline of the hearing and instruct the persons to leave the hearing if they don' t follow the dissuasion.

   Article 19 A hearing may be postponed for the following conditions:

1)      where a hearing may not be held on schedule due to some force majeure;

2)          where the non-department representors request to postpone a hearing for some appropriate reasons;

3)          other conditions on which a hearing shall be postponed.

   Where a hearing is postponed before the hearing is held, the organ arranging the hearing shall make the decision and notify of the participants of the hearing, or proclaim to the public; where a hearing is postponed during the process of the hearing, the hearing group or the sole hearing officer shall make the decision and make a record in the file.

   Article 20 The hearing group or the sole hearing officer shall form a written hearing report in accordance with the content of the hearing record.

   A hearing report shall consist of the following items:

1)      the time and place of a hearing being held;

2)      the matters and content of a hearing;

3)      the hearing officers, the clerks, the participants of a hearing;

4)      major facts, reasons and opinions provided by representors;

5)      other relevant conditions.

Where a hearing is terminated in accordance with these measures, the content of the hearing report may not, in the light of some practical conditions, be restricted by the preceding provisions.

The hearing group or the sole hearing officer may provide separately recommendations for hearing or opinions on disposal.

Article 21 The hearing group or the sole hearing officer shall submit the hearing record, the hearing report, recommendations for the hearing, and opinions on disposal to the organs arranging the hearing within 7 working days from the end of the hearing.

Chapter IV   Special Provisions of Administrative Hearing

Section 1 Hearing on Concrete Administrative Act

Article 22 An administrative organ may arrange a hearing in accordance with the application of the administrative counterpart or the interested person on one of the following conditions; or a hearing may also be held if an administrative organ considers it necessary:

1)          intending to conduct such administrative penalties as ordering for suspension of production or business, rescission of license or permit, a comparatively large amount of fine, or others;

2)          intending to conduct administrative permission relating to major interest relationship between the administrative counterpart and others;

3)          others as prescribed by laws and rules and regulations.

   Article 23 An administrative organ shall, in accordance with laws, notifies, in written form, the administrative counterpart and the interested person of their rights to request a hearing before conducting concrete act of administration.

   The notification shall consist of such items as major content of administrative act conducted intendedly, facts and bases of law, the time limit of requesting an application for a hearing, the way to apply, relevant consequence of law, and others.

   Article 24 Where the administrative counterpart and the interested person request to hold a hearing, a written application shall be submitted within the time limit prescribed by the notification of hearing, except as otherwise prescribed by laws and administrative rules.

   Where an application for a hearing accords with the conditions of a hearing, the administrative organ shall decide to accept the application within 5 working days from the date it receives the application, and arrange the hearing within 20 working days from the date it accepts the application; where an application doesn' t accord with the conditions of a hearing, the administrative organ shall notify in written form within 5 working days; where other provisions are formulated by laws and rules, the provisions shall be abided by.

   Article 25 Where the organ arranging hearing arranges a hearing on concrete administrative act and it' s definite to have some interested persons, the organ arranging the hearing shall notify the administrative counterpart and the interested person the following matters at a time 7 days before the hearing:

1)      the time and place of the hearing;

2)      the name and work units of the hearing officers and the clerks;

3)      the rights and duties of the non-department representor;

4)      the matters and content of the hearing.

Article 26 Where an administrative organ arranges a hearing on concrete administrative act and it' s indefinite about the interested person, a hearing report which shall record the content of the notification formulated by article 25 of these measures, the procedure, conditions, time limit and selection principles for the indefinite interested person to apply for participating in the hearing, and etc, shall be proclaimed at a time 10 days before the hearing.

The administrative organ shall simultaneously proclaim information and materials that have important connection with the matters and content of the hearing to the public in newspaper or government website while releasing the hearing report, except where State secrets, business secrets or private affairs are involved.

The indefinite interested person shall apply himself or choose a delegate to apply to participate in the hearing at a time 5 days before the hearing.

The organ arranging the hearing shall, in accordance with the conditions recorded in the hearing report and selection principle, determine the non-department representor participating in the hearing from the applicators.

Article 27 The organ arranging a hearing shall service such documents of the hearing as hearing report, hearing notification, or others in accordance with the provisions of Civil Procedure Law of the People' s Republic of China on direct service, entrusted service, and service by mail.

If the three methods of service mentioned above fail, the documents shall be served by public announcement. Where documents are served by announcement, the content of the document shall be announced in local newspapers, and the next day of announcement shall be deemed the date of service of the documents.

Article 28 The organ arranging a hearing designates a hearing group or a sole hearing officer to preside over the hearing; the sole hearing officer or the staff members of the hearing group shall be officers of State' s organ or professional personnel with the qualification for hearing officer, not including the undertakers of the hearing matters.

Article 29 A hearing officer or clerk shall withdraw due to the following conditions:

1)      being direct relatives of the undertaker of a hearing matter;

2)      being the representor of a hearing , or direct relatives of the representor of a hearing or his attorney;

3)      having a direct interest with the disposal result of a hearing matter;

4)          having other relationship with a hearing matter and possibility to affect a just hearing.

   Having one of the conditions formulated by the preceding provision, an interpreter, a referee, or a inquest clerk shall withdraw also.

   Article 30 A representor that submits an application of withdrawal from a hearing shall submit the application before the hearing is held and illustrate the reason; if the reason for withdrawal is found after the beginning of a hearing, a representor may submit the application before the end of the hearing.

The persons who are applied to withdraw shall suspend participating in the hearing before the decision on whether to withdraw or not is made.

Article 31 The withdrawal of a hearing officer shall be decided by the organ arranging the hearing; the withdrawal of a principal of the organ arranging a hearing who hold the post of the hearing officer shall be decided by the authority at the higher level of the organ arranging the hearing; the withdraw of others shall be decided by the sole hearing officer or the hearing group.

Article 32 Under the following conditions, a hearing shall be terminated:

1)      where the natural person, as being administrative counterpart of administrative penalty or granted by administrative permission, is dead;

2)      where the legal person and other organization, as being administrative counterpart of administrative penalty or granted by administrative permission, is terminated;

3)      where it is definite or regarded as for all of the non-department representors to abandon the right to request a hearing;

4)      where it is unnecessary to hold a hearing due to some great changes of objective conditions;

5)      other conditions under which a hearing shall be terminated.

   Where a hearing is terminated before it is held, the organ arranging the hearing shall decide the termination of the hearing and notify the participants of the hearing; and where a hearing is terminated during its process, the hearing group or the sole hearing officer shall decide the termination and record it in the file.

   Article 33 The period in which an administrative organ holds a hearing shall not be calculated in the time limit, formulated by laws or rules, for the administrative organs to grant administrative permission or to conduct concrete administrative act.

   Article 34 All the evidences relating to a case shall be presented at a hearing and affirmed after being queried and testified.

   The disposal of hearing evidences shall consult relevant provisions of Administrative Procedure Law of the People's Republic of China on administrative evidence.

   Article 35 An administrative penalty or an administrative permission shall be conducted in accordance with the evidences and facts determined by hearing records and hearing reports, except where laws or rules have formulated other provisions separately; other concrete administrative acts shall be conducted by consulting hearing records, hearing reports, and other relevant conditions.

   Article 36 Upon the request of the administrative counterpart or the interested person, the organ arranging a hearing shall provide convenience for them to consult or duplicate the hearing record and hearing report before conducting concrete administrative act.

   Section 2 Hearing on Other Administrative Acts

   Article 37 Where an administrative organ shall hold a hearing due to its intention to conduct abstract administrative acts and great administrative decisions, laws, rules, or administrative regulations, the administrative organ shall hold the hearing in accordance with laws; where there is no definite provision in laws, rules, and administrative regulations, an administrative organ shall apply to hold a hearing if the administrative organ regards it is necessary.

   Article 38 Where an administrative organ arranges a hearing on the administrative acts listed in article 37 of these measures, the administrative organ shall proclaim such content to the public as the time and place, the matters, the content of this hearing, the conditions and procedure to apply for participating in the hearing, the selection principle for non-department representors, and others, at a time 30 days before the hearing; and proclaim the information in accordance with the provision of article 26, section 2 of these measures.

   Article 39 The organ arranging a hearing that services such documents of a hearing as the notification of the hearing, the notice of the hearing, and others, shall proclaim the content of service in local newspapers.

   Article 40 All the natural persons, legal persons or other organizations that have great interest with the matter of a hearing may apply to be non-department representor or choose a delegation to be non-department representor.

   The organ arranging a hearing shall determine the non-department representor from the natural persons, legal persons or other organizations that apply for participating in the hearing in accordance with the condition, procedure, the selection principle of non-department representor decided by the hearing announcement

Non-department representors shall have the character of universality and representation.

Article 41 The organ arranging a hearing designates the leading members or other relevant leading members of institutions or departments under Shenzhen municipal administrative organs to be the officers who shall preside the hearing or other relevant activities.

Article 42 A hearing shall be terminated under the following conditions:

1)          where it is definite or regarded as for all of the non-department representors to abandon the right to request a hearing;

2)          where it is unnecessary to hold a hearing due to some great changes of objective conditions;

3)            other conditions under which a hearing shall be terminated.

   Where a hearing is terminated before it is held, the organ arranging the hearing shall decide the termination of the hearing and make an announcement; and where a hearing is terminated during its process, the hearing group or the sole hearing officer shall decide the termination and record it in the file.

   Article 43 Where a hearing is held on the administrative act listed in article 37 of these measures, the organ arranging the hearing shall proclaim the hearing report within 15 working days from the date the hearing is concluded, except where State secrets, business secrets or private affairs are involved or other provisions are formulated separately by laws, rules, and administrative regulations.

Article 44 When an administrative organ conduct abstract administrative acts and great administrative decisions, the administrative organ shall consult the hearing record and the hearing report, except where other provisions are formulated separately by laws, rules, and administrative regulations.

Chapter V Supervision and Examination

Article 45 Where an administrative organ has the following conditions, the legal organizations under Shenzhen municipal people' s government or district people' s government may order or propose the administrative organ to make correction; if the administrative organ refuses to make correction or is incapable to make correction, it is proposed by the legal organizations under Shenzhen municipal people' s government or district people' s government that the administrative organ for supervision or the authority in charge shall impose administrative sanctions upon, in accordance with law, the persons who are directly in charge and other persons who are directly responsible for the conditions:

1) without arranging a hearing for the matters on which a hearing shall be held in accordance with the provisions of laws, rules or administrative regulations;

2) without notifying the right to request a hearing which shall be notified in accordance with the provisions of laws, rules or administrative regulations, or without arranging a hearing after a qualified application for hearing is received, though the right to request a hearing has been notified;

3) violating the hearing procedure when organizing a hearing;

4) other acts violating these measures seriously.

Article 46 Where a serious consequence is made due to such illegal acts of the hearing officers when presiding a hearing as dereliction of duty, abusing their powers, malpractices, or others, relevant departments shall give the officers administrative sanctions in accordance with laws; the legal organization shall deprive the officers who own the qualification for hearing officers of the qualification; if a crime is constituted, it shall be investigated for criminal responsibility by the judicial organ according to law.

Chapter VI   Supplementary Provisions

Article 47 A comparatively large amount of fine mentioned in these measures refers to a fine of more than 5,000 RMB imposed for individuals or a fine of more than 50,000 RMB imposed for legal persons or other organizations.