Administrative Procuratorate Law Popularization E Station
Justice is achieved in a visible way – due process
Hello everyone, welcome to the publicity column of "Administrative Procuratorate Law Popularization E Station". "Justice must not only be achieved, but also in a visible way". In administrative law enforcement activities, administrative organs should not only ensure the substantive legality of law enforcement acts, but also perform due administrative procedures. Today, we will talk about what the principle of due process is through a case.
Case
When Wang and his colleagues, a law enforcement officer of a market supervision and administration bureau, conducted an inspection in a vegetable market in the area, they found that the donkey meat sold in Xiaoqiang's delicatessen did not indicate the price of donkey meat in a conspicuous position, and the price was not clearly marked in accordance with the regulations. After on-site inspection, it was found that the store earned a total of 2,000 yuan from selling donkey meat that day. The law enforcement officers of the Market Supervision and Administration Bureau issued a rectification notice to Xiaoqiang Deli on the spot, ordering it to immediately indicate the price. Later, the "Notice of Administrative Penalty Hearing" was served on him, and the person in charge of Xiaoqiang's deli did not apply for a public hearing within the statutory time limit. In accordance with the relevant provisions of the Price Law of the People's Republic of China and the Provisions on Administrative Punishment of Price Violations, the Market Supervision and Administration Bureau made an administrative penalty decision to confiscate 2,000 yuan of illegal income and fine 2,500 yuan, and confiscate a total of 4,500 yuan, and posted the "Administrative Penalty Decision" directly on the bulletin board of the vegetable market where Xiaoqiang delicatessen is located.
In this case, the following enforcement procedures were involved:
1. Is the procedure lawful if a market supervision and administration bureau did not listen to the statement and defense of the person in charge of Xiaoqiang's delicatessen in the administrative punishment procedure?
2. If Xiaoqiang's delicatessen applies for a public hearing, can law enforcement officer Wang preside over the hearing?
3. If a market supervision and administration bureau does not inform Xiaoqiang of the reasons and basis for the administrative punishment of Xiaoqiang delicatessen, is the procedure legal?
4. Is the procedure lawful for a certain market regulation bureau to post the "Administrative Penalty Decision" on the bulletin board for service?
said the prosecutor
One
Hearing of statements and arguments
When an administrative organ takes an administrative act that is unfavorable to the administrative counterpart, it must hear the counterpart's statement and defense. Where administrative organs take administrative acts that seriously impact the lawful rights and interests of their administrative counterparts, they shall also hold hearings upon application or on their own initiative, and safeguard the counterpart's right to make statements and defenses through the hearing procedures. The protection of the parties' right to be heard and to make a defense is an important part of the principle of due process.
The Administrative Punishment Law, the Administrative Compulsion Law, the Administrative Licensing Law and other laws and regulations in the mainland clearly stipulate the obligation of administrative organs to hear the statements and defenses of the counterpart. Therefore, a certain market supervision and administration bureau did not listen to Xiaoqiang's statement and defense in the administrative punishment procedure, and the procedure was unlawful.
Two
"Don't be your own judge"
When administrative organs and their staffs handle matters involving their own interests or adjudicate disputes involving their own interests, they shall take the initiative to recuse themselves or at the request of the parties. At the same time, the principle of due process also requires that the hearing of the administrative penalty be presided over by a person who is not the investigator in the case. Therefore, if Xiaoqiang's delicatessen applies for a public hearing, Wang, as an investigator in the administrative punishment case, cannot preside over the hearing; If the person in charge of Xiaoqiang's deli believes that the presiding officer of the hearing has a direct interest in the case, he has the right to apply for his recusal.
Three
Inform and explain why
Any administrative act taken by an administrative organ, especially an administrative act that is unfavorable to the counterpart, must explain the reasons unless there is a statutory reason for confidentiality, so as to protect the right to know, the right to participate and the right to remedy the counterpart of the administrative management. Administrative notification is a statutory compulsory procedure, through which the parties' right to know is protected and thus the substantive rights and interests of the parties are protected, and the performance of the notification procedure is also a prerequisite for the parties to effectively exercise their rights to make statements and defenses. Therefore, before making an administrative penalty decision on Xiaoqiang Deli, a market supervision and administration bureau should inform it of the facts, basis and reasons for the punishment, otherwise it must not make an administrative penalty decision. Similarly, under the condition that the administrative penalty decision was directly served on Xiaoqiang's delicatessen, a market supervision and administration bureau served Xiaoqiang's delicatessen by posting it on a bulletin board, which harmed Xiaoqiang's deli's right to know the content of the punishment and its right to remedy its rights through reconsideration and litigation, violating legal procedures.
"Due process is the lowest standard of justice" and "due process is visible justice". The principle of procedural due process in administrative law requires that administrative organs must follow due legal procedures when making administrative acts that affect the rights and interests of their counterparts, so that justice can be achieved in a way that is visible to the people.
Links to legal provisions
Article 43 of the Administrative Punishment Law of the People's Republic of China stipulates that law enforcement personnel who have a direct interest in the case or have other relationships that may affect the impartial enforcement of the law shall recuse themselves. Where parties feel that law enforcement personnel have a direct interest in the case or have other relationships that might impact fair law enforcement, they have the right to apply for recusal. Where a party submits an application for recusal, the administrative organ shall review it in accordance with law, and the responsible person for the administrative organ shall make a decision. The investigation is not discontinued until a decision is made.
Article 44 stipulates that before making an administrative punishment decision, an administrative organ shall inform the parties of the content, facts, reasons, and basis of the administrative punishment to be imposed, and inform the parties of their rights to make statements, defenses, and request hearings in accordance with law.
Article 45 stipulates that the parties have the right to make statements and defenses. Administrative organs must fully hear the opinions of the parties, and shall conduct a review of the facts, reasons, and evidence submitted by the parties; Where the facts, reasons, or evidence submitted by the parties are sustained, the administrative organs shall adopt them. Administrative organs must not give heavier punishments because of the parties' statements or defenses.
Article 62 stipulates that before making an administrative punishment decision, administrative organs and their law enforcement personnel must not make an administrative punishment decision without informing the parties of the content, facts, reasons, and basis of the proposed administrative punishment in accordance with the provisions of articles 44 and 45 of this Law, or refusing to hear the parties' statements and defenses; Except where the parties expressly waive the right to make statements or defenses.
The first paragraph of Article 63 stipulates that when an administrative organ intends to make the following administrative punishment decisions, it shall inform the parties that they have the right to request a hearing, and where the parties request a hearing, the administrative organ shall organize a hearing: (1) a relatively large fine; (2) Confiscation of larger amounts of unlawful gains or confiscation of larger value of illegal property; (3) Lowering the level of qualifications or revoking licenses; (4) Ordering the suspension of production or business, ordering closure, or restricting employment; (5) Other heavier administrative punishments; (6) Other circumstances provided for by laws, regulations, or rules.
Article 64 (4) provides that the hearing shall be presided over by a person designated by the administrative organ who is not the investigator of the case; Where the parties feel that the presiding officer has a direct interest in the case, they have the right to apply for recusal.
Paragraph 1 of Article 29 of the Provisions on Procedures for Administrative Punishment of Prices stipulates that after the competent price department reviews the case investigation report and before making an administrative penalty decision, it shall inform the parties in writing of the facts, reasons and basis for the administrative penalty decision to be made, and inform the parties of their rights to make statements and defenses in accordance with the law; Where the requirements for a hearing are met, the right to a hearing shall be also informed.
Article 30 stipulates that if a party requests a statement or defense, it shall submit it to the price department within three days after receiving the prior notice of administrative punishment. If the party fails to submit it within the time limit, it shall be deemed to have waived.
Producer: Beijing Municipal Inspection Branch
Contributed by: Xia Xuan, Sixth Procuratorate Department