(a) the administrative organ shall notify the applicant and interested parties of the time and place of the hearing seven days before the hearing is held, and make an announcement when necessary;
(2) The hearing shall be held in public;
(three) the administrative organ shall designate personnel other than the staff who examine the application for administrative license as the presiding hearer. If the applicant or interested party thinks that the host has a direct interest in the administrative license, he has the right to apply for withdrawal;
(4) When a hearing is held, the staff examining the application for administrative license shall provide evidence and reasons for the examination opinions, and the applicant and interested parties may give evidence, defend themselves and cross-examine;
(5) A record of the hearing shall be made, and the record of the hearing shall be signed or sealed by the participants after confirmation.
The administrative organ shall, according to the transcripts of the hearing, make a decision on administrative licensing.
This article stipulates the hearing procedure.
1. Notice of hearing
Hearing involves the important rights of the parties, and the parties must understand the matters involved in the hearing and how to conduct the hearing. Only in this way can they be fully prepared. Therefore, it is the right of the parties and the requirement of procedural justice to be notified before a reasonable time. The notice is generally made in writing and can be announced when necessary. As for the time of notification, this law stipulates that notification shall be given seven days before the court session. In addition to the time and place of the hearing, the contents of the notice should generally include the issues involved in the hearing, the contents of the administrative licensing decision to be made by the administrative organ and the procedural rights of the parties.
2. On the principle of public hearing
The hearing of administrative license should be held in public, which requires allowing the public, especially journalists, to attend the hearing. For the parties, public hearing is the basis for administrative decisions to be recognized. Through public hearing, even if the administrative decision made is not conducive to the parties, it is easier for the parties to accept and implement it, because the decision was made through fair procedures. For the public, participating in the hearing can understand the process of administrative decision-making and strengthen the supervision of administrative organs. For administrative organs, public hearing can enhance the sense of responsibility of administrative organs and their staff, and it is also an opportunity to educate the public.
If the hearing involves state secrets, commercial secrets or personal privacy, the hearing shall not be held in public. (see article 40)
3. About the presiding hearer
The position of the presiding hearer in the hearing procedure is similar to that of the judge in the judicial procedure. He is in charge of the hearing procedure. Whether the presiding hearer has an independent position is very important for the fairness of the hearing procedure. Therefore, the appointment of the presiding hearer should follow the principle of separation of functions. According to the provisions of this law, the administrative organ shall designate a person other than the staff who examines the application for administrative license as the presiding hearer, that is to say, the presiding hearer may be the staff of the same administrative licensing organ, not the staff who is responsible for the examination of administrative license. The principle of separation of functions is to help the presiding hearer to be objective and fair in the process of hearing, instead of bringing the impression he got in the process of investigation into the hearing procedure to avoid prejudice.
In order to ensure the independence of the presiding hearer, this law stipulates that applicants and interested parties have the right to apply for withdrawal if they think that the presiding hearer has a direct interest in the administrative licensing matter. Interests mainly refer to economic interests, that is, individuals can directly gain or lose interests from the judgment of a case. If the host has a direct interest in the administrative licensing matters, the host shall take the initiative to apply for withdrawal, and the applicant or interested party also has the right to apply for withdrawal.
During the hearing, the presiding hearer has the right to direct the hearing, interrogate witnesses, arrange the order of evidence investigation, take necessary measures against those who obstruct the hearing and make decisions on procedural issues arising in the hearing.
4. About proof and cross-examination.
(1) burden of proof. In the hearing procedure, the administrative organ responsible for examining the application for administrative license shall bear the main burden of proof, and the administrative organ shall provide the examination opinions, including the evidence, reasons and basis for making the decision on administrative license. This is because, first of all, the contents of the hearing include not only the facts and basis of the administrative licensing decision, but also the decision to be made by the administrative organ itself. In the process of examining the application for administrative license, the administrative organ shall fully investigate and collect evidence, and then put forward examination opinions according to the facts and relevant laws. The authority of the administrative organ in the administrative licensing procedure determines that it should bear the main burden of proof in the hearing. Second, only when the administrative organ provides sufficient evidence, reasons and basis for the review opinions, can the applicant or interested party know whether the review opinions of the administrative organ have factual and legal basis, and can make targeted defense and cross-examination.
For applicants and interested parties, it is both the right and the obligation of the parties to put forward their own opinions and provide relevant evidence. The hearing procedure is to listen to the opinions of the parties, and the nature of the hearing determines that the rights enjoyed by the applicant and the interested parties in the hearing process are greater than the obligations assumed. Therefore, proof is mainly the right of the applicant and interested parties. On the other hand, the applicant or interested party actually holds and controls some favorable evidence. In some cases, it is often difficult for administrative organs to bear the burden of proof, while the parties are more likely to bear the burden of proof. It not only meets the requirements of fairness, but also helps to improve administrative efficiency.
The presiding hearer does not directly participate in the investigation and evidence collection of this case, but should participate in the discussion of all parties to urge the parties to clarify the unclear application content, improve the inadequate statement and explain the relevant facts.
(2) cross-examination. In the hearing procedure, the applicant and the interested party not only have the right to provide evidence to defend themselves, but also have the right to understand and refute the evidence provided by the administrative organ. Cross-examination is an effective method to distinguish the authenticity of evidence, which is not only the right of the parties, but also a necessary means in the hearing procedure. But cross-examination should not be abused, otherwise it will delay time and reduce efficiency. Therefore, in the hearing procedure, the presiding hearer should limit the scope of cross-examination according to the specific circumstances. For example, repeated and irrelevant evidence does not need cross-examination; Facts that can be determined by direct observation, testing or calculation do not need to be cross-examined; Hearsay evidence does not need cross-examination; Wait a minute.