Hearing on environmental administrative punishment means that competent environmental protection department, prior to meting out the administrative punishment, informs the parties concerned about the identified infringement facts, the grounds for punishment, and the proposed type and severity of the punishment, and as required by the parties, holds a hearing to hear their statements and defenses.
Articles 42 and 43 of the Administrative Punishment Law provide in general the scope and procedures for the hearing on administrative penalties. In accordance with the specific circumstances on environmental enforcement, MEP detailed the general provisions in the Administrative Punishment Law and developed and promulgated on December 27, 2010 the Provisions on the Procedures for the Hearing on Environmental Administrative Punishment (hereinafter referred to as the Provisions).
I. To develop the Provisions is an inevitable requirement for developing the socialist democratic politics and facilitating the rule of law and the urgent need of the practices in environmental enforcement.
Article 2 of the Constitution provides that all power in the People's Republic of China belongs to the people. The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law. The people exercise the state power and enjoy and exercise the democratic right to administer all the state and social affairs.
The people may directly participate in the environmental administrative enforcement procedures through the hearing on environmental administrative punishment, question, and with equal legal status, debate and argue the enforcement acts of the environmental protection departments, propose their own views and propositions, and state and express their own wills in a more direct, thorough, and effective manner, on the hearing.
Since the Administrative Punishment Law was enacted and promulgated, the State Council has issued documents such as Decision of the State Council on Fully Facilitating Rule of Law (1999), Outline on Fully Facilitating Rule of Law (2004), Decision of the State Council on Strengthening Rule of Law by Municipal and County-level Governments (2008), and Opinions of the State Council on Strengthening Law-ruled Government (2010), and come up with new requirements for the hearing system, which needs to be reflected by the environmental enforcement procedures, so as to facilitate the rule of law among environmental protection departments.
With the tightening environmental enforcement and the growing legal awareness of the parities, the amount of administrative punishment cases applicable to a hearing increased. However, some of the environmental supervisors fail to have an accurate understanding of the purpose of the hearing and to follow correct hearing procedures, and their capacities to run the hearing need to be enhanced. Therefore, it necessary to detail the hearing regulations and clarify the hearing procedures, in order to make the hearing operational, and easy to master and apply by the environmental supervisors.
Considering being lengthy if added to the hearing procedures, Measures for Environmental Administrative Punishment (2010) does not have detailed provisions on the hearing procedures, but provides generally in Article 50 that "the hearing on administrative punishment shall be carried out in accordance with relevant regulations". So, it is necessary to develop the provisions on hearing procedures as a supporting document, in order to better implement the Measures for Environmental Administrative Punishment.
II. The Provisions highlights the legitimate rights and interests of the parties concerned as well as the nature of being operational.
The Provisions has six chapters and 48 articles. Chapter I is the General Provisions; Chapter II is the Scope of Application; Chapter III is the Hearing Manager and Participants of the hearing; Chapter IV is the Notification, Application and Notice of the hearing; Chapter V is the Holding of the hearing; and Chapter VI is the Supplementary Provisions.
The Provisions has the following features:
1. About its purpose, it stresses the legitimate rights and interests of the parties concerned.
Article 1 of the Provisions provides the purpose from the very beginning, that is, "to set standards for the procedures for the hearing on environmental administrative punishments, oversee and ensure that competent environmental protection department mete out administrative punishment in accordance with law, and protect the legitimate rights and interests of citizens, legal persons and other organizations".
The Provisions provides the procedures for the notification of and application for the hearing, the notice, and the holding of the hearing, for the purpose of safeguarding such rights of the parties concerned as the right to know, the right of statement and defense, the right to request for a hearing, and the right of cross-examination; detail such systems as the principle of openness, the challenge system, the agency system for parties concerned, applications for changes to or delay of the hearing; and elaborated the rights of the parties concerned in the hearing process, for example, the right to request for or abandon a hearing, the right to request for a closed hearing, the right to apply for the challenge system, the right to designate an agent, the right to state the cases and defend themselves, the right of cross-examination, the right for making final statement, the right to examine and double check the records of the hearing, and the right to browse the files in accordance with law.
2. About the scope of application of the hearing, consideration is given to both Administrative Punishment Law and the actual circumstances in environmental enforcement.
The hearing on environmental administrative punishment needs certain manpower, material, and financial inputs from the environmental protection departments. Considering the fairness and efficiency, and the cost and benefit, Article 42 of Administrative Punishment Law lists the kinds of administrative punishment that are applicable to a hearing, restricting the punishment to three kinds, that is, ordering the party concerned to suspend operations, revoking a permit or license, or fining a relatively big amount of penalties.
Article 48 of Measures for Environmental Administrative Punishment provides that a hearing shall be applied to major administrative punishments such as seizing temporarily or revoking permits, imposing large amount of penalties, and confiscation. It also decides the range of the "relatively big amount of penalties".
In accordance with the above-said provisions of the Administrative Punishment Law and Measures for Environmental Administrative Punishment, the Provisions details the scope of the application of a hearing to the following four kinds of administrative punishments.
First, the proposed administrative punishment to fine a legal person or other organization penalties above RMB 50,000 yuan or a citizen with penalties above RMB 5,000 yuan;
Second, the proposed administrative punishment to confiscate illegal earnings or illicit assets amounting to RMB 50,000 yuan (or articles of the same value) from a legal person or other organization, or illegal earnings or illicit assets amounting to RMB 5,000 yuan (or articles of the same value) from a citizen;
Third, the proposed administrative punishment to seize temporarily or revoke permits or other permitting certificates;
Forth, the proposed administrative punishment to order the party concerned to suspend production or operations or close down.
Besides, there are also some administrative orders, for example, ordering the party concerned to suspend construction or production, which are closely related to administrative punishment and have a bearing on the interests of the parties concerned. The environmental protection department may also hold a hearing to hear the opinions of the parties concerned, in order to better protect their legitimate rights and interests. To this end, Article 44 of the Provisions provides that "competent environmental protection department, prior to imposing the administrative order to suspend construction, production or use, if considering it necessary to hold a hearing, may refer to this regulation".
This article extends to some extent the scope of application of the hearing, helps protect effectively the legitimate rights and interests of the parties concerned, and considering the actual circumstances of environmental enforcement, empowering the environmental protection departments to decide if a hearing procedure is necessary.
Generally, a hearing procedure for administrative punishment is initiated as requested by parties concerned. In view of the complexity of environmental problems and the pubic interests involved, Article 6 of the Provisions also provides the occasion when a hearing procedure is initiated by an environmental protection department, that is, the environmental protection department, if considering the case important and difficult, and with the consent of the parties concerned, may hold a hearing.
3. About the detailing of the hearing procedure, the nature of being operational is highlighted.
For the purpose of setting standards and providing guidance for the hearing on administrative punishment, the Provisions has detailed provisions on all links of the hearing procedure, for example, the notification, application, notice of the hearing, the procedure of the hearing, hearing records and reports, and does its best to highlight the nature of being operational.
In the hearing process, the hearing organizer and the hearing manager play the dominant role, they are not only participates but also the guide of the hearing, and their acts shall have a direct impact on the parties concerned on exercising their rights and determine the effects of the hearing. Therefore, the Provisions has a Chapter stipulating the hearing organizer and the hearing manager and lists the responsibilities, obligations of the hearing manager and the conditions for the challenge system.
The Provisions provides the tasks needed to be done during the following three phases of the hearing procedure.
Prior to the hearing, the environmental protection department shall prepare and deliver the Notification on A Hearing on Administrative Punishment to notify the parties concerned on their rights to request a hearing; examine the applications of the parties concerned for holding a hearing; and prepare and deliver the Notice on A Hearing on Administrative Punishment if the hearing conditions are met.
During the hearing, the hearing manager shall hold the hearing according to the legal procedures, arrange the investigators, parities concerned and the third party to state their views, defend for themselves and have cross-examination, and offer an opportunity for the parties concerned to make final statements and defense. During the whole hearing, recorders shall make records, which shall be signed or sealed on site by the investigators, parties concerned, the third party, as well as the hearing manager, the hearing officers, and recorders, after double check.
After the hearing, the hearing manager shall report to leading officials from the environmental protection department on the hearing records, the adaptation of the proposals from the parties concerned and the grounds for doing so, as well as the recommendations on the administrative punishment to be meted out.
Besides, the Provisions also has detailed provisions on the special circumstances that lead to the delay, suspension, and termination of the hearing, which are easily mastered by the environmental supervisors.
The Provisions sets a definite timeline for each of the key links in the hearing, which helps urge the environmental protection department to perform its duties and the parties concerned to exercise their rights in a timely fashion. For example, the parties concerned shall request a hearing within three days upon the receipt of the notification; the environmental protection department shall examine the application within seven days upon the request of the parties concerned; the hearing shall be held within 30 days upon the decision to make it happen; and the notice shall be sent to the parties concerned and the third party seven days prior to the hearing.
(This English version is for your reference only.In case any discrepancy exists between the Chinese and English context, the Chinese version shall prevail.)