No. 77

Provisions of Shanghai Municipality on Administrative Penalty Hearing Procedures were adopted at the 190th Routine Meeting of the Municipal People’s Government on January 9, 2023 and are hereby promulgated. They shall be effective as of April 1, 2023.

Mayor  Gong Zheng

January 19,  2023

Provisions of Shanghai Municipality on Administrative

Penalty Hearing Procedures

(Promulgated by Decree No. 77 of Shanghai Municipal People's Government on January 19, 2023 and to be effective as of April 1, 2023)

Chapter I  General Provisions

Article 1 (Purpose and Basis)

With a view to standardizing the hearing procedures of administrative penalties and protecting the legitimate rights and interests of the 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 (Scope of Application)

These Provisions shall apply to the administrative penalty hearing activities conducted by the municipal administrative organs and the organizations authorized by laws and rules with the functions of managing public affairs (hereinafter collectively referred to as "the administrative organs").

Article 3 (Scope of Hearing)

When the administrative organs intend to make the following administrative penalty decisions, they shall inform the parties of their rights to request hearings. When the parties request hearings, the administrative organs shall organize such hearings:

1. imposing large amounts of fine;

2. confiscating large amounts of illegal income and illegal property of large value;

3. lowering the qualification levels and revoking the licenses;

4. ordering to suspend production or business, ordering to close down or restrict employment; and

5. other circumstances prescribed by laws, rules and regulations.

In addition to the scope of the preceding Paragraph, the administrative organs shall also inform the parties of their rights to request hearings in other circumstances that such hearings deem necessary.

Article 4 (Larger Amount Criterion)

For individuals, the term "larger amount" (or "larger value") as mentioned in these Regulations refers to more than 5,000 yuan (or the value of the equivalent goods). For legal persons or other organizations, it refers to more than 50,000 yuan (or the value of the equivalent goods). Shanghai Municipal People's Government may, in accordance with the situations of economic and social development, adjust and publish the above criteria for larger amounts (or larger values).

Chapter II  Hearing Organs, Hearing Personnel and Hearing Participants

Article 5 (Hearing Organ)

When the administrative organs intend to make administrative penalties applicable to the hearing procedures, the said administrative organs shall be responsible for organizing the hearings. The specific implementation work shall be undertaken by their legal institutions or the other institutions designated by the said administrative organs.

When the entrusted organizations according to law intend to make administrative penalties applicable to the hearing procedures, the entrusting administrative organs shall be responsible for organizing the hearings.

The administrative organs shall not entrust other institutions or organizations to organize such hearings.

Article 6 (Scope of Hearing Personnel)

The hearing personnel include the hearing hosts, hearing officers and hearing clerks.

Article 7 (Scope of Hearing Participants)

The participants in the hearings include the parties and their agents, case investigators, translators, witnesses, appraisers, inspectors and the other relevant persons.

The parties mentioned in the preceding Paragraph refer to the citizens, legal persons or other organizations that have been informed in advance that they will be subject to the administrative penalties applicable to the hearing procedures. The case investigators refer to the staff who are responsible for the investigation and evidence collection of the administrative penalty cases within the administrative organs.

Article 8 (Appointment of the Hearing Hosts)

The hearing hosts shall be those other than the investigators of the cases within the administrative organs appointed by the persons in charge of the administrative organs. The hearing hosts shall generally be the members of the legal institutions or full-time legal staff of the administrative organs.

Article 9 (Functions and Powers of the Hearing Hosts)

The hearing hosts shall exercise the following functions and powers:

1. deciding on the time, place and way of the hearings;

2. deciding to suspend or terminate the hearings;

3 deciding on the withdrawal of the hearing officers, hearing clerks, translators, appraisers and inspectors; and

4. deciding to allow the witness to testify on the spot.

Article 10 (Responsibilities of the Hearing Hosts)

The hearing hosts shall perform the following responsibilities:

1. inquiring about the facts of the cases, the reasons and basis for the administrative penalties applicable to the hearing procedures;

2. requiring the relevant hearing participants to provide or supplement evidences;

3. maintaining the order of the hearings and stopping the acts violating the hearing discipline; and

4. reviewing the hearing transcripts.

Article 11 (Hearing Officers and Hearing Clerks)

The administrative organs may, if necessary, designate one or two staff other than the investigators within the organs to serve as hearing officers to assist the hearing hosts in organizing the hearings.

Each hearing shall have one hearing clerk, who shall be other than the investigators of the cases, and shall be responsible for the production of the hearing records and the other relative matters.

Article 12 (Obligations of Hearing Participants)

The hearing participants shall attend the hearings at the designated places on time, abide by the hearing discipline, truthfully answer the questions of the hearing hosts, and abide by the confidentiality obligation when confidential contents are involved in the cases.

Article 13 (Rights of Parties)

The parties have the following rights:

1. requesting or waiving the hearings;

2. being permitted to apply for withdrawal of the hearing personnel, translators, appraisers and inspectors considered by them as one of the persons listed in Article 14 of these Provisions;

3. being permitted to entrust one or two persons to attend the hearings as agents, and issue a power of attorney to clarify the authority of the agents;

4. providing evidence and applying for witnesses to testify for them;

5. making statements, pleadings and cross-examination; and

6. checking the hearing records.

Article 14 (Withdrawal)

The hearing personnel, translators, appraisers and inspectors who are one of the following persons shall voluntarily withdraw:

1. the close relatives of the parties and the investigators in the case; or

2. the other persons who have direct interests in the case.

Chapter III  Notification and Proposal of Hearings

Article 15 (Notification of Hearings)

The administrative organs shall, before making the decisions on administrative penalties, serve hearing notices on the parties concerned in the cases of administrative penalties applicable to the hearing procedures.

The hearing notices shall contain the following main items:

1. the names or titles of the parties;

2. the contents, facts, reasons and basis of the proposed administrative penalties;

3. informing the parties that they have the rights to request hearings; and

4. informing the parties of the time limit for filing the hearing requests and the hearing organizations.

The hearing notices shall be stamped with the seals of the administrative organs.

The hearing notices may be served directly, by proxy, by mail, by detaining way, and by public notice, etc.

With the consents of the parties, the administrative organs may serve the hearing notices by means of electronic service that can be confirmed of their receipt.

Article 16 (Submission of Hearing Requirements)

When the parties request hearings, they shall submit written requests for hearing to the administrative organs within 5 working days from the dates of receiving the hearing notices. If the parties submit their requests for hearings by mail, the postmark dates shall prevail.

When the parties expressly waive the hearings or fail to submit the hearing requests beyond the statutory time limit in writing, they may not submit hearing requests for their cases again, but may make statements and pleading.

Article 17 (Notice of Hearings)

When the administrative organs organize hearings, they shall serve the hearing notices on the parties seven working days before the hearings are held, and notify the relevant hearing participants of the time and place of the hearings.

The hearing notices shall contain the following items:

1. the names or titles of the parties;

2. the time, place and way of the hearings;

3. the name of the hearing personnel;

4. informing the parties that they have the rights to apply for withdrawal;

5. informing the parties that they may entrust agents to attend the hearings; and

6. informing the parties to prepare evidence, notify witnesses and other matters.

The hearing notices shall bear the seals of the administrative organs.

Chapter IV  Holding of Hearings

Article 18 (Ways of Hearing)

The hearings shall be held in public, except that the state secrets, trade secrets or personal privacy shall be kept confidential according to law.

The administrative organs shall announce the causes of action, time and place of the hearings seven working days before the hearings.

Article 19 (Preparation for Hearing)

At the beginning of the hearings, the hearing personnel shall complete the following preparatory items for the hearings:

1. reading out the hearing discipline;

2. checking the identity of the hearing participants;

3. informing the parties of their rights and obligations; and

4. asking the parties whether to apply for the withdrawal of hearing personnel, translators, appraisers and inspectors.

When the parties concerned make provisional applications for the withdrawal of the hearing hosts, the hearing hosts shall announce the suspension of the hearings and report to the heads of the administrative organs to decide whether to withdraw. The applications for the withdrawal of hearing officers, hearing clerks, translators, appraisers and inspector shall be made by the hearing hosts on the spot.

Article 20 (Hearing Investigation)

During the hearing investigation, the case investigators shall put forward the facts and evidence of the parties’ violation of the law and the suggestions for administrative penalties applicable to the hearing procedures, and the parties shall make statements, pleading and cross-examination.

Article 21 (Evidence of Hearing)

The evidences of hearing includes documentary evidence, physical evidence, audio-visual materials, electronic data, witness testimony, statements of the parties, appraiser opinions, transcripts of the inquest, on-site transcripts, etc.

The evidences related to the determination of the facts of the cases shall be presented during the hearings and confirmed after cross-examination.

Article 22 (Preparation of Hearing Transcripts)

Written records shall be made for hearings.

Hearing Transcripts shall contain the following items:

1. cause of action;

2. the name (title) or address of the hearing participants;

3. name of the hearing personnel;

4. the time, place and way of the hearings;

5. the facts and evidence put forward by the case investigators and the suggestions for administrative penalties applicable to the hearing procedures;

6. the contents of the parties' statement, pleading and cross-examination;

7. the other hearing contents; and

8. signature or seal of hearing participants.

Article 23 (Verification of Hearing Transcripts)

After the hearings, the hearing personnel shall send the hearing transcripts to the parties, their agents and the case investigators for signature or seal after verification. When the parties and their agents refuse to sign or affix their seals, the hearing hosts shall indicate it in the hearing transcripts

The part of the hearing transcripts relating to the witness testimonies shall be submitted to the witnesses for signature or seal after verification.

The hearing hosts shall review the hearing transcripts, which shall be signed or sealed by the hearing personnel.

Article 24 (Effect of Hearing Transcripts)

The administrative organs shall make decisions in accordance with the provisions of Article 57 of the Administrative Penalty Law of the People's Republic of China on the basis of the hearing transcripts.

Article 25 (Hearing Reports)

After the hearings are concluded, the hearing hosts may organize the preparation of the hearing reports, which shall be submitted to the case-handling agencies together with the hearing transcripts, and shall be reported to the persons in charge of the administrative organs together with the other materials.

When the hearing personnel have different opinions on the handling of the cases, they shall truthfully record them in the hearing reports.

Article 26 (Suspension of Hearing)

The hearings shall be suspended under any of the following circumstances:

1. the parties who must be present or the case investigators and other participants in the hearings failing to be present for justified reasons, or unable to participate in the hearings due to force majeure;

2. the death or termination of a party requiring wait for the successor (s) of rights and obligations;

3. it being necessary in the course of the hearings to notify new witnesses, obtain new evidences, conduct new appraisals and inquests, or make supplementary investigations; or

4. the other circumstances requiring suspension of hearing.

After the suspension of the hearings is eliminated, the hearing hosts shall resume the hearings.

Article 27 (Termination of Hearing)

The hearings shall be terminated under any of the following circumstances:

1. after the death or termination of a party for three months, the successor (s) of rights and obligations being not determined yet;

2. the parties refusing to attend the hearing without justified reasons, or withdrawing from the hearings without permission; or

3. the other circumstances where the hearings need to be terminated.

Article 28 (Hearing Period)

The time between the receipt by an administrative organ of a party's application for a hearing and the conclusion of the hearing shall not exceed 30 days, and the suspension time shall not be included.

The hearing time is not included in the case handling period.

Chapter V  Supplementary Provisions

Article 29 (Expenses for Hearing)

The expenses for organizing the hearings shall be borne by the administrative organs.

Article 30 (Online Hearing)

With the consents of the parties, the hearings may be conducted online via the information network platforms.

The hearings conducted online via the information network platforms have the same legal effects as the offline hearings.

Article 31 (Calculation of Larger Amount)

When the administrative organs calculate larger amounts according to Article 4, the fine, confiscation of illegal gains and illegal property may be calculated separately.

Article 32 (Other Applicable Provisions)

These Provisions shall be applicable to the administrative penalties imposed by the administrative organs on foreigners, stateless persons and foreign organizations that require hearings.

When there are other provisions on the hearing procedures in laws, rules and regulations, such provisions shall prevail.

Article 33 (Effective Date)

These Provisions shall be effective as of April 1, 2023. The Provisions of Shanghai Municipality on Administrative Penalty Hearing Procedures promulgated by Decree No. 35 of Shanghai Municipal People's Government on November 16, 2015 shall be repealed at the same time.