Hearing is a core procedural right granted to involved parties by the Chinese Administrative Penalty Law. Especially in cases involving substantial fines, qualification restrictions, suspension of production or business operations, and other significant rights and interests, administrative authorities shall inform the parties of their right to request a hearing. This article, drawing on the Chinese Administrative Penalty Law, Regulations on Administrative Penalty Procedures of the Administration for Market Regulation, Measures for Administrative Penalty Hearings of the Administration for Market Regulation (MAPH for short), Implementation Measures for Administrative Penalty Hearings of Guangdong Province (MAPH Guangdong for short), and our practical experience, systematically outlines the legal key points and practical operational strategies of hearing procedures in administrative penalty cases, providing professional guidance for enterprises.

The Statutory Requirements for Initiating Hearings

1. Circumstances Requiring Notification of Hearing Rights

According to Article 63 of the Chinese Administrative Penalty Law and related regulations, administrative authorities shall inform the involved parties of their right to request a hearing before imposing the following administrative penalties. If the involved party requests a hearing, the administrative authority shall organize the hearing:

Economic Penalties: Significant fines, confiscation of substantial illegal gains, or confiscation of high-value illegal property.

Specific standards vary according to different regulations. For instance, MAPH stipulates that fines or confiscation of illegal gains and property valued at CNY 100,000 or more for enterprises, or CNY 10,000 or more for individuals, trigger the hearing requirement. In Guangdong Province, regulated by MAPH Guangdong, the standards are CNY 100,000 or more for enterprises and CNY 5,000 or more for individuals.

Qualification Restrictions: Lowering of the qualification level or rescission of a permit.

Prohibition from Operations: Orders for the suspension of production or business, closure, or restriction on employment.

Catch-all Clause: Other heavier administrative penalties, as well as other circumstances stipulated by laws and regulations.

2. Cost for Hearings

The involved party shall not bear the expenses of the hearings arranged by the administrative authorities.

3. Practical Tips

If the proposed administrative penalty falls within the scope of requiring a hearing but the administrative authority fails to inform the involved party of their right to request a hearing, the party can claim that the administrative penalty procedure is illegal. For example, if an AMR intends to impose a fine of CNY 160,000 on a company, they shall inform the party of their right to a hearing. If the AMR fails to fulfill this obligation, the involved party can claim procedural illegality.

Time Requirements for Hearings

1. Key Time Points

2. Legal Consequences of Violating Time Requirements

If the administrative authority fails to organize the hearing within the prescribed time limits, it may be deemed a procedural violation, potentially leading to the revocation of the penalty decision.

Key Stages and Strategic Points in the Hearings

1. Pre-hearing Preparation Strategy

• Application for File Review: Apply to review all case files with the administrative authority to fully understand the case details.
• Expert Involvement: For specialized issues (e.g., counterfeit and inferior product verification), promptly communicate with third-party professional institutions to obtain written opinions.
• Material Preparation: Review and organize all relevant case materials, prepare defense and cross-examination opinions comprehensively to actively exercise the rights to make statements, defend, and cross-examine during the hearing.
• Procedural Review: Check whether the “Hearing Notice” includes the time, place, and hearing personnel information, and whether it was served at least 7 working days before the hearing as required.

2. Key Points for the Hearing Session

(1) Breakthrough Points in the Cross-Examination Stage

• Legality of Evidence: Request the original evidence from the in-charge officers and check whether the evidence collection process complies with relevant laws and regulations.
• Application of Law: Compare and examine the applicability, scope and legal effect of the clauses on which the penalties are based (such as issues of retroactive effect of new laws).
• Reasonableness of Penalty Decision: Argue for leniency or mitigation of the penalty based on the company’s rectification efforts and compliance record.

(2) Statement Logic in the Debate Stage

• Factual Level: Respond to each accusation item by item and present counter-evidence.
• Legal Level: Cite guiding cases from the Supreme People’s Court and provincial discretion benchmarks for administrative authority.
• Procedural Level: Point out issues in the enforcement process, such as defects in document service and overdue investigations, etc.

3. Notes on Signing the Hearing Record

Review and check the hearing record carefully. Sign or seal it upon confirmation of its accuracy. If there are any objections to the record, submit a written explanation and request it to be included in the case file for future reference.

Subsequent Impact of the Hearing and Pathways for Rights Relief

1. Issuance of Penalty Decision

The administrative authority shall make a decision based on the hearing record and the opinions and suggestions presented in the hearing report. Evidence that has not been cross-examined during the hearing cannot be used as the basis for the final decision.

Pathways for Rights Relief against Administrative Penalties

• Administrative Reconsideration: According to Article 24 of Chinese Administrative Reconsideration Law, an application for administrative reconsideration can be filed with the people’s government at the same level, requesting the annulment or partial annulment of the administrative penalty decision.
• Administrative Litigation: According to Article 70 of Chinese Administrative Litigation Law, a lawsuit can be filed with the people’s court, requesting the court to annul or partially annul the administrative penalty decision.
• Enforcement Supervision: According to Article 75 of Chinese Administrative Penalty Law, an appeal or report can be filed with the higher-level administrative authority or relevant authority regarding procedural violations.

2. Supplementary Investigation

If further investigations are required after the hearing, the administrative authority shall conduct supplementary investigations.

3. Second Hearing

If new evidence that may have a substantial adverse impact on the involved party emerges after the hearing, the administrative authority shall organize another hearing.

Practical Legal Advice: Recommended Strategies for Enterprises Facing Administrative Hearings

1. Establishing an Internal Early Warning Mechanism

• Designating An In-charge Person: Assign in-house counsel to handle administrative penalty documents specifically to ensure the 5-working-day application deadline is not missed.
• Regular Internal Training: Conduct regular training sessions to help business personnel identify enforcement actions of the administrative authority that may trigger a hearing.

2. Evidence Management Before the Hearing

• Making an Evidence Checklist: List disputed points and rebuttal arguments item by item.
• Collecting and submitting New Evidence: If there is new evidence, promptly request the notification of new witnesses to attend the hearing or submit written testimonies.

3. Risk Control After the Hearing

• Active Communication: Actively follow up with the administrative authority regarding the hearing conclusions and subsequent case handling.
• Compliance Rectification: Initiate compliance rectification simultaneously to reduce the risk of the enforcement of the penalty decision.

The administrative penalty hearing is not merely a formality but a right guaranteed by law to the parties involved. By well understanding the time requirements, deeply participating in evidence cross-examination and debates, and promptly initiating legal relief, enterprises can maximize the protection of their legitimate rights and interests. For procedural violations by administrative authorities, lawyers should uphold professional ethics and assist involved parties in achieving rights balance and fair relief according to the law.