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Trial Implementation Procedures of Shanghai Municipality on Hearings in Connection with Petition Letters and Calls



Chapter I General Provisions



Article 1 (Purpose and Basis)

For the purposes of normalizing the hearing activities of administrative offices of all levels in this Municipality in the handling of petition letters and calls, enhancing the transparency of the work on petition letters and calls, timely and accurately ascertaining the facts, fairly assigning responsibilities and improving the efficacy of handling petition letters and calls, these Procedures are formulated on the basis of relevant provisions of“Regulations on Petition Letters and Calls”and“Regulations of Shanghai Municipality on Petition Letters and Calls”and in the light of the actual circumstances of this Municipality.

Article 2 (Scope of Application)

These Procedures shall apply to hearing activities conducted by administrative offices of all levels in this Municipality in the process of handling or reviewing subject matters of petition letters and calls.

Where laws, rules and regulations provide otherwise, such provisions shall prevail.

Article 3 (Basic Principles)

The procedure of hearings shall be conducted in line with the principle of“openness, justice, fairness and convenience for the people”, with the opinions of the petitioners fully heard and their rights to make representations and be heard protected.

Article 4 (Scope of Hearing)

Administrative offices of all levels may hold hearings on the following important, complicated or difficult subject matters of petition letters and calls:

1. Subject matters of petition letters and calls that involve a large number of people, have major policy implications, cause strong public complaints, or have major social impacts;

2. Subject matters in connection with which the petitioners have written several joint letters or paid several large-scale collective petition calls to higher authorities, and such letters and calls have not stopped after the handling and may intensify the contradictions;

3. Difficult subject matters of petition letters and calls that may trigger off large-scale collective petition calls to the higher authorities or even to Beijing, bypassing the immediate leadership;

4. Subject matters of petition letters and calls reported by petitioners that involve two or more units, with complicated contents, on which the handling offices or the reviewing offices deem it necessary to hold a hearing;

5. Subject matters of petition letters and calls on which views differ within the handling office or reviewing office with regard to the establishment of facts, which is sufficient to prejudice the making of a correct decision;

6. Facts of the petition letters and calls as reported by the petitioners contradict one another or evidences supporting the facts are insufficient, which is sufficient to prejudice the handling offices or reviewing offices in making a correct decision;

7. Subject matters of petition letters and calls on which superior offices deem it necessary to hold a hearing;

8. Subject matters of petition letters and calls on which the handling offices or reviewing offices deem it necessary to hold a hearing.

Article 5 (Challenge to the Hearing Personnel)

The president, hearing officers and recorders of hearings shall be avoided if they:

1. Are a party or third party to the petition by letters or calls;

2. Have a direct interest in the handling result of the subject matters of the petition letters and calls in question.



Chapter II Hearing Organs, Hearing Officers and Hearing Participants



Article 6 (Hearing Organs)

The hearing subjects of petition letters and calls shall be the administrative offices handling the subject matter of the petition letters and calls and the administrative offices reviewing the subject matter of the petition letters and calls (hereinafter jointly referred to as hearing organs)

Article 7 (Hearing President)

A hearing shall be presided over by an officer of the hearing organs handling the case (hereinafter referred to as the hearing president). The hearing president shall perform the following duties:

1. To set the time and place of the hearing;

2. To decide to postpone, suspend or terminate the hearing;

3. To determine whether any of the hearing officers and recorders shall be avoided at the hearing;

4. To question the hearing participants;

5. To accept relevant evidences;

6. To maintain order during the hearing;

7. To chair the hearing panel discussions;

8. Other duties entrusted by the hearing organs.

Article 8 (Hearing Officers)

There shall be 3-5 hearing officers, including the hearing president. Normally, they are staff members of the hearing organs and, if necessary, deputies to the people’s congress, members of the people’s political consultative conference and legal workers may be invited to serve as hearing officers.

In the process of a hearing, the hearing officers shall have the right to question the hearing participants and participate in the appraisal and panel discussions.

Article 9 (Recorder)

The position of the recorder shall be taken by a staff member of the hearing organs. The recorder shall perform the following duties:

1. To carry out relevant work of inquiry, notice and announcement of a hearing;

2. To ascertain the number of participants at the hearing;

3. To announce the discipline of the meeting room;

4. To do a good job of recording in writing the hearing, appraisal and panel discussions.

Article 10 (Hearing Participants)

Hearing participants shall include the petitioners by letters or calls, the administrative offices against which complaints (grievances, suggestions or claims) are filed by the petitioners, relevant units or reviewing offices, third parties that have a stake in the subject matters of the petition letters and calls, and their authorized representatives.

Waiver of a hearing by the hearing participants shall not prejudice the handling or reviewing of the subject matters of petition letters and calls.

On subject matters of collective petition letters and calls, not more than five representatives shall be elected to participate in the hearings.

Article 11 (Rights and Obligations of the Parties to Petition Letters and Calls)

Petitioners by letters or calls shall have the following rights:

1. To challenge the president, hearing officers, recorders and other relevant working personnel of the hearing who have a stake in the hearing;

2. To make representations and be heard on the facts, laws, rules and policies concerning the subject matters of the petition letters and calls;

3. To examine the evidences provided by administrative offices against which complaints (grievances, suggestions or claims) are filed, relevant units or reviewing organs, and provide new evidences;

Petitioners by letters or calls shall perform the following obligations:

1. To participate in the hearings on time;

2. To state facts and answer questions truthfully;

3. To provide materials of evidence as they are;

4. To observe discipline during the hearings.

Administrative offices against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall have the following rights:

1. To challenge the president, hearing officers, recorders and other relevant working personnel of the hearing who have an interest in the hearing;

2. To examine new evidences provided by the petitioners by letters or calls;

3. To make explanations on the facts, laws, statutes and policies referred to in the decisions made on the petition letters and calls handled or reviewed;

Administrative offices against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall perform the following obligations:

1. To participate in the hearings on time;

2. To state facts and answer questions truthfully;

3. To provide materials of evidence as they are;

4. To observe discipline during the hearings.

Article 12 (Rights and Obligations of Third Parties)

Other citizens, legal entities or organizations that have an interest in the subject matters of petition letters and calls may raise objections as third parties to the subject matters of the petition letters and calls.

For the purposes of identifying or ascertaining the subject matters of petition letters and calls and assigning responsibilities, the hearing organs may notify the third parties to participate in the hearings and the third parties may also apply for participation in the hearings. Refusal to participate on the part of third parties shall not prejudice the holding of the hearings.

Third parties shall have the following rights:

1. To make representations and be heard on the facts, laws, rules and policies in which they have a stake;

2. To examine evidences involving their interest as provided by petitioners, administrative offices against which complaints (grievances, suggestions or claims) are filed, relevant units or reviewing organs and provide new evidences;

Third parties shall perform the following obligations:

1. To participate in the hearings on time;

2. To state facts and answer questions truthfully;

3. To provide materials of evidence as they are;

4. To observe discipline during the hearings.

Article 13 (Authorized Representatives)

Petitioners by letters or calls shall normally participate in the hearings in person; in case of their inability to participate in person, they may authorize one or two representatives to participate in the hearings. A power of attorney shall be issued for such authorization, specifying the items delegated and the scope of the delegated authority.

In the process of hearings, the authorized representatives shall exercise the rights of the petitioners by letters or calls and undertake the obligations that shall be borne by the petitioners by letters or calls.

In case of death of a citizen who has the right to apply for hearings, his/her close relatives may apply for the hearings. In case the citizen who has the right to apply for hearings is a person of civil disability or of restricted civil ability, his/her legal representatives may apply for the hearings on his/her behalf. In case of termination of legal entities or other organizations that have the right to apply for hearings, the legal entities or other organizations that inherit their rights may apply for the hearings.

Article 14 (Auditors)

Hearing organs may invite the following personnel as auditors to participate in hearings held in public:

1. Relatives of the petitioners by letters or calls;

2. Representatives of the masses who are in the know;

3. Deputies to the people’s congress or members of the people’s political consultative conference in the locality of the petitioners by letters or calls;

4. Working personnel of the sub-district or town/township government or neighborhood (village) committee in the locality of the petitioners by letters or calls.

Auditors shall observe discipline during the hearing.



Chapter III Procedure of Hearing

Article 15 (Enquiry on Hearings and Replies)

For subject matters of petition letters and calls under Article 4 of these Procedures, administrative offices that have the right to hold hearings may inquire of the petitioners in writing whether or not they agree to hold hearings before making handling suggestions or reviewing suggestions.

Refusal to hold hearings on the part of the petitioners by letters or calls shall not prejudice the normal conduct of the handling or reviewing process.

Petitioners by letters or calls who agree to hold hearings shall give a written reply within three working days from the date of receiving the written notice of the hearing inquiry. Failure to reply within three working days shall be deemed as disagreement to the holding of hearings.

Article 16 (Notice of Hearings)

The hearing organ shall hold the hearing within 15 working days from the date of receiving the written reply and notify, three working days before the holding of the hearing, the petitioners by letters or calls and the administrative offices against which complaints (grievances, suggestions or claims) are filed, relevant units or reviewing organs of the time and place of the hearing, as well as the necessary preparations that should be made. If necessary, an announcement shall be issued.

In case the subject matter of the petition letters and calls involves a third party, the hearing organ shall notify the third party in time. In case the third party learns by himself/herself of the holding of the hearing before hand and applies for participation, the hearing organ shall promptly examine and approve the application and notify him/her of the result of the examination and verification.

After receiving the hearing notice, the hearing officers and the recorders may not, in violation of the provisions, meet in private petitioners by letters or calls, the administrative offices against which complaints (grievances, suggestions or claims) are filed, relevant units or reviewing organs and their authorized representatives without permission.

Should the petitioners by letters or calls voluntarily apply for the withdrawal of the written reply before the holding of the hearing or the third party voluntarily apply for the withdrawal of the hearing application, the application shall be granted and recorded on file.

Article 17 (Held in Public)

Hearings shall be held in public except for cases involving State secrets, commercial secrets or privacy.

Article 18 (Holding of Hearings)

The recorder shall ascertain the number of participants and then declare the discipline of the hearing.

Article 19 (Discipline of Hearings)

The rules of discipline of hearings are as follows:

1. Hearing participants may not speak or ask questions at random;

2. Hearing participants may not audio or video record or photograph the process;

3. Hearing participants may not walk out without permission. Walk-out in the process of a hearing on the part of the petitioners by letters or calls shall be deemed as a waiver of the rights to the hearing;

4. Hearing participants may not make personal attacks or use abusive or insulting language in their speeches;

5. Hearing participants and auditors shall keep quiet and refrain from clapping, making a hubbub or other acts that disrupt order at the hearing;

6. Smoking in the hearing places is prohibited, and hearing participants shall turn off their mobile phones, beep pagers and other electronic communication devices;

7. The hearing president has the right to stop any act of violating the hearing order, and, in serious cases, may order the violators to leave the place.

Article 20 (Beginning of Hearings)

After declaring the beginning of the hearing, the hearing president shall make public the subject of the hearing and the names of the hearing president, hearing officers and recorders, and inquire of the hearing participants whether they will challenge the above-mentioned personnel.

If the hearing participants challenge the hearing personnel, they shall state the reasons therefor. In case the hearing participants challenge the hearing president, the hearing president shall declare the suspension of the hearing and report to the official-in-charge of the administrative office for his/her decision on whether to avoid or not; if the hearing officers or recorders are challenged, the hearing president shall make a decision on the spot.

Article 21 (Procedures of Hearings)

Hearings shall be conducted according to the following procedures:

1. The petitioners by letters or calls or their authorized representatives state the subject matters of the petition letters or calls and provide relevant evidences;

2. The administrative offices against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall state the facts established in the handling, the identified evidences, the applicable laws and policies and the suggestions for handling;

3. The third parties that have a stake in the subject matters of the petition letters and calls may raise objections and provide relevant evidences;

4. The petitioners by letters or calls or their authorized representatives and administrative offices against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall defend themselves;

5. Cross-examination and debate;

6. The hearing organs shall examine or ask additional questions on matters not yet established;

7. The petitioners by letters or calls shall make their final statement;

8. The administrative office against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall make their final statement;

9. The third parties that have a stake in the subject matters of petition letters and calls shall make their final statement;

10. The hearing president shall declare the close of the hearing.

Article 22 (Written Records)

Written records shall be taken of hearings, containing the following items:

1. Cause of the case;

2. The names and addresses of the hearing participants;

3. The names of the hearing president, hearing officers and recorders;

4. The time and place of the holding of the hearing;

5. The contents provided for in the hearing procedure of Article 21.

The written records shall be handed to the hearing participants for signature or sealing upon their examination and verification. If the hearing participants refuse to sign or seal them, the hearing president shall make an explanation on the hearing records.

Article 23 (Preservation of Audio and Video Materials on the Hearings)

The hearing organs shall take audio or video records of the whole process of hearings held and keep them in the archives for reference.

Article 24 (Appraisal and Panel Discussions of Hearings)

After the closing of the hearing, the hearing president shall immediately call a meeting of the hearing officers to express their opinions on the facts and evidences presented at the hearings, as well as the applicable laws, rules and policies, and reach a hearing conclusion after the appraisal and panel discussions.

Article 25 (Effect of the Written Record and Conclusion of Hearings)

The hearing records and hearing conclusion generated during hearings shall be used by the hearing organ as one of the bases for reaching its handling or reviewing conclusion.

Article 26 (Suspension or Postponement of Hearings)

Hearings may be suspended in any one of the following cases:

1. One party or both parties to the case among the hearing participants fail to be present more than half an hour after the convening of the hearings;

2. The contradictions are likely to intensify during the hearing and thus prejudice the effect of the hearings;

3. Other circumstances determined by the hearing president. In case of suspension of hearings, the hearings shall be resumed within five working days upon the disappearance of the circumstances that cause the suspension, and the hearing participants shall be notified thereof.

Hearings may be postponed in any one of the following cases:

1. The hearings can not be held on schedule due to force majeure, and the hearing president has given his/her approval.

2. The hearing participants find it necessary to notify new witnesses to be present at the hearing or provide new evidences and the hearing president has given his/her approval;

3. Other circumstances determined by the hearing president.

The hearing organ shall notify the hearing participants in writing of the reason for the postponement and the duration of the postponement of the hearing.

Article 27 (Waiver of Hearings)

Any one of the following acts on the part of the petitioners by letters or calls shall be deemed as waiver of hearings:

1. Failure to submit a written application for hearings within the prescribed time limit;

2. Withdrawal of the application for hearings;

3. Failure to participate in the hearings without justifiable reasons;

4. Leaving the hearing place in the process of hearings without the permission of the hearing president or serious violation of the discipline for hearings and refusal to be stopped.

In any of the circumstances defined in the preceding paragraph, the petitioners by letters or calls may not apply for another hearing on the same subject matter.

Article 28 (Objections to Hearings)

Petitioners by letters or calls, their authorized representatives or other hearing participants may raise objections to the hearing president in the process of hearing if they consider that the procedure of the hearing is in violation of the provisions of these Procedures. The hearing president shall lose no time in giving a reply to the objections raised by the hearing participants. In case the hearing participants are not satisfied with the reply given by the hearing president, they may bring the matter up to the hearing organ in writing after the closing of the hearing, and the hearing organ shall promptly handle the matter. In case of serious violation of the provisions of these Procedures, the hearing organ shall re-hold the hearing.



Chapter IV Legal Liabilities



Article 29 (Relevant Liabilities)

In accordance with these Procedures, an administrative office that is competent to handle the subject matter of a petition letter or call and shall hold a hearing, but fails to do so shall be ordered by its superior administrative office to make corrections; where serious consequences are caused, the directly responsible official-in-charge and other responsible officials shall be given an administrative punishment in accordance with law.

Circumstances that warrant the holding of hearings refer to those subject matters of petition letters and calls that fall within the hearing scope provided for in Article 4 of these Procedures and in connection with which the petitioners by letters or calls agree to the holding of a hearing in the written reply given by them.

Suspension of a hearing as a result of failure to participate in the hearing on the part of the administrative offices against which complaints (grievances, suggestions or claims) are filed by petitioners, relevant units or reviewing organs shall be criticized by the hearing organ in a circular; If the case is serious, the hearing organ may make a suggestion to the relevant administrative office to impose an administrative punishment.

An administrative office that shall participate in a hearing, but fails to send a relevant unit to appear before the hearing without good reasons or refuses to make representations at the hearing or provides false materials of evidence or information shall be criticized by the handling organ in a circular; In serious cases, a suggestion may be made to the relevant administrative office to impose an administrative punishment.



Chapter V Supplementary Provisions



Article 30 (Hearing Fees and Charges)

The fees and charges incurred in the organization and holding of hearings shall be borne by the hearing organ. The hearing organ shall not bear the expenses incurred by hearing participants from the hearings.

Article 31 (Implementation by Reference)

Mass organizations, enterprises and institutions in this Municipality shall implement these Procedures by reference when holding hearings in connection with petition letters and calls.

Article 32 (Effective Date)

These Procedures shall become effective on September 1, 2005.

 

 

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