论我国听证主持人制度的完善

Improving the Hearing Manager System

行政听证制度作为现代行政程序法的重要内容之一,其基本要素——听证主持人制度对强化听证制度具有重要意义。但我国听证主持人制度存在诸多问题。首先,我国听证主持人的含义及其称谓各地有区别,必须规范听证主持人的称谓,以法律和法规的形式对此问题做出明确的规定;其次,听证主持人缺乏独立性,应通过职能分离和选任听证主持人等方面体现其独立性;再次,听证主持人权利规定的不尽周详,应从听证活动中的决定权、召开商讨会权、事实与证据的认定权、建议权等方面对听证主持人的权限进行强化;最后,在回避制度上,我国行政处罚法禁止与本案有直接利害关系的听证主持人主持听证。但对“利害关系”没有明确的列举规定。应当扩大听证回避的理由,以列举的方式,对听证主持人回避的范围做出明确的规定。

Administrative hearing system is one of the most important parts of modern administrative procedure law. As its basic factor, hearing manager system plays an important part in strengthening the hearing system. However, there still leaves some room for improvement concerning the hearing manager system. First of all, the definition and addressing of the hearing manager is not unified in China, which calls for unification; secondly, hearing managers are not independent on their own, which requires specification of duties and election of host managers; thirdly, the rights of the hearing managers are not exhaustively regulated, which desires strengthening their rights such as the right of making decisions, holding meetings of discussion, asserting facts and evidences, and submitting proposals and so on; finally, avoidance system should be enforced including a clear definition of ＂stake＂, and expansion and clarification of cases in which avoidance should be practiced.