General Administration of Customs Order of the General Administration of Customs No.145 The Measures for Administrative Punishment Hearings of the Customs of People’s Republic of China , which were adopted through discussion Director General of General Administration of Customs, Mu Xinsheng January 26, 2006 Measures for Administrative Punishment Hearings of the Customs of People’s Republic of China Chapter I General Provisions Article 1 The present Measures are formulated according to the Administrative Punishment Law of the People’s Republic of China, Regulation Article 2 The present Measures shall be applicable to the hearings upon the application of the parties before the custom making a decision on Article 3 The customs shall, before making any decision of administrative punishments such as suspension of relevant businesses, suspension Article 4 The principle of openness, fairness, justness, and convenience for the people shall be followed for the hearings of customs administrative Chapter II Organs and Personnel to Organize Hearings Article 5 The hearings on the cases of customs administrative punishment shall be organized by the department for the trial of customs administrative Article 6 A presider and a clerk shall be designated to organize the hearing, and if necessary, another one up to four hearing members may In case of the hearing involves any professional customs knowledge, the hearing organization organ may invite the relevant experts Article 7 A hearing presider shall perform the following functions: 1. Determining to postpone or suspend the hearing; 2. Asking questions on the facts of the case, the basis to make the administrative punishment, and the reasons thereof; 3. Requiring the participants in the hearing to provide or supplement evidence; 4. Presiding over the hearing procedures and maintaining the hearing order, and stopping acts in violation of the hearing disciplines; 5. Determining whether the relevant witnesses or authenticators may take part in the hearing. Article 8 In case any presider, hearing members or clerk has any of the following circumstances, he shall withdraw by himself, and the parties 1. He is the investigator of the case; 2. He is a close relative of any of the parties concerned or the investigators of the case; 3. He has acted as a witness or authenticator of the case; or 4. He has an interest relationship with the handling result of the case. The preceding provisions shall be applicable to interpreters and authenticators. The withdrawal of any hearing member, clerk, interpreter, or authenticator shall be determined by the presider; the withdrawal of Chapter III Rights and Obligations of the Participants and Other Personnel in the Hearing Article 9 The participants in the hearing include the parties and their agents, the third party and its/his agent, and the case investigators; Article 10 The parties shall enjoy the following rights: 1. Taking part in the hearing by using the languages of their own nationalities; 2. Applying for or giving up the hearing; 3. Applying for not holding the hearing in public; 4. Entrusting an attorney or other personnel to act as the agent for the hearing; 5. Making statements, arguments, presenting proof, and making cross-examination; and 6. Referring to and making modifications on the hearing records, and confirming them through signature. Article 11 Any citizen, legal person, or other organization that has direct interests relationship with the handling result of a case may attend Article 12 The parties and the third party may entrust one or two agents to attend the hearing. The agents shall enjoy the equal rights with Article 13 In case any party or third party entrusts any agent to attend the hearing, he/it shall submit the power of attorney to the customs 1. The brief information of the principal and its/his agent; 2. The power of agency of the agent; 3. The starting and ending time for the power of agency; and 4. The date of entrustment and the seal of the principal. In case any principal cancels the entrustment in advance, it/he shall notify the hearing organization organ in written form. Article 14 The case investigators shall refer to the staff members of the customs who undertake investigations and gather evidence for administrative During the course of hearings, the case investigators shall state the illegal facts of the parties, and show the evidence thereof, Article 15 Upon the approval of the hearing presider, the case investigators, the parties, and the third party may request the witnesses to attend Article 16 The customs shall retain the interpreters for participants and other personnel in the hearings who are not familiar with the local Where there is necessity to make an authentication concerning the professional technical issues, the customs shall hand them over Article 17 The parties and their agents, the third party and its/his agent, case investigators, witnesses, interpreters, and authenticators shall Chapter IV Application for Hearings and the Decisions Thereof Article 18 The parties concerned shall, within 3 days from the day when the customs house informs them of their rights to apply hearing, file In case any party fails to file an application for the hearing within the prescribed time limit due to force majeure or other special Article 19 If the customs determines to organize a hearing, it shall hold the hearing within 30 days from the day when it receives the application The Notice of Hearing on Customs Administrative Punishment shall specify the name of the parties, the post_title of the case to be heard, 1. Whether the hearing shall be held openly. If the hearing is not to be held openly, the reasons shall be explained ; 2. The name of the hearing presider, hearing members, and the clerk; 3. The requirement to the parties to submit the name list and identity certificates of the personnel participating in the hearing, , 4. Rights and obligations of the parties and their agents; and 5. Other relevant matters concerned. Article 20 Under any of the following circumstances, the customs house shall make a decision on not holding a hearing: 1. The applicant is not a party or its agent of the case in question; 2. The applicant fails to file an application for hearing within the time limit as prescribed in Article 18 of the present Measures; 3. It does not fall within the scope as prescribed in Article 3 of the present Measures. If the customs house determines not to hold a hearing, it shall make a Notice of Not Holding Hearing on the Customs Administrative Article 21 In case two or more parties file an application for hearing respectively on a same administrative case, the hearing may hold jointly. If there are two or more parties in a case, and only some of the parties concerned file an application for hearing, the customs house If only part of the parties concerned take part in the hearing, the hearing may be hold only on the facts, evidence, and law application Chapter V Holding of the Hearing Article 22 During the hearing process, the participants and other personnel in the hearing shall abide by the following hearing disciplines: 1. The hearing participants and other personnel shall observe the hearing order, and can not make statements and arguments until after 2. The auditors shall not affect the normal going of the hearing; and 3. Anyone who wishes to make audio recording, video recording, photographing, and interview shall report to the hearing presider for Article 23 The following procedures shall be followed for the hearing: 1. The shall verify the identity of the parties and their agents, the third party and its/his agent, and the case investigators; 2. The hearing presider shall announce the name list of the hearing participants, interpreters, and authenticators, and inquire the parties 3. The announcement of the hearing disciplines; 4. The hearing presider shall announce that the hearing begins and introduce the causes for the case; 5. The case investigators shall state the illegal facts of the parties, show relevant evidences, and bring forward the decisions and 6. The parties and their agents make statements and arguments, and bring forward opinions and allegations; 7. The third party and its/his agent make statements, and bring forward opinions and allegations; 8. The hearing presider asks questions on the facts of the case, the evidence thereof, and the basis for punishment; 9. The parties and their agents, the third party and its/his agent, and case investigators make cross-examination and arguments; 10. The parties and their agents, the third party and its/his agent, and case investigators make final statements; and 11. The announcement of the ending of the hearing. Article 24 The parties and their agents, the third party and its/his agent, and the case investigators shall make cross examination on the truthfulness, Upon the approval of the hearing presider, the parties and their agents, the third party and its/his agent, and the case investigators Article 25 When making cross examination on documentary evidence, material evidence and audio-visual reference materials, the parties and their 1. If it is really difficult to show the originals or the original things, they may show the duplicates or the reproduced products upon 2. If the originals or the original things do not exist any longer, but it can prove that the duplicates or the reproduced products The audio-visual reference materials shall be broadcast or demonstrated at the conference of hearing, and shall be recognized after Article 26 The hearing shall be postponed under any of the following circumstances: 1. The parties or their agents are unable to attend the hearing due to force majeure or other justifiable reasons; 2. The hearing presider, hearing personnel or the clerk shall withdraw upon temporary decision, and it is unable to determine the substituting 3. There are circumstances of merger, division or other circumstances of reorganization of assets by any legal person or other organization 4. Other circumstances under which the hearing shall be postponed according to law. After the reasons for postponing the hearing are eliminated, the hearing presider shall determine the time for holding the hearing Article 27 Under any of the following circumstances, the hearing shall be suspended: 1. There is necessity to notify new witnesses to attend the hearing or to make an authentication once again or supplement any evidence; 2. The parties are unable to attend the hearing for the time being due to force majeure or other justifiable reasons; 3. The participants and other personnel in the hearing do not observe the hearing disciplines, which results in the chaos of the hearing 4. Other circumstances under which the hearing shall be suspended according to law. After the reasons for suspension of the hearing are eliminated, the hearing presider shall determine the time for resuming the hearing, Article 28 Under any of the following circumstances, the hearing shall be terminated: 1. The parties withdraw the application for hearing; 2. The parties fail to attend the hearing on schedule without justifiable reasons; 3. The parties exit the hearing during the holding of the hearing without justifiable reasons; 4. The parties die or the legal person or other organization that acts as one party is terminated without any successor of the rights 5. Other circumstances under which the hearing shall be terminated according to law. Article 29 Written transcripts shall be made for the hearings. The written transcripts for the hearings shall specify the following matters: 1. Causes of the case; 2. Name or post_title of the participants and other personnel in the hearing; 3. Name of the hearing presider, hearing members or clerk; 4. Time, place and ways for holding the hearing; 5. The facts and evidence of this case brought forward by the case investigators and the decision and basis for the administrative punishment 6. The contents of statements, arguments and cross-examination; 7. Testimony of the witnesses; and 8. Other matters that shall be listed as required. Article 30 The written transcripts for the hearing shall be signed or sealed by the participants and other personnel in the hearing page by page If any participant or other personnel in the hearing refuses to sign his name or seal, the clerk shall indicate this on the written Chapter VI Supplementary Provisions Article 31 In case any hearing presider, hearing member or clerk violates the relevant provisions of the present Measures, and the circumstance Article 32 Serving of legal documents as prescribed in the present Measures shall be done in accordance with the provisions of the Civil Procedure Article 33 The “day” as mentioned in the present Measures shall refer to the workday, the terms “above”, “within” and “before” shall all include Article 34 The fees for organizing the hearings on customs administrative punishment shall be borne by the customs house. Article 35 The power to interpret the present Measures shall remain with the General Administration of Customs. Article 36 The present Measures shall be implemented as of March 1, 2006. The Interim Measures of the People’s Republic of China for Hearings Notice of Hearing on Customs Administrative Punishment Custom No:[___] _____________________: Through the examination, the hearing applied by you (your enterprise) were accorded with the provision of Article 42 of Administrative (seal of the Custom) ______(year/month/day) The___________________Custom of People’s Republic of China Notice of Not Holding Hearing on the Customs Administrative Punishment Custom No:[___] _______________: Through examination, the hearing applied by you (your enterprise) were belonged to the circumstance of iterm________thereinafter: 1. The applicant is not a party or its agent of the case in question; 2. The applicant fails to file an application for hearing within the time limit as prescribed; 3. It does not fall within the scope of the hearing according to law.; or 4. ______________________________________________. The Custom decided not to hold the hearing in accordance with the provision of Article 42 of Administrative Punishment Law of the (seal of the Custom) _________(year/month/day) |
General Administration of Customs
2006-01-26