试题与答案

关于行政处罚的行政程序,下列说法正确的是( )。A.对于行政机关作出的行政处罚,当

题型:单项选择题

题目:

关于行政处罚的行政程序,下列说法正确的是( )。

A.对于行政机关作出的行政处罚,当事人有要求听证的权利
B.行政机关应该在举行听证的5日前,通知当事人举行听证的时间和地点
C.听证应当公开举行,但涉及国家秘密、商业秘密、个人隐私以及经当事人申请不公开的除外
D.听证结束后,行政机关应当根据听证笔录作出决定

答案:

参考答案:D

解析:[考点] 行政处罚听证程序
我国《行政处罚法》第42条规定,行政机关作出责令停产停业、吊销许可证或者执照,较大数额罚款等行政处罚决定之前,应当告知当事人有要求举行听证的权利……根据这一规定,只有在行政机
关作出将对当事人的重大利益产生影响的行政处罚,如责令停产停业、吊销许可证或者执照、较大数额罚款等行政处罚时,当事人才有要求举行听证的权利,而非对所有的行政处罚都有权要求听证。故A项错误。
《行政处罚法》第42条第1款第2项规定,行政机关应当在听证的7口前,通知当事人举行听证的时间、地点。因此B项是错误的。
该法第42条第1款第3项规定,除涉及国家秘密、商业秘密或者个人隐私外,听证公开举行。根据这一规定,听证公开举行是一般原则,不公开是例外。而不公开举行听证只有法律规定的三种情况,当事人申请不能成为听证不公开举行的法定理由。故C项错误。
D项考查听证笔录的效力问题。听证是指行政机关在作出行政处罚之前,由行政机关派专人主持听取案件调查人员和当事人就案件事实、处罚理由以及使用依据进行陈述、质证和辩论的法定程序。听证的实质在于听取当事人的申辩,查清事实,以保证行政处罚的程序和实体公正,保护当事人合法权益。因而,经严格法定程序举行听证的笔录,是行政机关进行处罚的依据。故D项正确。

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