Research on Urban Land Management System
With the advancement of urbanization and the rapid development of urbanization in various places, the phenomenon of illegal land occupation and land use in cities is increasing day by day, and the problems faced by administrative law enforcement of urban comprehensive management are increasingly apparent. The power of relatively centralized administrative punishment first appeared in the administrative punishment law. The purpose of implementing relatively centralized administrative punishment power is to solve the chaotic administrative punishment behavior in the field of administrative management, so as to realize the goal of streamlining administrative institutions and legalizing administrative punishment law enforcement. Theoretical and law enforcement circles lack attention and discussion on the relatively centralized administrative punishment right in urban comprehensive management law enforcement. This paper takes the land supervision system in Shenzhen Special Economic Zone as an example, and the Regulations on Land Supervision in Shenzhen as a sample, and analyzes it from two aspects: specific provisions and mechanism construction, with a view to discovering the problems existing in the administrative punishment system for land violations, summarizing the operation of the pilot work, finding solutions to the problems and exploring a more perfect administrative law enforcement mechanism.
Keywords: relatively centralized punishment power for comprehensive law enforcement of land management
About the author: Yi Cong, a first-class judge of the Higher People's Court of Liaoning Province.
China Library Classification Number: D922.3 Document Identification Number: Part A Number:1009-0592 (2013) 09-195-02.
First, the status of urban land management system
Laws and regulations on administrative punishment for illegal land activities are mainly concentrated in the Land Administration Law and the Administrative Procedure Law. "Land Management Law" clearly stipulates that it is the legal duty of land law enforcement departments to supervise and inspect violations of land management laws and regulations. Articles 73 to 84 of Chapter 7 of the Law list the punishment measures taken by the land law enforcement departments against the parties who violate the law on land, which mainly include confiscation of illegal income, demolition within a time limit, restoration of the land to its original state, fines and orders to return it. Article 66 of the Administrative Procedure Law stipulates that. If a citizen, legal person or other organization neither brings a lawsuit nor performs a specific administrative act within the statutory time limit, the administrative organ may apply to the people's court for compulsory execution, or enforce it according to law. ? Paragraph 2 of Article 65 of the Law also stipulates the circumstances in which a party brings an administrative lawsuit. If a citizen, legal person or other organization refuses to perform the judgment or ruling, the administrative organ may apply to the people's court of first instance for compulsory execution, or enforce it according to law. ?
Two. Summary of Land Supervision System in Shenzhen Special Economic Zone
As a special economic zone, Shenzhen was granted the local legislative power by the National People's Congress in 1992, that is, the Shenzhen Municipal People's Congress and its federations can formulate local laws and regulations according to the specific conditions and actual needs of this city, on the premise that different constitutions, laws, administrative regulations and local regulations of this province are in conflict, and they will be implemented after being approved by the provincial people's congress. In 1995, Shenzhen Municipality promulgated and implemented the Regulations on Supervision of Planning Land in Shenzhen Special Economic Zone, and revised it twice in 2000/kloc-0 and 2005.
On the premise that the provisions of the Land Administration Law, the Administrative Punishment Law, the Urban Planning Law (now revised as the Urban and Rural Planning Law) and other laws on illegal land cases need to be improved, and in the context of increasing land disputes in Shenzhen as a special economic zone, the Regulations have played a huge role in standardizing land management, promoting urbanization and promoting the rapid economic and social development of Shenzhen.
This regulation has historically created a precedent for the comprehensive law enforcement department of urban management to carry out land planning supervision. In Shenzhen, the power of planning law enforcement or administrative punishment is concentrated in the comprehensive law enforcement department of urban management, and the planning management department no longer owns or undertakes the relevant administrative law enforcement power. Comprehensive law enforcement power or relatively centralized administrative punishment power has now become a legal system, which is widely existing and widely used in the urban management field of large and medium-sized cities in China. The establishment of this system has clarified the subject of responsibility, the division of power, improved the efficiency of implementation, and played a positive role in curbing land violations.
The "Regulations" stipulate the responsibilities and authority of planning land supervision. The qualification requirements of supervisors are put forward, and the responsibilities of urban management comprehensive law enforcement departments are clarified. Detailed provisions of the law enforcement agencies to file a case, investigate and deal with illegal land cases process. The fourth chapter provides compulsory measures and enforcement procedures to ensure that administrative penalties are implemented and achieved results, effectively crack down on land violations and protect land resources.
However, with the deepening of various reforms, in recent years, the situation faced by Shenzhen in investigating illegal land use and illegal construction is very severe, and violent anti-law incidents occur frequently. The law enforcement measures in the regulations are not strict enough, so it is urgent to innovate law enforcement means and increase legal responsibility. At the same time, since the implementation of the national administrative compulsory law, new requirements have been put forward for the supervision and enforcement of land planning. The investigation and punishment of administrative compulsory acts such as seizure, seizure and forced demolition in the process of illegal construction needs to be implemented in accordance with legal methods and procedures.
Third, the plight of urban land management comprehensive law enforcement system
In response to the requirements of streamlining administrative institutions and legalizing administrative punishment enforcement, on February 25th, 2005, Shenzhen revised the original Regulations on Supervision of Planning Land in Shenzhen Special Economic Zone and implemented comprehensive administrative enforcement. The regulations clearly stipulate that the planning and land management departments are responsible for the guidance and supervision of planning and land supervision respectively; The comprehensive law enforcement department of urban management is responsible for the supervision of planned land use within its jurisdiction. ? At this point, the centralized administrative punishment power of planning law enforcement in Shenzhen has been transferred from the planning management department to the comprehensive law enforcement department of urban management. According to the relevant provisions of the legislative law, comprehensive law enforcement or relatively centralized administrative punishment has become a legal system through this land supervision regulation as a local regulation, and has gradually been used for reference by large and medium-sized cities across the country.
The author believes that the main function of this regulation is to effectively integrate relevant powers, improve the administrative efficiency of land law enforcement, and at the same time, it also plays a role in streamlining institutions and avoiding the situation of repeated punishment by multiple departments. However, the system innovation of centralized administrative punishment power of comprehensive law enforcement has always been controversial in the theoretical circle.
Theoretical level
1. It violates the basic principle of statutory authority in administrative law theory. This practice gives the power of administrative punishment to the comprehensive law enforcement department of land management, which exercises the power of administrative punishment in the form of local regulations, resulting in conflicts between practical legal provisions (urban planning law and urban and rural planning law). According to the provisions of the Urban Planning Law, the qualified administrative subject exercising the power of land management or land planning law enforcement punishment is the local people's government at or above the county level, and the administrative planning department of the district-level government has no relevant functions and powers, does not have the qualification of relevant law enforcement subject, and cannot exercise the power of administrative license and administrative punishment in land management. However, in practice, some local governments have gone beyond this explicit provision.
2. It violates the principle of legal priority in the legitimacy of administrative law. Article 16 of the Administrative Punishment Law clearly stipulates the establishment of relatively centralized administrative punishment power. The State Council and local governments have no right to establish relatively centralized punishment power, and the rank of laws is higher than other laws and local regulations. Organs other than the legislature go beyond the legal provisions and formulate laws and regulations that contradict the law, which obviously violates the basic principle of priority of administrative law.
It violates the principle of legal unity. For the same illegal act, different departmental laws have made provisions respectively. In the case that the old laws have not been abolished, the formulation of new laws, regulations and norms is likely to lead law enforcement agencies to make completely different law enforcement actions against the same or similar illegal acts. This is also the discretionary behavior that the administrative law theorists in China have been paying attention to in recent years, which will inevitably lead to the confusion in the application of legal norms and affect the legal unity of administrative law enforcement. (B) the real dilemma
1. Law enforcement is inefficient. In addition to theoretical problems, in practice, the power of centralized administrative punishment also faces problems that affect the efficiency of law enforcement. Take "Shenzhen Land Supervision Regulations" as an example, the regulations clearly stipulate that the administrative punishment power of planning management is concentrated in the land supervision and management department. However, in reality, the land supervision and management departments are unable to cope with the professional problems of land management, and law enforcement officers can only learn while selling, scratching their heads. In the face of normal law enforcement to investigate and deal with illegal buildings, we have to go to the planning department to inquire whether the approval procedures for the building are complete; It also shoulders the consulting obligation of providing remedial measures for the executed person, which seriously reduces the efficiency of administrative law enforcement.
2. Law enforcement is very difficult. Still taking planning law enforcement as an example, because the administrative organs with relatively centralized administrative punishment power are specialized personnel engaged in centralized punishment, they generally do not participate in the preparation of urban planning, and they also lack understanding of the site selection, demonstration and certification of specific planning projects. Not knowing about illegal construction projects directly leads to their lack of confidence and persuasiveness in the process of law enforcement, and they are in a passive position in the process of interacting with the parties, which also directly affects the intensity of law enforcement and brings great difficulties to daily law enforcement.
Fourth, legislative suggestions on the relative centralized punishment right of urban land violations.
The system of relatively centralized administrative punishment power is a theoretical and practical innovation under the imperfect development of administrative law enforcement in China, and has achieved certain results in practice. However, with the continuous improvement and development of the rule of law and the continuous development of social economy, the demand for social management is increasing. We also find that there are many problems in the theory and practice of the power of relatively centralized administrative punishment, which need our further attention and discussion. At present, with the increasing difficulty of comprehensive law enforcement of urban management, in order to avoid the absence of management, it is still necessary to further improve and adjust relevant systems and promote the further improvement of urban land management mechanism.
First, strictly implement the principle of statutory authority. It is necessary to further refine the illegal acts, comprehensively sort out and analyze the illegal construction, clarify the law enforcement responsibilities of all units, and enforce the law by different departments according to different acts. On the basis of classification, the departments that can only be similar should be properly integrated, and the procedural administrative law enforcement process with weak professionalism should be properly concentrated. This can not only further improve the efficiency of administrative law enforcement, but also facilitate the division of labor and cooperation among various departments, and finally realize it? No dead ends, no blanks? Law enforcement is in good condition.
Second, individuals and state organs should be included in the supervision. In recent years, some units and individuals have seriously violated the laws and regulations on planned land use, but the relevant laws have not clearly stipulated the handling of illegal acts by the organs, resulting in? Unequal law enforcement? Phenomenon. Therefore, it is necessary to clearly include all state organs and individuals that use land and carry out construction in the special zone in the scope of supervision, which reflects? Everyone is equal before the law? The statutory principle of law will help to investigate and curb the illegal acts of a few state organs in land planning, improve the authority of law enforcement and promote the rule of law.
Third, we must innovate law enforcement means. In the actual process of law enforcement, some parties refused to bear the compulsory demolition fee. In view of this situation, the regulations should learn from the advanced practices of cities at home and abroad and innovate law enforcement measures, such as adding information on? Safeguard measures for compulsory demolition expenses? Set and increase the amount of fines; In view of the fact that the party concerned fails to perform the decision on administrative punishment, it should be aggravated? Notify the relevant administrative authorities in writing to suspend the handling of administrative licensing, examination and approval and registration involving illegal matters? Other provisions; In view of the violent resistance to the law and illegal and criminal acts encountered in the supervision of planned land, should it be increased? Establish a mechanism for public security organs to intervene in planning land supervision? Rules.
Fourth, try to avoid conflicts with relevant legal systems. According to the provisions of the Administrative Compulsory Law and the Administrative Punishment Law, it is necessary to sort out and standardize the administrative compulsory measures such as sealing up and detaining and the administrative compulsory measures such as forced demolition in the process of land supervision and law enforcement, as well as the specific implementation procedures, related expenses and legal deadlines. Confiscation of illegal income, illegal buildings and other facilities and other administrative penalties. Is it necessary to add or modify them? Shall not seal up or detain the daily necessities of individual citizens and their supporters. ,? The storage expenses arising from sealing up or detaining shall be borne by the administrative organ? ,? Violation of the time limit provisions of the administrative compulsory law Article 25 The time limit for sealing up or detaining shall not exceed 30 days; If the situation is complicated, it may be extended with the approval of the person in charge of the administrative organ, but the extension period shall not exceed 30 days? And other regulations.
Fifth, increase penalties for illegal construction and other acts. Judging from the implementation of the Regulations on Land Supervision in Shenzhen, many illegal buildings in Shenzhen are built against the wind. We should increase the punishment for this phenomenon in the Regulations, increase the fines in Articles 44 and 45 of the Regulations, and raise the upper limit of 20,000 yuan to 200,000 yuan, so as to effectively deter illegal elements and curb illegal construction.
To sum up, the necessity, urgency and applicability of reforming and innovating the law enforcement system of urban land management have become * * * knowledge. At the same time, we will further improve the relief systems such as administrative litigation and administrative reconsideration. Relying on the comprehensive law enforcement of urban management, we should carry out reform and innovation from two levels of legislation and law enforcement, effectively standardize law enforcement behavior, improve the efficiency of land management law enforcement, and thus reduce and avoid the adverse consequences caused by improper law enforcement.
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