Urban Land Management Paper_Land Resources Management Paper

Urban land refers to the land resources within urban areas of cities. Below is a paper I compiled on urban land management. If you are interested, you can read it! Urban Land Management Paper Part 1

Research on Urban Land Management System

Abstract With the process of urbanization With the advancement of urbanization and the rapid development of urbanization in various places, the phenomenon of illegal land occupation and land use is increasing day by day in cities, and the problems faced by administrative law enforcement in comprehensive urban management are increasingly emerging. The relative concentration of administrative penalty power appeared for the first time in the Administrative Penalty Law. The purpose of implementing relatively centralized administrative penalty power is to solve relatively chaotic administrative penalty behaviors in the field of administrative management, thereby achieving the goals of streamlining administrative agencies and legalizing administrative penalty enforcement. Regarding the relatively centralized administrative penalties in comprehensive urban management law enforcement, both the theoretical and law enforcement circles lack attention and discussion. This article takes the land supervision system of Shenzhen Special Economic Zone as an example and the "Shenzhen Land Supervision Regulations" as a sample to analyze from the two aspects of specific provisions and mechanism construction, in order to discover the problems in the administrative penalty system for land violations and summarize the operation of the pilot work , and find ideas for solving problems and explore a more complete administrative law enforcement mechanism.

Keywords land management, comprehensive law enforcement, relatively centralized punishment power

About the author: Cong Yi, a first-level judge of the Liaoning Provincial Higher People’s Court.

CLC classification number: D922.3 Document identification code: A Article number: 1009-0592(2013)09-195-02

1. Current status of urban land management system

p>

Relevant regulations on administrative penalties for land violations are mainly concentrated in the "Land Management Law" and the "Administrative Procedure Law>. The Land Management Law clearly stipulates that it is the legal responsibility 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 focus on the punishment measures that the land law enforcement department will impose on land violators, including confiscation of illegal gains, demolition within a time limit, restoration of the land to its original state, fines, and orders to return the land, etc. Article 66 of the Administrative Litigation Law stipulates that if a citizen, legal person or other organization fails to file a lawsuit or perform a specific administrative act within the statutory time limit, the administrative agency may apply to the people's court for compulsory execution, or in accordance with the law Enforcement. ?As for the situation where a party files an administrative lawsuit, Paragraph 2 of Article 65 of the Law also stipulates that: ?If a citizen, legal person or other organization refuses to perform a judgment or ruling, the administrative agency may apply to the People's Court of First Instance for compulsory execution. , or enforced in accordance with the law. ?

2. Overview of the Land Supervision System of Shenzhen Special Economic Zone

As a special economic zone, Shenzhen was granted local legislative power by the National People’s Congress in 1992, namely the People’s Congress of Shenzhen and its Based on the specific situation and actual needs of this city, and on the premise that they conflict with the constitution, laws, administrative regulations and local regulations of the province, local regulations can be formulated and submitted to the Provincial People's Congress for approval before they can be implemented. The Shenzhen Municipal People's Congress promulgated and implemented the "Shenzhen Special Economic Zone Planning Land Supervision Regulations" in 1995, which was later revised twice in 2001 and 2005.

This regulation is based on the premise that the provisions on land violation cases in the "Land Management Law", "Administrative Penalty Law", "Urban Planning Law" (now revised as the "Urban and Rural Planning Law") and other laws need to be improved. In the context of the increasing number of land disputes in Shenzhen as a pilot special economic zone, the formulation and introduction has played a huge role in standardizing land management, promoting the urbanization process, and promoting the rapid economic and social development of Shenzhen.

This regulation has historically set a precedent for the comprehensive urban management law enforcement department to carry out land planning supervision. In Shenzhen City, the planning enforcement power or administrative penalty power is concentrated in the comprehensive urban management law enforcement department, and the planning management department no longer Possess or assume relevant administrative law enforcement powers. Comprehensive law enforcement or relatively centralized administrative penalty power has now been elevated to a legal system, and is widespread and widely used in the field of urban management in large and medium-sized cities across the country. The creation of this system clarified the main body of responsibility, clarified the division of powers, improved execution efficiency, and played a positive role in curbing land violations.

The regulations stipulate the responsibilities and jurisdiction of planning land inspection. Qualification requirements have been put forward for inspectors, and the responsibilities of the comprehensive law enforcement department of urban management have been clarified.

It stipulates in detail the procedures for filing, investigation and handling of land violation cases by law enforcement agencies. Chapter 4 stipulates compulsory measures and execution procedures to ensure that administrative penalties are implemented and effective, effectively cracking down on land violations and protecting land resources.

However, as the reform of various undertakings advances in depth, Shenzhen has faced a very serious situation in investigating and punishing illegal land use and illegal construction in recent years. Violent resistance to the law and other situations have frequently occurred. The law enforcement in the "Regulations" The measures are not stringent enough, and there is an urgent need to innovate law enforcement methods and increase legal liability. At the same time, since the implementation of the national "Administrative Enforcement Law", new requirements have been put forward for the supervision and law enforcement of planned land. Administrative enforcement such as sealing, detaining, and forced demolition during the investigation and handling of illegal construction must be implemented in accordance with legal methods and procedures.

3. Dilemmas facing the comprehensive law enforcement system of urban land management

In response to the requirements for streamlining administrative agencies and legalizing administrative penalty law enforcement, on February 25, 2005, Shenzhen City The "Shenzhen Special Economic Zone Planning Land Supervision Regulations" have been revised and comprehensive administrative law enforcement has been implemented. 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 urban management comprehensive law enforcement department is responsible for the planning and land supervision within their jurisdiction. ?At this point, Shenzhen’s centralized administrative penalty power for planning law enforcement has been transferred from the planning management department to the urban management comprehensive law enforcement department. According to the relevant provisions of the Legislative Law, comprehensive law enforcement or relatively concentrated administrative penalties have been upgraded to a legal system through local land supervision regulations as local regulations, and are gradually being learned by cities in large and medium-sized cities across the country.

The author believes that the main function of this regulation is to effectively integrate relevant powers and improve the administrative efficiency of land law enforcement. It also plays a role in streamlining the organization and avoiding the overlap of multiple departments and repeated penalties. However, this institutional innovation of using comprehensive law enforcement to concentrate administrative penalty power has been controversial in theoretical circles.

(1) Theoretical level

1. It violates the basic principle of statutory authority in administrative law theory. This approach grants the power of administrative penalties in land planning management and law enforcement to the comprehensive land management law enforcement department that centrally exercises administrative penalty powers in the form of local regulations. This has led to the actual operation of legal provisions (Urban Planning Law and Urban and Rural Planning Law). According to the provisions of the "Urban Planning Law", the qualified administrative subject to exercise the power of land management or land planning law enforcement and punishment is the local people's government at or above the county level. The administrative planning department of the district-level government has no relevant powers, does not have the relevant qualifications as a law enforcement subject, and cannot exercise Administrative licensing power and administrative penalty power in land management. However, in practice, this clear provision has been overstepped by some local governments.

2. It violates the principle of legal priority in the legitimacy of administrative law. Article 16 of the "Administrative Penalty Law" clearly stipulates the establishment of relatively centralized administrative penalty powers. The State Council and local governments have no right to establish relatively concentrated administrative penalty powers. The law has a higher level than other laws and regulations and local regulations. Outside the legislative body, Other agencies go beyond the provisions of the law and formulate regulations and rules that conflict with the law, which obviously violates the basic principle of legal priority in administrative law.

3. Violates the principle of unity of the legal system. For the same illegal act, different departmental laws have separately provided for it. If the old law has not been abolished, the formulation of new laws, regulations and norms is likely to cause law enforcement agencies to implement significantly different law enforcement for the same or similar illegal acts. Behavior. This is the discretionary behavior that our administrative law theorists have been paying attention to in recent years. This will inevitably lead to confusion in the application of legal norms and affect the legal unity of administrative law enforcement. (2) Realistic dilemma

1. Law enforcement efficiency is low. In addition to theoretical problems, in practice, the concentration of administrative penalty power also faces problems that affect the efficiency of law enforcement. Take the Shenzhen Land Supervision Regulations as an example. The regulations clearly stipulate that the power of administrative penalties for planning management is concentrated in the land supervision and management department. But in reality, the land supervision and management department seems to be unable to do what it wants. Faced with the highly professional issues of land management, law enforcement officers can only learn what they are doing and scratch their heads. In the face of normal law enforcement to investigate and deal with illegal buildings, they have to go to the planning department to check whether the building approval procedures are complete; they also have the obligation to provide remedial measures to the persons subject to enforcement, which seriously reduces the efficiency of administrative law enforcement.

2. Enforcement is difficult.

Still taking planning law enforcement as an example, since the administrative agencies with relatively centralized administrative penalty powers are professionals specialized in centralized penalties, they generally do not participate in the preparation of urban planning, and they lack understanding of the site selection, demonstration and issuance of certificates for specific planning projects. , the lack of understanding of the relevant situations of illegal construction projects directly leads to the lack of confidence and persuasion in the law enforcement process, and a relatively passive situation in the interaction with the parties. This also directly affects the intensity of law enforcement work and brings benefits to daily law enforcement. Come to greater difficulty.

IV. Legislative suggestions for relatively concentrated penalties for urban land violations

The relatively concentrated administrative penalty system is a theoretical and practical innovation that emerged when the development of administrative law enforcement in our country is not yet perfect. , 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 continues to increase. We also find that there are many theories and theories surrounding the relatively centralized administrative penalty power. Practical issues await our further attention and discussion. In the current situation where the difficulty of comprehensive law enforcement in urban management continues to increase, in order to avoid the absence of management, we still need to further improve and adjust the relevant systems to promote the further improvement of the urban land management mechanism.

First, strictly implement the principle of statutory authority. It is necessary to further refine the illegal activities, comprehensively sort out and analyze illegal construction, clarify the law enforcement responsibilities of each unit, and enforce the law for different behaviors by different departments. On the basis of classification, departments that can only be similar should be appropriately integrated, and procedural administrative law enforcement processes that are not highly specialized should be appropriately centralized. This will not only further improve the efficiency of administrative law enforcement, but also facilitate the division of labor and collaboration between various departments, each performing its duties, and ultimately achieving a good law enforcement situation with no dead ends or gaps.

Second, include both individuals and state agencies under supervision. In recent years, some units and individuals have seriously violated planning land laws and regulations. However, the relevant laws do not clearly provide for the handling of illegal activities by agencies, which has resulted in "unequal law enforcement". Therefore, it is necessary to clearly include all units and individuals such as state agencies using land and constructing in special zones into the scope of supervision, which embodies the legal principle of "everyone is equal before the law" and will be conducive to investigating and curbing the activities of a small number of state agencies in planning land. illegal activities, improve the authority of law enforcement, and promote the rule of law.

Third, we must innovate law enforcement measures. In the actual law enforcement process, some parties refuse to bear the compulsory demolition fees. In response to this situation, the regulations should learn from the advanced practices of domestic and foreign cities and innovate law enforcement measures, such as adding provisions on "preservation measures" for compulsory demolition fees. Increase the amount of additional fines; in the event that parties fail to fulfill administrative penalty decisions, additional provisions should be added to notify the relevant administrative agencies in writing to suspend administrative licensing, approval, and registration involving illegal matters; in response to violence encountered in planning land supervision work In cases of resistance to the law, crimes, etc., provisions should be added to establish a mechanism for public security agencies to intervene in planned land supervision work.

Fourth, try to avoid conflicts with relevant legal systems. In accordance with the provisions of the "Administrative Enforcement Law" and the "Administrative Penalty Law", it is necessary to sort out and standardize the administrative enforcement measures commonly used in the planning land supervision and law enforcement process such as sealing and detaining and forced demolition, as well as the confiscation of illegal income, illegal construction and If the specific implementation procedures, related cost responsibilities, legal deadlines, etc. of administrative penalties for other facilities must be added or revised, the daily necessities of individual citizens and their dependent family members shall not be seized or detained. The storage costs incurred due to seizure or seizure shall be borne by The administrative agency is responsible for violating the time limit provisions of Article 25 of the Administrative Enforcement Law. The period of sealing or detaining shall not exceed 30 days; in complex cases, it may be extended with the approval of the person in charge of the administrative agency, but the extension period shall not exceed 30 days. ? and other regulations.

Fifth, increase penalties for illegal construction and other behaviors. Judging from the implementation of the "Shenzhen Land Supervision Regulations", there are currently many illegal buildings in Shenzhen that are built to withstand the wind. The regulations should increase the punishment for such phenomena and improve Articles 44 and 40 of the regulations. The fine amount under Article 5 will be raised from RMB 20,000 to RMB 200,000 to effectively deter lawbreakers and curb illegal private construction.

In summary, the necessity, urgency and applicability of reforming and innovating the urban land management and law enforcement system have become common knowledge.

While further improving the administrative litigation, administrative reconsideration, and other relief systems, we should rely on comprehensive law enforcement in urban management to carry out reforms and innovations from both the legislative and law enforcement levels, effectively standardize law enforcement behavior, improve land management law enforcement efficiency, thereby reducing and Avoid adverse consequences caused by improper enforcement of laws.

References:

[1] Chen Ping. Improvement of the legal system for land acquisition. Journal of Anhui University (Philosophy and Social Sciences Edition). 2004(3).

< p>[2] Tian Menghai, Wu Enyu, Wu Yifeng, Zhao Dong. Establish rules for planning. Zhejiang People's Congress. 2010(7).

[3] Yang Weili. When can we bid farewell to illegal construction in residential areas? Concentrate Remediation?. Modern Property. 2009(11).

[4] Duan Chaoli. Research on illegal construction management issues and countermeasures from the perspective of urban management law enforcement. Shandong University. 2010.

[5 ] Wang Yichuan. Innovation of local governance model in the process of urbanization. Fudan University. 2010.

[6] Tang Mahuan. Research on problems and government countermeasures in the process of urbanization. Shanghai Jiao Tong University. 2008 .

Click on the next page for more >>>Urban Land Management Papers