[Key words]
Administrative / enforcement / violation
[introduction of the lawyer in this case]
Dai Suning, partner of Liaoning Tongfang law firm, graduated from the Law School of Liaoning University with a master's degree in law.
In recent years, lawyer Dai Suning's main business areas include administrative litigation, banking and finance, insurance business and construction engineering legal services.
[referee points]
If the owner of the above ground buildings of the original land demolishes the original above ground buildings and builds houses again after the nature of the land is changed from agricultural land to state-owned land, he shall obtain the corresponding approval procedures of the construction project planning permit. If the relevant formalities are not obtained, the competent authority shall recognize the house as an illegal building, and after performing the legal procedures, the administrative enforcement decision on the illegal building complies with the legal provisions. If the owner of the building requests the court to revoke the decision on administrative compulsory execution, it shall not support it.
[basic case]
The land involved in the case was originally agricultural land. In 2009, the provincial government issued a land use reply, converting the land involved in the case into construction land and expropriating it as state-owned. Zhao Guoxin started to build the buildings involved in the case on the land involved in the case at the end of 2010. On March 13, 2018, the District Law Enforcement Bureau made a decision on administrative punishment, determined that the buildings involved in the case owned by Zhao Guoxin were illegal construction, and ordered Zhao Guoxin to remove them within a time limit. On April 12, 2018, Zhao Guoxin received the enforcement decision made by the District Law Enforcement Bureau and proposed administrative reconsideration. On July 12, 2018, the district government made a reconsideration decision and maintained the decision made by the District Law Enforcement Bureau. Zhao Guoxin believes that the land involved in the case is agricultural land, and the above ground buildings are built for agricultural production and breeding, and the land use has not been changed. In addition, the land acquisition and demolition are being carried out within the scope of the buildings involved in the case, and the administrative organs have not exercised their functions and powers in a way that has little impact on Zhao Guoxin, such as paying a fine and going through corresponding formalities, and the implementation decision has not informed the relief channel in accordance with legal procedures, Apply to the court to cancel the decision on administrative enforcement made by the District Law Enforcement Bureau and the decision on administrative reconsideration made by the district government.
[judgment result]
Judgment result of the first instance: Zhao Guoxin's claim was rejected.
Judgment result of the second instance: the appeal was rejected and the original judgment was upheld.
[reasons for adjudication]
According to Article 39 of the regulations of Shenyang on urban and rural planning: in the urban and town planning areas, if the construction is carried out without obtaining the construction project planning permit, or the construction is not carried out in accordance with the provisions of the construction project planning permit, the urban management administrative law enforcement department shall order the construction to be stopped and the demolition within a time limit. In addition, according to Article 3 of the provisions of Shenyang on the administrative punishment power of relatively centralized urban management, the municipal urban management administrative law enforcement bureau is an administrative law enforcement organ authorized by the State Council and approved by the provincial government to exercise the administrative punishment power of relatively centralized urban management, specifically exercising the administrative punishment power of the city's relatively centralized urban management, Therefore, the defendant Shenyang Hunnan District Urban Management Comprehensive Administrative Law Enforcement Bureau has the statutory authority to make the decision on administrative enforcement. The village committee where the plaintiff Zhao Guoxin's land involved in the case was located signed a land acquisition agreement with the government in 2006, and the provincial government gave an official reply to this batch of land in 2009. The land involved in the case was converted into state-owned construction land. Since the plaintiff did not obtain the construction project planning permit for the houses built on the state-owned land involved (cultivated land before expropriation), the administrative punishment decision made by the defendant's Law Enforcement Bureau complies with the legal provisions. Because the plaintiff in this case did not automatically perform the obligation of demolition, the defendant Hunnan law enforcement bureau made the notice of administrative enforcement, the announcement of administrative enforcement and the decision of administrative enforcement. Since the decision on administrative punishment on which the decision on administrative enforcement is based has taken legal effect, the defendant has also performed the corresponding legal procedures in accordance with the administrative enforcement law. Therefore, the decision on administrative enforcement made by the defendant Hunnan law enforcement bureau clearly identifies the facts, the procedures are legal, and the applicable laws are correct. The procedure of the defendant's decision on administrative reconsideration (shzfz (2018) No. 5) made by the people's Government of Hunnan District of Shenyang City is legal.
[relevant provisions]
Shenyang urban and rural planning regulations
Article 39 Where a construction project is carried out in a planned area of a city or town without obtaining a construction project planning permit, or without carrying out the construction in accordance with the provisions of the construction project planning permit, the municipal urban management administrative law enforcement department shall order it to stop the construction; If corrective measures can be taken to eliminate the impact on the implementation of the plan, correction shall be made within a time limit and a fine of not less than 5% but not more than 10% of the construction cost shall be imposed; If it is impossible to take corrective measures to eliminate the impact, it shall be demolished within a time limit; if it is impossible to demolish, the physical objects or illegal income shall be confiscated, and a fine of not less than 5% but not more than 10% of the construction cost may be concurrently imposed.
Provisions on administrative punishment power of relatively centralized urban management in Shenyang
Article 3 the municipal urban management administrative law enforcement bureau is an administrative law enforcement organ authorized by the State Council and approved by the provincial government to exercise relatively centralized urban management administrative punishment power, specifically exercising the relatively centralized urban management administrative punishment power of this city.
Each district, county (city) urban management administrative law enforcement branch shall exercise relatively centralized urban management administrative punishment power within its jurisdiction.
[lawyer's opinion]
For the construction of houses on state-owned land, corresponding approval procedures for construction project planning permit shall be obtained. For illegal buildings without obtaining relevant formalities, the relevant administrative organs have the right to make the decision of administrative enforcement on illegal buildings after performing the legal procedures.
The special feature of this case is that the land involved in this case was originally collective agricultural land. After the government made a land use reply, the land involved in this case was converted into construction land and expropriated as state-owned land. However, the nature of the land where the building involved in the case started construction has been changed to state-owned land, and the party concerned has not obtained the corresponding examination and approval procedures for the construction project planning permit. Under such circumstances, the relevant administrative authorities recognized the building as an illegal building and made the administrative enforcement decision on the illegal building after performing the legal procedures.