| Less land with a large population is China’s reality.Conservation,protection and rational use of land is not only a moral obligation but also a legal obligation of each citizen. In order to strengthen management of land,a comprehensive system,including Land Administration Law,land use planning and a large number of local laws,regulations and other regulatory documents has been built up, groups of control and management policies been carried out, the national supervision system been established, powerful and dynamic actions of land investigation and reorganization like "A-hundred-day Action" been taken, and even indicators of investigation and punishment been assigned to provinces for enforcement.However,illegal land use cases are continually emerging,administrative means seems to be powerlessness to illegal land use activities.This forces us to analyze reasons deep within the management system and try to find a way out.Reality tells us that there exist flaws in our current legal protection system dominated by authority organs which have a direct impact on management effectiveness.On the one hand,oweing to the government being not only busy,but also needing to supervise a large area of land,no matter how willing they are,and how hard they try,cases of oversights and omissions,disparity and delaying are bound to be inevitable. On the other hand, local governments often bear heavy pressure of economic development currently, while land is the most scarce resources.and there is huge profit margin in "transfer of non-agricultural land","agreement to sell" and "auction ".To solve the problem of insufficient funds in development,a few local government leaders are bound to use land to solve practical difficulties and problems.Since local governments need to do so, management of power is unlikely not to be affected.The above situation tells us that administrative authorities needs a strong rival of restraint and social supervision especially supervision from law for their shortcomings.But according to provisions of the Administrative Procedure Law of China,only those who have a direct interest with the specific administrative act have right to legal proceedings.This means that persons of no legal interest can not bring a litigation. In spite of caring about "destiny" of the land,ordinary people are not "directly interested party" by law,and are often unable to prove "direct interest" with the specific administrative act, therefore they have no right to sue which makes effective supervision become difficult.Administrative public interest litigation on land use is a powerful external supervision.The reason is as follows:firstly,it is judicial supervision,which follows strict statutory procedures and can avoid administrative organs" random and "stubbornness."Thirdly,it is supervision of much more extensive,which can overcome drawbacks of supervision from limited monitors. In addition,internally the public nature of China’s land is consistent with public interest litigation,which makes this kind of litigation the most reasonable form of supervision.It can ultimately be helpful to achieve our national strategic objective of land resources security by setting the new litigation on land use.Solid bases for establishment of public interest litigation are discussed from two different angles.namely the extraterritorial practice and theoretical bases respectively.(1) Lots of experiences can be brought to use.There exists wealth of practical experiences in western countries,some of which have even had relevant experiences for more than one hundred years.Those experiences can certainly be "brought" to transform and localize.(2) Sufficient theoretical bases and favorable social backgrounds are to support it.One is solid theoretical bases.the people’s sovereignty and power constraints are new requirements of the times from viewpoint of political science.From viewpoint of the economic, institutional change and reduction of transaction costs are objective law.From viewpoint of sociology,democratic participation and social rights are trends of development.From viewpoint of ecology.scientific development is of coordination between economic and ecology.of long-term and sustainablity.From viewpoint of law science.Theory of the proper party has already been deeply developed, modern legal proceedings have already broken through the traditional direct stakeholders of the plaintiffs eligibility restrictions, many countries have admitted indirect stakeholders for the public interest the status of eligible plaintiff; the traditional concept of "No interest is no right of appeal" has already updated,persons who safeguard the public interest began to be recognized the right of appeal. The public land has been trusted to the government, the government should diligently manage the trust property, prevent things against public interests.The other is that political, economic, cultural Conditions tends to become mature.In recent years,three factors like continuous improvement of domestic democracy, deepening of market economy and the emergence of multi-culture are all compatible with those developed countries’whose public interest litigation is advanced.This is certainly beneficial to our building Administrative public interest litigation on land use.This research analyzes serious situations breaking the law from administration bodies and their great damage to public interest,analyzes defects of the legal protection system nowadays,points out necessity, feasibility of building up Administrative public interest litigation on land use and its contents,analyzes possible factors affecting trial and carrying out sentence after structuring the new system. There having already existed paragraghs to deal with relevant contents in this abstract at the very beginning.Serious situations breaking the law from the administration and defects of the administration, necessity of the new system will be omitted here.Besides, building-up the new system has feasibility for mature conditions of democracy,economy and legal consciousness in China.This thesis insists that the new system may meet the same obstacles as common administrative lawsuit does currently like powerful Administration authority,heavy responsibility of stabilizing and difficulty of actual implementation for sake of present systems, environments etc.This thesis focuses on three aspects of Administrative public interest litigation on land use, namely subjects and bringing trials and guarantee respectively.Technically, omitted common aspects to ordinary administrative proceedings as possible.That is to say, this thesis discusses non-special contents only for neccesity of style completion.Subjects are the premise of the new system running, including courts of jurisdiction, plaintiffs, defendants and third parties.Among them,"courts of jurisdiction" is also content of guarantee of the new systen and therefore is arranged in Chapter8."Plaintiffs" include local villagers,residents and the People’s Procuratorate in the region."Defendants" refers to land administration authorities. Because the defendant’s conduct may involve others’interests, third party issues are also important contents of the new system. Case ranges are important problems,which will have a direct influence on extent of judicial protection of land. Based on the current situation,to open to all fields of land disputes would be unrealistic and non-scientific. As an attempt,the best choice is to introduce administrative public interest litigation to control situations of most serious, most frequent harms deriving from vacancy of community supervision in advance.According to Land Administration Law and other normative documents, combined with land management practice, at present,case ranges are suitable to be limited to four types of administrative cases:firstly, administrative cases of illegal permission,secondly,administrative cases of illegal occupation.thirdly, administrative cases of idle,destruction and illegal diversion,forthly,administrative cases of illegal transferrence.The part of bringing a suit and accepting a case and the part following it includes statutory pre-procedure, bringing a suit and filing a case.and solving multiple suit conflicts.This research suggests that a statutory pre-procedure be set for reasons of relationship between judicial power and the executive power, for this is helpful to play their advantages respectively,Since the new litigation on land use is different in plaintiffs and jurisdiction procedure from ordinary administrative proceedings,it is necessary to limit conditions for prosecution.As to multiple suit conflicts, only if it occurs before sentence,joiner’s theory of the ordinary administrative proceedings can be used.The part of litigation system includes three parts namely organizations,trial and referee types respectively.The part of trial includes proceedings,inversion of burden of proof, the width of review as well as a certain depth.Types of referee include judgments,rulings and decisions.This study suggests that Administrative public interest litigation on land use cases should be heard by the Full Court and the defendant is responsible for burden of proof. Administrative public interest litigation on land use should review the implementation of laws,specifically including four elements,namely the executive’s statutory authority, necessary evidences to support the factual conclusion of the specific administrative act, the correct interpretation of the law and their outcomes,lawful procedures of the specific administrative act.The width of the review as well as a certain depth is required. The court has no power to review the executive’s discretionary act,but has power to review factual issues, interpretation and applying of normative documents like rules and regulations and rules and regulations below.Types of sentences focus on revocation decision, performance decision,case decision and so on.Rulings and decisions are the same as normal administrative litigation,but there are differences.Guarantees of litigation are also important to the new system,including three different perspectives namely parties’exercising their own rights properly, courts exercising judicial power independently and implementation respectively.The part of parties’exercising their own rights properly includes protecting the right to appeal and appealing against abuse, determining appropriate fees,limiting disposition of rights and special period of permitting bringing a suit.This study suggests that the right to appeal be protected while appealing against abuse, prosecution fees be charged necessarily except the Prosecution, criteria of existing cases can be refered to and fees reduced appropriately. The court has the power of whether or not permitting withdrawal. Withdrawal can be permitted if upon examination the defendant has changed the specific administrative act,ruled out damage to the land or threat of harm.Otherwise,it is of no permission of withdrawal. Being for common interest,the plaintiff should not be restricted by limitation period. The part of courts exercising judicial power independently includes rationalizing relationship between judicial organs and leadership by the Party, supervision by the NPC.and reasonably determining jurisdiction of cases.The study tells us that knowledgeof relationship between the two is more important now,the way of work should be changed,and independence of the courts should be given. The trial level of Administrative public interest litigation on land use case should be raised and tried under jurisdiction of local intermediate people’s courts or above where real property land lies in Guarantees of execution includes delivery of sentences and improvement of cadres’examination reward and punishment system.The study suggests that the content of sentences should be carried out by way of delivery in stead of applying for within a certain period of time,and that cadres’examination reward and punishment system be revised and improved to effectively solve violations of the law for "public".To enrich argument, this thesis analyzes problems from two actual cases related to Administrative public interest litigation on land use on basis of the above discussion.One is the Nanjing Purple Mountain Observatory case,the other is citizens of sueing Qingdao City Planning Bureau.This paper gives a in-depth analysis,comparison and discussion after briefly introducing facts of the two cases.Oweing to great importance of land resources,it is concluded that formal legislation should be carried out.Althougt procedures being cumbersome and time long,making legislation by the NPC and its Standing Committee is the only way to change the present situation. According to reality,it is suitable to change law by adding provisions within present laws:(1)add terms concerning the People’s Rocuratorate’s power of bringing land administrative public interest suits in the "Organic Law of the People’s Procuratorate".(2)add terms concerning right of local villagers.residents and the People’s Procuratorate in the region.add terms of no period limitation of bringing administrative public interest litigations in "Land Administration Law".(3) add terms " Administrative public interest litigation on land use cases"in "Administrative Procedure Law," add terms in other parts of the law concerning conditions of the plaintiff to sue provisions, Judgments and orders in force judgments and decisions being delivered directly by the people’s court, costs being appropriatly reduced, and so on.Of course, this thesis can only give a brief description of land administrative public interest suit, provide a new method in the way of land administration. The normal and orderly administration of land will come into being only by long-term practice and exploration. |
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