On The Fundamental Issues Of Urban Planning Legal System

Urban (or City) is one of the most complicated social organizations our human-being has created. Its relationship of interests is so complex that almost everything regulated by law can be found in the urban society. Urban planning comes about at the same time with the urban, but research on it has happened only half of one hundred year ago. Urban planning is a comprehensive knowledgeable system referring to architecture, economics, politics, sociology, law, environmental knowledge, psychology, aesthetics and so on. Most of present researches are concentrating on urban planning itself, few from the angel of law, no matter from administrative law. The rationality of urban planning would affect the harmonious development of the urban and the achievement of the whole social welfare, for its close relationship to urban arrangements of important things such as economic, society and ecological environment in a long period. Meanwhile, urban planning plays vital influences on citizen's rights and interests for its course of enforcing always tied with expropriation and demolition. So basing on the theory of Rule of Law and Human Rights Protection, behavior of urban planning ought to be regulated, supervised and governed by law.Now our country is being in a period of rapid urbanization, which has characteristics of China for its background of our country's certain history and reality, as a result, our system of urban planning is much deferent from the foreign one. So legal research on urban planning should pay more attention to our country's reality, to the system and practice of our urban planning than the foreign ones. At present, legal researches on urban planning mainly focus on the procedure of its coming about and its system of remedy for citizen's rights, most of which are the copy of foreign systems and difficult to relate to our system and practice of urban planning for its lack of legal research on the basic problems. By basis of our country's system and practice of urban planning, combining with new developments and attempts of urban planning theory and practice, using for reference to foreign related theoretical research and practice, the article gives legal analysis of the concept, characteristic, classification, function, nature and other basic aspects of urban planning, and tries to rethink the concrete subject of Public Participation of Urban Planning Course. The aim of this article is to provide foundation for broad and deep legal research on urban planning.The first chapter of the article introduces the history and concept of urban planning and urban planning legal system, among of which the concept is the key. By basis of relationship between power (power of administrative organ) and right (right of private party in the administrative process), the article tries to definite urban planning from the angle of behavior, exactly speaking, from behavioral subject, purpose, power, content, legal effects and time limit, as that: urban planning is one of administrative behaviors having legal effects on both behavioral subjects, it includes the dynamic, circular behavioral course of making-up, approving, enforcing, judging, feedback, amending and the result of the behavior, it comes about from administrative subject in its scope of legal power and in future certain deadline, under communicating and negotiating with the private party in the administrative process. Its purpose is to guide and promote the future development of the urban, to protect common interests of the whole urban citizens and achieving social justice. The characteristic of the new definition lies in that: it emphasizes the behavioral course of urban planning, the participation of private party in the administrative process and legal effects of the behavior to both parties. So the new definition provides foundation for other subjects of legal research on urban planning and makes urban planning under regulation of law.The second chapter introduces its characteristic and classification. The subject of urban planning is administrative subject, to some extents which also includes the private party in the administrative process; its purpose is to guide and promote the future development of the urban, to protect common interests of the whole urban citizen and to achieve social justice; its content includes the behavior and the result of the behavior; its legal nature is multi-plicate and complex. The behavior of urban planning can be divided into many categories by different standard, such as the functioning course of the behavior, the form of the behavior, the deadline, the functioning range of the behavior, etc. This method of classified research has important meaning, not only to explain its different characteristics from different angles to recognize urban planning in a whole, but also to its legal effects and nature and adopting different regulating ways to different forms of urban planning.The third chapter introduces relationship between urban planning and administrative planning and the function of urban planning. Theoretically, it has no doubts that urban planning belongs to administrative planning system, but normally, the quarrel of whether urban planning belongs to administrative planning regulated by administrative procedural law also exists in German and Tai-land. So the coordination of present urban planning legal system and future administrative procedural law has close relation to choice and design of related articles of our country's administrative procedural law which is in its course of being made up. As a part of administrative planning, the function of urban planning is the concrete reflection of the function of administrative planning. In this article, the function of urban planning has been generalized as that: make the enforcement of administration scientifically and rationally; coordinate and concentrate multilateral interests and improve citizen's expecting possibility.The forth chapter is about the nature of urban planning. As a dynamic and circular behavioral course, the nature of urban planning ought to be analyzed concretely by different phrases and forms from the angle of behavioral course theory. Nature of urban planning has vital influence on its legal remedy, but as the amendment and consummation of system of administrative remedy, two subjects as the nature of urban planning and its remedy system could be researched separately to recognize the nature from the behavior itself. So we should consummate our urban planning law as quickly as possible, and the task would mainly be done by law-maker (including the administrative law-maker). This part introduces foreign and our Ti-land's theory and cases of the nature of urban planning, then analyses the nature of urban planning in our mainland. In dynamic which also means the different phrases of the behavior, urban planning refers to enforcement of various methods of administrative behavior, so its nature is multi-plicate; in static which also means the different forms of the behavior, the nature of urban planning is administrative legislation and standard documents outside administrative legislation which has prevalent legal effects to abstract objects. But undoubtedly, urban planning has some differences with traditional administrative legislation and standard documents, especially with the former.The fifth chapter tries to rethink the system of public participation of urban planning which is only one of its principles or the whole systems, from the analytical angle of concrete system by basis of the former views, to check the former research and make it much deeper. Firstly, it analyses the necessity of public participation of urban planning in the times of modern welfare country; then makes a simple analysis of the basic contents of public participation of urban planning such as the participating phrase, the scope of participating subject, way of participating, guarantee of participating, etc.