The Study On Administative Compulsory Demolition Of Illegal Construction In Rural Areas Of Legal Issues

At present, with the rapidly advance of our country’s urbanization, governance on illegalconstruction in rural areas has been on the agend. However, due to double effects of politicaland economic interest, many relevant goverment departments have adopt illegal orunreasonable measures, such as single rough behavior, regarding demolition illegalconstruction as a tear down behavior, under the guise of the demolition of illegal constructionto remove the legal building etc. On the one hand, it has damaged farmers’ property or rightsto subsistence seriously, futher leading the violent and extreme resistance to law enforcementand the instability and disharmony on rural socity. On the other hand, it has gone against theimportant law principles of Administrative by Law and Reasonable Administrative, which hasreduced the government’s credibility greatly.And in the academic circle, experts didn’t makeunified conclusions on conditions and some specific enforcement problems of theadministrative compulsory demolition of illegal construction,which exacerbated the viciouscycle of nonstandard and unreasonable enforcement aforementioned. Hence, the study onadministative compulsory demolition of illegal construction in rural areas can make a bigdifference. In order to promote the legalization of administative compulsory demolition ofillegal construction in rural areas and help the relevant judicial, the article analyze the case ofKeLong Machinery Factory’s construction was sentenced to administative compulsorydemolition, it mainly explore below key questions under the main line of the enforcementprocess of illegal construction’s administative compulsory demolition, the first two are thelegitimacy of Instructs Deadline to Dismantle and Administative Compulsory Demolition,which base on the legal attributes, functions and powers of belonging of the two SpecificAdministrative Act. The third is Judicial Review on administrative compulsory demolition ofillegal construction, including the review content, review intensity and the concrete operation.Finally, by case as an opportunity to pointed out problems existing in the administrativecompulsory demolition of illegal construction from the angle of legislation, law enforcement,judicial, and put forward the perfect suggestions.Apart from the introduction and conclusion, this article describes and demonstrates thefollowing five parts.The first part, synopsis of KeLong Machinery Factory’s construction was sentenced to administative compulsory demolition case. It includes three specific aspects, the first is thecase review:KeLong machinery factory applied to the relevant departments for approval tobuild and pay cost, but began to construct before the Construction Project Planning Permithad been obtained→Changzhou wujin district of Housing and Urban-rural ConstructionBureau identified its construction engineering illegal and made the order of “Deadline toDismantle”→KeLong Machinery Factory dissatisfied and applied to ChangZhou WuJindistrict people’s government for Administrative Reconsideration, government made thedecision to maintain→ChangZhou WuJin district Administrative law enforcement of UrbanManagement Bureau made the summom of the administrative lawenforcement→Administrative Law Enforcement of Urban Management Bureau issuedAdministative Compulsory Demolition decision→KeLong Machinery Factory filedadministrative lawsuit to ChangZhou Wujin District People’s Court→Wujin District People’sCourt heared the case twice, maintained decisions.The second is views of all parties of thecase.The main disputes between plaintiff and defendant were the problem on legitimacy ofInstructs Deadline to Dismantle and whether Administative Compulsory Demolition shouldbe revoked.The third is the case of legal issues and thoughts. it includes:(1)the legal attribute,functions and powers of belonging, responsible person of Instructs Deadline to Dismantle inthis case.(2)whether Wujin District Administrative Law Enforcement of Urban ManagementBureau has the authority to release Administative Compulsory Demolition or not? what effectthe legitimacy of Instructs Deadline to Dismantle has on the legitimacy of AdministativeCompulsory Demolition?(3)During the trial, Wujin District People’s Court review InstructsDeadline to Dismantle as evidence, is it the right one? Whether it is correct about the court’sexplantion of “Instruct” in Urban and Rural Planning Law.The second part, analysis on the legal issues related to the case. Firstly, to study thelegitimacy of Instructs Deadline to Dismantle base on its legal attribute，rural illegal buildingtypes and applicable law of governance. Next, to analyze the legitimacy of AdministativeCompulsory Demolition from the perspective of its legal property, subject legitimacy andprocedure legitimacy. And this section is base on the difference between AdministrativeCompulsory Measures and Administrative Enforcement, so is the Administrative Enforcementmode. Lastly, to probe Judicial Review of Instructs Deadline to Dismantle from theperspective of relationship between Instructs Deadline to Dismantle and AdministativeCompulsory Demolition, the review necessity, the review intensity and the concrete operation,which is based on the theory of Front Administrative Acts and Illegal Inheritance.The third part, analysis on administrative act and litigation in the case. About InstructsDeadline to Dismantle, this article concluded: Instructs Deadline to Dismantle is a kind ofAdministrative Order than Administrative Penalty. There exists the subject and form of illegalin this case’s Instructs Deadline to Dismantle. About Administative Compulsory Demolition,this article concluded: Due to there is no specific provision about “Instruct” in the Articlesixty-eight of Urban and Rural Planning Law, in considerations of administrative efficiency,Wujin District Administrative Law Enforcement of Urban Management Bureau has got theauthorization from Wujin District People’s Government, thus it has the powers and authoritiesto make the decision of Administative Compulsory Demolition for illegal construction. But inthe concrete operation, Wujin District Administrative Law Enforcement of UrbanManagement Bureau did not follow the aticle of Announcement Procedure prescribed forAdministative Compulsory Demolition in Administrative Enforcement Law, thus theprocedure is illegal. About the court trial, this article concluded: In the case of AdministativeCompulsory Demolition of illegal constrution, it is worthy of recognition that Wujin DistrictPeople’s Court review Instructs Deadline to Dismantle as evidence, but the court made amistake in legal application.The fourth part, problems existing in the administative compulsory demolition of illegalconstruction in our country’s rural areas. In essence, this part is the inspiration and extensionon this case, which be expounded from three aspects of the defect of legislation, lack ofrationality about law enforcement and inadequacy of the related relief.The fifth part, suggestions to perfect the administative compulsory demolition of illegalconstruction in our country’s rural areas. Based on the analysis of the fourth part, the authorthinks that the main reason of insufficient related relief is lack of legal basis. So the perfectingsuggestions are put forward emphatically from the perspective of perfecting legislation，improving the rationality of Administative Compulsory Demolition of illegal constrution andstrengthening the rural legal construction.The first one includes perfect Substantive Rules,Procedural Rules and the rules concerning civil rights relief. The second one consists ofstrengthening awareness of reasonable administrative compulsory demolition, rationalizingthe conditions of Administative Compulsory Demolition and making full use of and exploringhumanized methods to enforce it. About the methods of humanized AdministativeCompulsory Demolition, this paper advocates to follow the thinking of combining education with mandatory, to make full use of Perform Mediation and to explore to use economicmethod to improve the villagers’ participation in rural governance of illegal struction. The lastone, for strengthening the rural legal construction, this paper advocates to perfect as soon aspossible Articles of Association of Villagers’ Autonomy and local rules and to strengthen therule of law propaganda.