Constitutive Elements Of Historic Legacy Illegal Buildings

In recent years,with the continuous development of economy and the acceleration of urbanization process,city governments have been strengthening their efforts to deal with illegal buildings.As a special type of illegal building,the legacy of illegal buildings in history has its social background and historical factors,and it is difficult to simply identify it as illegal.The laws,formulated by the National People's Congress and its Standing Committee,do not stipulate historical legacy illegal buildings.However,the identification of historical legacy illegal buildings is mainly based on Articles 40 and 64 of the Urban-Rural Planning Law,with the requirement of not obtaining or violating the construction project planning license.In other words,at the level of law,the current interpretation scheme identifies historical legacy illegal buildings through the constitutive elements of illegal buildings.But the existing schemes have the limitation of not expressing the unique attributes of historical legacy illegal buildings.Illegal buildings left over from history are closely related to the development of cities in China.In the middle and late of last century,the government acquiesced residents to build and rebuild their own houses in order to relieve housing pressure and support self-management in Shanghai.In the process of rural urbanization in Shenzhen,the government implemented “ the unified expropriation of collective land” and “the unified transformation of rural household registration”,but the compensation for collective land was seriously unbalanced,which triggered the villagers' rush to build.Historic illegal buildings exist in the long history based on the above facts.Therefore,the following factors should be taken into account when identifying them,such as whether there are prohibition rules or licensing procedures when they are built,whether they have obtained permission from other non-construction management departments,the nature of land at the time of construction and whether there is a long-term inaction of law enforcement agencies.Taking the local laws of Shenzhen and the regulations of the Municipal Government in Zhejiang Province as examples,the unique elements of historical legacy illegal buildings in the local normative system are mainly divided into two categories: first,with time as the standard,mainly to check whether there are prohibitive provisions at the time of construction;second,with effect as the standard,mainly to examine the degree of influence on urban planning.Unlicensed buildings that are not prohibited at the time of construction and have little impact on the planning are historically illegal buildings.Taking time and effect as the standard is actually a distinction between formal and substantive elements.Although the specific elements in judicial decisions are relatively diversified,judges also mainly apply the specific elements based on time and effect.There are two kinds of judicial attitudes towards illegal buildings left over from history: one is to directly apply the elements of illegal buildings in the Urban and Rural Planning Law to identify;the other is to give limited tolerance.The court has the following judicial review methods to give limited tolerance to illegal buildings left over from history,that is,by distinguishing the formal and substantive elements and holding the specific provisions of local norms.On the theoretical level,special illegal elements are considered mainly because they involve the protection of trust interests,the boundary of "strict law enforcement" and the types of land development rights.To sum up,as a special type of illegal buildings,the historical legacy illegal buildings should be applied to the specific elements that can generalize their special attributes.There are two main types of special elements: first,based on time,mainly considering whether there is a prohibition on construction;second,on the effect of the standard,the main impact on the degree of planning.For buildings that do not have a permit because there is no prohibition on construction and the impact on the plan can be eliminated by corrective measures,there should be some tolerance to allow it to return to a legal state through the re-issuance procedure.In addition,there may be other special elements that may need to be considered in specific cases,such as military property rights.Because historically illegal buildings involve the reliance interests of the parties and the different understandings of land development rights,the practical departments should solve the problem of historical legacy illegal buildings according to the principles of respecting history,seeking truth from facts,combining leniency with strictness and dealing with according to law.