Analysis of illegal land occupation

If the government enforces the law, will you be able to get administrative compensation?

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Nowadays, land resources have become a source of wealth, and having the right to use land means embracing wealth. In practice, it is common for many people to plant trees on the land, but after they are removed by the relevant departments, they are not compensated, why? I will solve your puzzle with a case.

【Case Introduction】

In 1990, a certain provincial A company legally obtained the right to use state-owned land, paid the corresponding land transfer fee, and obtained the "State-owned Land Use Right Certificate" and other documents in accordance with the law.

After that, Company A did not develop in accordance with the law, and in 2004, Company B bid for the land use rights involved in the case through auction procedures, and obtained the State-owned Land Use Certificate on April 28, 2005. In order to ensure that Company B can enter the construction site as soon as possible, a county land and resources bureau published an announcement in the "Provincial Daily" on December 16, 2006, requiring the farmers who cultivated on the land involved in the case to clean up the seedlings and attachments on the ground by themselves.

After the farmer Li Mou cut down the small-leaf eucalyptus tree planted on the land involved in the case, without the approval of any unit, he planted a rosewood tree with a long growth cycle on the land involved in the case.

On August 22, 2014, the Management Committee of the Old Town Economic Development Zone, a dispatch agency of a county government, forcibly removed the 9.34 mu of rosewood trees planted by Li on the land involved in the case.

Dissatisfied with the decision of compulsory removal, Li sued the defendant in the first instance against the defendant a county government for illegality and administrative compensation, and the court of first instance confirmed that the defendant's act of forcibly removing the pear trees on the land involved in the case was illegal, but the plaintiff told the defendant that there was no factual basis and legal basis for asking the defendant to compensate for economic losses; Li continued the second-instance trial, and the court of second instance rejected the appeal and upheld the original judgment.

In 2016, Li filed a retrial with the Supreme People's Court. In accordance with the provisions of Article 76 of the Land Administration Law, the Supreme People's Court held that Li's act of planting rosewood was an illegal occupation of land, and rejected Li's application for retrial.

【Legal Analysis】

1. What is illegal land occupation?

Illegal occupation of land refers to the illegal act of units or individuals occupying land without approval, using deceptive means to fraudulently obtain approved land for occupation, and occupying more land than the approved amount. [1]

II. Manifestations of Illegal Occupation of Land[2]

(1) Controlling the act of self-occupation of the organization's land without approval;

(2) Illegally occupying land by resorting to all kinds of deceptive means to obtain approval by deception;

(3) Acts of occupying more land than the approved amount;

(4) Acts of occupying more than one large amount of land for new buildings and other facilities on agricultural land illegally occupied in excess of the base area specified by the province, autonomous region, or municipality directly under the Central Government.

3. Penalties for illegal occupation of land

According to Article 76 of the Land Administration Law of the People's Republic of China, the perpetrator will be punished by the following penalties after illegally occupying the land:

1. To return the illegally occupied land, the parties concerned need to return the illegally occupied land to the relevant units or personnel, and if the land involved in the case is a village collective economic organization, the competent land administration department at the county level shall order the offender to return the occupied land to the village collective economic organization.

2. Dismantle newly built buildings and other facilities within a time limit, restore the land to its original state or confiscate newly built buildings and other facilities. If the offender builds new buildings or structures or other facilities on illegally occupied land, if the above-mentioned buildings or other facilities do not conform to the overall land use plan, the competent land administration department at or above the county level shall order the parties concerned to demolish the relevant buildings and restore the land to its original state; if the above-mentioned buildings conform to the overall land use plan, the competent land administration department at the county level or above shall confiscate the above-mentioned buildings or other facilities.

3. Fines, in addition to the above-mentioned administrative punishment measures, the competent land administration department at or above the county level may also impose a fine on the illegal act, and the amount of the fine is less than 30 yuan per square meter of illegally occupied land.

【Conclusion】

1. In this case, in the land involved in the case, the forced removal of the 9.34 mu of rosewood trees planted by Li was carried out by the management committee of the Old Town Economic Development Zone, a dispatch agency of a county government, but the committee did not have the power to enforce it, and its power to carry out the act was entrusted by the county government.

According to paragraph 5 of article 26 of the Administrative Procedure Law of the People's Republic of China (2017), "the administrative act performed by an organization entrusted by an administrative organ is the defendant by the entrusted administrative organ." ”

Therefore, the court ruled that the county government's enforcement act was illegal. Although the county government's enforcement act is illegal, Li's act of planting rosewood trees is already illegal, so his act of planting rosewood trees is not protected by law, and his claim for compensation has no factual or legal basis.

2. The land involved in the case is state-owned land and has been transferred to Company A in accordance with the law. Company B then acquired the land involved in the case in accordance with the law through the auction procedure. Company B already has the right to use the land involved in the case in accordance with the law.

Mr. Li was not the owner of the right to use the land involved in the case, and he did not sign any contract with Company B to contract the land use right. In this case, Li's unauthorized planting of rosewood on the land involved in the case has constituted illegal occupation of land.

According to the first paragraph of Article 66 of the Land Administration Law of the People's Republic of China (2004), "The competent land administration departments of people's governments at or above the county level shall supervise and inspect violations of land management laws and regulations. ”

And Article 71: "Where the competent land administration departments of people's governments at the county level or above discover in the course of supervision and inspection work that illegal land acts constitute a crime, they shall transfer the case to the relevant organs and pursue criminal responsibility in accordance with law; ”

In summary, in this case, Li's suspected illegal occupation of land has constituted an illegality, but because it is not yet a crime, the land and resources bureau of a certain county should carry out administrative punishment in accordance with law and issue an administrative punishment decision. When Li fails to perform, the Land and Resources Bureau of a certain county shall then apply to a county court for compulsory enforcement in accordance with the procedures prescribed by law.

(End)

[1] Baidu Encyclopedia

[2] Identification and Punishment of Illegal Land Occupation - Wang Weidong, No. 9, 1999 Popular Legal System