From the perspective of standardizing administrative coercive measures, I think “one case, one responsibility” shall be adopted for the measures to seal up the construction site It is more reasonable and legal.
After delivery, the urban management and law enforcement department shall strengthen the supervision of the illegal construction site and keep abreast of the situation of the construction site at any time.
After verifying that the behavior of the parties does belong to the illegal construction, the urban management and law enforcement department shall report to the local authorities immediately The party concerned shall prepare and issue the notice of ordering to stop illegal construction And deliver it to the party concerned in accordance with the provisions.
III.
Therefore, the urban management and law enforcement department should take measures to seal up the construction site according to the actual situation of illegal construction, stop illegal construction in time, and create conditions and atmosphere for the enforcement of illegal construction in the future.
Article 17 of the administrative enforcement law, the main body for sealing up the construction site, stipulates that administrative enforcement measures shall be implemented by the administrative organs specified by laws and regulations within the scope of their statutory functions and powers.
When investigating and dealing with illegal construction, the urban management and law enforcement department refuses to stop the illegal construction and continue to rush the construction.
I think it can be understood as an administrative order, which contains the meaning of designation and decision.
This is a remarkable feature of the urban and rural planning law The term “mandate” has different understandings.
According to the current laws and regulations, the measures that can be taken are very limited, and the more effective one is to close the construction site.
Regulations of Zhejiang Province on the relatively centralized power of administrative punishment in urban management and measures for the implementation of the relatively centralized power of administrative punishment in Ningbo City Management It is clear that the administrative law enforcement department of Ningbo urban management exercises the power of planning administrative punishment and can implement the administrative investigation power and administrative enforcement power related to the centralized exercise of the power of administrative punishment stipulated by laws and regulations.
For large-scale illegal construction, the implementation of measures to seal up the construction site to stop the continuation of illegal construction can play a role in avoiding the further expansion of illegal construction.
Therefore, after the urban management and law enforcement department makes a decision to order the party to stop illegal construction, if the party refuses to stop construction and continue to rush construction, the district urban management and law enforcement department shall report to the District People’s government, The measures to seal up the construction site shall be implemented according to the law under the instruction of the District People’s government.
As for the methods of accountability, we can adopt “one case, one responsibility” or “general responsibility”.
upon the approval of the people’s government at or above the county level The people’s government at or above the county level shall examine the report of the urban management and law enforcement department, and instruct the urban management and law enforcement department to take measures to seal up the construction site of illegal construction and stop the continuation of illegal construction..
If the party concerned refuses to stop the construction and continue to rush to build, the urban management and law enforcement department shall collect the factual evidence materials of the party concerned to continue to rush to build and immediately report to the people’s government at or above the county level.
The preconditions for sealing up the construction site and sealing up the illegal construction site should meet the following three conditions: first, it is found to be an illegal construction.
The urban management and law enforcement department has made a decision to stop the illegal construction, but the parties refuse to stop the construction.
After the urban management and law enforcement department finds out the illegal construction, it should timely complete the preliminary investigation and execution of the case according to the daily law enforcement procedures The legal evidence collection work shall verify that the construction behavior of the parties does not obtain the construction project planning license or carry out the construction in accordance with the provisions of the construction project planning license.
The people’s Government of the city or county shall, within 10 days from the date of receiving the report, instruct the relevant departments in writing to take measures such as sealing up the construction site; the competent department of urban and rural planning shall make a decision ordering the demolition within a time limit After the decision is made, if the party concerned fails to dismantle within the time limit, and does not apply for reconsideration or bring a lawsuit within the legal time limit, the competent department of urban and rural planning shall report to the people’s Government of the city or county at the same level within 15 days from the expiration of the legal time limit.
The District People’s government can also review and check before ordering.
Article 10 of the administrative compulsory law stipulates that “administrative compulsory measures shall be set by law.” urban and rural planning law Article 68 measures for sealing up the construction site are set.
Here is my understanding of the legal basis and implementation procedures for sealing up illegal construction sites for discussion.
Therefore, under the instruction of the District People’s government, the district administrative law Enforcement Bureau of urban management can take measures to seal up the construction site of illegal construction.
The power of administrative enforcement measures shall not be entrusted.
From the perspective of facilitating work, among the “relevant departments” instructed, there should be departments exercising the power of planning administrative punishment.
According to the actual situation of illegal construction, such as If the strength of the urban management and law enforcement department to seal up the construction site is insufficient, the District People’s government can also instruct the urban management and law enforcement department and other departments to jointly seal up the construction site.
Paragraph 2 of Article 2 of the administrative enforcement law stipulates: “Administrative coercive measures refer to the acts of administrative organs that, in the process of administrative management, temporarily restrict citizens’ personal freedom or temporarily control the property of citizens, legal persons or other organizations in order to stop illegal acts, prevent evidence damage, avoid harm and control the expansion of danger.” According to the regulations, sealing up the construction site should be an administrative compulsory measure, and its type belongs to item (2) of Article 9 of the administrative compulsory law on the types of administrative compulsory measures: sealing up places, facilities or property.
However, due to the restrictions of illegal construction site conditions, it is difficult to seal up the construction site.
The decision power of the measures to seal up the construction site belongs to the people’s government at or above the county level, which is the “relevant department” authorized by the urban and rural planning law The power to enforce compulsory measures comes from the mandate of the people’s government at or above the county level.
For example, if an individual illegally builds on the residential terrace or in the patio, the construction site cannot be sealed up because it affects the normal life of the party concerned.
The qualitative and legal basis for sealing up the construction site is Article 68 of the urban and Rural Planning Law: “after the competent department of urban and rural planning makes a decision to order the construction to be stopped or demolished within a time limit, if the party concerned does not stop the construction or demolish within the time limit, the local people’s government at or above the county level in the place where the construction project is located may instruct the relevant departments to take measures such as sealing up the construction site and compulsory demolition.” Article 66 of the regulations of Zhejiang Province on urban and rural planning stipulates that the competent department of urban and rural planning shall make a decision to order the construction to stop and a decision to dismantle within a time limit: “After the competent department of urban and rural planning has made a decision ordering the suspension of construction, if the party concerned does not stop the construction, the competent department of urban and rural planning shall immediately report to the people’s Government of the city or county at the same level.
According to the administrative punishment law of the people’s Republic of China Article 68 of the urban and rural planning law stipulates that the measures taken by relevant departments to seal up the construction site must be in accordance with the instructions of the people’s government at or above the county level.
2.
The people’s Government of the city or county shall, within 60 days from the date of receiving the report, instruct the relevant departments in writing to forcibly dismantle “and further refine and clarify it According to the provisions of Article 68 of the urban and rural planning law and the regulations of Zhejiang Province on urban and rural planning Before the law enforcement department has ordered the party to stop illegal construction but has not made a decision on administrative punishment, if the party refuses to stop construction and continues to carry out illegal construction, the law enforcement department can take measures to seal up the construction site at the instruction of the people’s government at or above the county level, so as to stop illegal construction immediately The nature of administrative enforcement measures also conforms to the definition of administrative enforcement measures in the administrative enforcement law.
