海南有偿收回海岸带闲置土地调查研究

发布时间：2018-05-14 08:19

本文选题：海南省 + 海岸带闲置土地　；参考：《海南大学》2017年硕士论文

【摘要】：基于对海岸带的保护,海南省开展了海岸带保护开发专项检查行动,对海南省的闲置土地进行全面地清理处置,取得了较好的成效。但是海南有偿收回涉海岸带闲置土地的行政诉讼案件自2016年开始随着海岸带整治活动的推进也逐渐出现。海南有偿收回海岸带闲置土地的饱受争议,阻碍了海南海岸带整治的进程。结合海南有偿收回闲置土地行政案件来看,案件的争议问题在事实认定方面,相关政府以海南省政府公布的海岸线修测成果来作为涉案土地是否处于海岸带200米控制线范围内作为依据,而行政相对人坚持以当前实际的海岸线作为基准来判断。相关政府认为签订的《补充协议》违反上级政府的规定来变相否定因政府的原因导致土地闲置的,而行政相对人则认为是因为相关政府没有履行《补充协议》约定的义务而造成了土地闲置的客观情况。在收地程序方面,存在以相关政府以其土地主管部门作为作出收地决定的主体,但是行政相对人则坚称作出收地决定的主体应当为县级以上人民政府。相关政府认为在作出收地决定前,已经经过了协商程序,而行政相对人认为,相关政府并未最终与行政相对人协商处置方案。在法律适用方面,政府机关在作出收地决定时都是依据《闲置土地处置办法》第十二条的规定,但行政相对人认为按照该规定相关政府无权单方面决定收回涉案土地。相关政府确定的补偿标准是依据《关于进一步做好闲置土地处置工作的通知》第三点,行政相对人认为该补偿标准过低,不能按照上述规定的成本价来补偿。造成事实认定错误,适用法律不正确,收地程序违法的原因是当年测量技术有限,修测成图精度不够;上级政府施压,下级政府盲目服从;政府负责人法治观念淡薄,唯行政权力至上:当地民众普遍文化素养不高,法律意识淡薄。为规范有偿收回海岸带闲置土地,建议:在海岸带闲置土地事实认定方面要严格落实政府信息公开条例,公布新的海岸带修测成果,要从严把握因政府原因导致土地闲置的认定。在程序方面,要严格落实有关有偿收回闲置土地的协商程序,要以市县政府为主体决定收地,坚持收地决定必须经听证程序,要遵守"司法查封不能处置"的规定。在法律适用方面,建议以《土地管理法》第五十八条作为收地决定的依据,补偿标准建议按照市场评估价格予以确定,并且,要加强政府与法院的沟通,促进裁判标准的统一,加强法院对政府的业务培训以促进依法行政。同时也要加强法律基础教育及宣传,提升民众的法律素养。
[Abstract]:Based on the protection of coastal zone, Hainan Province carried out a special inspection of coastal zone protection and development, and carried out a comprehensive clean-up and disposal of unused land in Hainan Province, and achieved good results. However, the case of Hainan's compensation to recover idle land in coastal zone has appeared gradually since 2016 with the development of coastal zone regulation. The repossession of idle land in Hainan coastal zone is controversial, which hinders the process of coastal zone regulation in Hainan. In the light of Hainan's administrative case of compensation for the recovery of idle land, the dispute over the case is in the aspect of factual determination. The relevant government based on the results of the coastline repair survey published by Hainan Provincial Government as the basis of whether the land involved is within the control line of 200 meters in the coastal zone, while the administrative counterpart insists on using the current actual coastline as the benchmark to judge the land involved. The relevant governments believe that the "supplementary agreement" signed in violation of the regulations of the higher level government has been used to covert the denial of idle land caused by the government. The administrative counterpart thinks that because the relevant government has not fulfilled the obligations stipulated in the Supplementary Agreement, the objective situation of idle land is caused. In the procedure of land resumption, the relevant government takes its land authority as the main body to make the land resumption decision, but the administrative counterpart insists that the main body of the land resumption decision should be the people's government at or above the county level. The relevant government thinks that before making the decision of land resumption, it has already gone through the negotiation procedure, while the administrative counterpart thinks that the relevant government has not finally negotiated the disposal plan with the administrative counterpart. In terms of the application of the law, when the government authorities make the decision to resume land, they are all based on the provisions of Article 12 of "measures for disposal of idle land", but the administrative counterpart thinks that the relevant government has no right to unilaterally decide to take back the land involved in the case according to this provision. The compensation standard determined by the relevant government is based on the third point of the notice on further doing the disposal of idle land. The administrative counterpart thinks that the compensation standard is too low and cannot be compensated according to the cost price stipulated above. The reasons for the error in the determination of facts, the incorrect application of the law, and the illegal procedures for land resumption are that the surveying techniques were limited and the accuracy of surveying and mapping was not enough; the higher governments put pressure on them, and the lower governments blindly obeyed; and the government responsible persons in charge of the rule of law had a weak sense of law. Only administrative power is supreme: local people's general cultural literacy is not high, legal consciousness is weak. In order to standardize the recovery of idle land in the coastal zone for compensation, it is suggested that the regulations on disclosure of government information should be strictly implemented in the determination of the facts of idle land in the coastal zone, and the results of the new coastal zone repair and survey should be published. Must grasp strictly because of the government reason causes the land idle confirmation. In terms of procedure, it is necessary to strictly implement the consultation procedure concerning the recovery of idle land for compensation, to take the municipal and county governments as the main body to decide on land resumption, to insist that the decision to resume land must go through the hearing procedure, and to abide by the stipulation that "judicial seizure cannot be disposed of." With regard to the application of the law, it is suggested that Article 58 of the Land Administration Law be used as the basis for the decision on land resumption, and that the compensation criteria be determined in accordance with the market assessment price, and that the communication between the government and the court be strengthened to promote the unification of the adjudication standards. Strengthen the professional training of the government by the courts to promote the administration of the law. At the same time, we should strengthen the basic law education and publicity, improve the legal literacy of the public.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.3

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