The cover article of the 5th edition of Procuratorial Daily on July 13  

　　 Original title  

　　 The illegal building was finally demolished  

　 　 The procuratorial organ and the court reached a consensus on the application of the law on compulsory demolition of illegal buildings, and the continuous supervision that lasted for four years finally solved the problem of difficult acceptance and enforcement of enforcement applications in this field  

　　 Our reporter Wu Yihuo  

　　 correspondent Zhadan Zhang Chuanguang  

　　 In the three years before and after, 64 decisions of administrative punishment to order the demolition of illegal buildings occupied by land were made in succession, and the court refused to accept the application for compulsory execution, which led to the "whitewash". Under the continuous follow-up supervision of the procuratorial organ, not only the mistakes were corrected, but also a long-term mechanism was established, which effectively solved the difficult problems affecting the application of the law and curbed similar land violations.  

　　 On April 18 this year The procuratorial supervision case of the natural resources and planning department in a county of Xuancheng City, Anhui Province applying for the enforcement of the administrative penalty decision on the compulsory demolition of buildings illegally occupied land , which was released by the Supreme People's Procuratorate as the 36th batch of guiding cases for reference and application by all localities. This is also the first guiding case issued by the Supreme People's Procuratorate with the theme of supervision of administrative procuratorial cases.  

　　 one  

　　 Illegal buildings are difficult to dismantle  

　　 Administrative law enforcement department's application for compulsory execution is rejected  

　 　 The clue of this procuratorial supervision case was discovered by the procuratorate of a county in Xuancheng City in early 2018 in the special activity of administrative non litigation implementation supervision carried out by the national procuratorial organs.  

　　 At first, the county procuratorate had three such clues. In the three non litigation enforcement cases where the County Land and Resources Bureau (later renamed as the "County Natural Resources and Planning Bureau", hereinafter referred to as the "County Natural Resources Bureau") applied for compulsory demolition of illegal buildings, the county court ruled that it would not accept the case on the grounds that the administrative organ has the power of compulsory execution and the application matters are not within the scope of the court. After the county procuratorate initiated the supervision procedure according to its authority, the procuratorial committee discussed and decided to issue a procuratorial proposal to the county court in May 2018 to revoke the original ruling and accept the application for execution by the administrative organ according to law.  

　　 After receiving the procuratorial suggestion, the county court held a judicial committee to discuss, and decided not to accept this procuratorial suggestion, and decided not to accept the enforcement application for compulsory demolition of illegal buildings submitted by the administrative organ and no longer accept the enforcement application.  

　　 thereafter, The county procuratorate found new clues in the further investigation Since July 2015, an investment limited company in the county has occupied 1284.19 square meters of collective land in a village of the county for leveling and construction of steel structure shed without the approval of the people's government at or above the county level. 889.47 square meters of the occupied land belongs to permanent basic farmland. On April 20, 2018, the Natural Resources Bureau of the county made an administrative penalty decision after filing the case for investigation, requiring the investment limited company to dismantle the new buildings and other facilities on the illegally occupied 889.47 square meters of permanent basic farmland and restore the land to its original state within 15 days after receiving the Administrative Penalty Decision.  

　　 However, the investment limited company has neither applied for administrative reconsideration and filed administrative litigation nor demolished illegal buildings within the statutory period. After being urged by the Natural Resources Bureau of the county, the company still ignored. On July 19, 2018, according to the relevant provisions of the Administrative Punishment Law, the Natural Resources Bureau of the county mailed the Application for Compulsory Enforcement and other application materials for compulsory enforcement to the filing court of the county court, applied for compulsory enforcement of the above-mentioned administrative punishment decision, but was directly rejected and returned by the county court.  

　　 The county procuratorate also found two other similar case clues: A professional cooperative in the county occupies 578.48 square meters of collective land for building houses in a village of the county without the approval of the people's government at or above the county level; Without approval, Mr. Ding occupied 220.16 square meters of collective land of a village group in the county to build a new steel structure plant, and leveled the internal land. Just like the application for enforcement of an investment limited company, the last two enforcement applications submitted by the Natural Resources Bureau of the county were not accepted by the county court.  

　　 Is the refusal of the local land management department to apply to the court for compulsory execution in some administrative punishment cases or is it universal? In order to clarify this problem, the county procuratorate decided to continue to promote case handling. On the one hand, they learned from the local land management department about the automatic implementation of the administrative punishment decision on the demolition of illegal buildings in recent years and the application for court enforcement; On the other hand, check the site of illegal land occupation and ask the court for relevant information. The procuratorial organ has investigated and found out that, The entity and procedure of the administrative penalty cases of the Natural Resources Bureau of the county are legal, the applicable law is correct, and the application for court enforcement complies with the legal provisions. However, the county court has not accepted such enforcement applications since 2018 。  

　　 two  

　　 The procuratorial suggestions have repeatedly met with difficulties  

　　 Two level procuratorates unite supervision to find the crux  

　 　 The administrative penalty decision is legal, and the application to the court for compulsory execution is legal, but the court does not accept it. What should we do? The county procuratorate decided to supervise to the end and urge the county court to correct its illegal acts 。  

　　 The procuratorate of the county believed that the court neither accepted nor ruled against three applications of the Natural Resources Bureau for compulsory execution of administrative punishment against an investment limited company, a professional cooperative and Ding, which made the Natural Resources Bureau of the county unable to apply to the court for compulsory execution or apply to the higher court for reconsideration for relief without administrative enforcement power, Resulting in the "white stripe" of administrative penalty decisions. The result of the case being shelved is that the illegally occupied land cannot be restored, the land management order cannot be effectively maintained, and the authority of administrative law enforcement is also damaged. In December 2018, the county procuratorate again proposed to the county court that it accept and review the executive application of the administrative organ according to law.  

　　 The county court still refused to accept this procuratorial suggestion. The reason is that Article 44 of the Administrative Compulsory Law and the Reply of the Supreme People's Court on the Compulsory Demolition of Illegal Buildings, Structures, Facilities, etc. (hereinafter referred to as the "Reply") give the Natural Resources Bureau the power of compulsory execution, and the Land Management Law and the Administrative Compulsory Law are in conflict, so the Administrative Compulsory Law should be applied, The court refused to accept the enforcement application of the County Natural Resources Bureau, which was in line with the law. The county court also said that it was negotiating with the county government and the land department to properly solve the forced demolition of illegal buildings.  

　　 "The case cannot be 'hung up' like this, and the illegal occupation of land must be corrected! We can consider to solve this' knot 'through the follow-up supervision of the superior procuratorate." The procuratorate suggested repeatedly "hitting a wall", and the county procuratorate decided to seek the support of the superior procuratorate. After consultation with the county procuratorate, Xuancheng Procuratorate decided to set up a case handling team to better form a joint force of supervision.  

　　 After the establishment of the case handling team, they communicated with the county court and the county natural resources bureau respectively, and exchanged sufficient opinions to find the crux of the problem. In the process of communication, the County Natural Resources Bureau and the County Court both adhered to their respective "statements", and the differences between the two parties were mainly reflected in the application of law: The County Natural Resources Bureau believes that, according to the provisions of the Land Management Law, it has no power of enforcement; However, the county court held that the administrative enforcement law has granted the natural resources authorities the power of enforcement 。  

　　 Does the natural resources authority have the right to enforce the demolition of illegal buildings in land violations? If the court accepts such cases, who should rule to enforce them? In order to ensure the quality and effectiveness of the administrative procuratorial supervision, the case handling team must first clarify these controversial issues, which will help to solve practical problems and ultimately achieve the purpose of legal supervision.  

　　 three  

　　 Differences in the application of law  

　　 Analyzing the supervision of similar cases in detail, identifying disputes and promoting consensus  

　 　 The most ideal effect of legal supervision should be "win-win and win-win". For the supervision of this case, the Xuancheng Municipal Procuratorate did not simply make and issue procuratorial recommendations, but tried to reach a consensus on the application of the law after finding the focus of the dispute in the case. For this purpose, the case handling team carefully searched relevant cases and academic papers, and on the basis of comprehensive application of legal interpretation methods, relevant cases and papers, combed and analyzed the application of laws that diverged between the two sides.  

　　 After examining the case, Xuancheng Procuratorate believed that According to the laws of our country, the enforcement by the administrative organ on its own should be explicitly authorized by the law. If the law does not clearly stipulate that the enforcement by the administrative organ on its own, the administrative organ should apply to the court for enforcement. The Administrative Compulsory Law provides for the "procedures for compulsory execution by administrative organs" and the "application to the people's court for compulsory execution" in two chapters. Article 44 of the Law provides that "where illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative organ shall make a public announcement, and the parties shall dismantle them within a time limit. If the party concerned neither applies for administrative reconsideration or brings an administrative lawsuit within the statutory time limit, nor dismantles, the administrative organ may compel the dismantlement according to law. " The reason why this provision is placed in the chapter of "Procedures for compulsory execution by administrative organs" is that it is a procedural provision for "administrative organs with the power of administrative compulsory execution" to implement compulsory demolition, not a legal authorization for an administrative organ with the power of administrative compulsory execution.  

　　 As far as this case is concerned, the decision of administrative penalty involved in the case was made by the Natural Resources Bureau of a county according to the Land Management Law, but the law did not grant the natural resources department the executive power to forcibly remove illegal buildings. Article 83 of the law stipulates that "if, in accordance with the provisions of this law, an order is made to dismantle the newly built buildings and other facilities on the illegally occupied land within a time limit... the organ that made the decision on punishment shall apply to the people's court for compulsory execution according to law". If the department in charge of natural resources makes a punishment decision of ordering compulsory demolition against the violation of the Land Administration Law, and the administrative counterpart neither brings a lawsuit nor dismantles by himself within the time limit, the administrative organ shall apply to the court for compulsory execution according to law.  

　　 The Reply is a judicial interpretation of the compulsory demolition of illegal construction in the field of urban and rural planning, that is, according to the Urban and Rural Planning Law, the township people's government has the right to force the demolition of illegal buildings in violation of rural planning, and the people's government at or above the county level has made a decision to the competent department of urban and rural planning to demolish within a time limit. If the party concerned does not demolish within the time limit, it has the right to compel the relevant departments to demolish. In view of this, the administrative penalty decision applied for enforcement by the Natural Resources Bureau of a county in this case should be applied to the court for enforcement according to law, and the court of a county will not accept the violation of the law.  

　　 In order to obtain the court's understanding and approval of the above review opinions, the case handling team also investigated the legal application of six other basic courts in Xuancheng City to such cases, and found relevant cases that Xuancheng Intermediate Court supported the opinions of the procuratorial organ 。 Based on the fact that a county court has rejected dozens of enforcement applications for a period of time, Xuancheng Procuratorate selected three typical cases, including the administrative punishment case of an investment limited company, as a breakthrough point, and issued procuratorial recommendations through the supervision of similar cases. In June 2019, Xuancheng Municipal Procuratorate officially issued a procuratorial recommendation to the municipal intermediate court on the three cases, suggesting it supervise a county court to correct illegal acts. Soon, the Xuancheng Intermediate Court replied to the procuratorial organ within the specified time limit that it had suggested a county court to correct itself.  

　　 four  

　　 Good rulings are difficult to implement  

　　 Continuous difficulty relieving points, unblocking points and promoting long-term mechanism  

　　 "The court can accept and make a ruling, but who should rule to enforce?" Faced with the concerns of a county court about the difficulty of enforcement, the Xuancheng procuratorial organ is also actively thinking about ways to solve this problem while supervising. Through visiting and investigating the practices of other counties and cities, the procuratorial organ found that the working mechanism of "separation of adjudication and enforcement" can better solve the problem of "what to do after accepting a case".  

　　 The chief procurator of the county procuratorate has communicated with the county court leaders for many times, reported to the county party committee and the standing committee of the county people's congress on the issues involved in the case, actively sought the support of the county government, put forward opinions and suggestions to solve the above problems, and made every effort to promote consensus among all parties. With the joint efforts of all parties, In May 2020, the county government issued the Opinions on Further Establishing and Improving the Long term Mechanism for Prevention, Control and Governance of Illegal Land Use (hereinafter referred to as the "Opinions"), specifying that the administrative law enforcement department shall apply to the court for compulsory execution of the demolition of illegal buildings in the case of illegal occupation of land, and the county government shall arrange the local township government to implement the compulsory execution after the court has approved the compulsory execution.  

　　 The issuance of the Opinion has eliminated the practical obstacles for the county court to accept the implementation application of the natural resources department. At the same time, according to the principle of "unified leadership, territorial management, equal emphasis on demolition and control, and comprehensive governance", the county and township governments and administrative departments have established and improved the grid inspection, rapid response, joint implementation, joint meeting and other working mechanisms to ensure the implementation of illegal land use.  

　　 The long-term mechanism has been established, but it has not been smooth in practice. In order to test the quality and efficiency of supervision, the local procuratorial organ carried out "looking back". They found that after the issuance of the Opinions of the county government, the communication between the administrative department and the court was not very effective, and its application for enforcement was still blocked. In addition, there are still some differences between the two sides on how to deal with the backlog of a large number of stock cases of the County Natural Resources Bureau.  

　　 In July 2020, the local procuratorial organ continued to follow up and supervise, and solved the communication obstacles between the administrative organ and the county court by making and issuing procuratorial suggestions. In this way, from September 2020, the county court began to accept the execution application of illegal building demolition by the county natural resources bureau in a normalized manner 。  

　　 In view of the difficulty in handling the stock cases of the County Natural Resources Bureau, the procuratorial organ, after a comprehensive investigation and verification, issued procuratorial suggestions on social governance to the County Natural Resources Bureau according to law in 2021, suggesting that the Bureau actively communicate and report, and follow up the stock cases according to law and regulations. Since then, the county court has accepted the enforcement applications of the county natural resources bureau for such cases and ruled to grant enforcement.  

　　 After four years of continuous supervision, the problem of difficult to accept and execute the application for execution was finally solved. In the above case, the illegal buildings built on the 889.47 square meters of permanent basic farmland occupied by an investment limited company were finally demolished and the land was reclaimed. The case of a professional cooperative and Ding's illegal occupation of land for building construction is also being properly handled.  

　　 If the road is long and obstructed, you will arrive when you travel. "The purpose of administrative procuratorial supervision in social governance is to give full play to the professional advantages of" trust two people with one hand ", act as the" engine of the rule of law ", actively unblock difficult points through active performance of duties, promote" city management "by" self management ", and strive to promote consensus with judicial and administrative organs." The person in charge of the Fifth Procuratorial Department of Xuancheng Procuratorate told reporters.  

　　 comment  

　　 Active performance of duties with high quality of administrative procuratorial work  

　　 Guarding the "red line of cultivated land"  

　　 Li Weidong, Deputy Procurator General of Anhui Provincial Procuratorate  

　　 Anhui is a big agricultural province and a big food province. It is of great significance to comprehensively implement the strictest farmland protection system for ensuring national food security. Since the Supreme People's Procuratorate deployed the special activity of "administrative non litigation implementation supervision in the field of land law enforcement investigation", the procuratorial organs of Anhui Province have carefully studied and implemented Xi Jinping's thought of rule of law and the spirit of General Secretary Xi Jinping's important instructions and instructions on food security, taken the initiative to act, and bravely solved the difficulties and obstacles in land law enforcement, A number of administrative non litigation enforcement supervision cases in the field of land law enforcement investigation have been handled, and the procuratorial supervision case of the natural resources and planning bureau of a county in Xuancheng City applying for enforcement of the administrative penalty decision of compulsory demolition of buildings illegally occupied land is a typical example.  

　　 The procuratorial supervision of administrative non litigation execution is based on the functional orientation of "one hand entrusted to two", focusing on "illegal occupation of farmland", focusing on prominent issues such as "difficult investigation" and "soft implementation" of land violations, identifying key links, focusing on key cases, ensuring that the administrative penalty decisions of administrative organs on land are implemented in accordance with the law through procuratorial supervision, and eliminating the illegal status on land in a timely manner, Ensure that land resources are not damaged or illegally occupied.  

　　 The prevention and punishment of land violations is a systematic project. The procuratorial organs of Anhui Province adhere to the supervision path and mode of "case handling - class case supervision - system governance", strive to "learn from the details" in specific cases, improve the penetration of finding problems, and focus on the root causes and root causes. Focus on the use of procuratorial suggestions, special reports and other ways to focus on solving a class of problems, and promote the governance of problems in an industry. Focus on finding the crux of the problem, clarify the tendentiousness and universality of the judicial and law enforcement issues reflected behind the case, put forward the procuratorial suggestions of supervision and correction, plugging loopholes, and establishing rules and regulations, and at the same time, strengthen the tracking and follow-up from top to bottom to effectively solve the common problems in social governance.  

　　 The role of procuratorial supervision cannot be played solely by the procuratorial organ, but should adhere to systematic thinking, coordination and integration. Under the leadership of the Party committees at all levels, we should fully mobilize the strength of all parties, give play to their respective advantages, coordinate and govern according to law. By countersigning documents with the Provincial Department of Natural Resources, the Anhui Provincial Procuratorate has established cooperation mechanisms such as information sharing, case notification, case transfer, and formed a joint force of land law enforcement investigation and prosecution supervision.  

　　 Next, the procuratorial organs of Anhui Province will continue to deepen the working mechanism of "government procuratorial linkage", through joint implementation of special supervision activities in the field of land law enforcement investigation, use big data thinking, and work with relevant functional departments to firmly hold the "double red line" of the quantity and quality of cultivated land, so as to provide a strong legal guarantee for the high-quality development of Anhui's economy and society, Welcome the 20th CPC National Congress with outstanding achievements.