Administrative enforcement of laws and regulations has limited power to illegally occupy sea areas
"Sky-high" fines issued in many places for illegal occupation of sea areas are still repeated bans and more than expert analysis
□ reporter Wang Yang
□ Our newspaper trainee reporter Bai Chuxuan
On August 3, Zhejiang Coastal Police issued a marine administrative penalty of RMB 26,453,100 against a company in Zhoushan, Zhejiang, which illegally reclaimed 4.5219 hectares of sea. At the same time, the Ningde Transportation Investment Group illegally occupied the sea to reclaim the sea to build a dock and was fined 22.8 million yuan by the Natural Resources Bureau.
The so-called sea area refers to "the water surface, body of water, seabed and subsoil of the internal waters and territorial waters of the People's Republic of China". The act of illegal occupation of sea areas refers to the acts of "unlawfully occupying sea areas without approval or obtaining approval by fraud" and "carrying out sea encirclement and reclamation without approval or obtaining approval by fraud".
A reporter from the Rule of Law Daily noted that in the process of developing the marine economy and exploiting marine resources, illegal occupation of sea areas often occurs. Although many "high price" fines have been issued across the country, illegal occupation of sea areas is still expanding.
Experts interviewed by a reporter from the Rule of Law Daily believe that illegal occupation of sea areas will not only cause damage to the marine environment, but also cause hidden dangers to the sustainable development of marine ecology. The illegal occupation of sea areas has become necessary to be a crime, and the national legislative level may consider including it in the scope of criminal legislation to achieve the mutual connection between administrative law enforcement and criminal justice.
Frequent illegal occupation of sea areas
Penalty escrow is common
The "Law of the People's Republic of China on the Administration of the Use of Sea Areas" stipulates that "the sea areas are owned by the state, and the State Council exercises the ownership of the sea areas on behalf of the state. No unit or individual may occupy, buy or sell or illegally transfer the sea areas in other forms. Units and individuals must obtain the sea areas in accordance with the law. Use rights."
However, the illegal occupation of sea areas is currently becoming more and more serious. According to public reports, on December 28, 2018, the Ministry of Natural Resources held a press conference to announce to the public 8 cases of illegal encirclement and reclamation, with administrative penalties exceeding 5.5 billion yuan.
Since June 2019, Zhejiang Coast Guard has investigated and dealt with 8 cases of illegal development and utilization of sea areas and 6 cases of illegal occupation of sea areas.
On April 1 this year, the China Coast Guard, in conjunction with the Ministry of Natural Resources, the Ministry of Ecology and Environment, and the Ministry of Transport, jointly issued a document, deciding to launch the "Bihai 2020" marine ecological environmental protection law enforcement action from April 1 to November 30. During the operation, the Beitang Workstation of the Coastal Police Bureau of Tianjin Binhai New Area successfully investigated and dealt with an illegal reclamation case involving an area of 10.86 hectares; the Xiamen Coastal Police Bureau of Fujian investigated and dealt with different types of seas involving submarine pipelines, traffic bridges, and temporary structures 3 In this case, the penalty amount was about 1.1 million yuan.
The administrative penalty for illegal occupation of sea areas first occurred on November 28, 2003. The State Oceanic Administration issued a penalty decision No. 12, ordering Haida to return 57.02 acres of sea area illegally occupied and restore the sea area to its original state. Time, area, etc. were fined 513,180,000 yuan.
According to Article 42 of the Law of the People’s Republic of China on the Administration of the Use of Sea Areas, “Whoever illegally occupies sea areas without approval or fraudulent approval shall be ordered to return the illegally occupied sea areas, restore the sea areas to their original state, confiscate the illegal gains, and impose illegal occupation of the sea areas. During the period, the area of the sea area shall be paid a fine of not less than five times and not more than 15 times of the sea area usage fee; for those who conduct sea encirclement or reclamation activities without approval or fraudulent approval, they shall also pay the area of the sea area during the period of illegal occupation of the sea area. The use of gold in the sea area is more than ten times the fine but not more than twenty times."
However, in practice, illegal occupation of sea areas is not uncommon. According to a law enforcement officer from Zhejiang Zhoushan Maritime Police Bureau, there are three main reasons for the frequent occurrence of illegal occupation of sea areas. One is driven by huge economic interests; the other is negligent management by the regulatory authorities; and the third is improper coordination by law enforcement agencies.
A reporter from the "Rules of Law Daily" learned that the punishment for illegal occupation of sea areas is determined by "the maritime administrative department of the people's government at or above the county level in accordance with its powers." In some areas, the phenomenon of "managed by fines" has become a common way to deal with enterprises that illegally occupy sea areas. Under the influence of local protectionism, some law enforcement agencies also have inaction and incomplete performance of responsibilities in supervision, which has become another reason why illegal occupation of sea areas has been repeatedly prohibited.
Hu Gongqun, a legislative consultant expert of the Standing Committee of the Beijing Municipal People’s Congress, suggested that in the "Law of the People’s Republic of China on the Administration of Sea Areas," the identification of illegal occupation of sea areas should be further subdivided, based on obtaining sea areas without permission, fraudulently obtaining permits through forged materials, and re-applying materials afterwards. Regulations on types of use permits and sea area use methods that do not comply with the prior application.
Sea damage is difficult to recover
Limited effectiveness of administrative penalties
On May 5, 2015, the Central Committee of the Communist Party of China and the State Council issued the "Opinions on Accelerating the Construction of Ecological Civilization", which pointed out the need to strengthen the scientific development of marine resources and ecological environmental protection, adhere to "point development and general protection", and control the intensity of marine development ; Implement a strict total control system for sea reclamation and natural shoreline control, and establish a marine ecological environmental protection and restoration mechanism that integrates land and sea planning and regional linkage. Scientifically delineate the ecological red lines of forests, grasslands, wetlands, oceans and other fields, and strictly manage the use (occupation) of natural ecological space to effectively curb the trend of ecosystem degradation.
According to a staff member of the Natural Resources Bureau of Ningde City, Fujian Province who did not want to be named, some of the existing marine laws have only prohibitive provisions and no corresponding legal responsibilities. For example, the Marine Environmental Protection Law mentions that "the state establishes and perfects a compensation system for marine ecological protection." Those who fail to implement the "ecological compensation measures" will be punished, but there are no specific regulations on penalties, types and ranges. Another example is the legal liability part of the Sea Area Use Management Law, “Whoever illegally occupies the sea area without approval or fraudulent approval shall be ordered to return the illegally occupied sea area and restore the sea area to its original state...” But it lacks operability in law enforcement practice.
On September 11, 2019, the Supreme People’s Court stated in the 2018 National Maritime Trial Typical Cases that “the mandatory enforcement of the order to return the illegally occupied sea area and restore the sea area to its original state is due to the large sea area involved, the large number of responsible parties, and the structure The huge amount of demolition and earthwork removal and transportation works is often difficult to implement effectively."
On May 8 this year, the second round of the first batch of the central ecological and environmental protection inspection team notified the situation during the inspection in Fujian Province. Since April 2017, Fujian Zhanglong Construction Investment Group Co., Ltd. has been The Management Committee of Zhangzhou Gulei Port Economic Development Zone commissioned an illegal reclamation project to invade the Dongshan Bay wetland. As of October 2018, a total of 5,820 mu of land was reclaimed. The local marine and fishery departments have twice ordered the project to stop construction, but the Gulei Port Economic Development Zone and Fujian Zhanglong Construction Investment Group Co., Ltd. continued to implement reclamation until completion.
Zhang Yunshu, a professor at the Law School of Anhui University of Finance and Economics, believes that compared with the huge economic benefits obtained by illegal occupation of sea areas, fines are insignificant, causing some companies to repeatedly illegally use the sea for profit and failing to cooperate with administrative law enforcement, resulting in insufficient administrative law enforcement. In addition, in some areas where the economy is more important than environmental protection, the local government even promotes illegal occupation of sea areas, which is not conducive to protecting the marine ecological environment.
Zhang Yunshu believes that although China’s current laws and regulations impose penalties on illegal occupation of sea areas, they have not prevented such illegal acts from the root cause. In recent years, illegal occupations have occurred frequently, and the essence of this situation lies in criminal theory. And judicial practice is not aware of the great harm of illegal occupation of sea areas. The regulatory power for illegal occupation of sea areas only by administrative law enforcement is limited. At present, our country’s legislation focusing on the protection and sustainable development of terrestrial natural resources is not fully adapted to Utilization and protection of marine resources.
Proposal to add special charges
Promote administrative and judicial convergence
my country is rich in marine resources. In recent years, with the rapid economic growth, the utilization of land resources has become saturated, and people have gradually turned their attention to the utilization of marine resources. The illegal occupation of sea areas such as sea encirclement and reclamation has not only severely damaged the marine ecological environment, but also brought major hidden dangers to personal safety.
Previously, in Lingao, Hainan, 4 children accidentally fell into the "cannibalism pit" formed by illegal sand dug and reclamation, causing 1 death and 3 injuries. "Eating people's pit" was formed after digging sand and filling the sea without government approval. Regarding this unapproved but initiated project, the town government without law enforcement power has come forward to stop it. As the competent authority, the Ministry of Land and Resources and the Bureau of Oceans and Fisheries have requested that the project be suspended for rectification, restored to its original state, and fined twice.
A reporter from the Rule of Law Daily noted that my country’s existing maritime laws include the Marine Environmental Management Law and the Sea Area Use Management Law, as well as administrative regulations and departmental rules. In my country’s constitution, it is stipulated that “natural resources such as minerals, water flows, forests, mountains, grasslands, wastelands, and tidal flats are owned by the state, that is, owned by the whole people.” However, the basic status of the ocean as a country’s natural resources has not been clarified.
In my country's criminal law, some crimes of illegal occupation of natural resources are regulated, including the crime of illegal occupation of agricultural land, illegal mining, illegal hunting, killing of precious and endangered wild animals, and illegal fishing of aquatic products. Among them, for illegal occupation of agricultural land, it is stipulated that “violating land management laws and regulations, illegally occupying agricultural land such as cultivated land and forest land, changing the use of the occupied land in a large amount, causing massive destruction of agricultural land, forest land and other agricultural land, shall be sentenced to fixed-term imprisonment of not more than five years Or criminal detention, concurrently or solely with a fine."
A reporter from the Rule of Law Daily found that in the illegal use of the sea, some places were held criminally responsible for the illegal digging and reclamation of the sea in accordance with the crime of illegal mining. On November 5, 2019, 11 sand pumping operations were carried out in Hainan waters and the waters of the Taiwan Strait. The illegal mining of sea sand was 4811.4 cubic meters, and the cabin transaction price was 134,719 yuan. Article 143: Investigate criminal responsibility for the crime of illegal mining. However, there are no special criminal law measures to sanction other illegal use of the sea.
According to Guo Zeqiang, a professor at Zhongnan University of Economics and Law, for illegal occupancy of sea areas, including illegal sand dug and reclamation, currently mainly relies on the Sea Area Use Management Law as the basis, and the supporting administrative penalty law is carried out by the maritime administrative department, including the return of illegal occupation. In the sea area, the sea area shall be restored to its original state, the illegal income shall be confiscated, and administrative penalties such as fine shall be imposed. But in practice, the effectiveness of administrative punishment is limited. Regarding the ocean, an important natural resource, it can be considered to be included in the scope of the criminal law. Special regulations for illegal occupation of sea areas can be added, criminal responsibility for illegal use of the sea should be investigated, and the "crime of illegal occupation of sea areas" should be added to further improve the marine environment. The organic connection of judicial and administrative law enforcement has improved the level of legalization of marine protection.
Guo Zeqiang also suggested that criminal liability clauses should be added to the Law on the Management of the Use of Sea Areas. If a crime is constituted, criminal responsibility should be investigated in accordance with the law and management should be strengthened.