Land illegal impulse under urban expansion
China News Weekly reporter/Xu Tian
Published in the 977th issue of China News Weekly on December 21, 2020
The government is an inescapable role in China's land violation issue.
There is a saying in the industry: twenty-eight theory.
Land violation cases led by companies or individuals accounted for 80% of the number, and the land area involved accounted for 20%.
The number of land violation cases led by or involved in the government accounts for only 20%, but the land area involved is as high as 80%.
In fact, our country has taken measures to restrict and regulate land use since 20 years ago, and later carried out a number of actions such as satellite law enforcement inspections and land inspections.
Related actions continue to escalate, but according to China News Weekly’s interview with relevant authorities, the current land violations are still “large and wide”, and the shadow of local governments can be seen more or less.
Local governments are both the subject of violations and the subject of protection. Such contradictions have existed for many years.
"China News Weekly" learned in the interview that the number of cases where local governments blatantly violated land laws has decreased compared with previous years.
It is more common that a certain company or a certain project violates the law, and the government tacitly approves or even tacitly encourages such behavior.
"Unspoken rules" for major project land violations
On September 17, the Ministry of Natural Resources announced that it would list 11 land violation cases and then publicly notified 18 major typical violation cases related to cultivated land.
In both notifications, there were several land violation cases led by local governments, including the illegal land occupation and construction of Liaojiagou Urban Central Park in Yangzhou City, Jiangsu Province, the illegal land grant case by the People’s Government of the former Xinjian County of Nanchang City, Jiangxi Province, Hainan Sanya City in the province did not investigate cases of illegal land use.
Excessive "landscape engineering" is a new feature of land violations in recent years.
The Ministry of Natural Resources has notified that since 2017, at least 1,368 urban landscape parks, riverside and lake green belts, lake wetland parks, urban green belts and other man-made projects have not gone through the approval procedures, involving 186,700 mu of arable land, which are permanent and basic. 57,900 mu of farmland.
However, the more common illegal use of land in the past 20 years is still investing in large-scale local projects.
Judging from the situation in the relevant departments, among the illegal activities currently being investigated, the projects related to real estate development and other commercial activities are not in the majority, and most of the major national and provincial projects are suspected of land violations.
In an interview with China News Weekly, the person in charge of the relevant department explained that the land supply indicators that each city can get are limited. In this case, they will first supply the indicators to the projects introduced by the city itself, such as a certain The construction of industrial parks.
As for key national and provincial projects, such as the construction of railways and high-speed railway stations, prefectures and cities often have a fluke attitude: "What about such key projects, even if the land is illegal? In the end, they will definitely go through the formalities to'registration'."
An unnamed person from the former Land Consultation Center of the Ministry of Land and Resources once said in an interview with China Real Estate News that illegal and illegal land use for railway construction is very serious, accounting for more than 40% of all illegal land use.
A former deputy minister of the Ministry of Land and Resources once said bluntly, “Some construction units believe that the national and provincial key projects are made by the superiors, so they justify the illegal use of land and move quickly. Some projects have even been completed and accepted. Did not go through any land use procedures."
At the end of 2019, the Ministry of Natural Resources notified 31 typical cases of violations of laws and regulations.
One of them is the case of Liaoning Province China Railway Shenyang Bureau Group Co., Ltd. illegally occupying land to construct a railway logistics storage project.
Since 2013, China Railway Shenyang Bureau Group Co., Ltd. has occupied 289.85 acres of land in three villages without approval to build 3 large-scale railway logistics and storage projects, including 140.85 acres of arable land.
The above-mentioned person in charge told China News Weekly that for a railway project under construction, the land use plan was sent to the competent authority for approval. Without waiting for approval, the project has started.
According to their understanding, the railway department requires that traffic must be opened at a certain point in time, and it took 8 months for the project party to find a balance indicator that meets the budget.
If you have to wait for the approval process to be completed before starting construction, I am afraid that it will not be able to open to traffic at the specified time.
But they also know that illegal land is a red line, and there is a risk of being detected by relevant departments.
The project team thought that the left was also beaten, and the right was beaten. After repeatedly weighing the pros and cons, they decided to start construction directly.
When investigating the meeting minutes of similar key project cases, the above-mentioned person in charge found that the government usually requires the land department to complete the land procedures within a certain period of time to allow major projects to land.
But this request is unreasonable, and it can even be said that it is absolutely impossible to meet.
Of course, the relevant leaders will not put forward the requirement that "the land procedures cannot be completed and the construction cannot be started".
This is a situation that all parties are well aware of. The government does not make it clear, but the project is destined to be launched in violation of laws and regulations.
Dong Zuoji, former director of the Planning Department of the Ministry of Land and Resources, once stated that more than half of the large amount of land occupied by urban expansion is cultivated land.
Project implementation requires land. Even if it violates laws and regulations, it must face a practical problem. How can the land be taken in the hands of farmers?
One of the most common methods is to rent instead of levy.
By renting collective land from farmers, we can expand the scale of construction land and carry out non-agricultural construction.
On the one hand, it evaded the approval of agricultural land conversion and land expropriation. On the other hand, it also evaded the obligation to pay relevant taxes and fees, link increase and decrease, and balance the compensation.
Not long ago, the “Beijing News” reported that Cheng’an County, Handan City, Hebei Province, in order to build a new county seat, after the autumn harvest of 2016, signed a lease compensation agreement with the village committees and villagers of several villages, occupying about 8,700 mu. Cultivate land, build artificial lakes, parks, and commercial housing communities.
A villager recalled in an interview with the Beijing News that the rental fee was 1,000 yuan per mu per year, which was paid by the county finance.
The above-mentioned person in charge told China News Weekly that at present, the use of leases for expropriation is still a common method in illegal land, and it is also a key issue in law enforcement investigations.
Another method that is more concealed and even more difficult to characterize as "illegal" than using rent on behalf of levy is to abuse the increase and decrease link.
Land increase/decrease linkage is based on the overall land use plan, through measures such as construction, demolition, land consolidation and reclamation, and on the basis of ensuring the balance of various types of land in the project area, the ultimate realization of increasing the effective area of arable land and saving and intensive use of construction land Wait for the goal.
The problem of abuse of the link between increase and decrease has also existed for many years.
As early as 2010, Chen Xiwen, then deputy head of the Central Rural Work Leading Group, criticized this phenomenon at the National People's Congress.
However, the person in charge of the above-mentioned relevant department told China News Weekly that the abuse of the increase and decrease link is different from the “representation of rent”.
The latter has not been approved and is a typical illegal problem.
The abuse of the increase or decrease link is subject to statutory procedures for examination and approval, which is a loophole of the local government's laws and policies. Therefore, there are certain difficulties in law enforcement.
Central land game
The land formalities approval process is a game between central and local governments.
Geng Weiming of the Beijing Bureau of State Land Inspectorate once analyzed this in his doctoral dissertation: the central government, as the representative of the country as a whole, undertakes the responsibility of protecting cultivated land, pursues sustainable economic and social development, and takes into account immediate interests and long-term development. ; And local government, as a representative of a certain local area, seeks to maximize the local interests of a certain area, often from the perspective of self, and its behavior is short-sighted.
In 2015, Dong Zuoji, then director of the Planning Department of the Ministry of Land and Resources, publicly stated that in the past ten years, in order to maintain the red line of 1.8 billion mu of arable land, the central government has always strictly controlled the land supply indicators, hoping to curb the chaos of enclosure and revitalize it. Idle land approved but not provided.
A set of public data shows that in 2018 and 2019, my country has digested and disposed of more than 8.9 million mu of unsupplied and idle land approved before 2016, which is equivalent to 1.8 times the 5 million mu of newly built construction land arranged nationwide in 2019.
According to data released by the Ministry of Natural Resources, there are still about 14.5 million mu of land approved but not provided before 2017, and there is a great potential for revitalization of the stock.
However, Kong Xiangbin, a professor at the School of Land Science and Technology of China Agricultural University, pointed out to China News Weekly that revitalizing the stock can indeed improve the efficiency of land use, but with the development of the industry, especially the deepening of the concept of industry-city integration, some regions will be revitalized. , There is still demand for expansion.
In addition, the levels of urbanization in the east, middle and west are different, and the stocks are also different.
The reality is that some cities must have insufficient stock.
To develop, new construction land is the only way to go.
The central government needs to balance the needs of all provinces across the country. As far as the province is concerned, a certain prefecture-level city needs to compete with provincial capital cities and other prefecture-level cities for land supply indicators. The land supply indicators that each city can get are bound to be limited.
In addition, the land approval process takes a long time, with the entire process as short as one or two years and as long as three to five years.
For a project that attracts investment, if the investor does not see any benefits for several years, it will naturally withdraw.
Therefore, in order to retain these projects, local governments will choose to acquiesce in their illegal land occupation and construction during or even before the land approval procedures.
Judging from the illegal land grant case of Nanchong City Government, 3,339.09 acres of land has been illegally approved for use, of which more than half of the land has a land supply quota, and more than 1,400 acres of land need to be linked to increase or decrease, and balance the occupation and compensation And other means to buy indicators.
At that time, the Nanchong Municipal Government chose to bypass the land approval procedures and illegally approve the use of land in order to quickly promote urban development and construction.
In addition, the then Nanchong municipal government team misjudged the land area required for urban development and the carrying capacity of local finances.
In the years when the illegal land grant was not discovered, the 23,800 mu of state-owned river beach land that was illegally confirmed could be developed and utilized.
In the end, Nanchong City approved the use of only 3,339.09 mu.
This is precisely the common reason why China currently has a large number of unsupply idle land.
However, Huang Xiaohu, vice chairman of the China Land Society and former president and party secretary of the China Land Survey and Planning Institute, told China News Weekly that although there are many problems with local government land violations, it is not enough to just hit the board on the local government. objective.
Huang Xiaohu pointed out that after the tax-sharing system reform in 1993, the central fiscal revenue increased and local finances gradually weakened. Until the 1998 "Land Management Law" was revised, all localities quickly found tricks, such as land acquisition, land sales, investment promotion, and even land mortgage loans. , The land finance was formed.
In addition, the country has put forward a series of development strategies, including the great development of the western region, the rise of the central region, and the revitalization of the northeast. All parts of the country are catching up with each other and blossoming. One of the core needs is land resources.
The management and assessment mechanism of officials also mainly depends on GDP and investment promotion.
From the development strategy to the cadre system, all efforts are encouraged, and land resources are thus greatly wasted.
Tang Peng, an associate professor at the School of Public Administration of Sichuan University, told China News Weekly that during his visits and surveys, he found that three or four of the projects under construction in some prefectures and cities were illegal land projects.
Each year, the province will give land indicators as appropriate to legalize one or two of the projects that have to be converted to normal, such as projects that have been completed and cannot be demolished, or projects that can bring huge benefits to the future development of the city.
Of course, the game negotiation ability of local officials is also extremely important.
Wu Kening, the dean of the School of Land Science and Technology of China University of Geosciences, said in an interview with China News Weekly that there are still many grassroots government leaders thinking about relying on land finance to develop the economy, and the concept is difficult to reverse.
When attracting investment, the government will give him which piece of land the other party wants.
Doesn't meet the land master plan?
Go to apply for an adjustment plan.
No land supply indicator?
While starting work, go through the approval process and wait for indicators.
These concepts and models are still very popular and widespread.
Local self-examination "Less to be lenient, lose to soft"
In order to supervise and solve the problem of land illegality in local development, the Ministry of Natural Resources has adopted a series of measures, the most important of which is the inspection of satellite law enforcement and land inspection.
In 2000, my country launched the first nationwide land satellite law enforcement inspection in 66 cities in 25 provinces including Beijing.
Simply put, it is to compare satellite remote sensing images at different time periods of the year to check land use changes.
At the beginning, the law enforcement inspection of satellite films was conducted once a year, and in 2009, it covered all county-level administrative regions in the country.
In 2019, the frequency of inspections was increased to once every quarter.
The supporting work is also gradually upgrading.
Initially, the satellite film law enforcement inspection will discover, investigate and report.
In 2008, began interviews with relevant local governments.
In 2009, when the satellite law enforcement inspection covered the whole country, in accordance with the original Ministry of Land and Resources, the Ministry of Supervision, the Ministry of Human Resources and Social Security Order No. 15, the administrative heads of the areas where the illegal land area reached more than 15% of the newly added construction land area that year were implemented for the first time Accountability.
Last year, the Ministry of Natural Resources emphasized that areas with serious land violations should be deducted, and the implementation of "violation increase linkage", forcing local governments to take the initiative to rectify and eliminate violations, so as to contain and prevent violations.
The land inspection system started in 2006.
The former Ministry of Land and Resources sent 9 inspection bureaus to various localities. The main function of the latter was to supervise the implementation of the arable land protection responsibility targets and land law enforcement of the provincial and separate municipal governments.
In order to maintain a high pressure on land illegal activities, since 2009, the former Ministry of Land and Resources has begun to supervise cases in addition to reporting typical cases, and publicly urge relevant provincial land and resources authorities to investigate and handle cases in accordance with laws and regulations.
"China News Weekly" learned in an interview that, as a component of the local government, the natural resources authority has many practical difficulties in investigating and punishing local government land violations.
Land illegal projects are mostly investment promotion or people’s livelihood key projects, which are vital to local economic development.
Local governments generally hold an understanding and sympathetic attitude towards such projects or leaders who "break the law for public affairs". Local natural resources departments investigate the case, but other departments may not be willing to cooperate.
Even if the Provincial Department of Natural Resources goes to prefectures and cities to investigate the case, there will be concerns.
In an interview with the media, the head of the Law Enforcement Bureau of the Ministry of Natural Resources pointed out that for a period of time, some places have been less lenient and less soft in land law enforcement.
Some one-sidedly emphasize the protection of development, and weaken the strict law enforcement and resource protection; some one-sidedly emphasize the territorial jurisdiction of land law enforcement, and law enforcement officers at the provincial and municipal levels have not directly investigated the case for a long time, only staying in the supervision and supervision; The case-handling ability and fighting spirit are obviously inadequate, bypassing the problem, and law enforcement is lax; some lack the courage and ability to handle cases, and they dare not "bright swords" for illegal land use, and they are in a passive situation where they will not investigate or dare not investigate.
In order to reverse this passive situation, the former Ministry of Land and Resources has personally filed and investigated cases since 2016 and notified them publicly.
The aforementioned Nanchong City Government’s illegal land grant case is the first case directly filed for investigation by the Ministry of Natural Resources after the establishment of the Ministry of Natural Resources.
However, due to limited manpower, the Ministry of Natural Resources has not scaled up the investigation and handling at this level.
According to China News Weekly, a more realistic path is to form a deterrent within a certain period of time through the investigation and notification of relevant cases.
For example, after the Ministry of Natural Resources notified the Nanchong City Government of illegal land grants, Sichuan Province and even all provinces and cities across the country are conducting self-examinations on the right and use of "state-owned river beach land."
Check the dilemma
However, even if the Ministry of Natural Resources filed a case for investigation, there are currently various difficulties in legal basis and procedural connection.
One of the most typical dilemmas is that China does not define "cultivated land" in a legal sense, and there is no legal database. Coordinates are marked for each piece of land and its nature is clearly defined.
The basis for investigation by the natural resources department mainly comes from the investigation of the status of the land.
However, the reality is that the various parties' determination of the nature of the land will cause conflicts and affect the investigation of the case.
According to China News Weekly, relevant state ministries and commissions encountered the problem of defining the nature of the land when renovating and clearing a golf course.
The investment developer is an enterprise that specializes in agricultural machinery. The other party argued that this land is not a golf course, but a "turf experimental base."
China also has no legal standards for golf courses.
As a result, the premise of the investigation team's cleanup and remediation became the need to prove that the site, covering more than 1,000 acres, is a golf course.
The investigation team specially invited relevant experts from the China Golf Association to explain the construction characteristics of the golf course.
Then I dug the soil layer and saw that professional pipes, sand and gravel were laid underground, which is obviously standard equipment on golf courses.
In addition, the investigative team found evidence that the site claimed to be a golf course when it was publicized, and finally decided that it was a golf course and rectified it.
From the perspective of the investigation team, as the most authoritative investigation team that integrates multiple experts, they have encountered the problem of defining the identity of the land, not to mention the difficulties encountered by the natural resources departments of various provinces, regions and cities in investigating land violation cases.
"China News Weekly" learned in an interview that sometimes, local officials voluntarily admit that they are involved in land violation cases, not because they can't find a reason to force a defense, but because of official career considerations, and they don't want to force it.
For officials, the punishment for admitting this mistake is often not too severe.
Wu Kening told China News Weekly that there is also local protectionism in the accountability of officials.
Colleagues sympathize and even approve of such non-profit-making "public violations". If officials are found on land violations, they will most likely consider themselves "unlucky."
Punishments are usually not too heavy, and higher-level departments may transfer him to an office because he has "made a difference."
To this end, several research experts in related fields have called for a one-vote veto system for land violations in the official evaluation system.
In June 2000, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destroying Land Resources", and found that "illegal transfer and reselling of basic farmland of more than 5 acres" is a conviction for the crime of illegal transfer and reselling of land use rights limit.
However, if it is a duty crime committed by a government official, it must be “illegal approval of the expropriation and occupation of more than 10 mu of basic farmland”.
Obviously, judicial interpretations impose lighter penalties on government officials for land violations.
After the natural resources department investigates and handles related cases, they will also encounter difficulties before transferring them to judicial organs.
"China News Weekly" learned in an interview that due to local protectionism, local public security bureaus and procuratorates did not recognize cases investigated by natural resources departments and returned the cases.
It is precisely because of this that the effectiveness of investigation and punishment of land violation cases is greatly reduced.
It is understood that so far, few government officials have received criminal penalties for land violation cases.
However, whether land violations should be penalized, the deterrence and warning effects produced are greatly different, and it can even determine whether local officials dare to participate in land violation cases.
Currently, relevant ministries and commissions are establishing a cohesion mechanism with the Ministry of Public Security, the Supreme People’s Procuratorate, and the Supreme People’s Court to form a unified consensus on the determination criteria and transfer procedures of land violation cases.
The subsequent rectification of illegal land projects is also a difficult problem.
If the relevant livelihood projects, industrial parks or real estate projects have been completed and put into use, and it is discovered afterwards that there are illegal land problems, should they be demolished or not?
Demolition will waste a huge amount of financial resources and manpower, and cause social turmoil; not demolition and legalization will lead to project "kidnapping" management.
Tang Peng believes that the natural resources department should further handle the relationship between the prevention of violations and the subsequent investigation and punishment of violations.
Make good use of methods such as satellite law enforcement investigations, and spend more time and energy on preventing violations in advance.
Once you find any signs of illegality, investigate and deal with them immediately.
In addition, in the contradiction between development and protection, there are still some long-term issues that need to be clarified.
Kong Xiangbin pointed out that China is still in the process of urbanization, and local development rights should not be taken away, let alone prohibit development for the sake of protection.
The relevant person in charge of the competent department also said in an interview with China News Weekly that some local officials once told them bluntly that they had saved the land but lost the opportunity for local development and could not keep the local people's jobs.
Huang Xiaohu told China News Weekly that over the years, the state's orientation towards local economic development and the official evaluation system has changed, but the issue of compensation for local development rights needs further exploration.
China News Weekly, Issue 47, 2020
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