Illegal construction

What is an illegal building?What conditions must be met to be considered an illegal building? What are the main situations of illegal construction? Understanding these issues is a prerequisite for identifying illegal construction.

We believe that the so-called illegal construction refers to buildings and structures that violate the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations, illegally occupy land, fail to obtain a construction project planning permit, a temporary construction project planning permit and other statutory construction permits, or fail to comply with the provisions of a construction project planning permit or a temporary construction project planning permit.

According to this definition, the constituent elements of illegal construction mainly include the following aspects:

1． It must be an act that violates the provisions of the Land Management Law, the Urban and Rural Planning Law and other laws and regulations related to construction and planning.

Illegality is the fundamental criterion for defining illegal buildings, which is also the highlight of the Regulations on the Expropriation and Compensation of Houses on State-owned Land (hereinafter referred to as the "Expropriation Regulations"). Changing "illegal construction" to "illegal construction" reflects the protection of citizens' rights and the requirement for administration according to law.

Only when there are clear legal provisions, the administrative agency can determine that the house of a citizen, legal person or other organization is an illegal construction, and can demolish the house free of charge in accordance with the provisions of the law. Otherwise, the property should be regarded or presumed to be legal property, and the administrative agency has no right to dispose of it arbitrarily, but can only expropriate and compensate according to the conditions stipulated in the law.

The "law" in "illegal construction" shall only refer to laws and regulations, excluding regulations and the following normative documents. This is because the final legal consequences of illegal buildings may be confiscation of illegal buildings or forced demolition. The essence of confiscating illegal buildings is administrative penalties. According to the provisions of the Administrative Penalty Law, only laws and regulations can set administrative penalties for confiscation of illegal buildings. Regulations and the following normative documents do not have the power to set administrative penalties. Forced demolition legally belongs to administrative enforcement. According to the provisions of the Administrative Enforcement Law, only laws have the right to set administrative enforcement.

Of course, when laws and regulations have set up corresponding powers to confiscate illegal buildings or demolish them within a time limit, the legal regulations and subsequent normative documents that specify them within the scope of the higher-level law can still be used as the basis for identifying illegal buildings.

In fact, our country's laws have many provisions on illegal construction and their scope is very wide.

For example, Article 65 of the Water Law Article 11 stipulates: “Anyone who constructs buildings or structures within the scope of river management that hinders flood discharge, or engages in activities that affect the stability of the river, endanger the safety of riverbanks and embankments, or otherwise hinder the discharge of river floods, shall be prosecuted by the water administrative department of the people’s government at or above the county level or the river basin management agency. The agency shall, in accordance with its authority, order the illegal activities to cease, demolish the illegal buildings and structures within a time limit, and restore them to their original state; if they fail to dismantle or restore them to their original state within the time limit, they shall forcibly dismantle them, and the necessary expenses shall be borne by the illegal unit or individual, and a fine of not less than RMB 10,000 but not more than RMB 100,000 shall be imposed.”

Article 81 of the Highway Law stipulates: "Anyone who violates the provisions of Article 56 of this Law by constructing buildings or ground structures or burying pipelines, cables and other facilities without authorization within the highway construction control area shall be ordered by the transportation department to dismantle them within a time limit and may be fined not more than 50,000 yuan. If the construction is not demolished within the time limit, the transportation department shall dismantle it, and the relevant costs shall be borne by the builders and constructors."

In addition, legal provisions such as Article 46 of the Railway Law, Article 58 of the Civil Aviation Law, Article 17 of the Cultural Relics Protection Law, Article 45 of the Port Law, and Article 27 of the Flood Control Law have restrictive provisions on the construction of relevant buildings and structures from different angles. Relevant functional departments must fully consider the relevant provisions of the above-mentioned substantive laws when defining illegal buildings.

2. Objectively speaking, it manifests as illegal activities such as construction without obtaining a construction project planning permit, a temporary construction project planning permit, or failure to carry out construction in accordance with the above licensing requirements, etc.

There is no consistent understanding of the scope of illegal construction. Some people believe that illegal construction refers to buildings and structures constructed in violation of the provisions of the Urban and Rural Planning Law for illegal activities that should be punished, that is, buildings and structures constructed for illegal construction activities as stipulated in Articles 64 and 66 of the Urban and Rural Planning Law. [1] Some people also believe that buildings and structures constructed on illegally occupied land in violation of the Land Management Law are also illegal structures. Because the Land Management Law also has corresponding penalties for illegal land occupation and housing construction.

We believe that if we simply consider the illegal construction caused by house construction on state-owned land, we do not need to consider the relevant provisions of the Land Management Law, because the illegal occupation of land dealt with by the Land Management Law mainly refers to the illegal occupation of agricultural land. However, a large number of historical problems, especially the problem of illegal construction in the urban-rural fringe area, are not always covered up by houses on state-owned land. The problem of dealing with a large number of houses that were built before the land was expropriated but were demolished without compensation for a long time after the expropriation.

The construction of this type of houses was actually carried out on collective land, but when the collective land was expropriated as state-owned land, no compensation was provided, thus it evolved into houses on state-owned land built on the original collective land. This type of housing cannot be solved simply by using urban and rural planning laws or previous urban planning laws.

In view of this, the author believes that illegal construction includes violations of legal provisions on land management and planning management. For illegal construction, governments at all levels should coordinate with land, planning and other relevant departments to investigate and deal with them in accordance with the law and comprehensively manage them.

3. Illegal construction already exists, but it does not necessarily require that it has been completed.

Illegal construction certainly presupposes the existence of buildings and structures. As long as the illegal actor has invested funds, equipment, etc. in the actual construction of buildings and structures, the buildings and structures formed due to illegal construction activities can be deemed as illegal buildings. Illegal buildings do not necessarily need to be completed buildings.

On the contrary, the earlier illegal construction activities are discovered and stopped, the legal property and social wealth of the illegal actors will be protected, and greater losses caused by construction and demolition will be avoided. Therefore, it is very important to detect and deal with illegal construction behaviors in a timely manner. The earlier and more timely, the less the losses will be, and the less difficult it will be to deal with them.

4. The perpetrator must be subjectively at fault

The administrative violations of the counterparty are usually determined based on the principle of presumption of fault. That is, as long as the counterparty commits an administrative violation stipulated in the law, it is presumed that he or she has subjective intention or negligence. Unless there are special provisions in the law, intention or negligence will not affect the characterization of the nature of the illegal act.

This is quite different from the subjective fault determination of criminal violations. The same is true for the determination of illegal construction. As long as a building or structure is constructed in violation of laws and legal regulations, it should generally be presumed that the builder has subjective illegal intention or negligence.

It should be noted that if a party carries out construction activities based on trust in the illegal approval of the agency, the fault liability of the party involved in the illegal construction should be reduced unless the party defrauded the construction. Illegal construction should generally be dealt with by the illegal builder, not the constructor of the building or structure, nor the lessee of the illegal building. The constructor and lessee are usually not at fault for the illegal construction behavior.

5. The legal consequences of illegal construction are not all free demolition

The specific circumstances of administrative violations vary widely, the degree of illegality varies, and the social harm is also very different. Therefore, under normal circumstances, the law stipulates a discretionary range of administrative penalties for illegal acts, and the same is true for penalties for illegal construction.

For example: Article 64 of the Urban and Rural Planning Law stipulates several treatment options for those who fail to obtain a construction project planning permit or fail to carry out construction in accordance with the provisions of the construction project planning permit:

One isThose under construction shall be ordered to stop construction;

The second isIf corrective measures can still be taken to eliminate the impact on the implementation of the plan, corrections will be made within a time limit and a fine of not less than 5% but not more than 10% of the construction project cost will be imposed;

The third isIf corrective measures cannot be taken to eliminate the impact, it will be demolished within a time limit;

The fourth isIf it cannot be demolished, the physical objects or illegal income will be confiscated, and a fine of not more than 10% of the construction project cost may be imposed. It should be particularly emphasized that illegal buildings during the expropriation and compensation process should also be dealt with appropriately in accordance with legal provisions, and should not be demolished without compensation on the grounds of expropriation or planning changes, regardless of the specific circumstances.

If this is the case, the administrative agencies will be tempted to abandon their usual supervision and processing, and accumulate all the problems until the planning changes require expropriation, which is not conducive to preventing the occurrence of illegal buildings from the source. Only by distinguishing between different situations and making fair treatment in accordance with the law can it be in line with the spirit of the principle of protecting the legitimate property rights of the administrative counterparty in the Expropriation Regulations.

[1] Accordingly, some people classify illegal buildings into four types: (1) buildings built without applying for or having their application approved, and without obtaining a construction land planning permit and a construction project planning permit; (2) buildings built without authorization by changing the provisions of the construction project planning certificate; (3) buildings built without authorization by changing the nature of use; (4) buildings built without authorization from temporary buildings into permanent buildings. See He Rong, editor-in-chief: "Research on Practical Issues in Property Law and Administrative Litigation", China Legal Publishing House, 2008 edition, page 267.

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