On The Constitutional Governance Of Urban Planning Power

Nowadays China is in a period of rapid development. Urban constructionflourishes with each passing day as well as urbanization grows vigorously. Each yearabout13million to15million people shift from rural areas to urban ones. Each yearthe total amount of new buildings is2billion square meters, which is more than thesum of buildings in developed countries around the world. In the historicalopportunity, urban planning brings about profound changes in the appearance of cityand urban people’s life. Apparently urban planning is an activity of urban design. Butessentially it is the distribution of social resources and the standard for developmentand utilization of land and space, which is political, normative and binding.Outstanding contradictions in the process of urbanization cause fierce conflictsbetween rights and capital, rights and powers and finally cause a number ofthought-provoking cases. Ignoring people’s claims and concerns in urban planningleads to removal issue. In the name of public interest, urban planning involves everyfamily and influences all kinds of occupations. In current society, the key to solve theproblem of urban planning is how to keep it on behalf of public interest, protectingpublic interest as well as individual rights. This paper starts with constitutional ideasand system, aims at existing problems in urban planning such as insufficient basis,weak power restriction, insufficient guarantee of rights, deficient proper procedureand right relief, adopts a number of methods, for example, comparative study,specification analysis, empirical study and historical analysis, and finally proposesspecific measures to govern the urban planning power. This paper is divided intoseven chapters. Chapter One is introduction. Chapt Two conducts a theoreticalanalysis on the basic concept of urban planning and the urban planning power.Chapter Three to Chapter Six aim at existing problems in the exercise of the urbanplanning power from five aspects as follows: public interest restriction, powerrestriction, rights restriction, procedure restriction and rights relief, elaborate on theways to restrict the urban planning power and put forward recommendations forimproving.Chapter Two: a theoretical analysis on the urban planning power. First of all,this paper analyses on the concept and nature of urban planning. Based on the analysisof the nature of urban planning in different times and on the basis of art view, view of science, political view and view of policy of urban planning, it raises anddemonstrates legal concept of urban planning. This paper believes that the nature ofurban planning is law. In other words, urban planning is standard for development andutilization of land and space with the purpose of public interest. Next, on the basis ofdefining the concept of urban planning system, this paper proposes features of urbanplanning whose core is the controlled detailed plan and believes that it is able to solvethe key problem in urban planning so long as a controlled detailed planning isprepared and implemented well. Finally, this paper deals with the concept,composition, features and the legal basis of the urban planning power. It believes thatthe urban planning power includes formulation power and implementation power.These powers have different contents. Characteristic of public interest, highlycomplicated, unity of opposites with property rights and expansionary are features ofthe urban planning power. The legal basis of the urban planning power is exercisingpolice authority which aims to protect public interest.Chapter Three: constitutional govern of the urban planning power: publicinterest restriction. Public interest is the premise of exercising the urban planningpower. Without legitimate public interest, exercising the urban planning power will bea lack of foundation. The mission of this chapter is to explore what legitimate publicinterest is in urban planning. First, it analyses historical documents of public interestresearch and summarizes the connotation and characteristic of public interest. Then itanalyses judgment of public interest in the urban planning. Through the analysis itfinds that public interest is uncertain. Therefore, it carries on data analysis for surveysof public interest in urban planning by adopting factor analysis method, and achievesa conclusion that influential factors of public interest include reasonable definition ofpublic interest, public power check and balance, scientific implementation of properprocedure, laws and regulations guarantee, proper compensation of right and interest,and objective supervision of public media. By means of these factors, this paperemploys structural equation model to explain its influence on the exercise of the urbanplanning power. Data analysis shows that reasonable definition of public interest andpublic power check and balance exert the maximum impact on formulation power ofurban planning while scientific implementation of proper procedure and laws andregulations guarantee exert the maximum influence on implementation power of that.Revelations derived from the study are that it is ought to strengthen planning, developcheck and balance, properly define public interest; implement proper procedure and encourage public media to supervise; draw up detailed rules for related laws andregulations and compensate related rights and interests according to law.Chapter Four: constitutional govern of the urban planning power: powerrestriction. This chapter starts with the constitutional principle of power restrict powerand develops two ways to restrict the urban planning power with power: separationand supervision of power. Part One: separation of power. In China, the urbanplanning power which includes formulation power as well as implementation powerhighly unifies in the administration. However, in western countries such as the USA,the UK, and Germany, formulation power belongs to the legislature whileimplementation power generally belongs to the administration. In this paper, theimportance of property right, the nature of legislative, the characteristic of publicinterest, and provisions of the Constitution and local organic acts together determinethat formulation power belongs to the legislature while implementation power shouldbe handed to the administration. On the basis of that, this paper proposes threerecommendations for the urban planning power: first, in terms of horizontalconfiguration of local power of urban planning, the formulation power of controlleddetailed planning and technical standards will be delivered to local People’s Congressand its Standing Committee. Second, on the vertical distribution of power, a powerdistribution system which gives priority to the local will be founded. Third, under theguidance of the theory of separation, committee system of urban planning in Chinawill be established. Part Two: supervision of power. First, status of the planningpower supervision is that we have insufficient upper supervision, deficient supervisionof local authority, absent judicial supervision and weak social supervision. Second,this paper raises some suggestions to strengthen the supervision on the urban planningpower, including perfection of supervisor system; develop information disclosuresystem of urban planning, improve the system of public participation, and cultivatenon-governmental and non-profit organizations.Chapter Five: constitutional govern of the urban planning power: propertyright restriction. This chapter starts with the constitutional principle of rightsprotection and elaborates on the restriction that guarantee of property rights willimpose on the exercise of the urban planning power. The urban planning power is arestriction to the immovable property rights such as land and housing. First of all, thispaper starts with domestic and foreign historical changes of the relationship betweenthe urban planning power and private property right, emphasizes the protection of private property right and limits the expansion of the urban planning power in thename of public interest which is a significant choice for improving our system ofurban planning. After that, it analyses the legal reservations regime in Germany basiclaw and legal precedents of urban planning restricts property rights in Americanjudicial practice by comparative analysis, and puts forward legal requirements ofimposing restriction on citizen’s property rights by the urban planning power. Theserequirements are as follows: constitutional and legal basis, principle of causality,principle of equal protection, principle of excessive exercise constitutes taking, andprinciple of compensation levy. On the basis of that, this paper suggests protection ofcitizen’s property right should be strengthened. Meanwhile, it raises somerecommendations of restricting the urban planning power, including: in terms ofconstitutional protection, legal reservation regime will be established; administrativetaking and compensation system will be established; proportionality principle ofexercising the formulation power should be established; guarantee of property rightsshould be strengthened.Chapter Six: constitutional govern of the urban planning power: right relief.No relief no rights. The mission of this chapter is to discover how to seek reliefwhen citizens are violated by the urban planning power. In the first place, this paperanalyses the status quo and existing problems of rights remedy system of urbanplanning in China and arrives at a conclusion that no way to seek remedy is theprincipal problem in relief system now. On the basis of learning from American,German and Japanese right relief system of urban planning, it puts forwardrecommendations for perfecting the right relief system of urban planning. The point ofthis paper is that the formulation power is legislative power essentially and should beexercised by the legislature. On this occasion, this paper has recommendations asfollows: first, adopt a way which is similar to record and review of regulatorydocuments to correct violation of urban planning on civil rights. Second, establishspecialized organs of the constitutional supervision, which are in charge of reviewingall kinds of cases about urban planning and civil rights. Third, bring planning ofadministrative taking into the scope of national compensation. Fourth, establishcompensation system of property loss in urban planning.Chapter Seven: constitutional govern of the urban planning power: processrestriction. This chapter examines the restriction that due process impose on the urbanplanning power. First, on the basis of concluding the concept, principle, contents of the principle of due process, this paper describes American and Britain due processsystem in urban planning. Next, by analyzing the process situations in urban planninginstitution, this paper points out that abstract and crude public participationprocedures fails to implement urban planning while due process without sufficientconstraint leads to excessive discretion. Finally, it makes recommendations for thedue process system in urban planning.