| After the rule of social law and the view of welfare state prevailed,planning administration entered its heyday.We have many administrative programs,ranging from social development to people’s livelihood,in different forms and with different functions.Urban planning has the strongest legal nature.In China’s urban and rural planning system,system planning is the most macroscopic,including the national urban system planning and provincial urban system planning,outlining the broad regional urbanization development concept and direction,rough lines,large ink,mainly play a guiding function;The middle level is the overall urban planning,which coordinates the urban spatial layout and plays a coordinating role in connecting the preceding and the following.At the micro level,it is mainly controlled and detailed planning,which clearly defines the use and development intensity of specific plots and is implementable and operable.In addition to the content of planning area,achievements with different positioning function,regulatory detailed planning also has a complete legal coercive power and binding,is the construction of detailed planning,"four certificates",building design,project completion acceptance review,the basis,is a necessary part of contract,is similar to the absolute paper items.Therefore,in all kinds of urban and rural planning,the regulatory detailed planning is the most likely to infringe the construction land use right and land development right of private subjects.Through the excavation of the case parties to their own rights and interests of the specific detailed description,it is found that the main type of infringement is the damage to the right of the use and the adjacent right of the interested party.According to the result of searching relevant information(mainly the public information of petition in Shanghai),petition authorities have accepted petitioners’ applications without exception,however,the response of the administration dodged the important points and did not solve the actual problems.They regard the requirements as a way to receive suggestions.Some complaint and visiting organs and judicial organs accepted the application for relief,and even conducted the legality review of the controlled detailed plan,but most of the complaint and visiting organs and judicial organs denied that the controlled detailed plan belongs to the scope of relief,and is not reviewable and actionable.Restricted by the availability of empirical research materials,this paper focuses on the key points of judicial reasoning.The courts that rejected the cases firmly believed that only specific administrative acts were subject to supervision,while the controlled detailed planning is abstract administrative acts,normative documents or public policies,which are generally binding and therefore not actionable.It is acknowledged that the reason for the actionable control detailed planning is that it targets specific people and affects their rights and interests,which meets the requirements of the scope of accepting cases in administrative litigation.Which is right and which is wrong?The scope of accepting cases in administrative litigation is the first valve for judicial organs to give relief to the interests of citizens who claim to be harmed,today,law want to expand the boundary of court relief for rights and interests damaged by administrative violations.Besides,administrative agreements and administrative acts of fact have entered the field of administrative litigation.In order to ensure the consistency of the legal system,the extension of administrative acts should include administrative agreements and administrative acts of fact.Therefore,it is appropriate to define the scope of administrative action,namely the acceptance of cases in administrative litigation,as "the behavior that the administrative subject exercises public power in the process of social governance and exerts actual influence on the counterpart or related person".Secondly,as for the nature of the controlling detailed plan,it is aimed at the subject that establishes the property right relationship with a specific plot.This expression is a closed word,which does not have universal binding force and is by no means an abstract administrative act or normative document.At the same time,the regulatory planning is defined as public policy,which is the result of no specific investigation and identification of various types of urban planning.In urban and rural planning,only system planning and urban master planning are public policies,and the regulatory detailed planning is the measure to realize the blueprint,so there is limited room for policy discretion,which is not a public policy.Therefore,the reason for denying the actionable control detailed planning is not convincing.It should be actionable as long as it has practical impact on specific relative rights and interests.Controlling detailed planning is indeed targeted at specific counterparts,that is,owners of specific land development,construction and use rights.This range of objects is determinable,statistical,and even intuitive.In the face of the regulatory detailed planning to delimit land use and development intensity,the land use right holders bear the brunt and suffer the most severe restrictions and influences.From the perspective of whether the interested parties undertake consistent obligations,the regulatory detailed planning is also aimed at specific people.Since it has been proved that controlling detailed planning affects the relative rights and interests,is this kind of influence inevitable and direct?The answer is yes,the purpose of the planning authorities to formulate and publish detailed regulatory plans is to influence the present and present land use and development activities,so that step by step to achieve the future grand plan.Moreover,it as the basis of other administrative behavior,depriving the discretion and authority of the administrative organs,other subsequent planning enforcement has lost the independence and the meaning of specific laws,turned out to be the "execution behavior" of the control rules,the other party need not wait until the application for administrative planning was rejected,but what do we learn from the regulatory detailed planning in itself is the result of their rights are restricted.Therefore,controlling detailed planning has a practical impact on specific relative rights and interests,and is litigable.Judicial organs should unify the practice and bring it into the scope of accepting cases in administrative litigation. |
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