How to deal with the follow-up issues of illegal reclamation projects in accordance with the law?

This article focuses on the following focus and difficult issues.

1. Is it necessary to be ordered to “restore the original state” when illegally occupying the sea area?

"Sea Area Use Management Law" Article 42 stipulates: "without approval or obtains approval, the illegal occupation of the waters, the waters ordered to return the illegal occupation and restore the status quo ante waters, confiscate the illegal income and impose illegal occupation of the sea during the sea. the use of sea area should pay a fine of five times more than fifteen times less gold; for without approval or obtains approval, conduct reclamation, reclamation activities, and impose illegal occupation of the waters of the sea during the sea area should pay the gold A fine of ten times or more and twenty times or less."

In actual work, some seafarers use the "contracting agreement" and "pre-trial opinions" as the basis, and consider that they are not "unapproved" behavior.

However, Article 3 of the Law on the Administration of the Use of Sea Areas stipulates that: “The sea area is owned by the state, and the State Council exercises the ownership of the sea area on behalf of the state. No unit or individual may misappropriate, trade or otherwise illegally transfer the sea area. Units and individuals must use the sea area in accordance with the law. Sea area use rights.

Therefore, from the perspective of legal administration, the illegal reclamation of “unauthorized or defrauded, illegally occupying the sea” should be ordered by the administrative authorities to restore the original status. If the law stipulates that the original status of the sea area should be ordered, and the law enforcement agencies do not order it, it is an administrative inaction or illegal administration by law enforcement agencies.

Second, the illegal occupation of the sea area around the reclamation does not necessarily "restore to the original state of the sea"

First of all, the "recovery of the original state of the sea" as stipulated in the Law on the Administration of the Use of Seas is not the same concept as the "recovery of the original state of the sea" that we generally understand. What is required by law is the restoration of the basic functions of the sea area, which is a general recovery. The criterion for judging whether it is restored or not is that as long as the area has restored the basic functions of the sea area, the law does not stipulate the degree of restoration of the original state of the sea area, and therefore does not “restore to the same level as before”. Restoration of the sea state is usually determined by the impact on the marine ecology, the extent to which the sea area is being filled, and the need for restoration.

Secondly, the decision made by the administrative organ is not the final ruling. Whether the punishment decision in the execution procedure is implemented or not, the law also sets an exception channel, that is, if the party refuses to accept the punishment, he can apply for reconsideration or file an administrative lawsuit.

Article 39 of the Administrative Enforcement Law stipulates: "Implementation may result in irreparable losses, and suspension of execution will not harm the public interest." The administrative organ and the people's court may adjust the punishment decision according to the circumstances and suspend the "resumption of the original state of the sea". carried out.

If the party considers that the administrative punishment of “restoring the original state of the sea” is unreasonable and it is difficult to recover or does not need to be restored, it may apply for administrative reconsideration or apply for a lawsuit in the people's court, and it may adjust the administrative punishment decision.

3. The sea area occupied by illegal reclamation has not been discovered within two years, and no administrative punishment is imposed.

Article 29 of the Administrative Punishment Law stipulates that: "If an illegal act has not been discovered within two years, no administrative penalty shall be imposed. Except as otherwise provided by law. The time limit prescribed in the preceding paragraph shall be calculated from the date of the occurrence of the illegal act. If the illegal act has a continuous or continuing state, it shall be counted from the date of the end of the act."

The statute of limitations prescribed in the Administrative Punishment Law refers to the effective period for which the offender violates the administrative order and pursues administrative responsibility and gives administrative punishment. This provision includes the following two meanings in the field of illegal reclamation:

1. If the illegal reclamation occurs, the party involved in the reclamation will waive the “occupation” of the reclamation project. Within two years after its waiver, the administrative agency has not found this illegal fact for two years. After the surrender, no matter when the illegal facts were discovered, no administrative punishment should be imposed on the illegal and reclamation of the offenders at that time.

2. The administrative punishment of the Law on the Use of Sea Areas is mainly based on the "illegal occupation" behavior. If the illegal reclamation behavior occurs, the parties involved in the reclamation have not given up the reclamation project, and still manage and use the reclamation project. The illegal act that is still “occupied behavior” is in a “continuous” state. The calculation of the time limit for the prosecution of such violations must be calculated from the completion of the implementation of the last violation, that is, from the "abandonment of possession" time, and the punishment for this continuous violation is combined.

4. Any party who illegally encircles the sea and occupies the sea area may reapply for use of the sea area.

Article 16 of the Law on the Administration of Maritime Use stipulates: “Units and individuals may apply to the marine administrative department of the people's government at or above the county level for the use of sea areas. If applying for the use of sea areas, the applicant shall submit the following written materials: 1. Application for sea area use 2. Sea area use argumentation materials; 3. Relevant credit certificate materials; 4. Other written materials as required by laws and regulations."

Article 31 of the Administrative Licensing Law stipulates: "The administrative organ may not require the applicant to submit technical materials and other materials unrelated to the administrative licensing items applied for."

Any party who violates the law and encircles the sea in the sea area, whether or not it has been punished, does not prevent it from continuing to apply for the right to use the sea area to the administrative department with the power of examination and approval. The executive authorities were forced to use sea has not been punished or punished unreasonably refused to accept.

Five new EIA without obtaining approval illegal reclamation according to Method severe penalties

"Sea Area Use Management Law" implemented since 2002, has not been revised.

"Marine Environmental Protection Law" after several revisions.

Prior to the revision on November 4, 2017, the penalty for marine engineering that was not approved by the EIA was “the marine administrative department ordered it to stop construction or to produce or use it, and imposed a fine of not less than 50,000 yuan but not more than 200,000 yuan.”

After the revision on November 4, 2017, the penalty for marine engineering that has not been approved by the EIA is “the marine administrative department shall order it to stop construction. According to the illegal circumstances and the harmful consequences, the total investment amount of the construction project shall be more than one percent. Five or less fine, and can be ordered restitution. "

The new law, with the “total investment amount of construction projects” as the base for punishment, increased the penalties for “unapproved construction” and put forward more stringent requirements than before.

First of all, it must be clarified that the “total investment amount of construction projects” as the basis for punishment is the total investment amount of the project, not the actual investment amount of the construction project, nor the investment amount of the project split construction. The total investment amount can be determined according to the project approval document, feasibility study report, asset evaluation agency and engineering consulting institution.

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