对济南市一处集体土地上违建强拆的案例分析报告

发布时间：2019-01-21 17:31

【摘要】：本文通过一个房地产商违法占用集体土地开发高档商品住宅项目,后被国土部门发现并遭到强制拆除和罚款的双重行政处罚的案例,分析整个事件来龙去脉,进而揭示我国目前土地管理工作中存在的重大问题并提出建议。案例中房地产商一方面为降低项目建设成本,没有经过合法用地审批,私自与农村集体组织签订合同取得集体土地使用权；另一方面,所开发项目又是国土部门比较敏感的高档住宅。被发现违法占地行为并上报国土资源部后,该项目被前来检查的一名相关处级干部定性为国家明令禁止的别墅项目,继而遭到国土、公安等部门的联合执法拆除。但是,以保护耕地为由强制收回违法占用的土地后,国土部门并没有将其恢复为耕地,而是将其作为建设用地划拨出去。本文首先对房地产商的违法动机进行分析,指出土地出让金让建房成本过高,损害了房地产商的利益；政府征地给农民的土地补偿太少,损害了农民的利益；同时国家土地管理法规存在漏洞,几方面原因共同促成了违法建设的出现。然后,通过博弈论等相关经济学原理,分析强制拆除和罚款两项行政处罚方式对违法者的震慑效果,得出结论：首先,强制拆除和罚款两项处罚方式都不足以震慑违法者,但是相对来说强制拆除比罚款更有效,因为强拆会给违法者造成强烈的负面舆论效应；另外,政府的土地出让金收入是违法占地背后的根本原因。地方政府过于依赖土地出让金收入不但让违法建设屡禁不止,还使公共权力趋于滥用。而在笔者看来,违法建设实际上是一种制度创新。结合戴维斯和诺思的制度创新理论进行分析,政府低价征地、高价卖地,使得理性的房地产商和农民利益受损,不得不通过“违法”获得不违法就得不到的大于零的潜在利润。双方各自追求利润最大化的过程,也是创新制度的过程。然而,国家还没有准备好接受这项制度创新,而是采取越来越严厉的态度打压违建。所以,在现有土地管理制度下,笔者最后给出三个建议：首先,提高国家对失地农民的补偿；然后,国家行政部门工作人员需要提高素质,用好手中的公权力；最后,土地管理法律应该明确出于“公共利益”征地的范围,并且探索让农村建设用地合理流转。
[Abstract]:In this paper, through a case in which a real estate developer illegally occupied collective land to develop high-grade commercial housing projects, and was later discovered by the land department and subjected to a double administrative punishment of forced demolition and fines, the whole incident was analyzed. Then it reveals the major problems existing in the current land management in China and puts forward some suggestions. In the case, on the one hand, in order to reduce the construction cost of the project, the real estate developer did not pass through the examination and approval of legal land use, and privately signed a contract with the rural collective organization to obtain the right to use collective land; On the other hand, the development of projects is more sensitive land sector high-grade housing. After being found to have illegally occupied land and reported to the Ministry of Land and Resources, the project was identified as a villa project explicitly prohibited by the state by a cadre at the relevant department level who came to inspect it, and was then dismantled by the joint law enforcement of the land, public security, and other departments. However, after the forced recovery of illegally occupied land on the grounds of protecting cultivated land, the land department did not restore it to cultivated land, but allocated it as construction land. This paper first analyzes the illegal motives of real estate developers, points out that land transfer fees allow the construction costs to be too high, which damages the interests of real estate developers, and the government expropriates land for farmers to compensate too little, harm the interests of farmers; At the same time, there are loopholes in the national land management laws and regulations, which together contributed to the emergence of illegal construction. Then, through game theory and other relevant economic principles, this paper analyzes the deterrent effect of compulsory demolition and fine on violators, and concludes that: first, both mandatory demolition and fines are not enough to deter violators. But the forced demolition is more effective than the fine, because the forced demolition will have a strong negative public opinion effect on the violator. In addition, the government's revenue from land sales is the fundamental reason behind the illegal occupation of land. Local governments rely too much on revenue from land sales not only to prevent illegal construction, but also to abuse public power. In my opinion, illegal construction is actually a system innovation. Based on Davis' and Norse's theory of institutional innovation, the low price land requisition and the high price land sale by the government make the interests of rational real estate developers and farmers suffer, and they have to obtain the potential profits above zero without breaking the law through "breaking the law". The process of both parties pursuing profit maximization is also the process of innovation system. However, the country is not yet ready to accept the system innovation, but increasingly stringent attitude to curb illegal construction. Therefore, under the existing land management system, the author finally gives three suggestions: first, to improve the compensation of the state to the land-lost farmers, then, the state administration staff need to improve the quality, use the public power in hand; Finally, the land management law should make clear the scope of land expropriation out of "public interest" and explore the rational circulation of rural construction land.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.29

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