违法建筑行政强制拆除程序:争议与辨析

On Administrative Coercive Demolishment of Illegal Building: Controversy and Discrimination

《行政强制法》第44条为违法建筑行政强制拆除设定了特别程序,但其规定存在很大的解释性空间。该法没有为所有涉及违法建筑管理的行政机关强制执行给予普遍性授权。对于违反《城乡规划法》的违法建筑来说,有关行政机关则不能选择向法院申请强制执行。在理论和实践中,公告程序的操作存在多种模式。公告的对象应当是责令限期拆除决定,先公告后催告的程序最具有合理性。"复议诉讼期间不停止执行原则"的排除适用系针对责令限期拆除决定,其目的是防止对当事人造成难以恢复的损害,但是它将严重影响违法建筑行政管理的效率,其立法的理论基础值得检讨。

Article 44 of Administrative Coercion Law stipulates the special procedure for administrative coercive demol- ishment of illegal buildings, but the stipulation is highly controversial, as it is open to more than one interpretation. The law does not provide general authorization for administrative coercive enforcement related to all illegal buildings adminis- trations. As for illegal buildings against Urban and Rural Planning Law, the administrative organs cannot apply for en- forcement by courts. In theory andpractice, the public notice procedure has multiple modes. The party concerned should he given the administrative decision to dismantle the relevant building（s） within a given period of time, and the most rea- sonable procedure is that the public notice is issued before the pressing notice. The exclusion of the principle of ＂not sus- pending execution of the administrative act during the period of appeal or litigation＂, whose purpose is to prevent the un- recoverable damages for citizens, should cover the administrative punishment decisions on demolition. However, the exclusion would then inhibit the efficiency of administration for illegal buildings in turn. Therefore, its theoretical basis should be reviewed.