城镇化背景下坟地复垦的法律规制研究

Legal Regulations on the Cemetery Reclamation in the Context of Urbanization

研究目的:从殡葬管理、土地管理、城乡规划等实定法的角度,分析对于占用耕地的坟地处理方式,以明确何种坟地可以被复垦。研究方法:实证法,规范分析法。研究结果:依据1997年的《殡葬管理条例》,对已存在于耕地之上的坟墓处理,需根据建坟时间的不同予以区别对待,民政部门对此有强制执行权,该项权力在《行政强制法》实施后失效;依据《土地管理法》,需区分建坟的时间以及坟主对坟墓有无扩建、重建行为,土地行政主管部门对此无行政强制权;依据《城乡规划法》,乡、镇人民政府只能处理乡村规划制定后所建坟墓,并依据该法第65条的规定行使强制执行权。从时间效力的角度来看,限期改正、限期拆除决定为行政处罚,只要坟墓持续存在,其行为就没有终了,拆除决定不违反处罚时效。研究结论:对于占用耕地的坟地,行政机关应根据其修建的年代分类处理并选择性复垦。

The purpose of this paper is to analyze the legal regulations on cemetery reclamation in order to clarify which kind of cemetery can be reclaimed in the process ofurbanization. Methods of empirical and normative analysis were employed. The results indicated that whether cemeteriesmay be reclaimed should be distinguished according to the time of being built according to the Funeral Regulations, which was enacted in 1997. The Civil Affairs administrative have the power to enforce the reclamation. However, according to Land Administration Law, the Land Administrative can only execute their power if the cemetery is against the original permission according to the local land use planning, e.g., expanding or reconstructing the cemetery. Furthermore, according to Urban and Rural Planning Law, the governments at village and township level can make decisions on reclaiming the cemeteriesonly if the cemeteries are built after the rural planning is enacted. However, the reclamation decision belongs to the administrative punishment and is in effect as long as the cemeteries have not been reclaimed. The paper concludes that the relevant administrative should force the reclamation according to the time that the cemeteries are built.