搭附禁止原则与特别法适用原则的问题——评内蒙古秋实房地产开发有限责任公司诉呼和浩特市人民防空办公室人防行政征收案

Problems on Principles of Relying Prohibition and of Applying Special Law:A commentary on the Case, Inner Mongolia Qiushi Real Estate Development Co., Ltd. vs. Hohhot Civil Air Defense Office on Administrative Imposition

内蒙古秋实房地产开发有限责任公司诉呼和浩特市人民防空办公室人防行政征收案,作为最高人民法院发布的指导性案例,其重点在于对人民承担公法之金钱给付义务可否利用特别法优惠规定予以减轻及免除。本文以此为出发点进行探讨。首先是防空洞的建造义务。本文认为,人民享有建筑自由权之外仍然需要承担相对应的义务;但若特别法赋予民众特殊的豁免条款,则应当遵循"后法优于前法"原则及"特别法优于基本法"原则予以减免。在本案当中,原告依照特别法规定提出减免建造义务,有其依据。其次是法院见解的考量与斟酌。本文认为,法院的见解似有不适之处:一者,法院狭窄理解优惠条款适用性,有曲解优惠条款的立法目的 ;二者,法院认为廉租房建造者违法将获得比守法更大的利益,乃是基于"虚幻危险性"所作出的判决,妥适性有待考量;三者,本案当中是否有违反"不当搭附禁止原则",以及可否引用"禁反言原则"加以判断?最后,本文认为住房问题涉及到人民的居住权益,也关乎到国家负担的能力问题,因而对于住房问题需要审慎以待。同时认为该案例,亦为行政法学界提供了许多行政法理探讨的素材。

As the guiding case issued by the supreme people’s court, the case that Inner Mongolia Qiushi Real Estate Development Co., Ltd. vs. Hohhot Civil Air Defense Office on administrative imposition focuses on whether the money payment obligation assumed by people can be mitigated and even exempted by the provision on tax preferences in special law. This article starts discussing from this point. The first one is the construction obligation of air-raid shelter. This article holds the view that besides the right of construction freedom, people still have to assume corresponding obligations. However, if the special law grants special exemption provisions to the public, the obligations should be mitigated or exempted based on the principle of ' Lex Posterior Derogat Legi Prior' and the principle that 'the special law is superior to the basic law'. The plaintiff has the basis to apply to mitigate or exempt the construction obligation, which is in accordance with the provisions of special law. The second is the consideration and deliberation of the court’s opinion. This article argues that the court seems to be inappropriate: First, the court has a narrow interpretation of the applying of tax preferences and has the intention to distort the preference clause; second, the court believes the judgment that those who build low-rent houses will benefit more than those who obey the law is based on unreal danger, whose suitability needs more consideration. Third, in this case, is there any violation of the principle of improper use of principles of relying prohibition and whether principles of estoppel can be used to help judge? Finally, this paper argues that the housing problem involves the people’s residential rights and interests, but also the state’s ability to bear, so the housing problem needs to be treated with caution. At the same time, this case also provides many materials for the administrative jurisprudence research.