Real estate perspective... Should the occupation of the same arable land pay the land reclamation fee and the balance fee at the same time?

A coal mining company based on the construction of wind wells need to occupy part of the arable land, according to the arable land."How much, how much reclamation"The principle of paying to the local land and resources department (now the Bureau of Natural Resources and Planning) in the absence of its own arable land reclamation capacity.Farmland reclamation fee. Later, the coal mining company paid cultivated land to the local comprehensive land consolidation center (responsible for land consolidation management and accounting-compensation balance index transactions).Compensation balance fee, in order to pass the arable land it occupies.The balance index of occupation and compensation is traded across administrative regions.into state-owned construction land.

Although the above-mentioned cultivated land reclamation fees and balance fees are levied on different subjects, but the amount paid is the same, the purpose is also to protect the total amount of cultivated land, does it constitute a repetitive charge? In other words, should the occupation of the same cultivated land pay the land reclamation fee and the balance fee? After the occupied arable land is converted into state-owned construction land, if the land use right cannot be obtained in the end, should the paid arable land reclamation fee and occupation compensation balance fee be returned?

The dispute over whether the same arable land should be paid at the same time the arable land reclamation fee and the balance fee of occupation and compensation, after case search, did not find the rule of class case judgment in judicial practice. In the absence of legal provisions, various legal interpretation methods can be used to determine the resolution of disputes.

Regarding whether the occupation of a piece of land should pay both the land reclamation fee and the balance fee, the legal interpretation and analysis can be carried out from the three aspects of the purpose of the two fees, the subject of payment and the conditions of the fees:

1. The purpose of charges on the land reclamation fee and the balance fee.

According to Article 30 of the "Land Management Law": "The state protects arable land and strictly controls the conversion of arable land to non-arable land. The State implements a system of compensation for the occupation of cultivated land.If non-agricultural construction is approved to occupy cultivated land, in accordance with the principle of "how much is occupied, how much is cultivated", the unit occupying the cultivated land is responsible for reclaiming cultivated land that is equivalent to the quantity and quality of the occupied cultivated land; there is no condition to reclaim or the reclaimed cultivated land does not meet the requirements, The cultivated land reclamation fee shall be paid in accordance with the regulations of provinces, autonomous regions and municipalities directly under the central government, and special funds shall be used for reclaiming new farmland."At the same time, Article 8 of the "Regulations for the Implementation of the Land Management Law" stipulates: "The state implements a compensation system for the occupation of cultivated land.The occupation of cultivated land within the scope of construction land for cities, villages and market towns determined by the land space plan is approved according to law, and the construction projects of energy, transportation, water conservancy, mining, military facilities and other construction projects outside the scope of construction land for cities, villages and market towns determined by the land space plan are approved according to law to occupy cultivated land, the people's governments at the county level, rural collective economic organizations and construction units shall be responsible for the reclamation of cultivated land equivalent to the quantity and quality of the occupied cultivated land; if there are no conditions for reclamation or the cultivated land does not meet the requirements, the cultivated land reclamation fee shall be paid in accordance with the provisions of provinces, autonomous regions and municipalities directly under the Central Government, and the special funds shall be used for the reclamation of new cultivated land."

According to the above-mentioned laws and regulations, when enterprises need to occupy cultivated land due to construction, they can make up for it in two ways:One is"How much is occupied, how much is cultivated", the direct reclamation of cultivated land by enterprises is equivalent to the quantity and quality of the occupied cultivated land, which belongs to the most direct balance of cultivated land occupation and compensation;Two isWhen the enterprise does not have the conditions or capacity for reclamation, the cultivated land reclamation fee shall be paid, and the special fund shall be used for the purpose, and other subjects (including the government) shall reclaim the cultivated land equivalent to the quantity and quality of the cultivated land occupied by the enterprise, which belongs to the indirect realization of the balance of cultivated land occupation and compensation. Either way, the aim is to keep the total amount of arable land unchanged. The cultivated land occupation and compensation balance fee refers to the transaction cost of the cultivated land occupation and compensation balance index. According to the (VII) paragraph of Article 3 of the "Opinions of the Central Committee of the Communist Party of China and the State Council on Strengthening the Protection of Cultivated Land and Improving the Balance of Occupation and Compensation": "Strictly implement the balance of cultivated land occupation and compensation responsibility. Improve the implementation mechanism of the responsibility for the balance of arable land. If non-agricultural construction occupies cultivated land, the construction unit must fulfill the obligation of replenishing cultivated land in accordance with the law, and if it is unable to replenish the amount and quality of cultivated land on its own, it shall pay the cultivated land reclamation fee in full in accordance with the provisions.Local governments at all levels are responsible for organizing and implementing land consolidation, promoting the construction of high-standard farmland through land consolidation, reclamation, and development, increasing the amount of cultivated land, and improving the quality of cultivated land, focusing on county-level self-balance, supplemented by adjustments within the province, and appropriate national coordination. Supplement, implement the task of supplementing arable land."The index of cultivated land occupation and compensation balance is the product of the goal of completing the balance of cultivated land occupation and compensation in the county, province and even at home. For example, the cultivated land occupied by domestic development and construction in one county cannot be reclaimed within the scope of the county, and the balance between occupation and compensation cannot be achieved. However, if there is a considerable amount and quality of cultivated land in another county, the two counties can trade the index of the balance between occupation and compensation, so that the cultivated land can be "landed" in the buyer's county in the form of transfer of the index of the balance between occupation and compensation ", the purpose of the trade is still to achieve the balance of arable land occupation and compensation stipulated by law and policy, and to keep the total amount of arable land unchanged.In summary, the cultivated land reclamation fee and the cultivated land occupation and compensation balance fee (the cost of the natural resources department at or above the county level to trade the cultivated land occupation and compensation balance index) have the same charging purpose, both of which are to keep the total amount of cultivated land unchanged, and should not be charged repeatedly for the same land.

2. The main body of the payment of the land reclamation fee and the balance fee.

In the case of an enterprise occupying arable land without the conditions or capacity for reclamation, it is necessary to pay the arable land reclamation fee to the government, obviously, the main body of the arable land reclamation fee is the enterprise, which belongs to the consideration that the enterprise should pay for the occupation of arable land. The balance fee is the cost of the balance index transaction. No matter according to the provisions of the law or the requirements of the policy, only the government and the competent department of natural resources have the qualification to carry out the balance index transaction, that is, the balance fee should be generated between different governments or the competent department of natural resources, and the government that purchases the balance index is the main body that pays (pays) the balance fee. The payment unit stated on the receipt for the purchase of the indicator is the land and resources department, because the enterprise has no right to purchase the land indicator and can only purchase the land indicator on behalf of the land and resources department, so the receipt can only be issued to the land and resources department.

The main body of the payment of the cultivated land reclamation fee and the balance fee is different, indicating that the enterprise should not bear two fees at the same time for the same parcel of land.The normal legal logic should be that after the enterprise occupying the cultivated land pays the cultivated land reclamation fee, if the government and the competent department of natural resources cannot reclaim the cultivated land, in order to achieve the goal of balancing the occupation and compensation of the cultivated land, it can only purchase from other regions. The cost of purchasing the balance index should be equal to the cultivated land reclamation fee already paid by the enterprise, that is, the government replaces its reclamation obligation by purchasing the index.If it is considered that the occupation of the same land must pay the land reclamation fee and the balance fee of occupation and compensation at the same time, it should be a repeated charge for the same occupation of cultivated land.

3. On the charging conditions of cultivated land reclamation fees.

According to the "Shandong Province Implementation<中华人民共和国土地管理法>Article 15 of the Measures stipulates: "If there are no conditions for reclamation or the cultivated land reclaimed does not meet the requirements, the cultivated land reclamation fee shall be paid in accordance with the provisions of these Measures, and the land administrative department of the provincial people's government shall organize the reclamation.The cultivated land reclamation fee shall be collected by the land administrative department of the people's government that approves the conversion of agricultural land to construction land.Among them, those that should be reported to the State Council for approval according to law shall be collected by the provincial land administrative department. The cultivated land reclamation fee collected shall be paid to the provincial finance according to the provisions, and shall be specially used for the development and arrangement of new cultivated land." According to the above provisions, the cultivated land reclamation fee shall be collected by the department in charge of natural resources that approves the conversion of agricultural land to construction land, that is, the prerequisite for collecting the cultivated land reclamation fee is that the agricultural land has been approved to be converted to construction land, at which time the use of the land has changed.

In this case, the premise for the coal mining company to pay the cultivated land reclamation fee should be that the natural resources authority will convert the agricultural land into construction land. The coal mining company can complete the land use transformation after paying the cultivated land reclamation fee, and does not need to fulfill the legal obligation to reclaim the cultivated land separately. The Comprehensive Land Improvement Center requires coal mining companies to pay a separate transaction fee for the balance of occupation and compensation indicators, but in fact, it requires coal mining companies to increase the balance of occupation and compensation indicators available in their administrative areas in the form of charges, which is an administrative repetitive charge. If the coal mining company meets the conditions for paying the cultivated land reclamation fee, that is, it has obtained the corresponding construction land use right, it shall not need to pay the transaction fee of the balance index of occupation and compensation separately; if the land occupied by the coal mining company has not been converted into construction land, it shall not pay the cultivated land reclamation fee. To sum up, in terms of the charging conditions of the cultivated land reclamation fee, the cultivated land reclamation fee and the balance fee should not be paid repeatedly.

First of all, according to the implementation of the "Shandong Province<中华人民共和国土地管理法>Article 15 of the Measures stipulates that after the government department approves the conversion of land use from agricultural land to construction land, the enterprise has the obligation to pay cultivated land reclamation fees. If the government department has not completed the transformation of the land use involved in the case, from the perspective of administrative fees, the conditions for charging are not met, and the farmland reclamation fees that have been collected should be returned.

Secondly, from the point of view of the trade of the balance index of cultivated land, the purpose of purchasing the balance index of cultivated land is to expand the available construction land in the administrative area. The enterprise has paid the farmland occupation and compensation balance index fee, and if the government does not give the enterprise the corresponding construction land after purchasing the index with the fee, the conditions and purpose of the government's collection of the occupation and compensation balance index fee can not be achieved, making the original unfounded occupation and compensation balance index fee lose the realistic basis. The occupation and compensation balance index fee that the government has collected is an administrative fee in nature. In the case that it is unable to fulfill its administrative obligation to deliver construction land to the enterprise, the cultivated land reclamation fee and occupation and compensation balance fee that the holding enterprise has paid have no factual basis and should be returned.

Finally, if this case enters the judicial process due to disputes, it should belong to the category of administrative litigation. Under the premise that the administrative legal norms are not clearly stipulated, the applicable civil legal norms should be referred. From the perspective of civil transaction, if the enterprise pays the double consideration of cultivated land reclamation fee and occupation and compensation balance index fee, but does not obtain the right to use the corresponding construction land, the government's charge obviously constitutes "unjust enrichment". In the case that the government fails to fulfill its obligations under administrative law, in order to protect the legitimate rights and interests of the administrative counterpart, the fees collected by the government no longer have legal reasons and should be returned.

3. epilogue