Real estate perspective: the legal risk prevention of cultural relics protection in the process of land development.

Published:

2022-10-18

Our country has thousands of years of heritage, and every city has its own historical precipitation. When the buried relics are unintentionally excavated in the process of land development, a series of legal problems also appear at the same time of human precious wealth. For example, in the stage of land transfer, how to avoid risks for possible underground buried objects, how to deal with the protection of cultural relics involved in the process of project construction, and how to safeguard the rights of project losses caused by cultural relics protection, etc. This paper will explore the relevant solutions to the legal problems related to the protection of cultural relics in the process of land development. Scope of Cultural Relics Protection and Relevant Provisions of the Ministry of 1. According to the relevant provisions of the the People's Republic of China Cultural Relics Protection Law, the cultural relics protected by the state mainly include the following types: 1. Ancient cultural sites, ancient tombs, ancient buildings, cave temples, stone carvings, and murals with historical, artistic, and scientific value; 2. Important modern historical sites, objects, and representative buildings that are related to major historical events, revolutionary movements or famous figures and have important commemorative, educational or historical value; 3. Precious works of art and arts and crafts in various eras in history; 4. Important documents and materials in various eras in history, as well as manuscripts and books with historical, artistic, and scientific value; 5. Reflecting various eras and ethnic groups in history Representative objects of social systems, social production, and social life. In addition, fossils of ancient vertebrates and ancient humans of scientific value are protected by the State as are cultural relics. In order to protect the buried cultural relics, relics and existing immovable cultural relics, the protection scope of cultural relics protection units and the concept of construction control zone are stipulated in the content of China's cultural relics protection law. Other construction projects or operations such as blasting, drilling and excavation are not allowed within the protection scope of cultural relics protection units; construction projects are carried out within the construction control zone of cultural relics protection units, the historical features and engineering design plans of cultural relics protection units shall be submitted to the urban and rural construction planning department for approval according to the level of cultural relics protection units and with the consent of the corresponding cultural relics administrative department. It can be seen that once the land to be developed is within the above two ranges, the developer needs a more complex and strict declaration process. In particular, large-scale capital construction projects and projects within the scope of cultural relics protection are more likely to have problems related to cultural relics protection, and the approval process is particularly strict. With the promulgation of the "Implementation Opinions of the General Office of Jinan Municipal People's Government on Promoting the Pre-work of Archaeological Investigation and Excavation of State-owned Construction Land" (Ji Zheng Zi [2020] No. 38) and the "Supplementary Opinions of Jinan Municipal People's Government on Promoting the Pre-work of Archaeological Investigation and Excavation of State-owned Construction Land" (Ji Zheng Zi [2021] No. 13), the regulations on the protection of cultural relics protection in Jinan City have changed from "Archaeological Post" Archaeological Post "Archaeology", the municipal natural resources and planning department shall provide an annual land supply plan to the municipal cultural relics administrative department before the end of March each year; for unplanned land supply, the subject of land maturation may submit applications for archaeological investigation and exploration at any time as needed, and the first-level cultural relics distribution area shall submit applications for archaeological exploration two months before land supply, 2. the third-level cultural relics distribution area shall submit applications for archaeological investigation and exploration one month before land supply. In view of the transfer of state-owned construction land, Jinan further defines the scope of land that should be subject to archaeological exploration, refines the subject of exploration responsibility, standardizes the process of land transfer in the reserve, and in the stage of land transfer, as far as possible to ensure that the transferred land has no cultural relics burden. 2. relevant cases and analysis Case 1:(2020) No. 52, Line 14, Sichuan Case Name: "Meishan Luhu Zhongcheng Real Estate Co., Ltd. and Meishan Natural Resources Bureau Administrative Expropriation Second Instance Administrative Judgment" Referee's Point of View: Regarding the question of whether the archaeological time of the land-related cultural relics from February 26, 2018 to June 30, 2018 should be deducted from the overdue time of the land transfer fee paid by the appellant Luhu Zhongcheng Company, the Court believes that, first of all, the delivery time of the land-related cultural relics in the case is January 2, 2018, and the time of the discovery of cultural relics in the land-related case is February 26, 2018, after the appellee Meishan Natural Resources Bureau has fulfilled the obligation of land delivery, the appellee Luhu Zhongcheng Company actually occupies the land and starts construction. The improper transaction risk of cultural relics should be borne by the appellee Meishan Natural Resources Bureau. Secondly, although the Land Transfer Contract signed by both parties does not stipulate the possible discovery of cultural relics on the land involved in the case, however, it has been made clear in the auction documents involving land that "if underground cultural relics are involved within the planning red line, the bidder shall handle the matter in accordance with the relevant provisions of the current cultural relics management, and the required expenses shall be borne by the bidder". The appellant Luhu Zhongcheng Company has read and agreed to the document before bidding for the land, and the agreement of the auction document shall be regarded as an integral part of the Land Transfer Contract. The agreement clarifies the handling methods and cost burdens of underground cultural relics that may be involved in the land involved in the case. From the perspective of the agreement, both parties to the appeal have common foresight on the event that the land involved in the case does not rule out the existence of underground cultural relics. The discovery of cultural relics on the land involved in the case is not an unforeseeable, unavoidable and insurmountable force majeure stipulated in Article 117 of the the People's Republic of China Contract Law, therefore, it cannot be used as a legal cause for the appellant Luhu Zhongcheng Company to defend against the exemption from the payment of liquidated damages. The commercial risk of delayed construction of the land involved due to the discovery of underground cultural relics shall be borne by the appellant Luhu Zhongcheng Company. In addition, the appellant Luhu Zhongcheng Company stated in the appeal that some local governments have made provisions to allow deferred payment of newly discovered cultural relics during the transfer of state-owned construction land, so the case should also be determined that its deferred payment is not a breach of contract. In this regard, the court believes that, on the one hand, the normative documents of the relevant local government are not the reference basis for the administrative litigation in this case. On the other hand, the local government also has no clear regulations on how to deal with the newly discovered cultural relics when the state-owned construction land is sold. The reason for the argument cannot be established. To sum up, the archaeological time of the land-related cultural relics during the period from February 26, 2018 to June 30, 2018 should not be deducted from the overdue time when the appellant Luhu Zhongcheng Company paid the land transfer fee. In this case, the developer does not rule out the existence of underground cultural relics on the land involved in the case, and the land transfer department has fulfilled its obligations. The auction contract also deals with the handling of underground cultural relics that may be involved in the land involved in the case and the cost burden. Made clear. Therefore, developers can only bear risks and losses independently. Case 2:(2020) Lu 01 Min Zhong No. 9613 Case name: "Jinan Lixia District Housing and Urban Construction Bureau and Jinan Shimao Real Estate Co., Ltd. Property Rights Protection Dispute Second Instance Judgment" Referee's point of view: The Jinjia Courtyard is a provincial-level cultural relics protection unit. There is a protection scope and a construction control scope outside the courtyard. Even outside the red line of land stated by Shimao Real Estate Company, it should be protected and constructed in accordance with the requirements of cultural relics protection. On the issue of restoring the outer landscape of the Golden Family Compound. In the second instance, Lixia Housing and Construction Bureau submitted to the court the "Statement on the Paving Cost of the Peripheral Landscape of Jinjia Compound" issued by Shimao Real Estate Company to Lixia Housing and Construction Bureau, with the peripheral landscape effect map and scope map, confirming the peripheral landscape of Jinjia Compound before the dispute occurred. Shimao Real Estate Company had no objection to the authenticity of the evidence, arguing that the evidence could not prove that the peripheral landscape was demolished. After examination, the court believes that the above evidence is issued by Shimao Real Estate Company itself, and its authenticity can be confirmed. The attached drawings can also confirm the situation of the peripheral landscape of Jinjia Compound at that time. Now Shimao Real Estate Company should have the obligation to restore the peripheral landscape due to the destruction of its peripheral landscape caused by the development of Shimao Real Estate Company around Jinjia Compound. Therefore, the court supports the lawsuit request of the Bureau of Housing and Construction to restore the peripheral landscape of the Jinjia compound. In this case, the construction unit operates in the construction control zone of the cultural relics protection unit, and shall not damage the historical features of the cultural relics protection unit in accordance with the law, and the construction unit's behavior has destroyed the cultural relics, it shall bear the obligation of restoration. Case 3:(2018) Zhejiang Bank No. 4 Case Name: Huzhou Delong Real Estate Co., Ltd., Huzhou Natural Resources and Planning Bureau, Huzhou Taihu Tourism Resort Management Committee and other retrial administrative rulings Judging point of view: in this case, the land involved in the case is a dispute over the change of planning conditions caused by the protection of cultural relics. The respondent, as the land transferor and the third party as the interested party, has the regulatory basis of the Ministry of land and resources to resolve the land dispute by replacing the land with the applicant. For example, the determination of "replacing land to make up for the price difference", the selection of replacement land, the evaluation of land price, and the review of legality are made through due administrative procedures, and do not violate the mandatory provisions of current laws, regulations and rules. The historical disputes in this case are conducive to balancing the interests of all parties, resolving disputes in substance, and reducing administrative costs. During the retrial of this case, the parties reached an intentional settlement plan of "replacing land to make up for the price difference", and now the parties are still striving for settlement. In this case, the respondent, as the land transferor involved in the case, optimized and improved the administrative procedure plan for resolving disputes by replacing land to make up for the price difference, so that the Huzhou Municipal People's Government can study and make a decision in a timely manner, which falls within the scope of the administrative duties of the respondent. To sum up, the facts of the original 1. 2 judgment in this case are unclear and the main evidence is insufficient. The status of the land involved in the transfer also needs to be further ascertained. In this case, the case is complicated, and the first and second instance also made partial compensation for the expenses paid by the construction unit. During the retrial, the parties reached an intention settlement plan of "replacing land to make up for the price difference", and the parties are still striving for settlement. Accordingly, if the original plan cannot be realized due to the protection of cultural relics, the construction unit can make compensation requests such as compensation or land replacement. Case 4:(2020) No. 15058 at the beginning of the Republic of Shaanxi 0116 Name of Case: Civil First Instance Civil Judgment of Construction Contract Disputes of Shaanxi Farnsen Construction Engineering Co., Ltd. and Shaanxi Yellow River Construction Engineering Co., Ltd. Referee's point of view: regarding the plaintiff's request to pay the management fee for supporting temporary construction facilities, construction pre-purchase materials, engineering tools and materials and auxiliary fees, construction site protection measures and other expenses, the evidence provided by both parties proves that the reason for the plaintiff's withdrawal from the construction site is due to cultural relic survey factors, but more importantly, the Yellow River Company unilaterally terminated the contractual relationship with Farnsen Company, taking into account the fact that the plaintiff is contracted labor and materials, therefore, the above-mentioned expenses caused by this shall be paid by Farnsen Company and Yellow River Company jointly to the plaintiff as appropriate. In this case, after the cultural relics protection work occurred in the construction, the party cooperating in the development unilaterally terminated the contract, but the cultural relics protection work is not the main reason for the termination of the contract, nor is it a legal cause of termination, so the Yellow River Company still has to bear the responsibility. 3. Suggestions on Risk Prevention Risk aversion in the stage of (I) land transfer. 1. According to the current relevant laws and regulations of our country, in the stage of land transfer, developers are basically unable to carry out project development within the protection scope of cultural relics protection units, but the development of construction control zones can be obtained as long as they meet the approval process. When developers carry out land development in the construction control zone, they must remember that the historical features of the cultural relics protection unit must not be damaged during the development process; the development engineering design plan should be modified under the guidance of the corresponding level of cultural relics administrative department, and reported to the construction after approval Approved by the planning department. 2. The developer can negotiate and agree on the possible discovery of cultural relics on the land in the land transfer contract, so as to minimize its own risk. 3. The developer can first investigate whether the land has been explored for cultural relics, especially check whether it is within the scope of cultural relics protection against the drawings. At the same time, if the land is used for large-scale infrastructure projects, cultural relics exploration must be carried out first according to law. 4. For immovable cultural relics, all costs incurred in the protection, relocation and demolition of the original site shall be included in the construction project budget by the developer, that is, the developer shall bear the cost. Therefore, from the perspective of cost saving, developers should try to avoid the surrounding land with immovable cultural relics when selecting sites. Treatment of Cultural Relics Protection in the Process of (II) Project Construction 1. Cultural relics belong to state property. When cultural relics are found in land development, they must be reported to the relevant departments in time. They must not be concealed in order to catch up with the construction period, or excavated privately in order to occupy cultural relics, otherwise they may face serious consequences of criminal punishment. 2. Developers or investors need to pay attention to the fact that the extension of the project caused by cultural relic exploration is not a legal condition for the termination of the contract. It is not allowed to withdraw from the development simply because the project progress is delayed due to cultural relic excavation and other work. When this happens, it should be handled in accordance with the contract. It must not withdraw directly, resulting in a huge amount of compensation for breach of contract. 3. Developers need to pay attention to the protection of surrounding cultural relics during the construction phase to avoid damage to cultural relics due to development. When damage and other effects are accidentally caused during the construction process, they must stop work immediately, communicate with the cultural relics protection department as soon as possible, and timely Stop losses to avoid causing greater damage to cultural relics and causing developers to bear more serious responsibilities. 5. When the construction of a real estate project is delayed due to the protection of cultural relics, the developer should contact the buyer in time, explain the situation and issue the cultural relics protection materials and relevant laws and regulations issued by the cultural relics department, so as to exempt itself from responsibility. At the same time, the request of the buyer should be taken seriously and actively negotiated and resolved, so as to avoid contradictions and conflicts. (III) Rights Protection Ideas of Project Losses Caused by Cultural Relics Protection 1. my country stipulates that the land sold by the land transfer department should be "net land", but the net land requirements do not stipulate that archaeological investigation and exploration of the land must be carried out. Therefore, after the developer obtains the transferred land, in the process of development and construction In China, there is still the possibility of excavating cultural relics. If the subject of responsibility for cultural relic exploration can be clarified, the developer can require the relevant responsible subject to bear the liability for compensation when such problems occur. 2. In accordance with the provisions of Articles 2 and 8 of the Measures for the Disposal of Idle Land, if the land is idle due to military control, cultural relics protection, etc., the municipal and county land and resources authorities shall negotiate with the owner of the right to use state-owned construction land, Choose to replace the land. Accordingly, during the period of land development, when the project is delayed or even unable to proceed due to the protection of cultural relics, the developer can prepare the corresponding materials and apply to the government for land replacement in accordance with the law. 3. According to Article 14 of the interpretation of China's Administrative Procedure Law, if the defendant unilaterally changes or terminates the agreement due to public interest or other legal reasons, causing losses to the plaintiff, the defendant shall be judged to compensate. Therefore, the developer may apply for compensation accordingly. However, at this stage, my country does not have a unified standard for compensation for losses caused by cultural relics protection, and there are no relevant laws and regulations. Therefore, developers can refer to the relevant when considering recovery.

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