According to the regulations issued by the State Council, all farms or breeding communities should be shut down, closed and relocated before the end of 20 17, which will help to purify the water quality and atmospheric environment and support large-scale transformation and construction. It is also the requirement of China's "Thirteenth Five-Year Plan" for ecological environment protection. Combined with the "Twelfth Five-Year Plan" for pollution prevention and control of livestock and poultry breeding, it is imperative and inevitable to close and relocate farms nationwide. 20 13 the State Council's "Regulations on Prevention and Control of Pollution from Livestock and Poultry Breeding" stipulates that aquaculture is mainly prohibited in drinking water sources, nature reserves, scenic spots, urban residential areas and cultural, educational and scientific research areas. In the specific implementation process, the site selection of new farms should be strictly examined and approved, and the farms that were not in the forbidden areas in the early stage should be strictly supervised. For example, if the license is lost, it should be reissued. Once it is designated as a no-breeding area, it is necessary to stop issuing animal quarantine certificates and corresponding subsidies for animal and plant breeding.
This is the national form I mentioned earlier. The means and methods used now are legal, but in practice, they become illegal. Many farms directly cut off water and electricity, forcibly dismantle them, or directly dispose of their livestock by force. These are some illegal administrative compulsory acts, but they are real in reality.
According to the contents of "Measures for the Implementation of Animal Husbandry Environment" approved by the State Council and published by various localities, I think we should pay attention to four issues in the process of banning raising and safeguarding rights.
First, we must first consider whether to include it in the scope of prohibition.
Generally speaking, it is necessary to consider whether the local people's governments of cities, counties and regions have corresponding administrative orders, red-headed documents and abstract administrative actions to delimit forbidden areas. From the "Twelfth Five-Year Plan" and the "Regulations on Prevention and Control of Pollution in Livestock and Poultry Breeding", all localities are required to delimit no-raising areas within their respective jurisdictions. For example, Jiangsu stipulates that farms cannot exist within an average radius of one kilometer of water source protection sites, and Changsha, Hunan announced that farms cannot exist within a radius of 500 meters. The scope of demarcation varies from place to place, but it is mainly in water source protection areas, scenic spots and other places, which is the main forbidden scope. As a local people's government, it should promulgate, formulate and implement the implementation measures of this plan. First of all, it is necessary to check whether the county people's government has formulated a plan. If so, whether the farm is within the prohibited scope. If the farm does not meet the environmental requirements, it is necessary to determine whether it is within the scope of water source protection.
Second, in terms of rationality, whether it is necessary to relocate pollution.
This problem is divided into two angles. If it is not included in the scope of prohibition, it depends on whether it is necessary to move and shut down when environmental protection is shut down. This is from a reasonable and partially legal point of view. If it is included in the scope of prohibition, this is not the key issue. Our agency acted as an agent for the ban on raising livestock in Kunshan, Jiangsu. First, we found that the farm was not included in the prohibition of raising livestock, but it did lack relevant facilities to deal with environmental pollution. Finally, we applied for additional pollution treatment facilities for secondary treatment, and the corresponding environmental protection departments and people's governments gave instructions. After the relevant licenses are reissued, we can still engage in aquaculture.
Third, the implementation of specific administrative acts.
Shutdown, relocation and closure are a set of execution procedures for specific administrative acts. The earliest notice of suspension of work is a specific administrative act, which may be a specific administrative punishment act. Faced with an administrative penalty, according to the provisions of China's Administrative Punishment Law and the supporting provisions of the Administrative Procedure Law and the Administrative Reconsideration Law, the farm has the right to reconsideration and litigation, and has the right to include whether it should suspend business in legal and judicial review.
The closure involves buildings. According to the provisions of Article 44 of the Administrative Compulsory Law, if it is still necessary to remove after reconsideration or litigation, it can be included in the administrative compulsory removal or judicial demolitions procedure. At present, there are differences in the specific measures to implement the shutdown in various places. In some places, water and electricity are cut off and nobody cares. As long as the water and electricity are not restored, the aquaculture industry cannot be carried out and the farms can only close down. Or remove all the animal husbandry equipment, sell all the farmed animals, and have no conditions to resume production after forced demolition.
Fourth, the basis of compensation.
According to Article 25 of the Regulations on Prevention and Control of Pollution in Livestock and Poultry Scale Breeding, compensation should be given, but in practice, the compensation is low. It is the main contradiction between the two sides to compensate the loss of production and business suspension according to the scale of animal husbandry, regardless of the expected interests and existing fixed assets. The construction of farms can only be engaged in aquaculture. Once the pens are closed, the use value will be gone. Therefore, demolition or not is the same for the owners of aquaculture enterprises, and houses built in the form of farms cannot engage in other industries.
As demolition lawyers, we should make practical considerations in this regard when safeguarding rights. If we can really close down and switch production, we can ask the local government to help us switch production, and then compensate for the losses caused by one-time shutdown. If you can't change production, ask the local government to buy back. There are many such cases in Beijing, and the government is willing to give some compensation to buy back the attachments on the floors of enterprises. Even if this is not a real demolition, it is useless for the government to buy back the land, but as a closed enterprise, it is a fair and reasonable way.