Administrative cases and analysis

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Description of the problem:

Case and analysis

Analysis:

Send two assignments I have done, I wonder if it will help you

1. Give an example of the administrative legal problems you have encountered or solved.

A: There is a newly-built residential area, Zixi Garden, in the northern part of the city. The multi-storey houses sold in the early stage were developed by Xindu Real Estate Company. The southernmost row of multi-storey houses was advertised during the sales, and there was a villa area with a large area of greening and landscape in front, so the price per square meter was more expensive than that of the same apartment in the back row, 18 yuan. Later, these owners found that due to the city's control of villa construction and other reasons, the planning ahead changed, and the city investment group developed high-rise buildings. Owners began to demand at least double the landscape fee, because they wouldn't buy the house without the landscape; Because the distance, lighting and other parameters meet the national regulations, the examination and approval procedures are complete, and the city investment group does not agree to compensation; Xindu Real Estate believes that it is a policy force majeure, and there is nothing they can do to change the plan. After several negotiations, the developer agreed to pay 14 yuan per square meter, which is far from the owner's request and is still going on. At the same time, I found a related case for reference:

Cause of action: the newly-built commercial building is only two meters away from the Li family residence, which is not up to the standard, and the planning permit for this commercial building is required to be revoked

Judgment: the planning permit is illegal, and the Planning Bureau of Fengxian County (now the district) should take remedial measures for the residents

A family in Li Ronghai, Fengxian County, Shanghai purchased two sets of commercial houses in Pujiang Garden, and in May 1999, the real estate agency. But when they moved in in 2, a two-story business building was built next to it. The business building is vertical to the residential building, and the nearest distance between the two buildings is only two meters. The houses purchased by Li Ronghai are the ground floor and the second floor respectively. Looking out from the window on the west side of their home, there is the bathroom and kitchen opposite, with range hoods, gas tanks and high-voltage lines. It is neither elegant nor safe, and the sunshine and ventilation are also affected, which makes the family feel very inconvenient. They learned that it was Fengxian County Planning Bureau that gave the director a planning permit to build this commercial building in July 1999. "This spacing itself violates the relevant regulations, which is definitely wrong", so Li Ronghai took Fengxian County Planning Bureau to court.

in the first trial, Fengxian county planning bureau argued that the two buildings were originally designed as a "T-shaped vertically connected or embedded structure, but later, due to the consideration of the housing structure, they agreed to separate the two buildings and leave a gap of 2 meters as a construction access road, so they issued the Construction Planning Permit to the real estate agent. The court adopted the opinions of the Planning Bureau and rejected the petition of the Li Ronghai family. Li refused to accept the appeal and appealed to Shanghai No.1 Intermediate People's Court.

in the second instance, the court held that the excuse of "construction access road" put forward by the Planning Bureau failed to provide corresponding legal basis, so it could not be adopted. According to the technical regulations of Shanghai urban planning management, the vertical spacing of residential buildings and the east-west spacing in suburban counties are not less than .8 times the height of higher buildings. The residential building where Li Ronghai is located has 6 floors, and the height of .8 times is obviously much larger than 2 meters. The Planning Bureau plans to allow the distance between the two buildings to be only 2 meters, which is obviously illegal. In October 21, Shanghai No.1 Intermediate People's Court made a final judgment: the original judgment was revoked, and it was confirmed that the specific administrative act of the Planning Bureau to issue planning permits was illegal, and the Planning Bureau should take corresponding remedial measures. This lawsuit of "people suing officials" ended in the defeat of the Planning Bureau.

Analysis: In recent years, disputes between residents, real estate developers and even planning bureaus caused by ventilation and lighting problems in residential buildings have been heard from time to time. This kind of lawsuit is connected with the basic civil rights and interests of the surrounding residents and the major economic interests of the real estate development unit, and it is often caught in a dilemma in the trial. For example, in the above case, the commercial building has been completed, and according to the provisions of the Administrative Procedure Law, the planning permission behavior is illegal and should be redone or cancelled. Then, the whole commercial building has to be demolished, and the loss can be imagined. And if such a judgment is really made, the possibility of actual implementation is also very small. The Supreme People's Court has made several judicial interpretations on the implementation of the Administrative Procedure Law, among which Article 58 stipulates that if the revocation of an illegal administrative act will cause great losses to the interests of the state or the public, it can be confirmed that the administrative act is illegal and ordered the sued administrative organ to take corresponding remedial measures. The judgment of this case is based on this judicial interpretation. In this way, the plaintiff's rights and interests can be guaranteed, and the defendant's losses can be minimized. Such a judgment also establishes that in dealing with illegal cases of construction project planning permission, the flexible judgment form of "confirming illegality and ordering remedy" can be adopted, which provides reference for the handling of such cases in the future. However, the judicial interpretation stipulates that the judgment method of "confirming violation of law and ordering remedy" is abstract in confirming rights, so it is still difficult for the winning party to obtain actual "remedy".

Rethink: Fengxian's case has obvious merits, but as I said, intensive land use, controlling the construction of high-grade villas and increasing the supply of ordinary houses are the goals of the city * * * in line with the national macro-control policies, and it is hard to say what is wrong when the spacing and lighting are in line with national regulations; And the owner can't even produce evidence to prove that the 18 yuan per square meter is used to ensure that the villa without line of sight should be built in front, because this is just the oral propaganda of the director during the hot period of the property market, and there is no obvious mark in the loushu and advertisement; It is precisely because the situation is justified and the law is unfounded that the owner can only seek solutions by pulling slogans, obstructing construction, and constantly * * *, which may lead to vicious incidents such as gathering people to make trouble. Such problems in urban planning and construction should be further regulated by law.

2/ please talk about the problems existing in the process of administrative management, their causes and countermeasures. Administrative management is the management of social affairs in politics, economy, education, culture and health through administrative organs. Administrative management has the functions of decision-making, planning, organization, coordination and control. According to the tasks of administrative management in China at this stage, the functions of administrative management in China mainly include: organizing economic and cultural construction, defending the country and protecting the people, social service and social management.

Since the founding of the People's Republic of China, China has made many efforts and attempts to reform administrative management, and accumulated some experience. The current administrative management system does have some advantages. On the whole, however, China's current administrative management system is far from perfect, and there are many serious drawbacks: from the perspective of power allocation, power is excessively concentrated, the relationship between the central government and local governments, and the relationship between local enterprises and grass-roots enterprises are not straightened out, which restricts the enthusiasm of local enterprises and enterprises. From the perspective of administrative organization, there is a lack of scientific basis for institutional setup and staffing, clear powers and responsibilities, multiple vertical management levels, and overlapping horizontal management functions, resulting in bloated institutions, overlapping levels, overstaffed personnel and low efficiency. From the perspective of administrative legislation, the legal system is extremely incomplete, and there is a lack of a strong mechanism for administration according to law, which emphasizes the rule of man over the rule of law. From the perspective of cadre personnel system, the degree of institutionalization of personnel management is low, and there is also a lack of strong legal supervision. Leading cadres can be promoted but not demoted, and they become lifelong. These shortcomings in the current administrative management process have become a serious obstacle to the further deepening of economic system reform, to the development of social productive forces and to the exertion of socialist superiority, and must be reformed.

In the practice of administrative management, how to move towards the goal of scientificity, legalization and modernization has been seriously studied and boldly tried by all localities. For example, in the aspect of personnel system reform, the establishment of a normal withdrawal mechanism for leading cadres is a major metabolic function of cadre team building and an essential requirement of cadre personnel system reform. In recent years, our city has made some attempts to promote the promotion and demotion of cadres, establish and improve the normal withdrawal of leading cadres, and has made some achievements, but also encountered some problems. There are mainly the following problems in carrying out the normal withdrawal of leading cadres:

1. The concept of thinking has not been fundamentally solved. Influenced by the traditional concept of "official standard", some cadres think that once they are demoted and dismissed, their future will be ruined, and no one wants to step down from their leadership positions unless they have to. In real life, the phenomenon of "not making mistakes and not giving way" makes the normal "lower" cadres feel lost and embarrassed after being adjusted. In particular, we publicize the "survival of the fittest" too much, which invisibly makes people think that they are capable people and mediocre people, which has a negative effect on the establishment of the normal withdrawal mechanism of cadres. In addition, driven by interests, once some cadres are adjusted from their leading positions, the relevant treatment is cancelled and the material income is reduced, which makes it more difficult for leading cadres to quit normally to some extent.

2. The standard is not scientific enough and the operability is not strong enough. Most of the cadres in the current office believe that the main factor affecting the establishment of a normal exit mechanism for leading cadres is that the standards are not scientific and accurate enough. At present, there are some principled standards for adjusting the determination of incompetent and incompetent serving cadres, but they are not very specific and lack maneuverability. It is difficult to grasp some problems in specific work.

3. The supporting systems and policies are not perfect, and the evaluation mechanism is not complete. For a long time, there are no specific and clear job responsibilities for leading cadres at all levels and categories, and it is difficult to evaluate cadres' competence accurately because they cannot be assessed in different ways according to different requirements. In particular, it is still difficult to clearly define the potential and obvious achievements, individual and collective achievements, historical achievements and practical achievements of cadres. If the evaluation is not accurate, it will be difficult to convince the incompetent leading cadres. In addition, the lag of relevant policies on the proper placement of adjusted cadres has also affected the normal withdrawal of cadres to some extent.

The countermeasures to establish and improve the normal withdrawal mechanism of leading cadres:

1. Intensify publicity and create a good atmosphere of public opinion. First, some regulations on the normal withdrawal of leading cadres, especially the criteria and methods for adjusting incompetent and incompetent serving leading cadres, will be announced to the public through the news media, so that the broad masses of cadres and the masses can deepen their understanding of cadres' promotion and demotion, especially the incompetent and incompetent serving leading cadres, and correctly treat the adjustment of cadres' promotion and demotion, thus forming a correct public opinion orientation. Second, we should start with positive education, strengthen the sense of purpose and public servant of party member cadres, establish a correct outlook on life, right and wrong, and honor and disgrace, so that promotion and demotion can become a dynamic concept of normal adjustment and change of cadres' positions, and treat individuals' entry and exit correctly. The third is to strengthen the education of cadres who have been demoted and exempted, do a good job in ideological work, make reasonable arrangements according to the actual situation, care and love them in many ways, and encourage them to cheer up, improve their quality and work hard in their new posts.

2. Improve the cadre assessment system and the assessment mechanism. First, it is necessary to improve the post responsibility system, study and formulate scientific, unified and practical post objectives and responsibilities, and make clear the basis for the assessment of cadres. Second, it is necessary to strengthen the regular assessment of leading bodies and leading cadres, which should not be divorced from the objectives and practices of post responsibilities, so as to ensure that cadres can be comprehensively assessed and reflect the situation accurately, objectively and fairly. Third, we should improve the methods of evaluating cadres' performance. Whether the method of assessing cadres is correct or not directly affects the quality of assessment, and the quality of assessment is an important basis for determining whether cadres are competent or incompetent. Therefore, on the basis of organizing inspection, the evaluation of cadres should strive to expand the degree of democracy, fully follow the mass line, increase the participation of the masses in the evaluation work, and effectively increase transparency. Fourth, it is necessary to further intensify the adjustment of incompetent and incompetent leading cadres and unblock the channels for cadres to "go up" and "go down". In accordance with the principle of having both ability and political integrity, we should truly implement the requirements for cadres' "promotion" and ensure that the ranks of leading cadres are "at the entrance". Further improve the competition mechanism, let outstanding talents stand out in the competition, and let incompetent incumbents give way in the competition.

3. Improve supporting systems and policies to promote the normal withdrawal of leading cadres. First, further improve and perfect the tenure system of leadership positions. The second is to further establish and improve the cadre resignation system. The third is to implement the appointment system of leading cadres. The fourth is to further improve the probation period, pre-appointment publicity, economic responsibility audit, assessment feedback, on-the-job training, heart-to-heart talk and encouragement, and do a good job in the connection of various systems.