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Chapter 1 Basic legal knowledge of construction projects (second construction)
This is a mind map about Chapter 1 Basic Legal Knowledge of Construction Projects (Second Construction). It is necessary to share the review materials for review and preview to improve learning efficiency. I hope it will be helpful to everyone in preparing for the exam.
Edited at 2024-04-11 23:05:47- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- Project Management Process Template
Project management is the process of applying specialized knowledge, skills, tools, and methods to project activities so that the project can achieve or exceed the set needs and expectations within the constraints of limited resources. This diagram provides a comprehensive overview of the 8 components of the project management process and can be used as a generic template for direct application.
Chapter 1 Basic legal knowledge of construction projects (second construction)
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- One Hundred Years of Solitude Character Relationship Chart
One Hundred Years of Solitude is the masterpiece of Gabriel Garcia Marquez. Reading this book begins with making sense of the characters' relationships, which are centered on the Buendía family and tells the story of the family's prosperity and decline, internal relationships and political struggles, self-mixing and rebirth over the course of a hundred years.
- Project Management Process Template
Project management is the process of applying specialized knowledge, skills, tools, and methods to project activities so that the project can achieve or exceed the set needs and expectations within the constraints of limited resources. This diagram provides a comprehensive overview of the 8 components of the project management process and can be used as a generic template for direct application.
- Recommended to you
- Outline
Basic legal knowledge of construction projects
1.1 Legal basis of construction projects
Legal System
form of law
constitution
National People's Congress
law
National People's Congress and Standing Committee
Administrative regulations
State Council
local regulations
Provincial and community-level people’s congresses and standing committees
Departmental rules
Ministries and commissions of the State Council
local government regulations
Provincial, community and municipal governments
1.2 Construction project property rights system
Establishment, change, transfer and elimination of property rights
real property rights
It becomes effective when it is recorded in the real estate registration book;
Real estate registration shall be handled by the registration agency where the real estate is located
The ownership of natural resources owned by the state according to law does not need to be registered.
Note: Principle of distinction between property validity and contract validity
Immovable property rights are evaluated by the Property Law and take effect when the property rights are registered; if not registered, there will be no property rights effect.
Real estate contracts are evaluated by the Contract Law and take effect when the contract is established; failure to register property rights does not affect the validity of the contract.
Advance registration. According to the agreement, you can apply to the registration agency for advance notice registration. After the notice is registered, if the real estate is disposed of without the consent of the right holder of the notice registration, it will not have any real rights effect. If the creditor's rights disappear after the advance notice is registered or if no application for registration is made within 90 days from the date when real estate registration is possible, the advance notice registration will become invalid.
property rights in animals
The establishment and transfer of property rights in animals take effect upon delivery (general principle), unless otherwise provided by law (exceptional rules)
Simple delivery: If the right holder has already taken possession of the movable property before the establishment and transfer of the property rights, the property rights will take effect when the civil legal act takes effect.
Direct delivery: Before the establishment and transfer of property rights in a movable, if a third party takes possession of the movable, the person with the obligation to deliver may request the third party to return the original property through the transfer in lieu of delivery.
Modification of possession: When the property rights of a movable are transferred, and the parties agree that the transferor will continue to possess the movable property, the property rights will take effect when the agreement takes effect.
Ownership, usufruct, security interest and possession
Ownership: The right to one's own property. Contains four rights: possession, use, income, and disposal
Usufruct rights: the right to possess, use and benefit from other people's property. Construction land use rights, homestead use rights, land contract management rights, residence rights, easements (four places and one residence)
Security interest: the priority right to be reimbursed for another person’s property
Mortgage right: No transfer of possession, agreement requires the consent of the other party
Pledge: transfer of possession, debt to A and deduction of B, agreement requires the consent of the other party
Lien: transfer of possession, deduction of A due to A, statutory consent of the other party is not required
Property rights are divided into three categories: ownership, usufruct rights, and security rights.
usufruct right
Land contract management rights
The contract period for cultivated land is 30 years, the contract period for grassland is 30 to 50 years, and the contract period for forest land is 30 to 70 years. When the contract period expires, the land contract management right holder shall continue to contract in accordance with the law.
The land contract management right is established when the land contract management right contract takes effect. The registration agency shall issue land contract management rights certificates, forest rights certificates and other certificates to the land contract management rights holders, and register and confirm the land contract management rights.
The holder of the land contract management right has the right to exchange or transfer the land contract management right in accordance with the law. The contracted land may not be used for non-agricultural construction without approval in accordance with the law.
Construction land use rights
Construction land use rights can be established separately on the surface, above ground or underground. The right to use construction land shall not damage the established usufruct rights.
There are two ways to establish the right to use land for construction: transfer (sell) or transfer (give away). Land used for business purposes such as industry, commerce, tourism and entertainment, commercial housing, etc., and where there are more than two intended land users on the same land, shall be transferred (sold) through public bidding methods such as bidding and auction.
The right to use construction land has been established since registration, and the use right cannot still change the land use. If it needs to be changed, it must be approved by the administrative agency in accordance with the law.
The right to use construction land can be transferred, exchanged, contributed, donated or mortgaged. Note that it cannot be pledged: (1) The period of use is agreed upon by the parties, but it shall not exceed the remaining period of the right to use construction land; (2) It must be registered; (3) Application The buildings, structures and other ancillary facilities registered on the land shall be disposed of together. The premises and land are integrated and not separated.
When the term of the residential land use right expires, it will be automatically renewed. Other construction land use rights expire. If the right to use construction land is extinguished, the transferor shall handle cancellation registration in a timely manner.
Homestead use rights
The holder of the right to use the homestead has the right to occupy and use the collectively-owned land in accordance with the law, and has the right to use the land to build residences and ancillary facilities in accordance with the law.
The acquisition, exercise and transfer of homestead use rights shall be subject to land management laws and relevant national regulations.
If the homestead is lost due to natural disasters or other reasons, the right to use the homestead will be extinguished. Villagers who have lost their homesteads should be redistributed in accordance with the law.
If the registered right to use homestead land is transferred or eliminated, the change registration or deregistration must be handled in a timely manner.
right of residence
The person with the right of residence (A) enjoys the usufructuary right to occupy and use the residence of another person (B) according to the contract to meet the needs of living and residence.
A and B should enter into a residence rights contract in writing. The right of residence is established free of charge and is established at the time of registration.
The right of residence cannot be transferred or inherited. The housing for which the right of residence is established shall not be rented out, unless otherwise agreed by the parties.
If the term of the right of residence expires or the person with the right of residence (A) dies, the right of residence shall be extinguished. If the right of residence is extinguished, deregistration must be completed in a timely manner
easement
An easement is the right of a party (A) to use the real estate of another person (B) in order to improve the efficiency of his own real estate. It is a usufruct right established by Party A and Party B through a contract. Land that requires convenience (A) is called servitude land, and land that provides convenience (B) is called servitude land.
An easement is a special property right in real estate that does not require registration. It is established when the easement contract comes into effect. (However, without registration, you are not allowed to fight against bona fide third parties)
Subordination and indivisibility of easements.
The term of the easement shall be agreed upon by the parties, but the remaining term of the land contract management rights and construction land use rights shall not be
The easement shall not be transferred or mortgaged separately. The land contract management rights and construction land use rights are transferred, and the easement is also transferred. If the land contract management rights and construction land use rights are mortgaged, the easement will be transferred together when the mortgage rights are realized.
security interest
Including mortgage, pledge and lien
Subordination of Guarantee
The main creditor's rights and debt contracts are invalid, as are the guarantee contracts (mortgage contracts, pledge contracts and other contracts with guarantee functions), unless otherwise provided by law. (For example, the guarantee contract can specifically stipulate that when the main contract is invalid, the guarantee contract will be independent and effective. This is recognized by the law).
If the guarantee contract is invalid and the creditor, debtor or guarantor is at fault, the liability will be shared according to their faults. This does not mean that the guarantor is not liable.
Scope of guarantee
The principal creditor's right and its interest, liquidated damages, damages, costs of keeping the secured property and realizing the security interest
Mixed joint guarantee: coexistence of property rights and personal insurance:
If there is an agreement, it shall be handled in accordance with the agreement. When there is no agreement or the agreement is unclear, there are two situations.
Type 1: If the debtor himself provides a security for the thing, the creditor shall first realize his claim on the security of the thing (first, then later); if a third party provides a guarantee for the thing, the creditor may realize his claim on the security of the thing, or he may Request the guarantor to assume the guarantee liability (in no particular order). After the third party providing the guarantee assumes the guarantee liability, it has the right to recover from the debtor
Second type: If a third party provides a guarantee for a thing, the creditor can realize its claim on the guarantee of the thing, or request the guarantor to bear the guarantee liability (in no particular order). After the third party providing the guarantee assumes the guarantee liability, it has the right to recover from the debtor
Mortgage: The debtor or a third party does not transfer possession of the property and uses the property as security for the performance of the debt. Mortgage property includes movable or immovable property
Property that can be mortgaged = can be bought and sold
Buildings and other land fixtures
Construction land use rights
sea area use rights
Production equipment, raw materials, semi-finished products, products
Buildings, ships, aircraft under construction
transportation
other
Property that cannot be mortgaged = cannot be bought or sold
property
Cultivated land, homestead land, private land, private hills, etc., except for those that can be mortgaged according to the law.
Educational facilities, medical and health facilities and other social welfare facilities of schools, kindergartens, hospitals and other public welfare units
Property whose ownership or use rights are unclear or disputed
Property that has been seized, detained, and supervised in accordance with the law
other
Establishment of mortgage rights
Real estate mortgage rights (buildings, construction land use rights, sea area use rights, buildings under construction), established at the time of registration
Chattel mortgages (including motor vehicles, ships, and aircrafts) are established when the mortgage contract takes effect and may or may not be registered. However, you are not allowed to fight against bona fide third parties without registration.
Learn about floating charges
Enterprises, individual industrial and commercial households, and agricultural producers and operators can mortgage existing and future production equipment, raw materials, semi-finished products, and products. If the debtor fails to pay due debts or the circumstances agreed by the parties to realize the mortgage rights occur, the creditor has the right to take advantage of the mortgage. When the property is determined, movables will be paid first
Realization of mortgage rights
Multiple mortgage rights coexist
If the same property is repeatedly mortgaged to two or more creditors, the price obtained from the auction or sale of the mortgaged property shall be
Mortgage registration sequence for repayment
Mortgages that have been registered will be paid before those that have not been registered
If the group is not registered, repayment will be made in proportion to the creditor's rights.
Mortgage rights and pledge rights coexist
If both mortgage rights and pledge rights are established for the same property, the proceeds from the auction and sale of the property shall be settled in order according to the time of registration and delivery.
Built projects, projects under construction
If the right to use construction land is mortgaged, it shall be mortgaged together with the buildings on it or the buildings under construction. When the mortgage rights are realized, they shall be disposed of together.
Later construction project
After the construction land use right is mortgaged, the newly added buildings on the land do not belong to the mortgaged property. When the construction land use right is realized as a mortgage, the newly added buildings on the land and the construction land use right shall be disposed of together.
However, the mortgagee does not have priority in receiving payment from the price of the new building.
Pledge rights are divided into movable property pledge rights and rights pledge rights. A must-know real estate property can only be mortgaged, not pledged
chattel pledge
The right to pledge is established when the pledger delivers the pledged property.
The pledgee (creditor) has the right to collect the interest from the pledged property, unless otherwise agreed in the contract.
If the pledgee uses or disposes of the pledged property without authorization, or if the pledged property is damaged or lost due to poor storage, he shall compensate
Pledge of rights
Money order, cashier's check, check
debt deposit certificate
Warehouse receipt bill of lading
Transferable Fund Shares
Transferable property rights in intellectual property rights such as registered trademark rights, patent rights, and copyrights
Existing and future accounts receivable
other
Pledge pledged by bills of exchange, promissory notes, checks, claims, deposit receipts, warehouse receipts, and bills of lading. The right to pledge is established when the certificate of rights is delivered to the pledgee. If there is no certificate of rights, the right to pledge is established when the pledge is registered. It will only be recorded as (1) to (3) when the certificate is delivered, (4) to (7) when the pledge is made. When registering.
The rights shall not be transferred after being pledged, unless the pledgor and the pledgee agree through negotiation. If the pledger transfers all the price, he shall pay off the debt in advance or make a deposit to the pledgee.
lien
When the debtor fails to perform its obligations, the creditor has a lien on the subject matter of the contract (movable property). If the lien holder loses possession of the lien property or the lien holder accepts another guarantee from the debtor to provide security, the lien right will be extinguished.
The lien holder shall properly keep the lien object, and shall compensate if the lien object is damaged or lost due to poor storage.
The lien holder has the right to collect the interest on the lien property.
The lien holder and the debtor shall agree on the debt performance period after the lien property is retained. If there is no agreement or the agreement is unclear, the lien holder shall give the debtor a period of more than 60 days to perform the debt, except for fresh and perishable property.
Competing rights of mortgage, pledge and lien
If a mortgage or pledge has been established on the same movable property, and the movable property is subject to a lien, the lien holder shall have priority in receiving payment.
The mortgage and pledge shall be registered to whom first.
possess
Belongs to quasi property rights
Possession is divided into autonomous possession and other-owner possession; entitled possession and unauthorized possession (good-faith possession and malicious possession).
Construction enterprise’s possession of construction site
If the construction site is damaged or lost due to the right to occupy it and is occupied by another owner, the construction company shall return the insurance money and compensation money obtained to the construction unit.
subtopic
The possessor's right to claim for return of possession VS the owner's right to claim for return of the original thing
If the construction site is occupied by others, the construction company has the right to request return and compensation for losses. If the possessor's right to claim for return of possession is not exercised within one year from the date of the misappropriation, the right to claim shall be extinguished. (exclusion period)
However, the construction unit, as the owner, has the right to request the encroacher to return the original property, and this right is not subject to statute of limitations. Civil Code Article 196 2
Property rights infringement and protection. If property rights are infringed, the right holder can resolve the matter through reconciliation, mediation, arbitration or litigation.
Infringement of property rights, in addition to civil liability, shall also bear administrative liability in accordance with the law. If a crime is constituted, criminal liability shall be pursued
Easement: In order to improve the efficiency of your real estate, you may not. agreed, paid
Adjacent relationship: necessary, unavoidable, legal, free for production and life
land
state owned land Construction land use rights
Transfer (paid and termed)
Residential land will be automatically renewed after expiration
The remaining land will be returned to the state after expiration
Transfer (free of charge and no deadline)
Collectively owned land: homestead use rights, land contract management rights
1.3 Intellectual property rights system for construction projects
Intellectual Property Object
work
Inventions, utility models, designs
trademark
geographical indication
trade secret
Integrated circuit layout design
new plant varieties
Copyright
Literary, artistic, scientific works, computer software works
the term
Lifetime of natural person author and 50 years after death
50 years after the unit was first published
Publication rights, licensing rights, royalties (property rights)
No extension will be granted
Right of signature, right of modification, right to protect the integrity of the work (personal rights)
Unlimited protection period
starting point
Work completion date
Exhibition period
patent
Inventions and creations in the industrial field
the term
20 years for inventions and 10 years for utility models. Award conditions: novelty, creativity and practicality.
Appearance design shall be granted for 15 years under the conditions that it must be novel, aesthetically pleasing, and suitable for industrial application.
No extension will be granted
starting point
Application date. If the application documents are mailed, the postmark date will be the application date.
Trademark rights
Trademark
the term
10 years
starting point
Approved registration date
Exhibition period
Can be extended
1.4 Construction project infringement system
definition
Acts that unlawfully infringe upon the property rights or personal rights of others. Both acts and omissions can constitute infringement.
rules and principles
There are four types in total, including fault liability, no-fault liability, constructive fault liability, and fairness liability.
joint infringement
If two or more persons jointly commit an infringement act and cause damage to others, they shall bear joint and several liability.
common dangerous behavior
If two or more people commit an act that endangers the personal or property safety of others, and the act of one or more of them causes damage to others, and the specific infringer can be identified, the infringer shall bear the liability. If the specific infringer cannot be identified, the perpetrator shall bear joint and several liability. .
Separate infringements
If 2 or more people commit an infringement act separately and cause the same damage, and the infringement act of each person is sufficient to cause all the damage, the perpetrator shall bear joint and several liability; if 2 or more people commit an infringement act separately and cause the same damage, the degree of liability can be determined, and each shall bear the corresponding liability. , if it is difficult to determine the extent of liability, the liability for compensation will be borne equally.
Perform work task behavior
If an employer's staff causes damage to others due to performing ICBC tasks, the employer shall bear tort liability.
Reduce or exempt liability
If the infringed party is at fault for the occurrence or expansion of the same damage, the liability of the tortfeasor may be reduced. The damage is caused intentionally by the injured party, and the perpetrator is not responsible.
penalty for damages
If someone infringes upon another person and causes personal damage, he shall be compensated for reasonable expenses such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization food subsidy, etc. for treatment and recovery, as well as for the loss of income due to missed work. If disability is caused, the cost of assistive devices and disability compensation should also be compensated. If death is caused, funeral expenses and death compensation should also be compensated. If multiple deaths occur due to the same infringement, the death compensation may be determined in the same amount.
If the infringer dies, his close relatives have the right to request the infringer to bear tort liability. If the infringed person is an organization, and the organization is divided or merged, the organization that inherits the power has the right to request the infringer to bear infringement liability.
If an infringement of the personal rights and interests of a natural person causes severe mental damage, or if a specific object of personal significance to a natural person is infringed intentionally or with gross negligence, causing serious mental damage, the person who has been infringed has the right to request compensation for mental damage.
If the property of others is infringed upon, the property losses shall be calculated according to the market price at the time of the loss or other reasonable methods.
If the intellectual property rights of others are intentionally infringed and the circumstances are serious, the infringed party has the right to request corresponding punitive damages.
Product infringement liability
If a defective product causes damage to others, the infringed party may request compensation from the manufacturer of the product or the seller of the product.
If a product is defective due to the fault of a third party such as a transporter or warehouse, causing damage to others, the manufacturer or seller of the product shall have the right to recover compensation from the third party after compensation.
If a product is found to be defective after it is put into circulation, producers and sellers should promptly take remedial measures such as stopping sales, warnings, and recalls.
If a product is knowingly known to be defective but still produces or sells it or fails to take the above effective remedial measures, causing death or serious damage to the health of others, the infringed party has the right to request corresponding punitive damages.
Liability for damage caused by collapse and subsidence
If a building, structure or other facility collapses or collapses, causing damage to others, the construction unit and the construction unit shall bear joint and several liability. However, this is excepted if it can prove that there are no quality defects. After the construction unit or construction unit has made compensation, if there are other responsible persons, it has the right to recover compensation from other responsible persons.
If a building, structure or other facility collapses or collapses due to the fault of the owner, manager, user or third party, causing damage to others, the owner, manager, user or third party shall bear tort liability.
Brief description: Project quality defects caused by: construction joint and several; non-project quality defects caused by: the actual responsible person shall bear the responsibility.
Liability for damage caused by falling off or falling
If a building, structure or other facility and its resting and hanging objects fall off or fall, causing damage to others, and the owner, manager or user cannot prove that they are not at fault, they shall bear tort liability.
After the owner, manager or user makes compensation, if there are other responsible persons, the owner, manager or user shall have the right to recover compensation from the other responsible persons.
Liability for damage caused by unknown thrown objects and falling objects
If objects are thrown from a building or objects fall from a building and cause damage to others, the tortfeasor shall bear tort liability in accordance with the law. through. If it is difficult to identify the specific infringer during the investigation, unless the person can prove that he is not the infringer, the user of the building who may cause harm will be compensated. For buildings that may cause harm, the user has the right to recover compensation from the infringer after compensation.
Property and building managers should take necessary safety guarantee measures to prevent the occurrence of the above situations; if they fail to take necessary safety guarantee measures, they shall bear tort liability for failure to perform safety guarantee obligations in accordance with the law. If the above-mentioned circumstances occur, the public security and other organs shall promptly investigate in accordance with the law and identify the person responsible.
Liability for damage caused by collapse, rolling or sliding of stacked objects
If a pile of objects collapses, rolls or slides and causes damage to others, and the person who piled the pile cannot prove that he is not at fault, he shall bear tort liability.
If objects that obstruct traffic are piled, dumped, or scattered on public roads, causing damage to others, the perpetrator shall bear tort liability. If public road managers cannot prove that they have fulfilled their obligations such as cleaning, protection, and warning, they shall bear corresponding responsibilities.
Liability for damage caused by construction in public places or roads
If excavating, repairing, or installing underground facilities in public places or roads causes damage to others, and the builder cannot prove that obvious signs have been set up and safety measures have been taken, he shall bear tort liability.
Liability for damage caused by underground facilities such as pits and shafts
If underground facilities such as pits and pits cause damage to others and the manager cannot prove that he has fulfilled his management duties, he shall bear tort liability.
1.5 Construction project tax system
taxpayer
General taxpayer
Tax payable by general taxpayers (deduction method) = current output tax (sales * tax rate) - current input tax
small taxpayer
Tax payable by small-scale taxpayers (simple method) = sales * collection rate (input tax cannot be deducted)
corporate value added tax
Divided into ordinary invoices and special invoices
Special VAT invoices shall not be issued under any of the following circumstances:
The purchaser of taxable sales is an individual consumer
Tax exemption regulations apply to taxable sales
Deductible output tax
The value-added tax amount indicated on the special VAT invoice obtained from the seller
The value-added tax amount stated on the special customs import VAT payment note obtained from the customs
Tax exemption regulations apply to taxable sales
Output tax not deductible
Simple tax calculation method tax items, value-added tax exempt items, collective welfare or purchased goods, labor services, services, intangible assets and real estate for personal consumption
Purchased goods with abnormal losses, as well as related labor services and transportation
other
environmental protection tax
taxpayer
Enterprises, institutions and production operators that directly discharge taxable pollutants into the environment within the territory of the People's Republic of China and other waters under its jurisdiction
taxable pollutants
Air pollutants (number of equivalents), water pollutants (number of equivalents), solid waste (amount of emissions) and noise (number of decibels exceeding the standard)
Generally considered
The main taxpayer of construction site environmental protection tax is the construction unit. Taxable pollutants at construction sites do not include construction noise, construction waste and waste sewage discharged through municipal sewage outlets. There is a tax on construction site dust.
Tax liability occurs on the day of discharge, is calculated monthly, and paid quarterly.
duty free
Agricultural production (excluding large-scale breeding) emitting taxable pollutants
Motor vehicles and railway locomotives. Non-road mobile machinery, ships and aircraft and other mobile pollution sources emit taxable pollutants, etc.
The discharge of corresponding taxable pollutants from urban and rural centralized sewage treatment and domestic waste centralized treatment sites established in accordance with the law does not exceed the emission standards stipulated by the state and local governments.
Solid waste comprehensively utilized by taxpayers that meets national and local environmental protection standards
tax cuts
If the concentration of air pollution or water pollutants discharged by taxpayers is lower than 30% of the national or local standards, the environmental protection tax will be levied at a reduced rate of 75%.
If the concentration value is lower than 50% of the national or local standards, the environmental protection tax will be levied at a reduced rate of 50%.
1.6 Construction project administrative legal system
Administrative licensing and types, legal procedures
Laws, administrative regulations, local regulations, and local government rules can set administrative licenses (department regulations have no power to set them).
If administrative licensing is handled uniformly, jointly, or centrally, the processing time shall not exceed 45 days. If the case cannot be completed within 45 days, it may be extended for 15 days with the approval of the person in charge of the people's government at the same level.
For major administrative licensing matters involving public interests, the administrative agency shall announce to the public and hold a hearing. If the applicant or interested parties apply for a hearing within 5 days of being informed of the right to a hearing, the administrative agency shall organize a hearing within 20 days. Applicants and interested parties shall not bear the cost of hearings organized by administrative agencies.
Which ones do not need administrative permission?
Citizens, legal persons or other organizations can decide independently;
The market competition mechanism can be effectively adjusted;
Industry organizations or intermediaries can manage themselves;
Administrative agencies can use other administrative management methods such as post-event supervision to solve the problem.
Administrative penalties (official ~ civilian)
type
Warning, notification and criticism
Fines, confiscation of illegal gains, confiscation of illegal property
Temporarily withholding licenses, lowering qualification levels, and revoking licenses
Restrict production and business activities, order suspension of production and business, order closure, and restrict employment
administrative detention
other
The right to set administrative penalties
Can be set by laws, administrative regulations, local regulations, departmental regulations, and local government regulations
Jurisdiction and time limit for administrative penalties
Administrative penalties shall be under the jurisdiction of administrative agencies at or above the county level where the illegal acts occurred
If the violation is not discovered within 2 years, no administrative penalty will be imposed. If it involves citizens' life, health, safety, financial security and has harmful consequences, the above period will be extended to 5 years. The above-mentioned acts shall be calculated from the date of occurrence of the illegal act. If the illegal act is continuous or continuing, the calculation shall be calculated from the date of termination of the act.
program
Simple program
If the illegal facts are conclusive and there is a clear legal basis, the penalty will be lighter (<=200 for individuals, <=3000 for units), law enforcement officers will make an administrative penalty decision on the spot.
Ordinary program
Including case filing, investigation, handling decision, preparation of penalty decision, explanation of reasons and notification of rights, statement and defense of the parties, and delivery of penalty decision
Hearing procedure
When an administrative agency intends to make the following administrative penalty decisions, it shall inform the parties of their right to request a hearing. If the parties request a hearing, the administrative agency shall organize a hearing.
Fines for larger amounts (individuals >= 5,000, units >= 50,000)
Confiscate larger amounts of illegal income and confiscate larger amounts of illegal property
Lower the qualification level and revoke the license
Order to suspend production and business, order to close, and restrict employment
Other serious administrative penalties
The parties shall not bear the costs of the hearing organized by the administrative agency. After the hearing, the administrative agency shall make a decision based on the hearing transcript and in accordance with regulations.
Master the legal structure
4 situations
If a construction unit commits any of the following acts, it shall be ordered to make corrections within a time limit:
Those who fail to make corrections within the time limit shall be ordered to suspend business for rectification and be fined not less than 100,000 yuan but not more than 300,000 yuan.
If the circumstances are serious, the qualification level will be reduced or the qualification certificate will be revoked.
If a major safety accident is caused and a crime is constituted, the person directly responsible shall be held criminally responsible in accordance with the relevant provisions of the Criminal Law.
Administrative coercion
Administrative enforcement measures
Moving ~ Still, 4
Restrict citizens’ personal freedom; seal, detain, freeze deposits and remittances
administrative enforcement
Still ~ moving, 6
Perform on behalf of others (such as forced demolition), impose penalties or late fees; transfer deposits and remittances; auction; remove obstacles and restore the original status
The right to establish administrative compulsory measures
Can be set by laws, administrative regulations, and local regulations
The right to establish administrative enforcement
can only be set by law
1.7 Criminal legal system for construction projects
Types of criminal law, statutory procedures
main punishment
control
detention
imprisonment
life imprisonment
death penalty
additional penalty
fine
deprivation of political rights
Confiscation of property
deport
Administrative penalties (illegal)
detention
fine
Collect illegal gains
Penalty (Crime)
detention
fine
Confiscation of legal property
Several engineering accident crimes
crime of serious accident
natural person crime
Violating relevant safety management regulations during production operations (illegal operations or illegal command)
The crime of forcing others to do risky work in violation of regulations
natural person crime
Using coercion, coercion, intimidation or other means to force others to work in violation of regulations
Taking advantage of organizational, command, and management powers to force others to work in violation of regulations
other
Crime of major labor safety accident
Unit crime (punishment of direct supervisors and other directly responsible personnel)
Labor safety facilities and working conditions do not comply with regulations (foundation pit collapse, scaffolding, construction elevators, tower cranes) (the unit's safety and security system is out of control)
Crime of major engineering safety accidents
Unit crime (punishment of directly responsible personnel) (limited to 4 units including construction, design, construction, and supervision)
Permanent projects (lowering project quality standards and cutting corners) (unit quality assurance system is out of control)
Accident crimes are all negligence crimes and consequential crimes.
Basic offense
It constitutes a crime only if one person is killed, three people are seriously injured or if the direct economic loss is more than 1 million. 131
aggravated offense
If 3 people die or 10 people are seriously injured or the direct economic loss is more than 5 million yuan, and the person is primarily responsible for the accident, the consequences are particularly serious. 315
Dangerous work crime (newly added) (dangerous crime, natural person crime)
Anyone who violates relevant safety management regulations during production operations and falls under any of the following circumstances and has a real risk of serious casualties or other serious consequences shall be sentenced to fixed-term imprisonment of not more than one year, criminal detention or public surveillance
Closing or destroying monitoring, alarm, protection, and life-saving equipment and facilities directly related to production safety, or tampering with, concealing, or destroying relevant data and information
Those who are ordered to suspend production, business, construction, or use of relevant equipment, facilities, or places due to the existence of major accident risks, or who are ordered to immediately take rectification measures to eliminate the danger but refuse to do so.
Engaging in construction and highly dangerous production operations without obtaining a production safety license