The legal status of the development of the precinct
Regarding the development of the area, there have been many projects in the industry that have won the bid and been implemented, and some projects have died after winning the bid, but no matter what, the development of the area has not had a legal status in various laws and regulations such as laws, administrative regulations and departmental rules. The relevant policies that are closest to the legal positioning of the development of the area are described as follows:1.About the integrated development model. At the executive meeting held on May 23, a package of 33 measures to stabilize the economy in 6 aspects was deployed, and efforts were made to promote the return of the economy to the normal track and ensure that the operation was within a reasonable range. We will vigorously and orderly promote the implementation of 102 major projects in the 14th Five-Year Plan, and encourage and attract more social capital to participate in major national projects. Encourage private investment to focus on urban infrastructure and participate in the construction of projects in key areas through a comprehensive development model. In the policy document at the national level, the comprehensive development model is first proposed, and social capital + comprehensive development involves the integration of multiple elements, fields and formats, and involves the alignment of rights and obligations of multiple entities and the reasonable allocation of risks. In April 2023, the Notice of the National Development and Reform Commission on Printing and Distributing the Outline and Instructions for the Preparation of the Feasibility Study Report of Investment Projects (Fagai Investment Gui No. 2023 No. 304), in accordance with the principle of classified management of investment and enterprise investment, respectively, formulated the "General Outline" and "Reference Outline" for the feasibility study and preparation of investment projects. For the comprehensive development project invested by the enterprise, the business model and its innovation needs are put forward in combination with the conditions that can be provided by the project location or relevant units, and the innovation path and feasibility of the model such as comprehensive development of the project are studied. 3.About the development of the film. According to the announcement of the Ministry of Natural Resources on soliciting public opinions on the "Standards for Land Acquisition and "Piece-by-piece Development" (Trial) (Draft for Comments) (Draft for Comments), "piece-by-piece development" of land acquisition refers to the comprehensive development and construction activities of a certain range of land organized by local people** at or above the county level in the concentrated construction area within the urban development boundary determined by the land and spatial planning. The plan for land acquisition "piece of development" shall include the following contents: basic information such as the location, area, scope and infrastructure conditions of "piece of land development";The necessity, main uses, and functions of "piece development";The construction project, development timeline and annual implementation plan to be arranged in the "Piece of Development";The proportion of infrastructure, public service facilities and other public welfare land within the scope of a complete land acquisition "piece of development" determined in accordance with the territorial spatial plan;Assessment of land use benefits and economic, social and ecological benefits of "piece-by-piece development". In the "Opinions of the Communist Party of China on Deepening the Reform of the Investment and Financing System" (Zhongfa 2016 No. 18), the core description of the broadly defined cooperation with social capital is proposed: through franchising, purchasing services, etc., in the fields of transportation, environmental protection, medical care, pension and other forms, individual projects, portfolio projects, continuous development and other forms are adopted to expand the supply of public products and services. In the "Several Opinions of the General Office on Promoting the Reform and Innovative Development of the Development Zone" (Guo Ban Fa 2017 No. 7), the requirements for the innovation of the management system and operation mode of the development zone are put forward, such as improving the financial budget management and independent accounting mechanism of the development zone, and supporting enterprises of various ownership systems as the main body, investing in the construction and operation of the development zone in accordance with the relevant provisions of the state, or hosting the existing development zone, and enjoying the relevant policies of the development zone. Compliance with precinct development
Basic features:
4.Fiscal revenues are operated in a closed manner.
5.Land use rights.
Public welfare land is allocated to the project company, and public welfare assets have no obvious effect on the credit enhancement of project financing. Some projects may cover operational sub-projects such as health care complexes, cultural and sports facilities, resettlement housing, commercial supporting facilities and industrial plants, and the land acquisition method and acquisition subject of these projects need to be clarified in the implementation plan.
For example, there are two defects in the acquisition of land by the project company: first, commercial land plots other than resettlement housing (which can be classified as affordable housing and acquired by way of allocation) need to be granted the land use right to the project company by way of public bidding, auction and listing, and the bidding procedure for comprehensive development projects cannot replace the land transfer process, except for those that can indeed achieve first- and second-level linkage in accordance with local laws and regulations (such as Shenzhen, etc.);Second, if social capital is introduced for the development of commercial industrial real estate or commercial housing, the conditions and requirements for credit and performance should be put forward in the bidding documents for real estate development and operation.
6.Risk allocation related to government-enterprise cooperation.
Hou Kai, Auditor General of the National Audit Office, made the "Audit Report on the Implementation of the Budget and Other Financial Revenues and Expenditures in 2022" to the third meeting of the Standing Committee of the 14th National People's Congress on June 26, proposing that the audit found problems in the PPP field, including "improper blame and responsibility in the construction and operation links", that is, the "overall packaging" of the industrial planning, urban operation and other functions of the new city and new area and specific projects to be implemented by the social capital party, which is far beyond the ability of the social capital side, and most of them are abandoned halfway.
7.Relevant projects are approved.
The main body of the project should generally be the project company established by the local platform and social capital, and the project proposal of the pure public welfare project is packaged with the business sub-project, because under the premise of its separate project, the local state-owned enterprises as the market-oriented subject do not have the necessary and underlying logic for the implementation of the project. The compromise method is to establish the project by **, the local state-owned enterprise as the main body of the construction, the project company or the construction social capital to provide consulting services and obtain the general construction contract in accordance with the law, and the local state-owned enterprise to achieve local financial revenue increase through compliance paths and methods, and the financial funds to pay the project progress payment according to the node.
Agreement to relocate to the development of the area
The importance of the matter
1. "Statutory expropriation".
1.Statutory expropriation of state-owned land
According to the Law of the People's Republic of China on the Administration of Urban Real Estate, for the needs of the public interest, the state may expropriate the houses of units and individuals on state-owned land, and give compensation for demolition and relocation in accordance with the law, so as to safeguard the legitimate rights and interests of the expropriated;Where an individual's residence is expropriated, the living conditions of the expropriated person shall also be guaranteed. The specific measures are stipulated by ***.
**Regulations on the Expropriation and Compensation of Houses on State-owned Land have been formulated
For the needs of the public interest, fair compensation shall be given to the owner of the expropriated house (hereinafter referred to as the expropriated person) for the expropriation of the houses of units and individuals on state-owned land.
The people at the municipal and county levels are responsible for the expropriation and compensation of housing in their respective administrative areas. The housing expropriation departments determined by the people's ** at the municipal and county levels (hereinafter referred to as the housing expropriation departments) organize the implementation of housing expropriation and compensation in their respective administrative areas.
In order to ensure the needs of promoting public interests such as national economic and social development, in any of the following circumstances, if it is really necessary to expropriate the house, the people at the city and county level shall make a decision on the expropriation of the house:
a) the needs of national defense and foreign affairs;
2) The needs of energy, transportation, water conservancy and other infrastructure construction organized and implemented by the first organization;
3) The needs of public undertakings such as science and technology, education, culture, health, sports, environmental and resource protection, disaster prevention and mitigation, cultural relics protection, social welfare, and municipal public utilities organized and implemented by the first organization;
4) The need for the construction of affordable housing projects organized and implemented by **;
5) The need to reconstruct the old urban area organized and implemented by ** in accordance with the relevant provisions of the urban and rural planning law, such as the concentration of dilapidated houses and backward infrastructure;
6) Other public interest needs as provided for by laws and administrative regulations.
Housing expropriation shall be compensated first and then relocated. If the expropriated person does not apply for administrative reconsideration or does not file an administrative lawsuit within the statutory time limit, and does not relocate within the time limit specified in the compensation decision, the people's people at the city or county level who made the decision to expropriate the house shall apply to the people's court for compulsory enforcement in accordance with the law.
To sum up, as mentioned in this article, the "statutory expropriation" of state-owned land refers to the housing and land expropriation behavior led and organized by ** within a specific scope for the needs of public interests, which has a certain administrative compulsory color and is an administrative act, and the people can protect their rights and interests through administrative reconsideration or administrative litigation.
2.Statutory expropriation of collective land
In accordance with the Land Administration Law:
In any of the following circumstances, if it is truly necessary to expropriate land owned by peasant collectives for the sake of the public interest, expropriation may be carried out in accordance with law:
1) Land for military and diplomatic purposes;
2) The construction of energy, transportation, water conservancy, communications, postal and other infrastructure needs to be implemented by the first organization;
3) The use of land for public undertakings such as science and technology, education, culture, health, sports, ecological environment and resource protection, disaster prevention and mitigation, cultural relics protection, comprehensive community services, social welfare, municipal public utilities, preferential care and resettlement, and protection of martyrs is organized and implemented by the first organization;
4) The construction of poverty alleviation and relocation and affordable housing projects organized and implemented by ** requires land;
5) Within the scope of urban construction land determined by the overall land use plan, land is needed for the development and construction of a piece of land organized and implemented by the local people's ** organization at or above the county level with the approval of the people at or above the provincial level;
6) Other circumstances where the law provides that land owned by peasant collectives may be expropriated for the public interest.
To sum up, the revised Land Management Law and Regulations basically refer to the relevant processes, requirements and logic of the Regulations on the Expropriation and Compensation of Houses on State-owned Land. To a certain extent, it reflects the color of "agreement" and "consultation", that is, the local people at or above the county level can only submit an application for land expropriation after completing the prescribed preliminary work for land acquisition, and report to the people with the right to approve for approval.
2. Relocation by agreement
Relocation by agreement corresponds to statutory expropriation, that is, both parties reach a willingness to relocate on an equal and voluntary basis. It is mainly led by social capital, and negotiates with the expropriated persons through the announced relocation compensation and resettlement plan, and finally signs a compensation and resettlement agreement to achieve the goal of land acquisition and demolition.
The scope of the agreed relocation is the houses on state-owned land, and the agreed relocation is not mandatory, it is not an administrative act, but a civil legal relationship between the implementing entity and the subject being demolished. The main objective of Shenyang's agreed relocation measures is to combine this civil act with the administrative act of statutory expropriation, namely:
*After the competent authority puts forward opinions on the relocation and resettlement plan, the implementing entity needs to sign a regulatory agreement with the competent department before it can announce the relocation plan and issue the agreement relocation announcement, consult the housing rights holder's willingness to renovate, and agree that the proportion of households can only start the project after reaching a certain standard, and the relocation and resettlement agreement can only take effect after the proportion of the number of households that have signed the agreement reaches a certain proportion within the contract period, and at the same time, the statutory expropriation will be implemented for the unsigned part. Through the above-mentioned wave of operations, it not only embodies the principles of fairness, integrity and people-oriented, but also provides a guarantee for the overall promotion of the agreed relocation through the statutory expropriation.
3. The significance of the agreed relocation to the area development (regional comprehensive development) projects
At present, the urban renewal measures of most cities have mentioned that urban renewal projects can be implemented by ** and property rights holders, or by relevant entities introduced by ** and property rights holders through direct entrustment, public bidding, etc. Major urban renewal projects can be authorized by qualified state-owned enterprises as the implementation body.
In order to give the right to expropriate and relocate other subjects other than ** and give certain constraints, the introduction of agreement relocation measures is very necessary and important, whether it is legal compliance logic filling or project practical operation.
From the perspective of the underlying logic, comprehensive development projects often include primary land consolidation, public welfare infrastructure projects, operating infrastructure projects with certain income, market-oriented secondary real estate development, industrial introduction and incubation, and urban infrastructure operation. The income** mainly consists of the net income from land transfer, incremental fiscal and tax income, non-tax income (administrative fees), operating lease income, real estate secondary development income, property management income, etc. For details about the underlying logic of regional comprehensive development projects, please refer to the article "Analysis of the Underlying Logic of Regional Comprehensive Development Projects". The biggest difference between regional comprehensive development projects and PPP and franchise projects at the level of demolition is that the latter land generally meets the scope of statutory expropriation, and the former is generally difficult to fully cover the scope of statutory expropriation, and the progress of land acquisition and demolition will directly affect whether the project can be successfully implemented.
Looking at the regional comprehensive development project, in essence, it gives the social capital (including local state-owned enterprises) the right to relocate by agreement and a series of investment, construction and operation rights after the relocation through authorization or bidding, and provides supplementation and protection for the rights of the social capital through statutory expropriation, so that the social capital can gradually have the ability and scale of asset investment, factor aggregation, operation efficiency and industrial incubation after the completion of the agreed relocation, so as to achieve the overall capital balance and investment income of the project.
Local ** directly authorizes local state-owned enterprises to implement the development of the area
The underlying logic of the project
1. The policy basis for direct authorizationIn the transaction structure, such projects are directly authorized by local state-owned enterprises as the implementation subject of a certain range or a project, and the local state-owned enterprises are used as the main body of project approval and procurement, and social capital is selected as the main body of investment and general contracting on the local public resource trading platform by way of public bidding. The main policy basis for whether local state-owned enterprises can be directly authorized as the implementation subject of infrastructure investment projects and whether public bidding is required to determine the implementation subject is as follows: 1According to the "Guiding Opinions on Deepening the Reform of State-owned Enterprises" (August 24, 2015) issued by the Communist Party of China, state-owned enterprises are divided into commercial and public welfare. Commercial state-owned enterprises shall carry out commercial operation in accordance with the requirements of marketization, with the main objectives of enhancing the vitality of the state-owned economy, enlarging the function of state-owned capital, and maintaining and increasing the value of state-owned assets, and independently carry out production and operation activities in accordance with the law, so as to achieve the survival of the fittest and orderly advance and retreat. With the main objectives of ensuring people's livelihood, serving the society, and providing public products and services, public welfare state-owned enterprises introduce market mechanisms to improve the efficiency and capacity of public services. Public welfare state-owned enterprises to undertake non-operating projects, the need for local financial support and subsidies, in the process of capital flow is very easy to solidify the responsibility of support, need to through the first capital injection, closed operation of financial funds special use, operational market-oriented projects and public welfare projects bundled and packaged to avoid hidden debts. 2.In accordance with the "Guiding Opinions on State-owned Capital Increasing Investment in Public Welfare Industries" (Cai Jian 2017 No. 743), "comprehensively adopt the arrangement of financial funds, the allocation of assets, the capital allocation of state-owned capital investment and operation companies, investment, and social capital cooperation, etc., to increase investment in public welfare industries", "in accordance with the relevant provisions of budget management, fiscal powers and expenditure responsibilities, **finance and local finance through the arrangement of budget funds, allocation** assets, etc., and support various entities, including state-owned enterprises, to play a better role in public welfare industries." "All localities can encourage local state-owned enterprises to increase investment in public welfare industries such as urban management infrastructure according to the actual development conditions. "The allocation of assets, state-owned capital investment and operation company capital allocation, etc., includes the possibility of awarding public welfare projects to local state-owned enterprises in a non-competitive way, and if the income of public welfare projects cannot cover the investment, it may need to be packaged and implemented with market-oriented business projects. 3.In accordance with the "Guiding Opinions of the General Office on Maintaining the Strength of Making Up for Weaknesses in the Infrastructure Sector" (Guo Ban Fa 2018 No. 101), "support financing platform companies in transition and state-owned enterprises with market-oriented operation after transformation, undertake public welfare projects in accordance with laws and regulations, implement market-oriented operation, self-financing, and local governments shall bear responsibility within the limit of capital contribution". The description of compliance with the law here does not emphasize that it must be achieved through competitive means, and there are certain economic externalities in the public welfare projects themselves, and if they are not state-owned enterprises funded by the state-owned enterprises, it is difficult and unwilling for other social capital to participate, including TOD and EOD projects, and it is undoubtedly the best choice to authorize local state-owned enterprises to implement them. 4.According to the notice of the National Development and Reform Commission on printing and distributing the
Therefore, as long as it does not violate the procurement law and implementation regulations, the bidding law and implementation regulations, and the supporting policy documents in the field of bidding, and does not involve the areas required by the franchise regulations that must be tendered, it is not inappropriate to directly authorize local state-owned enterprises to implement public welfare projects, and it does not involve violations. **Authorized local state-owned enterprises generally combine local spatial planning, industrial layout, special planning and human geography and other relevant basic conditions to delineate a larger scope of implementation, including infrastructure, municipal public facilities, industrial carriers, affordable housing and other project scope, unified to local state-owned enterprises to implement, generally through the meeting minutes, authorization documents, authorization agreements or notices and other forms to determine. Localities have a certain degree of discretion within the demarcated authorized scope, and can promote the gradual incubation of various sub-projects through policy portfolio, project portfolio, capital portfolio, etc., with the help of internal and external resources, funds and capital, so as to promote the overall implementation progress of the project.