The Village Committee of Touzui Village of Xinying Town, Lingao County dissatisfied with the administrative penalty imposed by the Oceans and Fisheries Bureau of Lingao County

[Basic facts]

On 11 August 2014, the Oceans and Fisheries Bureau of Lingao County (the Defendant) made the No.13 Penalty Decision. The Decision ordered that, according to Article 42 of the Law of the People's Republic of China on the Administration of Sea Areas and the provisions of the National Provisional Regulations on the Administration of Sea Areas, the Claimant shall return the illegally-occupied sea areas and restore the sea areas to the original state, and pay a penalty of RMB7,899,800 for the unauthorized occupation of a sea area of 2.1944 hectares located to the south of Touzui Village by the Claimant who did not obtain a certificate of right to use the sea areas which violated the provision of Article 3 of the Law of the People's Republic of China on the Administration of Sea Areas. The Claimant did not accept the penalty and applied with the People’s Government of Lingao County for administrative reconsideration. On 31 December 2014, the People’s Government of Lingao County made the Administrative Reconsideration Decision [LFFJZ (2014) No.20] which upheld the Penalty Decision No.13 imposed by the Defendant. The Claimant was not satisfied with the decision and hence lodged a lawsuit.

Allegation of the Claimant: the Defendant imposed penalty on the wrong person since the constructor of the reconstruction of Touzui Village ferry station was Xinying Town People’s Government of Lingao County. The engineering project had been approved by Lingao People’s Government and the relevant competent departments. And the project aimed at renovating the original ferry station of Touzui Village, which only took up the village land rather than occupied sea areas illegally. The administrative penalty imposed by the Defendant was not supported by facts or laws and so the Claimant requested the Court to rescind the Penalty Decision No.13.

[Judgment]

The Court held that the unrevised version of the Administrative Procedure Law of the People's Republic of China shall be applied since the case was filed before 1 May 2015. As regards the Claimant’s allegation on wrong subject of the administrative penalty, the Court held that the Claimant was the actual owner of the ferry station project of Touzui Terminal and the Defendant’s decision was to punish the unauthorized occupation of sea areas. Xinying People’s Government only performed its administrative duty to file a written application to the competent authorities, but it did not mean that the government was the owner of the reconstruction project. Moreover, the Court found out that the actual engineering area where the Claimant conducted the Touzui Terminal ferry station project had gone beyond the reconstruction limit as stated in the application presented by the township government to Lingao People’s Government. The Court hence did not adopt the opinions of the Claimant.

The Defendant measured that the sea areas actually occupied by the Claimant was 2.1944 hectares based on the national sea and coastline charts. The Claimant asserted that the sea areas concerned belonged to village land, but it could not present a land use right certificate to prove the same. Therefore, the Defendant was making judgment based on solid facts that the activities of the Claimant constituted unauthorized occupation of sea areas without obtaining a certificate of right to use sea areas. The Defendant had made the penalty decision according to the provision of Article 42 of the Law of the People's Republic of China on the Administration of Sea Areas and the National Provisional Regulations on the Administration of Sea Areas. The Defendant had followed lawful procedures and was correct in the application of law. In accordance with Article 56.4 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China, the Court dismissed the litigation request of the Village Committee of Touzui Village of Xinying Town, Lingao County. The Claimant was not satisfied with the result and made an appeal, but the Higher People’s Court of Hainan Province upheld the original judgment in the second instance.

[Significance]

The subject case concerns dispute over the right to use sea areas. It is a tricky task for the competent authorities of oceanic administration to explain the boundary between the sea and land to the concerned person during law enforcement. To strengthen protection of the environment resources of coastal zone, on 31 August 2016, the People’s Government of Hainan Province formulated the Detailed Rules on the Implementation of Conservation and Development of the Coastal Zones of Hainan Special Economic Zone, which defined that “coastal zone is the area where land meet the sea or ocean, which includes shore lands extending to the land and offshore waters extending to sea from the coastline. Coastline is defined as the average spring tide line”. To put it simply, the area beyond the average spring tide line is land and below is sea waters.

The Detailed Rules further stipulates that “the coastline shall be jointly determined by the provincial oceanic administrations and the surveying and mapping institutes based on the national technical standards and specifications on coastline surveying and alternation in light with the conservation and development conditions of the coastal zone of the province and the change of coastline, and the coastline so determined shall be presented to the provincial government for approval before it is released to the public.” Although not every fisherman is clear about the boundary of coastline, it should be keep in mind that a permit from the competent authorities shall always be in place before the use of land or sea areas. Then it will become the duty of the competent authorities to determine whether the area is land or sea and the concerned person will not have to face the problem. If an area is determined as sea, there will not be controversy on whether the area is in the collective ownership of the village (fishing village) or not.