Guangdong Provincial Higher People's Court
the administrative ruling
(20 18) Guangdong Airlines No.918
Appellant (defendant in the original trial): Chao 'an District People's Government of Chaozhou City.
Legal Representative: Wu Weikai, district head.
Authorized Agent: Zhang Guangxian, deputy head of Chaoan District People's Government.
Authorized Agent: Li Chaojie, lawyer of Guangdong Zhengran Law Firm.
Appellee (plaintiff in the original trial): longhu town Xinxin Garment Factory, Chaoan District, Chaozhou City.
Operator: Li Xinhua.
Authorized Agent: Wang Weizhou and Jiang Quan, lawyers of Beijing Wandian Law Firm.
The plaintiff longhu town Xinxin Garment Factory in Chaoan District of Chaozhou (hereinafter referred to as Xinxin Garment Factory) v. Chaoan District People's Government of Chaozhou (hereinafter referred to as Chaoan District Government) in the original trial, and the Intermediate People's Court of Chaozhou City of Guangdong Province made (20 18 17) Guangdong 5 1 line 1. The appellant, Chaoan District Government, refused to accept the appeal and appealed to our court. After the court accepted the case, a collegiate bench was formed according to law for trial, and the case has been concluded at present.
The court of first instance found through trial that on July 14, 2065438, Chaoan District Government issued the Notice on the Construction of the Second Line of Longhu South-Shantou Section of Guangzhou-Meizhou Railway and the Xiamen-Shenzhen Contact Line (Anfu [2065 438+04] 18), and the main content of the notice was: "/KLOC-0. Second, all buildings (structures) and attachments within the scope of land acquisition and demolition need to be requisitioned and demolished due to the construction of the project, and the owner or user right (hereinafter referred to as the demolished person) shall sign a compensation agreement for land acquisition and demolition with the district land and resources department, and the compensation standard shall be implemented in accordance with the provisions of the Implementation Measures for Land Acquisition and Demolition Compensation for Traffic Infrastructure Construction in Guangdong Province. Three, land acquisition and demolition within the scope of the demolition should be removed within fifteen days after receiving the notice of demolition and related compensation procedures; If it refuses to be dismantled within the time limit, it shall be forcibly dismantled by the relevant departments according to law. " The house of the plaintiff Xinxin Garment Factory is located in Shecun, XX Town, XX District, Chaozhou City, which is within the scope of this expropriation. On February 5th, 20 17, the plaintiff Xinxin Garment Factory and the defendant Chaoan District Government failed to reach a compensation agreement, and the defendant forcibly demolished the plaintiff's house. The plaintiff believed that the defendant's demolition behavior was illegal, and filed an administrative lawsuit with the court of first instance on June 20 17, 2005, requesting to confirm that the defendant's administrative behavior of forcibly demolishing the plaintiff's house was illegal according to law.
The court of first instance held that the first paragraph of Article 46 of the Land Administration Law of the People's Republic of China stipulates: "Where land is expropriated by the state, it shall be announced by the local people's government at or above the county level, and it shall be implemented after approval in accordance with legal procedures". The first paragraph of Article 4 of the Regulations on the Expropriation and Compensation of Houses on State-owned Land stipulates: "The people's governments at the city and county levels are responsible for the expropriation and compensation of houses within their respective administrative areas". The people's governments at the city and county levels are responsible subjects for housing expropriation and compensation. According to the above provisions, the defendant Chaoan District Government is responsible for the house expropriation and compensation within its administrative area. The first paragraph of Article 26 of the Regulations on Expropriation and Compensation of Houses on State-owned Land stipulates: "If the house expropriation department and the expropriated person fail to reach a compensation agreement within the signing period determined by the expropriation compensation scheme, or the owner of the expropriated house is unknown, the house expropriation department shall report to the people's government at the city or county level that made the decision on house expropriation, make a compensation decision according to the expropriation compensation scheme, and make an announcement within the scope of house expropriation." Paragraph 1 of Article 28 stipulates: "If the expropriated person does not apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit, and does not move within the time limit stipulated in the compensation decision, the people's government at the city or county level that made the decision on house expropriation shall apply to the people's court for compulsory execution according to law." Paragraph 2 of Article 13 of the Administrative Enforcement Law of the People's Republic of China stipulates that "if the law does not provide for compulsory execution by administrative organs, the administrative organ that made the administrative decision shall apply to the people's court for compulsory execution." After the government makes a decision on expropriation, it shall negotiate with the expropriated person about compensation. If the consultation fails, the government shall make a decision on expropriation and compensation. If the expropriated person neither reconsiders nor brings a lawsuit within the statutory time limit, nor moves within the time limit stipulated in the compensation decision, the government may apply to the court for compulsory enforcement of the compensation decision. In this case, the house involved is located within the scope of land acquisition and demolition, and the defendant demolished the plaintiff's house without reaching an agreement on compensation and making a decision on compensation, nor applying to the people's court for compulsory execution. This demolition obviously violated the law, so the plaintiff requested to confirm that the defendant's illegal demolition of the plaintiff's house was justified and supported. Accordingly, according to Article 74 (2) (1) of the Administrative Procedure Law of the People's Republic of China, the defendant, Chaoan District People's Government of Chaozhou City, was judged to have violated the law in demolishing the house of longhu town Xinxin Garment Factory in Chaoan District of Chaozhou City. 50 yuan, the case acceptance fee, shall be borne by the People's Government of Chaoan District, Chaozhou City.
Chaoan District Government refused to accept the original judgment, appealed to cancel the original judgment, changed the judgment according to law, and rejected all the appellee's claims. The main reasons are as follows: 1. The appellant's demolition of the plaintiff's house was legal and in line with relevant legal procedures. According to the reply of the Ministry of Railways and the Guangdong Provincial People's Government, it was agreed to build the second line project from Longhu South to Shantou of Guangzhou-Meishan-Shantou Railway, and the appellant also issued a notice on land acquisition due to the need of land acquisition for the project construction. Part of the appellee's factory land belongs to the red line of expropriation scope. 20 15 10 was entrusted by chaoan coordination office of the second line of guangmeishan railway and Xiamen-Shenzhen tie line (hereinafter referred to as the coordination office). Guangzhou guoce planning information technology co., ltd. made an inventory of the number, area and attachments of houses within the scope of this case, and confirmed the situation of houses and attachments within the scope of expropriation. According to the preliminary assessment of the entrusted appraisal agency, the compensation fee for the state-owned land, collective land and attachments on the ground included by the appellee is RMB 5,328,847.34. Before the demolition of the appellee's house, the longhu town Municipal Government had coordinated with Li Ruizhi, the former Shangshe village cadre, Li Guihua, the current Shangshe village cadre, and Huang Junjian, the secretary of Shitou village, and obtained the appellee's verbal consent to demolish the buildings within the scope of expropriation. Longhu town Municipal Government also paid the above compensation of 5,328,847.34 yuan to the account of the appellee's village. In the process of demolition, there was no conflict and everything went normally. Relevant construction units also took some protective measures for the remaining property after the appellee's demolition according to the appellee's requirements. 2. The demolition involved is a high-speed rail project, which is a national key construction project. Leaders at all levels attach great importance to it. The leaders of the provincial government explicitly require that the project be completed by the end of 20 17. Time is tight and the task is heavy, so the collection work is urgent. The appellant can only go all out to ensure that the construction unit can carry out the construction on time. The house demolition work of the appellee was carried out on the basis of obtaining the oral consent of the appellee after coordination, and the determination of the amount of compensation imposed on the appellee was fair and reasonable. Although the appellee still has objections to the amount of compensation, which can be solved through continued negotiation or legal procedures, this does not affect the appellant's determination of the legality of house demolition, and the appellant's behavior is not illegal.
The appellee Xinxin Garment Factory replied: First, the so-called "verbal consent" of Chaoan District Government does not exist at all. Before the house was demolished, there was a big dispute between the appellant and the appellee about the expropriation procedure and compensation. In order to safeguard the rights and interests, the Appellant brought an administrative lawsuit against the Appellee on the grounds that longhu town failed to perform the statutory duties of announcement and notice of forced demolition. Before the forced demolition, Xinxin Garment Factory specially entrusted a lawyer to send a lawyer's letter to the district government, asking it to stop. Up to now, Chaoan District Government has not paid any compensation to Xinxin Garment Factory. 2. Chaoan district government has never issued a formal announcement or decision on house expropriation, nor has it issued a compensation and resettlement plan and announcement. There is no basis for its expropriation, and it has no right to forcibly demolish the houses of Xinxin Garment Factory. 3. Chaoan District Government has neither reached a compensation agreement with Xinxin Garment Factory nor made a compensation decision for Xinxin Garment Factory, which seriously violated the regulations of compensation first and then relocation. 4. Chaoan District Government failed to make enforcement decisions according to law, nor did it urge and listen to the statements and arguments of Xinxin Garment Factory. This procedure is seriously illegal. 5. Chaoan district government has no enforcement power and is not the subject of law enforcement. It is a serious illegal act to forcibly demolish the houses of Xinxin Garment Factory without applying to the people's court for compulsory execution and without permission. 6. As an administrative organ, Chaoan District Government blatantly and illegally demolished the houses of Xinxin Garment Factory without fulfilling the legal procedures, and shall investigate the legal responsibilities of the relevant responsible persons and compensate Xinxin Garment Factory for its losses according to law.
After examination, our court confirmed the facts ascertained by the court of first instance through trial.
We believe that the first paragraph of Article 26 of the Regulations on Expropriation and Compensation of Houses on State-owned Land stipulates: "If the house expropriation department and the expropriated person fail to reach a compensation agreement within the signing period determined by the expropriation compensation scheme, or the owner of the expropriated house is unknown, the house expropriation department shall report to the people's government at the city or county level that made the decision on house expropriation, make a compensation decision according to the expropriation compensation scheme, and make an announcement within the scope of house expropriation." Paragraph 1 of Article 28 stipulates: "If the expropriated person does not apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit, and does not move within the time limit stipulated in the compensation decision, the people's government at the city or county level that made the decision on house expropriation shall apply to the people's court for compulsory execution according to law." Paragraph 2 of Article 13 of the Administrative Enforcement Law of the People's Republic of China stipulates: "If the law does not provide for compulsory execution by an administrative organ, the administrative organ that made the administrative decision shall apply to the people's court for compulsory execution." The house involved in this case belongs to the scope of expropriation. The appellant Chaoan District Government demolished the house of Xinxin Garment Factory without reaching an agreement on expropriation compensation or making a decision on expropriation compensation according to law, and without applying to the people's court for a ruling to grant enforcement according to law, which violated the above-mentioned legal provisions. The appellant Chaoan District Government appealed that the demolition was verbally agreed by the appellee, but the appellee denied it, and the appellant failed to provide sufficient evidence to prove it during the proceedings. The appeal was rejected by this court. Therefore, the court of first instance confirmed that the demolition of Xinxin Garment Factory by Chaoan District Government in this case was illegal and improper, and our court upheld it according to law. The appellant claimed that the defendant's demolition was legal, and the demolition work was carried out on the basis of the appellee's coordinated oral consent. The determination of the amount of compensation for the appellee was fair and reasonable, and the appeal request to cancel the original judgment and change the sentence to reject all the appellee's claims was rejected by our court for lack of reasons.
To sum up, according to Article 89, Paragraph 1 (1) of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
Reject the appeal and uphold the original judgment.
50 yuan, the acceptance fee of the court of second instance in this case, shall be borne by the people's government of Chaoan District, Chaozhou.
This is the final judgment.
Presiding judge Lin
Judge Dou Jiaying
Judge Li Wanming
20 18 years 1 1 month 28th
Clerk Liu Guiyi