The tenant's eligibility as a plaintiff in administrative litigation in "Expropriation" and the principle of fair compensation

【Judicial Summary】

1. The qualification of the plaintiff in the administrative litigation of the lessee in the expropriation of housing

In a housing expropriation case, if the lessee has an inseparable attachment to the expropriated house or independently carries out business activities in his rented house in accordance with the law, the forced demolition of the house may cause special damage or adverse effect on the tenant's attachment to the house, the items in the lessee's house or his properly exercised right to operate, and the lessee shall be deemed to have an interest in the administrative act and shall have the qualification of a plaintiff.

2. The principle of fair compensation in the expropriation of housing

Expropriation has resulted in the inability of commercial premises to continue to be used, and should be handled in accordance with the principle of fair compensation of "who has compensation for losses to whom".

【Judgment Documents】

Supreme People's Court of the People's Republic

Administrative decisions

(2020) SPC Xingshen No. 3739

The applicant for the retrial (defendant in the first instance and appellant in the second instance) is the People's Government of Yuhua District, Changsha City, Hunan Province.

Legal representative Liu Suyue.

Entrust litigation agent Liu Kun.

The applicant for retrial (defendant in the first instance and appellant in the second instance) is the Urban Housing Expropriation and Compensation Management Office of Yuhua District, Changsha City, Hunan Province.

The respondent (plaintiff in the first instance and appellant in the second instance) Chen Tianzhu, male.

The third party in the first instance, Changsha Metal Materials Co., Ltd. of Hunan Province.

The legal representative is Deng Guoxiang.

The Applicant for the Retrial of the People's Government of Yuhua District of Changsha City, Hunan Province (hereinafter referred to as the Yuhua District Government) and the Urban Housing Expropriation and Compensation Management Office of Yuhua District of Changsha City, Hunan Province (hereinafter referred to as the Yuhua District Expropriation Office) applied to this court for a retrial because of the respondent Chen Tianzhu v. him and the third party in the original trial, Changsha Metal Materials Co., Ltd., who were dissatisfied with the Hunan Provincial Higher People's Court's (2018) Xiangxing Zhong No. 1834 Administrative Judgment. This court formed a collegial panel in accordance with law to conduct a review, and the review has now been concluded.

The Intermediate People's Court of Changsha City, Hunan Province, held in the first instance that, first, on the issue of whether Chen Tianzhu and the Yuhua District Government had the qualifications to be the subject of litigation in this case. The lessee has transferred the right to possess and use the property right based on the legal and valid agreement overview, and in the case that the use of the usufructuary right of the house is inconsistent with the owner of the house, the government should consider the specific situation of the expropriated house according to the circumstances in the expropriation compensation, and cannot ignore the legal rights of the lessee. In this case, the lessee Chen Tianzhu believed that the "Agreement on Compensation for the Expropriation of Houses on State-owned Land in Changsha City" (hereinafter referred to as the Compensation Agreement for the Expropriation of Houses on State-owned Land in Changsha City) signed by the Yuhua District Government and the Yuhua District Expropriation Office and Changsha Metal Materials Co., Ltd. (hereinafter referred to as the Metal Company) in Hunan Province was illegal, and could file an administrative lawsuit with the people's court and have the qualifications of the plaintiff.

2. On the question of whether the administrative expropriation acts made by the Yuhua District Government and the Yuhua District Collection Office are legal. The facts of the expropriation compensation carried out by the Yuhua District Government and the Yuhua District Expropriation Office against the houses involved in the case are unclear. The property right certificate of the 1st and 2-storey buildings in Building 001, No. 3, Chengnan East Road ((Comprehensive Building)) shows the housing status: Building No. 1, Building No. 1 and 2 floors. However, Article 1 of the Housing Lease Contract signed between Metal Company and Chen Tianzhu stipulates that Party A leases all its ××, ×× and ×× buildings located in×× ×× City, Changsha City, Hunan Province to Party B. The ((2016)) Xiangchanglu ZhengMin Zi No. 473 notarial certificate made by the Lushan Notary Office in Changsha, Hunan Province, records that the notary and the applicant took pictures and counted the items on the first, second and third floors. Based on the above facts, the metal company had already renovated the interior of the building before leasing the 1st and 2nd floors of Building 001, No. 3, Chengnan East Road (Comprehensive Building), and Chen Tianzhu actually leased, renovated and used the first to third floors of the building involved in the case (including the transformation layer). The appraisal report of Hunan Classic Appraisal Real Estate Appraisal Co., Ltd. (hereinafter referred to as "Classic Appraisal Company") entrusted by the Yuhua District Expropriation Office only evaluated the decoration and decoration of the first and second floors of the house involved in the case, and the part of the house decoration and decoration identified in the appraisal report was inconsistent with the objective facts. The compensation agreement involved in the case clearly determined that the facts were unclear, and the compensation payment involving decoration and ancillary facilities (Annex II) in the compensation agreement involved in the case was calculated incorrectly, infringing on Chen Tianzhu's legitimate rights and interests. Chen Tianzhu is the lessee of the house involved in the case, and belongs to the administrative counterpart of the expropriation compensation act in this case, because the expropriation behavior will inevitably have a major impact on his decoration investment, the relocation of goods, the suspension of production and business, etc., so the usufructuary rights he enjoys should be legally protected in the expropriation compensation. The Yuhua District Government and the Yuhua District Collection Office did not inform Chen Tianzhu of the relevant circumstances in the assessment procedure for the decoration and decoration of the house involved in the case, and after Chen Tianzhu ×× the Yuhua District Government issued a rights protection report, the Yuhua District Government and the Yuhua District Collection Office did not make any explanation and take remedial measures, and the expropriation procedures implemented by the Yuhua District Government and the Yuhua District Collection Office omitted the administrative counterpart, and the expropriation procedure was illegal. The matters involved in the compensation agreement involving decoration and decoration, compensation for the decoration of auxiliary facilities (Annex II), relocation fees, and suspension of production and business expenses are invalid.

III. On the question of whether Chen Tianzhu's claim for compensation complies with the provisions of the law. The Yuhua District Government and the Yuhua District Expropriation Office clearly violated the law in the determination of decoration compensation, relocation fees, and suspension of production and business expenses in the expropriation compensation procedures, infringing on Chen Tianzhu's legitimate rights and interests, and should be compensated. First of all, on the issue of compensation for decoration and decoration. The appraisal report issued by Classic Appraisal Company was obviously inconsistent with the objective facts and was not recognized by the court of first instance. During the trial process, the court of first instance was unable to issue an appraisal opinion by the appraisal body. The first instance held that under the premise that the appraisal report issued by the government entrusted by the appraisal agency was obviously illegal and the judicial appraisal could not issue a clear opinion, the appraisal report entrusted by Chen Tianzhu to Hunan Zhengde Nengda Asset Appraisal Co., Ltd. (hereinafter referred to as Zhengde Appraisal Company) could be used as the basis for determining the value of decoration and decoration in this case, and also complied with the provisions of the rules of evidence. Chen Tianzhu promptly raised objections to the Yuhua District Levy Office and other departments after learning of the appraisal report issued by the Classic Appraisal Company, and after receiving a clear reply, in order to protect his own rights and interests, he entrusted the appraisal company to evaluate the decoration and decoration part again, and invited the Yuhua District Levy Office and the metal company to the scene for verification in writing. Chen Tianzhu's act of defending his rights was not improper, and he also fulfilled the necessary obligation to inform. The Yuhua District Government and the Yuhua District Expropriation Office held that Chen Tianzhu's unilateral entrustment of an assessment agency to conduct an assessment was illegal, and under the specific circumstances of this case, the court of first instance did not accept the litigation claim. The matters recorded in the appraisal report issued by the appraisal company entrusted by Chen Tianzhu could correspond to the matters recorded in the notarial certificate, and the court of first instance determined that the appraisal results made by the Zhengde Appraisal Company on the decoration and decoration part of the house involved in the case amounted to 5715529 yuan. Second, on the issue of compensation for losses incurred in the suspension of production and business. After investigation, the appraisal price of the 1st and 2nd floor houses in Building 001, No. 3, Chengnan East Road (Comprehensive Building), was 27977355 yuan, and according to the <国有土地上房屋征收与补偿条例>provisions of the first paragraph of Article 14 of the Hunan Provincial Implementation Measures, combined with the scale of Chen Tianzhu's operation and the time loss of re-operation, it was determined to be 2350098 yuan as appropriate. Third, on the issue of compensation for relocation costs. Chen Tianzhu only provided a calculation table of relocation fees at the trial, but could not provide other evidence to support it, and the court of first instance determined 50,000 yuan as appropriate based on the content of the photos in the notarized book.

In summary, the Yuhua District Government and the Yuhua District Expropriation Office omitted the administrative counterpart in the process of expropriation compensation, and the facts of the decoration and decoration part of the house involved in the case were wrongly determined, and the parts of the decoration compensation, relocation fee, and suspension of production and business expenses in Annex II of the compensation agreement involved in the case should be confirmed invalid, and bear the corresponding compensation liability, totaling 8115627 yuan compensation for Chen Tianzhu. Some of the reasons for Chen Tianzhu's lawsuit were established, and the court of first instance accepted them. In accordance with Articles 75 and 76 of the Administrative Procedure Law of the People's Republic of China, Articles 4, 4, 32, 36, 4 and 8 of the State Compensation Law of the People's Republic of China, Article <中华人民共和国行政诉讼法>3, Paragraph 1, Item 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application, and Article 3, Paragraph 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application, and Article 3 of the Supreme People's Court on Application<中华人民共和国行政诉讼法> The first paragraph of Article 94 of the Interpretation renders a judgment: it is confirmed that the decoration compensation, relocation fee and suspension of production and suspension of business fees in Annex II of the Agreement on Compensation for the Expropriation of Houses on State-owned Land in Changsha City signed by the Yuhua District Government, the Yuhua District Expropriation Office and the Metal Company on December 21, 2015 are invalid; the Yuhua District Government and the Yuhua District Collection Office shall compensate Chen Tianzhu for decoration compensation, relocation fees, and suspension of production and business expenses totaling 8115627 yuan within 60 days after the judgment takes effect; and Chen Tianzhu's other litigation claims are rejected.

The Hunan Provincial Higher People's Court held in the second instance that, first, regarding Chen Tianzhu's qualifications as a plaintiff and Wang Zhengduan's qualification as a principal agent. In the compensation for expropriation of state-owned land and housing, the object of fair compensation should not only include the owner of the house, but also the lessee. The lessee who has attached to the lessee house has the right to receive compensation costs such as decoration and decoration, suspension of production and business and relocation fees, which have a legal interest in the expropriation compensation decision and the expropriation compensation agreement involving the above compensation costs. In this case, Chen Tianzhu had the qualifications of a plaintiff in this case, and the people's court should accept the lawsuits for administrative compensation and administrative compensation brought by him. Chen Tianzhu is a staff member of Hunan I Love My Home Supermarket Chain Management Co., Ltd., so Wang Zhengduan, a citizen recommended by Hunan I Love My Home Supermarket Chain Management Co., Ltd., has the qualification of entrusted agent. The first instance also clarified it by correcting the ruling. The court of second instance recognized it.

2. Regarding whether the assessment of the value of the decoration involved in this case in the appraisal report of the Classic Appraisal Company can be used as the basis for compensation. Judging from the facts ascertained, Chen Tianzhu actually leased, renovated, and used the first to third floors of the building involved in the case (including the renovation layer). However, the assessment report of the classic appraisal company entrusted by the Yuhua District Expropriation Office only evaluated the decoration and decoration of the first and second floors of the house involved in the case, and the part of the house decoration and decoration identified in the appraisal report was inconsistent with the objective facts and could not be accepted.

3. Regarding whether Zhengde Appraisal Company's assessment of the value of the decoration involved in this case can be used as a basis for compensation (compensation). Due to the controversy over the company's "Fixed Assets Appraisal Report owned by Chen Tianzhu at Store ××××, Changsha", the parties agreed to re-evaluate under the auspices of the court. It was determined by the lottery that The appraisal would be carried out by Hunan Xinrongda Asset Appraisal Co., Ltd. However, the appraisal company claimed that since the parties could not provide the materials required for asset appraisal (renovation contracts, drawings, payment vouchers, relevant bills, bank payment documents, etc.), they applied for a return of the entrustment. The court of first instance agreed to the return. However, the court of first instance held that "under the premise that the appraisal report issued by the government entrusted by the appraisal agency is obviously illegal, and the judicial appraisal cannot issue a clear opinion, the appraisal report issued by Zhengde Appraisal Company entrusted by Chen Tianzhu can be used as the basis for determining the value of decoration and decoration in this case", which does not conform to the provisions of the rules of evidence, is obviously improper, and should be corrected according to law.

4. Whether the facts of the first-instance judgment rejecting Chen Tianzhu's claim for compensation for the loss of indoor goods are sufficient. The first-instance judgment recognized Chen Tianzhu's request for compensation and invoked the State Compensation Law, but wrote the cause of the case as "Dispute over Compensation for Housing Expropriation", and did not mention the issue of compensation for Chen Tianzhu's property losses caused by the illegal forced demolition of the Yuhua District Government and the Yuhua District Expropriation Office, and omitted the compensation request.

Chen Tianzhu is a lessee who has made a major attachment to the house involved in the case, who has an interest in the expropriation act involved in the case, and belongs to the administrative counterpart in the government's implementation of expropriation compensation. The Yuhua District Government and the Yuhua District Expropriation Office, in disregard of Chen Tianzhu's objections, demolished the houses involved in the case with the expropriation compensation agreement, which should be regarded as compulsory demolition.

According to Article 38 of the Administrative Procedure Law of the People's Republic of China, "In cases of administrative compensation or compensation, the plaintiff shall provide evidence of the damage caused by the administrative act. In this case, when the expropriation department pulled the cordon during the forced demolition, it pulled a cordon, sealed the fence, and arranged a large number of personnel to strictly control it, resulting in Chen Tianzhu being unable to fully and effectively collect evidence, and in the case that Chen Tianzhu had submitted evidence such as "the notarized certificate recording the interior fixed decoration project, the inventory goods, the enclosure pre-notice, the enclosure notice and the enclosure photo, as well as the inventory table and the list of goods damaged", the Yuhua District Government should The Yuhua District Expropriation Office bears the burden of proof to provide evidence of the interior decoration and related items at the time of demolition of the house. The burden of proof was improperly allocated in the first instance, and the judgment rejected Chen Tianzhu's claim for compensation for the loss of indoor goods, and the evidence was insufficient.

Fifth, about the loss of suspension of production and business. The loss of suspension of production and business caused by expropriation that causes the lessee to be unable to continue to operate shall be compensated to the lessee. Regarding the calculation of the suspension of production and business and the calculation of losses, <国有土地上房屋征收与补偿条例>Article 14 of the Implementation Measures of Hunan Province stipulates that if the expropriation of production and commercial housing causes direct losses to the expropriated person in the suspension of production and business, compensation shall be given every month according to 7 ‰ of the assessed value of the expropriated house. The suspension period of suspension of production and business shall be determined according to the number of months of actual suspension of production and suspension of business. In this case, the suspension fee was calculated for 6 months in the compensation agreement involved in the case. In the first instance, combined with the scale of Chen Tianzhu's operation and the time loss of re-operation, the first instance held that "the appraisal price of the 1st and 2nd floor houses in Building 001, No. 3, Chengnan East Road (Comprehensive Building) leased by Chen Tianzhu was 27977355 yuan, and it was found that the 2350098 yuan had a factual and legal basis and was not obviously improper."

6. About the relocation award and relocation fee. The "Changsha Rail Transit Line 3 Phase I Project Chengnan Road Expropriation Compensation Plan" stipulates that within 30 days from the date of the announcement of the housing expropriation decision, if the expropriated person signs a compensation agreement and vacates the house according to the agreed time, the reward will be 200 yuan / square meter according to the legal construction area of the expropriated house; within 31 to 60 days from the date of the announcement of the housing expropriation decision, the expropriated person signs a compensation agreement and vacates the house according to the agreed time, and the reward is 100 yuan / square meter according to the legal construction area of the expropriated house. In this case, Chen Tianzhu did not meet the conditions for giving the relocation award, so his claim was not supported. Regarding the relocation fee, the first instance determined that 50,000 yuan was determined as appropriate based on the scale of operation and the content of the photos in the notarized book, which was not improper.

Article 29 of the Measures for the Payment of Litigation Costs stipulates that the litigation costs shall be borne by the losing party, except where the winning party voluntarily bears them. Where part of the lawsuit is won or part of the case is lost, the people's court decides the amount of litigation costs borne by each of the parties on the basis of the specific circumstances of the case. The Yuhua District Government and the Yuhua District Collection Office lost the lawsuit in the first instance, and the first-instance case acceptance fee should be borne by them. However, the first-instance judgment did not improperly handle notary fees, assessment fees, preservation fees, etc. Considering that in this case, Part of Chen Tianzhu's claim to the Yuhua District Government and the Yuhua District Expropriation Office for compensation for his decoration and decoration and indoor property losses was remanded for retrial, the above-mentioned expenses should be determined by the people's court in the retrial judgment, so it was not handled in the second instance.

In summary, the appellants' grounds of appeal are partially valid and should be upheld. Accordingly, in accordance with the provisions of items 1, 2 and 3 of the first paragraph of article 89 of the Administrative Procedure Law of the People's Republic of China, the judgment upholds the first item of the first-instance judgment and changes the second item of the first-instance judgment to "the government of the district limit yuhua district and the collection office of the yuhua district shall pay Chen Tianzhu a total of 2400098 yuan in relocation fees and suspension of production and business within 30 days after the effective date of this judgment"; the third item of the first-instance judgment is revoked; Chen Tianzhu requests the Yuhua district government and the Yuhua district collection office to compensate for his decoration and decoration and indoor property losses, and remands it to the court of first instance for retrial.

The Yuhua District Government and the Yuhua District Expropriation Office applied for a retrial, stating that the compensation agreement involved in the case was legal and valid; Chen Tianzhu was not the owner of the house involved in the case; the first and second instance judgments that the applicant for retrial paid Chen Tianzhu's relocation fee and the suspension of production and business fees were illegal and was an abuse of discretion; and the second-instance judgment that the retrial applicant's forced demolition was inconsistent with the facts. Request that the first- and second-instance judgments be revoked, and that the arraignment be ordered or remanded to the court of first instance for retrial.

Upon review, this court held that the first paragraph of article 25 of the Administrative Procedure Law of the People's Republic of China stipulates that the counterparty of an administrative act and other citizens, legal persons or other organizations with an interest in the administrative act have the right to file a lawsuit. In a housing expropriation case, if the lessee has an inseparable attachment to the expropriated house or independently carries out business activities in his rented house in accordance with the law, the forced demolition of the house may cause special damage or adverse effect on the tenant's attachment to the house, the items in the lessee's house or his properly exercised right to operate, and the lessee shall be deemed to have an interest in the administrative act and shall have the qualification of a plaintiff. In this case, Chen Tianzhu rented the house involved in the case for decoration and used it for business activities, and the expropriation compensation and compulsory demolition of the houses involved in the Yuhua District Government and the Yuhua District Expropriation Office infringed on Chen Tianzhu's legitimate property rights and interests, and Chen Tianzhu had an interest in the administrative act he was sued for and had the qualifications of a plaintiff in this case. This court does not support the claim that Chen Tianzhu is not qualified as a plaintiff raised by the applicant for retrial.

According to the facts identified in the first and second review, the Yuhua District Government and the Yuhua District Expropriation Office omitted the administrative counterpart in the process of expropriation compensation for the decoration and decoration of the houses involved in the case, failed to fully protect Chen Tianzhu's legitimate rights and interests, and the expropriation procedure was illegal. Chen Tianzhu actually leased, renovated, and used the first to third floors of the house involved in the case (including the renovation floor). The appraisal report of the Classic Appraisal Company only evaluated the decoration of the first and second floors of the house involved in the case, and omitted the third floor, which was inconsistent with the objective facts. Therefore, the assessment of the decoration part of the evaluation report cannot be used as a basis for compensation. The first and second instance confirmed that the part of the compensation agreement on decoration and decoration in the compensation agreement involved in the case was confirmed to be invalid and in accordance with the provisions of the law, and the retrial applicant's claim had no basis in law, and this court did not support it.

Paragraph 1 of Article 2 of the State Compensation Law of the People's Republic of China stipulates that where state organs and functionaries of state organs exercise their functions and powers and have infringed upon the lawful rights and interests of citizens, legal persons and other organizations as provided for in this Law, causing harm, the victim has the right to obtain State compensation in accordance with this Law. Article 38 of the Administrative Litigation Law of the People's Republic of China stipulates that in administrative compensation or compensation cases, the plaintiff shall provide evidence of the damage caused by the administrative act. Where the plaintiff is unable to produce evidence due to the defendant's reasons, the defendant bears the burden of proof. <中华人民共和国行政诉讼法>Paragraph 3 of article 47 of the Interpretation of the Supreme People's Court on Application stipulates that where a party's losses cannot be appraised due to objective reasons, the people's court shall, in conjunction with the parties' claims and the evidence in the case, follow the judge's professional ethics, and use logical reasoning and life experience, common sense of life, etc., to determine the amount of compensation as appropriate. In this case, in view of the partial compensation for the decoration and decoration of the houses involved in the case, the first-instance judgment directly adopted the assessment report issued by the Zhengde Appraisal Company, which was more controversial between the two parties, as the basis for the decoration and decoration compensation was insufficient, and the second-instance judgment corrected it was not improper; the Yuhua District Government and the Yuhua District Expropriation Office forcibly demolished the house involved in the case with the compensation agreement signed with the metal company in spite of Chen Tianzhu's objections, resulting in the loss of goods in Chen Tianzhu's house, and Chen Tianzhu had the right to request the Yuhua District Government, The Yuhua District Expropriation Office will compensate. Due to the reasons of the Yuhua District Government and the Yuhua District Expropriation Office, Chen Tianzhu could not effectively collect evidence, so the Yuhua District Government and the Yuhua District Collection Office should bear the burden of proof. The first-instance judgment rejected Chen Tianzhu's claim for compensation for the loss of goods in the house, but the reasoning was insufficient, and the second-instance judgment corrected it without improperness. The second-instance judgment sent the above two judgments back to the court of first instance for retrial, which is in accordance with the provisions of law, and this court supports them.

Articles 2 and 17 of the Regulations on the Expropriation and Compensation of Houses on State-Owned Land stipulate that for the purpose of the public interest, the owners of expropriated houses of units and individuals on state-owned land shall be fairly compensated. The compensation given to the expropriated person by the municipal and county-level people's governments that make the decision on housing expropriation includes: (1) compensation for the value of the expropriated house; (2) compensation for relocation and temporary resettlement caused by the expropriation of the house; (3) compensation for the loss of suspension of production and business caused by the expropriation of the house. Expropriation has resulted in the inability of commercial premises to continue to be used, and should be handled in accordance with the principle of fair compensation of "who has compensation for losses to whom". In this case, the yuhua district government and the yuhua district expropriation office should compensate Chen Tianzhu for the loss of suspension of production and business and the relocation fee that directly resulted from the expropriation that caused Chen Tianzhu to continue to operate. The first-instance judgment determined that the loss of suspension of production and business and the relocation fee in the compensation agreement involved in the case were illegal, and the determination of the amount of suspension of production or discretionary suspension loss and relocation fee in accordance with the relevant provisions of Hunan Province is an exercise of the court's discretion, does not violate the provisions of the law, and is not improper. The grounds for retrial advocated by the Yuhua District Government and the Yuhua District Levy Office cannot be established, and this court does not support them.

In summary, the retrial applications of the Yuhua District Government and the Yuhua District Expropriation Office did not comply with the circumstances provided for in Article 91 of the Administrative Procedure Law of the People's Republic of China. In accordance with the <中华人民共和国行政诉讼法>second paragraph of article 116 of the Interpretation of the Supreme People's Court on Application, the ruling is as follows:

The retrial applicant's application for retrial by the People's Government of Yuhua District of Changsha City, Hunan Province, and the Office of Urban Housing Expropriation and Compensation Management of Yuhua District, Changsha City, Hunan Province, was rejected.

Chief Judge Yang Zhihua

Judge Song Chuxiao

Judge Liu Aitao

December 11, 2020