The demolition of a legal building should first and foremost be presumed to be an act of administrative coercion, unless there is sufficient evidence to overturn it

Court gist

Whether it is the expropriation of houses on rural collective land or state-owned land, compulsory relocation, recovery of state-owned land use rights and subsequent collection of land transfer fees, etc., are the statutory authority of the government and its functional departments, therefore, the demolition of legal buildings should first be presumed to be an act of administrative compulsion, unless there is evidence sufficient to overturn. Since the current Land Administration Law of the People's Republic of China and the Regulations on the Expropriation and Compensation of Houses on State-Owned Land only stipulate that the government and its functional departments have the authority to expropriate houses, recover the right to use state-owned land and forcibly demolish legal buildings, and civil entities or grass-roots mass autonomous organizations do not have the power to carry out compulsory demolition, if the administrative organ being sued cannot produce evidence to clearly indicate that it is a compulsory demolition carried out illegally by other entities, it may be presumed to be the subject of compulsory demolition and bear corresponding compensation liability.

☑ Judgment documents

Supreme People's Court of the People's Republic

Administrative decisions

(2017) SPC No. 102

Retrial applicant (first-instance plaintiff, second-instance appellant): Shanghai Maqiao Hotel Management Co., Ltd. Residence: No. 1250, Beisong Road, Minhang District, Shanghai.

In the retrial of the applicant, Shanghai Maqiao Hotel Management Co., Ltd. (hereinafter referred to as Maqiao Hotel), v. Shanghai Minhang District People's Government (hereinafter referred to as the Minhang District Government) for administrative compulsory enforcement of land and housing, the Shanghai No. 1 Intermediate People's Court made a (2017) Hu 01 Xingchu No. 148 Administrative Ruling on May 8, 2017, and the lawsuit against Maqiao Hotel was not filed. After Maqiao Hotel appealed, the Shanghai Higher People's Court rendered the (2017) Huxing Zhong No. 376 Administrative Ruling on August 25, 2017, rejecting the appeal and upholding the first-instance ruling. Maqiao Hotel was still not satisfied and applied to this court for retrial within the statutory time limit. On December 27, 2017, the Court rendered the (2017) SPC Xingshen No. 8837 Administrative Ruling, arraigning the case. This court lawfully formed a collegial panel with adjudicator Geng Baojian as the presiding judge and presiding judges Bai Yali and Wang Zhanfei participating, and conducted a review of the case, which has now been concluded.

The court of first instance held that Maqiao Hotel was not the registrant of the property rights of the disputed house, the land used for the real estate involved in the case was state-owned land, and the announcement of the land expropriation plan of Shanghai (Min) Levy [2010] No. 34 was an approval for the expropriation of collective land, so Maqiao Hotel used the announcement of the Land Expropriation Plan of Shanghai (Min) Requisition [2010] No. 34 as the basis for requesting resettlement, which lacked factual basis. The court of first instance ruled that the lawsuit against Maqiao Hotel should not be filed in accordance with the provisions of Article 49, Items 1 and 3, and Article 51, Paragraph 2 of the Administrative Procedure Law of the People's Republic of China.

The court of second instance held that Maqiao Hotel's first-instance lawsuit claimed that it had signed the "Agreement on the Transfer of Real Estate of the Staff Sanatorium (Warehouse) of Shanghai Garment Company" with the owner of the house No. 28, Lane 1276, Beisong Road, Minhang District, Shanghai (registered construction area of 1748.24 square meters, and the area of state-owned land use right 2923 square meters), and was the actual right holder. The Minhang District Government made the Announcement of the Land Expropriation Plan no. 34 of the Shanghai (Min) Levy [2010]. Therefore, it is requested that the Minhang District Government be ordered to expropriate the resettlement, return the goods and compensate for economic losses in accordance with the law. Because the announcement of the land expropriation plan was to approve the expropriation of relevant collective land, Maqiao Hotel sued the Minhang District Government but did not provide the corresponding factual basis to prove that there was an administrative act being sued, and its request was not specific and did not meet the conditions for administrative litigation prosecution. Therefore, the first-instance ruling that the indictment should not be filed correctly and should be upheld. The HorseBridge Hotel's appeal was unfounded and should be dismissed. The court of second instance, in accordance with the provisions of item 1 of the first paragraph of article 89 of the Administrative Procedure Law of the People's Republic of China, ruled to reject the appeal and uphold the first-instance ruling.

Maqiao Hotel applied to this court for a retrial, requesting the revocation of the administrative rulings of the first and second instances, and instructing the court of first instance to file and accept the case. The main facts and reasons for his application for retrial are: Although the house and land involved in the case were not registered in the name of the Maqiao Hotel, they were the actual rights holders of the houses involved in the case and had the right to file a lawsuit against the forced demolition of the houses involved in the case. Moreover, the evidence provided by it can prove that the Minhang District Government has carried out the administrative compulsory act of land and housing and infringed on its legitimate rights and interests, and its lawsuit in this regard meets the conditions stipulated in Article 49 of the Administrative Procedure Law of the People's Republic of China and should be filed and accepted. The first-instance ruling not to file the case and the second-instance ruling rejecting the appeal are not in accordance with the provisions of the law and should be corrected in accordance with law.

This court held that Article 4 of the Property Law of the People's Republic of China stipulates that the property rights of the state, collectives and private individuals and the property rights of other right holders shall be protected by law and shall not be infringed upon by any unit or individual. In order to protect property rights in an all-round and loophole-free manner, the mainland has established three channels for civil, criminal and administrative litigation to remedy property rights losses caused by civil, criminal or administrative infringements. Articles 2, paragraphs 1, 3 and 4 of the Tort Liability Law of the People's Republic of China stipulate that infringement of civil rights and interests shall bear tort liability in accordance with this Law; Article 275 of the Criminal Law of the People's Republic of China stipulates that whoever intentionally destroys public or private property in a relatively large amount or has other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine; The first paragraph of article 2 of the Administrative Litigation Law of the People's Republic of China stipulates that citizens, legal persons or other organizations have the right to file a lawsuit with the people's court in accordance with this Law if they believe that the administrative acts of administrative organs and administrative organ staff infringe upon their lawful rights and interests. Therefore, those who infringe on the property rights lawfully owned by citizens, legal persons and other organizations will bear corresponding civil, criminal or administrative compensation liabilities according to the cause and circumstances of the infringement.

In this case, the state-owned land use rights involved in the case were registered by the former Shanghai County Land Administration Bureau in 1990 under the name of the Shanghai Garment Company Employees' Sanatorium. In March 2004, Shanghai Garment (Group) Co., Ltd. and Maqiao Hotel reached a real estate transfer agreement, and Maqiao Hotel accepted the land use rights and aboveground houses involved in the transfer case for 4.6102 million yuan. In 2007, the ownership of the house involved in the case was registered under the name of the Shanghai Garment Company Employees' Sanatorium. However, the land involved in the case and the houses on the ground have always been occupied, used and disposed of by the Maqiao Hotel, so the Maqiao Hotel is the actual right holder of the land and house involved in the case, and enjoys the corresponding property rights according to law. The court of first instance found that Maqiao Hotel did not have the qualifications to file a lawsuit and lacked legal basis on the grounds that Maqiao Hotel was not the registered right holder of the land and house involved in the case, and this court corrected it.

Paragraph 2 of Article 49 of the Administrative Litigation Law of the People's Republic of China stipulates that there shall be a clear defendant in the initiation of a lawsuit. The so-called clear defendant mainly means that the name and other information of the defendant listed in the complaint can be sufficient to distinguish the defendant from other administrative organs or organizations authorized by laws, regulations, and rules, so that the people's court can serve a copy of the complaint and ensure the smooth progress of the litigation procedure. In the context of the case registration system, when prosecuting factual acts without a written decision, as long as the prosecutor can provide prima facie evidence to prove that the factual acts existed and are most likely committed by the defendants listed in the complaint, it should be deemed to have preliminarily fulfilled the burden of proof of the eligible defendants; The house involved in the case is a legal building, and no administrative legal documents such as any written expropriation decision or time-limited demolition decision were delivered to the Maqiao Hotel before the forced demolition, and no subject took the initiative to bear the responsibility for compulsory demolition after the forced demolition. Maqiao Hotel and Shanghai Garment (Group) Co., Ltd. had filed a civil tort lawsuit on the grounds that the People's Government of Maqiao Town was the defendant, but the effective civil ruling dismissed the lawsuit on the grounds that the land plot involved in the case was included in the scope of land expropriation for the construction project, and the dispute in question was not a personal and property dispute between equal subjects. Moreover, whether it is the expropriation of houses on rural collective land or state-owned land, compulsory relocation, recovery of state-owned land use rights, and subsequent collection of land transfer fees, etc., are the statutory authorities of the government and its functional departments, so the demolition of legal buildings should first be presumed to be an act of administrative compulsion, unless there is evidence sufficient to overturn. When Maqiao Hotel filed the lawsuit in this case, the documents provided by the Minhang District Government in 2010 such as the Announcement on Land Expropriation have been able to preliminarily prove that the Minhang District Government expropriated the land around the land involved in the case, so it is very likely that it will be implemented or entrusted to the relevant entities to carry out compulsory demolition through written, oral and other forms, so the Minhang District Government is the defendant to file a lawsuit, which meets the conditions for filing and registration, and the court of first instance should register and file the case. Even if the Minhang district government denies that it has carried out compulsory demolition and advocates that it is a compulsory demolition by a grass-roots mass autonomous organization, the people's court should file the case first and find out in the subsequent trial procedures. Since the current Land Administration Law of the People's Republic of China and the Regulations on the Expropriation and Compensation of Houses on State-Owned Land only stipulate that the government and its functional departments have the authority to expropriate houses, recover the right to use state-owned land and forcibly demolish legal buildings, and civil entities or grass-roots mass autonomous organizations do not have the power to carry out compulsory demolition, if the Minhang District Government cannot produce evidence to make it clear that it is a compulsory demolition carried out illegally by other entities, it may be presumed to be the subject of compulsory demolition and bear the corresponding compensation liability. Since mainland law does not recognize private remedies, where the responsible persons of civil entities or autonomous organizations illegally and forcibly demolish another person's lawful house, and are suspected of constituting the crime of intentional destruction of property, the right holder may request the public security organs to perform their corresponding duties in accordance with law;

In order to protect the lawful rights and interests of citizens, legal persons, and other organizations, and to supervise administrative organs in exercising their powers in accordance with law, the people's courts also have certain obligations in determining the eligible defendants in administrative cases. Article 3, paragraph 1, item 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Administrative Procedure Law of the People's Republic of China provides that where a defendant is mislisted and refuses to make changes, the people's court rules not to file the case; where the case has already been filed, it shall rule to dismiss the lawsuit. This means that even if the defendant sued by the plaintiff is not qualified, the people's court still has the obligation to ascertain the qualified defendant and inform the parties of the change, and cannot simply refuse to file the case on the grounds that the defendant is not qualified or rule to dismiss the lawsuit, unless the defendant is obviously unqualified, or the defendant is listed more than one to circumvent the statutory jurisdiction, or the plaintiff clearly abuses the litigation rights.

In summary, Maqiao Hotel has the qualifications to file an administrative lawsuit against the administrative compulsory act of housing, and it has preliminarily proved the suitability of the Minhang District Government as a defendant, and the people's court should file a case according to law. Maqiao Hotel's application for a retrial is established, and the first and second instance rulings find that the facts are unclear, the applicable laws and regulations are wrong, and the circumstances that meet the provisions of Item 1 of Article 91 of the Administrative Procedure Law of the People's Republic of China shall be retried in accordance with law. In accordance with the second paragraph of article 92 of the Administrative Procedure Law of the People's Republic of China and the second paragraph of article 79 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China, the ruling is as follows:

1. Revoke the Shanghai Municipal Higher People's Court's (2017) Huxing Zhong No. 376 Administrative Ruling;

2. Revoke the Administrative Ruling of shanghai No. 1 Intermediate People's Court (2017) Hu 01 Xingchu No. 148;

3. Instruct the Shanghai No. 1 Intermediate People's Court to file and accept the case.

Chief Judge Geng Baojian

Judge Bai Yali

Judge Wang Zhanfei

December 29, 2017

Judge's assistant Yu Yuanzhu

Clerk Yu Lu