The gas station was forcibly demolished, and the High Court ruled that the demolition was illegal

Highlights for today

preface

Gas station demolition is a special industry demolition, and the expected benefits are very high. So, what to do if the gas station is forcibly demolished? Mr. Shi Xining, director of Beijing Jingkang Law Firm and co-director of the Institute of Property rights and Land Of Northwest University of Political Science and Law, analyzed through a case how to obtain court support in this situation.

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Brief facts of the case

Li built a gas station in a certain place in downtown Jinan. In October 2011, the Shandong Provincial Economic and Information Commission approved the renovation and expansion of the gas station. Li expanded in the north of the intersection, forming two parts: the south of the road and the north of the road. In July 2014, the District Urban Management Administrative Law Enforcement Bureau issued an Administrative Punishment Decision Letter on the grounds that the Lubei gas station expanded by Li Mou had not obtained the "Construction Project Planning Permit", and decided to confiscate the illegal buildings built in the above locations and impose a fine. On October 17, 2016, the Jinan Municipal Planning Bureau issued the "Reply letter on the Opinions on the Illegal Construction Planning of District Li Mou Planning", holding that the gas station buildings and canopies are located within the red line and green belt of the planned road, and measures cannot be taken to eliminate the impact on the implementation of the plan. On December 8 of the same year, the District Urban Management Law Enforcement Bureau issued a "Decision on Ordering Demolition within a Time Limit" to Li, ordering Li to demolish the above buildings on December 13, 2016. On December 30, the District Urban Management Administrative Law Enforcement Bureau issued the "Decision on Compulsory Demolition of Illegal Buildings", saying that Li Mou had not fulfilled the obligations specified in the "Decision on Ordering Demolition within a Time Limit", and the district government instructed the bureau to carry out compulsory demolition of the project on December 22, 2016. The enforcement of this Decision shall not be suspended during the period of administrative reconsideration and administrative litigation. On January 14, 2017, Li filed an administrative lawsuit with the District People's Court, requesting the revocation of the decision on the compulsory demolition of illegal buildings and the decision to order the demolition within a time limit. In the course of the litigation, the two parties reached an agreement that the district government would temporarily suspend the enforcement of the administrative penalty decision of its lawsuit; The houses and shelters on the land involved in the case will be demolished on their own after prior notice in case of road widening. The district people's court made an administrative ruling and approved the withdrawal of the lawsuit. On August 15, 2018, the district government produced the "Implementation Plan for assisting the Demolition of Illegal Projects of Gas Stations", and on August 16, 2018, the district government organized relevant departments to carry out compulsory demolition of the houses, machinery and equipment and auxiliary facilities of gas stations. After the first and second instances, the retrial court supported the views of the gas station's lawyer and confirmed that the district government's compulsory demolition of the gas station buildings and structures was illegal.

Analyze according to law

Gas stations are individual industrial and commercial households, and have obtained a series of licenses such as refined oil retail licenses, business licenses, hazardous chemical business licenses, and environmental impact assessment documents in accordance with the law, and have been operating legally since their inception. Before the compulsory demolition, the district government did not make a decision to order the demolition within a time limit and a decision on compulsory demolition, and its compulsory demolition lacked a compulsory basis and legal basis. Before the district government carried out compulsory demolition of the gas station, it did not inform the facts, reasons and basis of the demolition, and did not inform the plaintiff of the right to state and defend the right and the remedy channels for the rights, which violated the statutory procedures.

The focus of the dispute in this case is whether the compulsory demolition of the gas station buildings and structures carried out by the district government has a factual and legal basis and whether the procedures are legal.

I. On the issue of whether the compulsory demolition of the gas station buildings and structures involved in the case by the district government has a factual and legal basis.

Paragraph 1 of Article 40 of the Law of the People's Republic of China on Urban and Rural Planning stipulates: "Where the construction of buildings, structures, roads, pipelines and other projects is carried out in the urban or town planning area, the construction unit or individual shall apply to the competent urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region or municipality directly under the Central Government for a construction project planning permit." Article 64 stipulates: "Where construction project planning permits have not been obtained or construction is not carried out in accordance with the provisions of the construction project planning permits, the competent departments for urban and rural planning of local people's governments at or above the county level shall order the construction to stop; Where corrective measures can still be taken to eliminate the impact on the implementation of the plan, correction shall be made within a time limit and a fine of not less than 5% but not more than 10% of the construction project cost shall be imposed; Where corrective measures cannot be taken to eliminate the impact, demolition within a time limit, and failure to dismantle, confiscation of physical goods or illegal income, may also be punished with a fine of not more than 10 percent of the construction project cost. In this case, in March 2017, with the consent of Li, the District Urban Management Administrative Law Enforcement Bureau reached an administrative punishment decision with Li to "temporarily suspend the execution of his lawsuit" regarding the demolition of gas station buildings and structures; In case of road widening, it will be demolished by self-notification". However, the district government carried out compulsory demolition of the gas station buildings and structures involved in the case when the relevant conditions were not available, which violated the principle of administrative trust protection.

2. On the issue of whether the procedures for the compulsory demolition of the gas station buildings and structures involved in the case by the district government are legal.

In this case, it was claimed that according to the confiscation decision determined in the Administrative Punishment Decision, the gas station buildings and structures involved in the case were state-owned assets after confiscation. Because it did not meet the planning requirements, the district government imposed a compulsory demolition on it. This court held that the compulsory demolition of the gas station buildings and structures involved in the case by the district government is an administrative compulsory enforcement act, and the relevant provisions of the Administrative Compulsory Law should be applied.

Articles 34, 35, 36, 37, 38 and 44 of the Administrative Compulsory Enforcement Law provide that, after an administrative organ has made an administrative decision in accordance with law, and the parties do not perform their obligations within the time limit decided by the administrative organ, the administrative organ enjoying the power of administrative compulsory enforcement in accordance with law shall remind the parties in writing to perform the obligations before carrying out the administrative compulsory enforcement act, and give the parties the right to make statements and defenses; Where, after reminding a party, fails to perform within the time limit without a legitimate reason, the administrative organ shall make a written compulsory enforcement decision to serve on the parties. Where illegal buildings, structures, facilities, etc. are forcibly demolished, a public announcement shall be made, and compulsory demolition shall be carried out only when the parties do not apply for administrative reconsideration or initiate an administrative lawsuit within the statutory time limit, and do not dismantle them. In this case, the District Urban Management Administrative Law Enforcement Bureau issued the Decision on Ordering Demolition within a Time Limit on December 8, 2016 and the Decision on Compulsory Demolition of Illegal Buildings on December 30, 2016, but did not perform the procedures of reminder, notification of the appellant's right to make representations and defenses and make announcements in accordance with the provisions of Articles 35, 36 and 44 of the Administrative Compulsory Enforcement Law. In the case of failure to perform the above procedures, the appellee organized the relevant departments to carry out compulsory demolition of the gas station buildings and structures involved in the case, violating the administrative compulsory enforcement procedures stipulated in the Administrative Compulsory Enforcement Law. In view of the fact that the district government's demolition of the gas station buildings and structures involved in the case is a factual act and does not have an irrevocable content, it should be confirmed that the compulsory demolition procedure carried out by the district government organization relevant departments on the gas station buildings and structures involved in the case is illegal.

Lawyer Shi reminded

Demolition and relocation is a long-term struggle that requires comprehensive and professional knowledge, control of the overall situation, and rational application of laws and regulations. Even a lawyer with many years of litigation experience is constantly learning and updating in order to calmly analyze and make correct judgments in a case. For non-law scholars, this is a huge subject that cannot be achieved by relying on a short period of bad repair alone. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and practice professional rights protection under the guidance of a lawyer.