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■ The author of this article: Yu Yan Beijing Zaiming Law Firm
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【Basic Facts】
In 2017, the village where Mr. Ma and others in Urumqi City are located started the expropriation procedure, and the district government <国有土地上房屋征收与补偿条例>issued an announcement on the expropriation decision of the old city transformation and upgrading construction project in accordance with the "Implementation Measures of the Xinjiang Uygur Autonomous Region".
In that year, Mr. Ma signed the "Housing Expropriation Compensation Agreement" with the expropriating party and chose the monetary compensation method, but the compensation agreement did not stipulate a specific performance period.
Until 2021, in the case that many expropriated persons within the scope of expropriation have received monetary compensation, Mr. Ma and others have not yet received the compensation they deserve, and have exceeded the reasonable period.
However, when Mr. Ma and others found the person in charge of the collection office, they were told that the time was uncertain.
Faced with a long-term compensation payment, Mr. Ma and others believed that they must take the legal route to get the compensation payment, so through multi-party inquiries and online searches, they found Lawyer Yang Nianping and Lawyer Yu Yan at Ming Law Firm.
【Case Handling】
After taking over this case and passing the analysis, the case is an administrative agreement dispute case, which is a typical expropriation party that does not perform the agreement without a legitimate reason. In this case, the counterparty to the compensation agreement with the client was the District Government Demolition compensation management office, and with the authorization of the district government, the demolition management office had the qualification of the defendant in the administrative litigation and could use the office as the defendant to file an administrative lawsuit, and the two lawyers immediately began to draft a complaint and guide the client to submit the complaint to the people's court for filing.
Because of the impact of the epidemic, the originally scheduled court time could not be carried out as scheduled, and although the client and the lawyer were anxious to hold a court session as soon as possible to resolve the dispute, they had no choice but to wait for the epidemic to improve before arranging the court time.
In the blink of an eye, in August 2021, the court informed that a hearing could be arranged in early August, and after receiving the notice, the client and the two lawyers immediately got excited and sorted out the materials to prepare for the trial. However, three days before the trial, there was another change, the court notified the lawyer defendant for all the parties to make a decision to change the agreement, and as evidence materials handed over to the court, the court believed that the original compensation agreement has been changed due to the defendant's decision to change, the original compensation amount has been greatly reduced, the original compensation agreement is no longer enforceable, it is recommended that the client withdraw the lawsuit for the case, separately sue to change the agreement, otherwise the case may have to be dismissed.
However, the lawyer argued that the defendant's urgent decision to change the agreement under the circumstance that the trial was imminent was obviously to obstruct the normal progress of the litigation and was not legitimate, and that the compensation agreement should not be the legal consequences of the defendant's unilateral change of conduct, that is, the change, so the lawyer argued with the presiding judge to continue the trial or suspend the trial of the case, and then the hearing would be held after the legality of the decision to change the agreement was determined by legal procedures.
However, contrary to expectations, shortly after the emergency filing of the case against the decision to revoke the modification agreement, the first-instance ruling of the court rejecting the prosecution of the compensation agreement was received.
The client has been waiting for three or four years, the trial has gone through twists and turns, and there are great hopes for the trial of this case, so dismissing it is almost a return to the pre-liberation period, but is the court really correct in dismissing the indictment?
After communicating with the lawyer, the client strengthened his determination to carry the case through to the end, and continued to withdraw the lawsuit to change the agreement, while appealing the rejection of the case of performance of the compensation agreement.
【Case Result】
In mid-November 2021, the appeal case of performance of the agreement was heard, and all 32 clients attended the trial. During the trial, the lawyer on behalf of the lawyer raised the important points of dispute in the case to the second-instance judge in a targeted manner.
First, the court of first instance only found that the Expropriation Office had already made a Decision on The Modification Agreement, holding that the modification decision would have legal effect as soon as it was made, that the parties' request for performance of the compensation agreement had lost the legal basis for continued performance, and that it was manifestly erroneous to dismiss the litigation claim.
The "Decision on Modification of Agreement" is the evidence submitted by the Expropriation Office to the court of first instance after the client initiates a lawsuit, and the court of first instance shall determine the legality of the evidence at trial and determine whether it should be admissible, rather than being deemed to be legal and valid without review, and decide that the compensation agreement has not been the basis for continued performance.
Second, the decision on the modification agreement and the compensation agreement are obviously two independent administrative acts, and the two acts were not made at the same time, and can also be prosecuted and tried separately.
In this case, the appellant's litigation claim was to require the appellee to perform the housing expropriation compensation agreement, and the scope of the court's trial was whether the appellant's claim was established, that is, whether the agreement involved in the case should be performed, and the court of first instance should conduct a separate substantive trial on whether the compensation agreement was performed.
Third, respecting the validity of the administrative agreement reached by the parties through consultation and ensuring the actual performance of the administrative agreement as much as possible is the basic principle for reviewing and judging whether the administrative agreement case is legal and valid and whether it will continue to be performed. Unless the administrative agreement is material, obviously illegal, violates the mandatory provisions of laws and regulations, and harms the interests of the state, the public interest, and the legitimate rights and interests of others, the expropriation office cannot unilaterally change the administrative agreement, the people's court shall also confirm the validity of the administrative agreement, and the administrative agreement shall continue to be performed.
The compensation agreement involved in the case was voluntarily signed by the two parties after full consultation based on the actual situation of the house involved in the case, reflecting the true intention of both parties, there is no situation that has not violated the mandatory provisions of laws and administrative regulations, and the expropriation office has made a mistake in changing the compensation agreement after three years, which is obviously contrary to the principles of good faith and the protection of the interests of trust. The first-instance judgment obviously did not consider the basic principles of relying on the protection of interests of trust, good faith, autonomy of will, etc., and was obviously wrong.
Fourth, before the administrative organ makes an administrative decision, it should follow the principles of procedural legality and substantive legality, and in this case, the expropriation office's decision to change the agreement also has the nature of an administrative decision, but it did not inform the parties in advance of the reasons for the change, did not guarantee the parties' right to state and defend, and unilaterally changed the housing expropriation compensation agreement, which was a serious violation of the law.
In the end, the court of second instance recognized the views of the lawyer representing the lawyer, ruled to revoke the administrative ruling of the court of first instance, and ordered it to continue to hear the case, and the rights and interests of the client were safeguarded.
【Analysis of Legal Issues】
In this case, based on the administrative right of advantage, the expropriation office unilaterally changed the compensation agreement in the case of the client's litigation performance agreement, which is rare in practice.
According to the relevant provisions of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases, the unilateral modification and rescission of administrative organs is an independent and actionable administrative act, while the failure of administrative organs to perform administrative agreements in accordance with law is a performance dispute, and although there are certain commonalities between the two types of administrative agreement disputes, the legal attributes are different, and the trial and adjudication methods are also different.
In view of the fact that the parties have already filed an administrative lawsuit against the administrative organ for non-lawful performance or failure to perform the administrative agreement in accordance with the agreement, and the administrative organ has simultaneously made an act of terminating or modifying the agreement, according to the latest adjudication principles of the Supreme People's Court, the parties have two ways, one is that the parties may separately file an administrative lawsuit against the act of rescission or modification, and may follow the provisions of Article 87, Paragraph 1, Item 6 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 suspension of the proceedings requesting the order of the administrative organ to perform the administrative agreement. The parties may also add a claim for revocation of the rescission or modification of the act in the present case.
Another is that the parties may claim the provisions of paragraph 1 of article 11 and paragraph 3 of article 16 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases, request the people's court to conduct a legality review of the administrative act of changing or terminating an administrative agreement by an administrative organ in the case of performance of a compensation agreement, and on the basis of the conclusion of the legality review, in accordance with the first and second paragraphs of article 78 of the Administrative Procedure Law of the People's Republic of China and the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases Judgments are rendered in the provisions of articles such as the third paragraph of article 16 and the first paragraph of article 19.
However, in either way, it will not affect the litigation rights of the parties in the compensation agreement case, and the people's court should not accept the effect of the dismissal or modification of the act without review, resulting in the parties being tired and superimposed litigation.
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