When a real estate company builds a house in excess of the planned permitted area and delays in paying the fine for a long time, the procuratorate uses the "one case, two investigations" mechanism to find clues to public interest litigation in cases of job-related crimes and safeguard the interests of the state. On March 3, the Supreme People's Procuratorate issued a typical case of procuratorial public interest litigation "looking back" to follow up and supervise, and the "Chongqing Yunyang County People's Procuratorate Urged the Rectification of The Administrative Public Interest Litigation Case on Building Housing in Excess of the Planning Permission Area" was selected.
Real estate companies build houses beyond the planned permitted area
Prolonged delay in the payment of penalties in the form of IOUs
In 2013, when a real estate development company in Chongqing built a real estate project in Yunyang County, Chongqing, it built 1598.8 square meters in excess of the planning permission area. According to the first paragraph of Article 70 of the 2009 Chongqing Urban and Rural Planning Regulations, the total illegal income calculated according to the sales price of the house at the time of discovery shall be confiscated for the area that cannot be demolished beyond the planning permission. The former Yunyang County Planning Bureau violated the regulations and imposed a penalty of confiscating 1.279 million yuan of illegal income at a standard of 800 yuan per square meter that was far below the unit price of the house. As of May 2018, the company had only paid 799,000 yuan, and the remaining 480,000 yuan had been delayed for a long time in the form of a settlement IOU.
Procuratorate 'Double Investigation in One Case'
Clues to public interest litigation were found in cases of job-related crimes
The Chongqing Yunyang County Procuratorate used the "one case, two investigations" mechanism to find clues to public interest litigation in job-related crime cases, and decided to file a case on June 29, 2018. After investigation, it was found that the county's original planning bureau's illegal performance of duties has not been corrected, and the situation of damage to public welfare still exists. The Yunyang County Procuratorate entrusted the Yunyang County Price Certification Center to evaluate and determined that the construction area involved in the case exceeding the planning permission was worth more than 6.23 million yuan. As of the time of filing, the company had only paid 799,000 yuan, and more than 5 million yuan of illegal gains had not been confiscated.
In March 2021, cadres and police of the Yunyang County Procuratorate verified the construction of the over-planned area at the scene.
On August 8, 2018, the Yunyang County Procuratorate submitted a procuratorial recommendation to the county's former Planning Bureau, requiring it to impose administrative penalties on the illegal construction projects of the housing enterprises involved in the case in accordance with the law, and urge the administrative counterparts to perform their obligations in accordance with the law. On September 30 of the same year, the county's former planning bureau replied that it had issued a "Decision on Revocation of Administrative Penalties", which decided to re-impose new penalties on the illegal acts of the housing enterprise construction projects involved in the case exceeding the planned permitted area.
The county planning and natural resources bureau failed to perform its duties in accordance with the law
Procuratorate Conducts Public Interest Litigation "Looking Back"
After receiving the reply, the Yunyang County Procuratorate followed up and verified and found that the administrative organ had not made a new administrative punishment decision within a reasonable period of time. From May 2019 to November 2020, the Yunyang County Procuratorate repeatedly held joint meetings with the County Planning and Natural Resources Bureau (in January 2019, the county's former Planning Bureau and the county's former Natural Resources Bureau were integrated to form the County Planning and Natural Resources Bureau) around the implementation of the procuratorial suggestions. The bureau reflected that there were objective difficulties in this case, such as the non-cooperation of the enterprises involved in the case and the legal obstacles to re-punishment.
In order to promote the solution of the problem, the Yunyang County Procuratorate took the initiative to inquire about the housing enterprises involved in the case, investigate the business conditions of the enterprises and their ability to pay illegal income, and at the same time strengthen the work of explaining the law and reasoning. In view of whether there is a statute of limitations for administrative organs to re-make administrative punishment decisions, visit the Chongqing Municipal Planning and Natural Resources Department, consult laws, regulations and judicial precedents, and make it clear that after the administrative organ revokes the administrative punishment decision, a new administrative punishment may still be imposed. At the same time, experts are hired to clarify controversial issues such as the calculation method of excess area and the specific penalty standard. However, the Yunyang County Planning and Natural Resources Bureau has still not performed its duties and rectification according to law.
In August 2021, the Chongqing Municipal Procuratorate launched a special action of "looking back" on public interest litigation in the city's procuratorial organs, listing the case as a key supervision case and urging the Yunyang County Procuratorate to review and prosecute according to law.
On November 8, 2021, the Yunyang County Procuratorate filed an administrative public interest lawsuit with the Yunyang County Court. The Yunyang County Court rendered a judgment on December 9, holding that after the procuratorial organs made the procuratorial recommendation, although the defendant revoked the original administrative punishment decision, it had not yet made a new administrative punishment by the time of the judgment, resulting in the continuous damage to the state-owned interests, which was a dereliction of failure to perform its statutory duties, ordering the defendant to neglect to perform its planning and management duties, and ordering it to perform its planning and management duties for the construction of the project involved in the project beyond the planning permit area. After the judgment took effect, the Yunyang County Planning and Natural Resources Bureau has restarted the administrative punishment procedure, informed the offender of the relevant matters, and entrusted the professional institutions under the County Finance Bureau to assess the value of the excess area.
Source: Justice Network Headline Number