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Court gist
This case analysis is excerpted from "Understanding and Application of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", Jin Chengxuan.
With the acceleration of the urbanization process in the mainland, the contradiction between supply and demand of land resources is prominent, and adhering to the red line of 1.8 billion mu of arable land is facing severe challenges. The Land Management Law establishes the state's implementation of the system of "balance of occupation and compensation" of cultivated land, that is, the cultivated land occupied by non-agricultural construction after approval should be supplemented with cultivated land of comparable quantity and quality in accordance with the principle of "how much to occupy, how much to supplement", so as to ensure that the total amount of cultivated land does not decrease. The government encouraged social funds to participate in land development and consolidation in a market-oriented manner, introduced relevant policies and established the basic principle of "who invests, who benefits". The dispute in this case is formed by the different understandings of relevant laws and policies between the parties.
1. On the formation of administrative agreement relationships
As to whether there was a "land development and consolidation cooperation agreement" between the parties in this case, Guanghe Planning Company argued that although it had not reached a written agreement with the Wudi County Government and the Wudi County Land Bureau on the land development and consolidation project involved in the case, it had formed an agreement relationship through the de facto cooperation with the County Land Bureau, and it was not without an administrative agreement. The Wudi County Government and the Wudi County Land Bureau argued that the two sides had not reached an agreement on this.
Article 10 of the Contract Law stipulates: "The parties conclude a contract in writing, oral form and other forms. Where laws or administrative regulations provide for the use of written form, it shall be in written form. Where the parties agree to adopt written form, it shall be in writing. "Because social funds invest in land consolidation projects have a strong policy nature, the relevant laws and regulations are not perfect when the land development and consolidation project involved in the case is implemented, and the parties should clarify the rights and obligations of both parties and carry out relevant cooperation through the form of agreement, but because the parties cannot provide evidence to prove that the parties signed a relevant written agreement, it is an objective fact that the parties did not sign a written land development and consolidation project cooperation agreement in this case." The written form is not the only form of the contract, according to the comprehensive inference of a series of acts and daily life rules of thumb carried out by the parties to implement the land development and consolidation project involved in the case, the parties in this case should have conducted oral negotiations on cooperation in the land development and consolidation project involved in the case, and a de facto land development and consolidation cooperation relationship has been formed and has been actually performed. The Wudi County Government and the Wudi County Land Bureau stated in the trial that "according to our understanding, the company actually contacted Fengwang Village and Guo YiCun first to apply for inclusion in the policy development project, and the government approved the project and determined that the company would develop it as a builder, and then the government organized acceptance" can also verify this problem. However, since there is no written agreement between the parties on cooperation in land development and consolidation projects, and the parties have not provided effective evidence to prove whether there is an oral agreement on rights and obligations between the parties, the relevant rights and obligations cannot be judged entirely based on the agreement, and the people's court needs to make a discretion with reference to the contract law and other relevant laws and regulations and the spirit of the policy.
2. Regarding the identification of the subject of administrative agreements
On the question of whether Guanghe Planning Company was the main investor in the land development and consolidation project involved in the case, Guanghe Planning Company claimed that it had implemented land consolidation for the investment in the land development and consolidation project involved in the case, and was the investment entity of the land development and consolidation project involved in the case. The Wudi County Government and the Wudi County Land Bureau claimed that the investment entity of the project involved in the case was the Land Bureau, and the company involved in the case was only the main body of the project construction.
According to the "Agreement on Engineering Construction and Collection of Payment" signed between Guanghe Construction Company and Binzhou Datong Municipal Engineering Co., Ltd., Guanghe Construction Company entrusted Binzhou Datong Municipal Engineering Co., Ltd. to be responsible for the construction of the land development project in 2 villages including Feng Wang, Liubao Township, Wudi County, and Binzhou Datong Municipal Engineering Co., Ltd. received the project funds from the Finance Bureau on behalf of Guanghe Construction Company. It can be seen that Guanghe Construction Company should be the investor in the land development and reclamation project involved in the case, and Binzhou Datong Municipal Engineering Co., Ltd. is responsible for the construction of the project. According to the rule of thumb of daily life, if the investment entity of the project involved in the case is the Wudi County Land Bureau, the county Land Bureau can directly fund and entrust the relevant enterprises to carry out the construction of the land development and consolidation project, and there is no need for Guanghe Construction Company to entrust Binzhou Datong Municipal Engineering Co., Ltd. to be responsible for the construction of the land development project in 2 villages, including Feng Wang in Liubao Township, Wudi County. On June 5, 2013, the Wudi County Land Bureau submitted to the Wudi County Government the "Request for Liquidation of Construction Project Fees for Unused Land Development Projects", which also stated that "Guanghe Construction Company and Shandong Haicheng Ecological Science and Technology Group, in response to the requirements of the Shandong Provincial People's Government's Opinions on Strengthening the Province's Land Development and Consolidation Work, invested in the implementation of the Fengwang Village Land Development Project in Liubao Township, Wudi County and the Unused Land Development Project in Mengjiazhuangzi Village, Chengkou Town, Wudi County in 2009. ...... We believe that according to the spirit of the document "Opinions on Strengthening the Land Development and Consolidation Work of the Province" issued by the Shandong Provincial People's Government on November 1, 2007, the land development and consolidation work can be changed from relying solely on government leadership to government guidance, market operation and social participation, and in accordance with the principle of 'who invests, who benefits', liquidate compensation for its project investment. "According to the above-mentioned opinions of the Wudi County Land Bureau, combined with the relevant evidence in this case, it is shown that the Wudi County Land Bureau has approved the investment and implementation of the Land Development Project of Fengwang Village in Liubao Township, Wudi County, and the Land Bureau of Wudi County has not provided evidence to prove that it invested in the implementation of the Fengwang Village Land Development Project in Liubao Township, Wudi County, so it can be determined that Guanghe Planning Company is the investment entity of the land development and consolidation project involved in the case. Although the "Completion Acceptance Form for the Land Development and Consolidation Reclamation supplementary cultivated land project" on July 28, 2010 states that the project implementation unit of the land development project in Feng Wang and other two villages in Liubao Township, Wudi County is the Land Bureau of Wudi County, the determination of the implementing unit does not contradict the determination of the investment entity of the land development and consolidation project involved in the case. Although the Wudi County Government and the Wudi County Land Bureau argued at the trial that "the project involved in the case was mainly carried out by the appellant in the form of project construction, and the investment and construction in the government documents were mixed", it was obviously unreasonable and there was no evidence to support it, and it was not improper for the court of second instance not to accept it.
3. The interests of reliance shall be protected
On the issue of whether the Guanghe Planning Company should enjoy the rights to the new cultivated land targets and transfer proceeds involved in the case, the Wudi County Government and the Wudi County Land Bureau claimed that the land targets and transfer proceeds involved in the case were mainly caused by the relevant national land policies, which was a compensation for the local government's farmland protection work, and was not directly related to the investment of the company involved in the case, and the Guanghe Planning Company should not receive the proceeds. Moreover, the Wudi County Government and the Wudi County Land Bureau have paid them 2,884,049.39 yuan in construction costs, indicating that the company's investment in the project involved in the case has received corresponding returns. Guanghe Planning Company believes that in accordance with the requirements of laws and policies such as Document No. 176 (2008) and Document No. 24 (2004) issued by Lu Zhengbanfa, the government encourages social funds to participate in land development, consolidation and reclamation, and the refusal of the Wudi County Government and the Wudi County Land Bureau to pay them the benefits of the new arable land target is obviously contrary to the principle of fairness. Guanghe Planning Company carried out the feasibility study, survey, planning and design, villagers' compensation and other links for the implementation of the project involved in the case, and its actual investment was more than 11 million yuan, and the construction cost of the project claimed by the Wudi County Government and its Land Bureau was only one of its investment costs, not the income.
The 2,884,049.39 yuan paid by the Wudi County Government and the Wudi County Land Bureau to the company involved in the case is the project construction fee, which is not the income from the new cultivated land index of the land development and consolidation project involved in the case, and the actual investment amount of the company in the land development and consolidation project involved in the case is not the scope of the review of this case. Document No. 176 of the Land and Assets Development (2008) requires that "actively explore market-oriented operation models and guide companies, enterprises and other social funds to participate in land consolidation and reclamation development projects." The increased arable land can be used for a fee under the overall arrangement of the provincial land and resources department. Document No. 24 (2004) of the Lu Government Office requires that "(1) newly added arable land through land development can be used by investors, and relevant taxes and fees can be reduced." In accordance with the principle of 'who invests, who benefits', enterprises, public institutions and individuals invest in the development of newly added cultivated land in barren mountains, wastelands, and barren beaches that have not yet determined the right to use and meet the conditions for reclamation, after the experience is qualified, they can be used by them, and the use period is not less than 30 years, and during the contract or lease period, they can be inherited and transferred for a fee; those engaged in the production of grain, forest fruits, and aquaculture are exempted from agricultural taxes for 3 years. (2) Implement the 'three priorities' for large-scale land development and reclamation carried out by enterprises, public institutions and individuals with self-financing, that is, the land and resources department shall, in accordance with the annual plan, give priority to arranging land development and consolidation and reclamation projects, and the newly added cultivated land indicators and the discounted and replaced construction land indicators may, after review and confirmation, belong to investors and be transferred for a fee; when arranging the balance of construction land projects, priority shall be given to the use of the indicators; and the supplementary cultivated land indicator funds shall be paid in accordance with the contract. Article 7 of the Regulations on Land Consolidation in Shandong Province (effective from January 1, 2016) also stipulates that "people's governments at or above the county level shall encourage and guide units and individuals to use social funds to participate in land consolidation activities in accordance with the principle of who invests and who benefits." Where social funds are used to participate in land consolidation activities, their lawful rights and interests are protected by law. Referring to the above policy requirements and relevant laws and regulations, the government encourages social funds to participate in land development and consolidation in a market-oriented manner, and establishes the basic principle of "who invests, who benefits", and the legitimate rights and interests of those who use social funds to participate in land consolidation activities should be protected by law. In this case, the court of first instance held that the provisions of Circular No. 24 (2004) issued by the Lu Zhengban Office were only advocacy opinions in normative documents and were not mandatory. This determination is a misreading of the relevant policy requirements and legal provisions, which is biased, and the court of second instance corrects it accordingly, which is reasonable and legal.
Administrative organs are trusted by administrative counterparts because of their authority. If an administrative counterpart commits certain acts in accordance with its policy guidelines or administrative guidance because of its reliance on administrative organs, the legitimate interests arising from such acts shall be protected. Although the rights and obligations between the parties in this case were not agreed upon by agreement, in the case where the company involved in the case actually invested in the implementation of the land development and consolidation project involved in the case, and the Wudi County Government and the Wudi County Land Bureau obtained benefits from the new cultivated land targets of the land development and consolidation project involved in the case, the Guanghe Planning Company should enjoy the new cultivated land targets and the transfer of the income rights.
4. Regarding the modification of specific litigation claims
With regard to the current use of the remaining 802 mu of cultivated land indicators of the land development and consolidation project involved in the case, and whether the Guanghe Planning Company's request to order the Wudi County Government and the Wudi County Land Bureau to handle the transfer and use procedures for the 802 mu of new cultivated land indicators should be supported, the evidence in this case shows that the land development and consolidation project involved in the case added 1802 mu of cultivated land, and the Wudi County Land and Resources Bureau and the Jinan Municipal Land and Resources Bureau signed the "Agreement on Supplementary Cultivated Land for Relocation". 1,000 mu of the new cultivated land indicators of the projects involved in the case have been transferred to the Jinan Municipal Land and Resources Bureau's occupancy and compensation balance system, and the remaining new cultivated land indicators wudi county government and wudi county land bureau have been used. Therefore, Guanghe Planning Company's litigation claim could not be supported in fact, so the company changed its litigation claim at the trial to require the Wudi County Government and the Wudi County Land Bureau to pay the corresponding amount according to the standards of the transfer to the Jinan Municipal Land and Resources Bureau. The company involved in the case changed its litigation claim when the remaining new cultivated land indicators of the project involved in the case had already been used by the county government and the county land bureau, which complied with the provisions of the law, and the court of second instance gave permission without improper.
5. Reasonable remedies under unclear agreements
With regard to the amount of proceeds that the Wudi County Government and the Wudi County Land Bureau shall compensate to the Guanghe Planning Company, Article 25 of the Regulations on Land Consolidation in Shandong Province stipulates that "where social funds invest in land consolidation projects, the people's government at the county level shall sign a contract with the investment entity, clarify the rights and obligations of both parties, and carry out the assessment of the quality grade of cultivated land and the acceptance of completion in accordance with the provisions of these Regulations." "However, it should be noted that at the time of the implementation of the land development and consolidation project in this case, the Shandong Provincial Land Consolidation Regulations had not yet been implemented. Since there was no written agreement between the parties in this case on the cooperation of the land development and consolidation project, the relevant rights and obligations could not be judged entirely on the basis of the agreement. The valid evidence in this case shows that the Wudi County Government and its County Land Bureau have a total of 78,531,0175 yuan in the new cultivated land indicators of the projects involved in the case. Guanghe Planning Company's litigation claim in the trial was to refer to the proportion of income distribution of other similar projects, and demanded that the Wudi County Government and the Wudi County Land Bureau pay it 42% of the new cultivated land target income of the project involved in the case. If 42% of the proceeds of the new arable land indicator involved in the case are compensated to the company, there is no prior agreement. However, according to the arguments of the Wudi County Government and the Wudi County Land Bureau, they paid the company construction fees, and the company's investment in the project involved in the case has been returned accordingly, which obviously does not conform to the basic principle of "who invests, who benefits" for social funds to participate in land consolidation activities, and in the case of Guanghe Planning Company's actual investment in the implementation of the land development and consolidation project involved in the case, it is unfair to pay only the project construction fee to it. In this case, guanghe planning company invested in the implementation of the land development and consolidation project without signing a cooperation agreement with the Wudi County Government and the Wudi County Land Bureau or without the written commitment of the government agency, and the Guanghe Planning Company should bear certain legal consequences of insufficient investment risk prediction and inability to produce evidence. In the case where the parties in this case have formed a de facto land development and consolidation cooperative relationship and have actually performed it, the issue of how to determine the amount of compensation income paid by the Wudi County Government and the Wudi County Land Bureau should have been reasonably determined by the government organs on a discretionary basis, but because the Wudi County Government and the Wudi County Land Bureau refused to pay other new cultivated land target income to the company in addition to the project construction cost of 2884049.39 yuan, the court of second instance held that reference should be made to the Contract Law. relevant laws and regulations and the spirit of the policy, on the basis of discretion, reasonably determine the amount of income compensated to the companies involved in the case, so as to comply with the basic principle of "who invests, who benefits" when social funds participate in land consolidation activities, and also conforms to the principle of proportionality in administrative law. With regard to the issue of remedies in the case of unclear contractual provisions, Article 61 of the Contract Law stipulates that "after the contract takes effect, if the parties have not agreed on quality, price or remuneration, place of performance, etc., or the agreement is unclear, they may supplement it by agreement; if a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or trading habits." Article 62 stipulates that "if the parties do not agree on the content of the relevant contract and are still uncertain in accordance with the provisions of Article 61 of this Law, the following provisions shall apply: ... (2) Where the price or remuneration is unclear, it shall be performed in accordance with the market price of the place of performance at the time of conclusion of the contract; where government pricing or government guidance prices shall be enforced in accordance with law, performance shall be carried out in accordance with regulations. "With reference to the above-mentioned relevant laws and regulations and the spirit of the policy, it is also necessary to reasonably determine the amount of compensation benefits that the Wudi County Government and the Wudi County Land Bureau should pay: (1) the investment cost of the Guanghe Planning Company in the land development and consolidation project involved in the case; (2) the difficulty of land development and consolidation in different geological environments; (3) the trading habit of proportionally sharing the new cultivated land indicators in other similar land development and consolidation projects provided by the Guanghe Planning Company; and (4) the local economic and social development status ;(5) The policy attributes of supplementary cultivated land indicators and construction land indicators formed by land development and consolidation are paid for the use of transfers to obtain benefits. After comprehensively considering the above factors, the court of second instance held that it was appropriate for Guanghe Planning Company to occupy about 20% of the new cultivated land targets or transfer proceeds involved in the case, calculated according to the income of the Wudi County Government and the Wudi County Land Bureau in the new cultivated land targets of the projects involved in the case of 78.5310175 million yuan, and should compensate the Guanghe Planning Company for 20% of the new cultivated land targets of the land development and consolidation project involved in the case for 78.5310175 million yuan. (i.e. 15,706,2035 yuan) is reasonable, but the construction cost of 2,884,049.39 yuan that has been paid to Guanghe Planning Company should be deducted. In total, the Wudi County Government and the Wudi County Land Bureau shall compensate the company for RMB 12,822,154.11.
Supreme People's Court of the People's Republic
Administrative decisions
(2017) Lu Xingzhong No. 1591
The appellant (plaintiff in the original trial) Shandong Guanghe Planning Surveying and Mapping Research and Development Co., Ltd., domiciled in Room 401, Block A, Minghu Tiandi, south of Jingyi Road, Lixia District, Jinan City.
The legal representative is Ma Liangbin, the general manager.
Entrusted agent Wei Yongzhen, a lawyer at Shandong Ruiyang Law Firm.
Entrusted agent Li Zhen, trainee lawyer of Shandong Ruiyang Law Firm.
Shandong Guanghe Planning Surveying and Mapping Research and Development Co., Ltd. (hereinafter referred to as Guanghe Planning Company) appealed to this court against the (2017) Lu 16 Xingchu No. 16 Administrative Judgment rendered by the Binzhou Intermediate People's Court on May 16, 2017 against the administrative compensation for land development and consolidation made by the Binzhou Intermediate People's Court on May 16, 2017, in connection with the case of Administrative Compensation for Land Development and Consolidation of Wudi County People's Government (hereinafter referred to as the County Government) and wudi County Land and Resources Bureau (hereinafter referred to as the County Land Bureau). After this court accepted the case, a collegial panel composed of adjudicator Zhang Chengwu, adjudicator Huang Mingchun, and adjudicator Hou Yong in accordance with the law heard the case in public on May 10, 2018. Wei Yongzhen, the appellant's entrusted agent, Zhang Enchuan, the person in charge of the court of the appellee county government, Xu Yingjie and Wang Yonggang, the entrusted agents, Meng Zhuangli, the person in charge of the court of the appellee county land bureau, and song Shuying and Wang Yonggang, the entrusted agents, attended the court to participate in the litigation. The case is now closed.
The origin of the administrative dispute in this case is as follows: On October 24, 2016, the plaintiff, Guanghe Planning Company, mailed the "Application for the Use of New Cultivated Land Indicators for the Land Development Project of Liubao Township (now Liubao Town) in Wudi County" to the defendant county government and the county land bureau, respectively, and applied for the county government and the county land bureau to cooperate with the Guanghe Planning Company to handle the transfer and use procedures for the new cultivated land indicators of 802 mu. The county government and the county land bureau signed on October 25 and October 26, 2016 respectively, and did not make a decision to deal with it before Guanghe Planning Company sued. Guanghe Planning Company filed a lawsuit in this case, requesting that the county government and the county land bureau be ordered to handle the formalities for the transfer and use of the 802 mu of new cultivated land targets, and ordered the county government and the county land bureau to pay the plaintiff the transfer price of the 1,000 mu of new cultivated land targets that had been transferred.
After trial, the court of first instance ascertained that on March 21, 2009, the County Land and Resources Bureau submitted to the Binzhou Municipal Land and Resources Bureau the "Application for the Establishment of a Land Development Project in Fengwang Village and Other Two Villages in Liubao Township, Wudi County". On May 20, 2009, the Binzhou Municipal Bureau of Land and Resources issued the "Reply on the Approval of land development projects in Fengwang Village and other two villages in Liubao Township, Wudi County" for approval. Shandong Guanghe Construction Project Management Co., Ltd. (hereinafter referred to as Guanghe Construction Company, Guanghe Planning Company is the renamed name of Guanghe Construction Company) invested funds to implement land consolidation for the project. On November 8, 2010, the Binzhou Municipal Bureau of Land and Resources issued the "Opinions on the Acceptance of Land Development and Consolidation Projects such as Qiaozhuang Town in Boxing County and Liubao Township in Chengkou Town, Wudi County", and the acceptance result was that Fengwang Village and other two villages in Liubao Township added 120.12 hectares of cultivated land. On March 12, 2013, Guanghe Construction Company submitted the "Application for The Allocation of Funds for the Development of Unused Land" to the County Land Bureau. On June 5, 2013, the County Land Bureau submitted to the county government the "Request for Clarification on the Liquidation of Construction Project Fees for Unused Land Development Projects". On June 9, 2013, the county government read it and instructed the Wudi County Finance Bureau to arrange the audit and submit opinions based on the audit results. On May 30, 2014, Binzhou Zhengxing Co., Ltd. issued the "Project Settlement Audit Report", and the audit result was that the construction cost of the project involved in the case was 2884049.39 yuan. On June 5, 2014, the Wudi County Finance Bureau issued the "Finance Bureau on the County Land and Resources Bureau" (2014) No. 87 of the Dei Cai Comprehensive Review <关于对未利用地开发项目施工工程费清算的请示>Character It is recommended that the county land bureau allocate funds for the construction project. On November 12, 2014, the County Land Bureau issued the Opinions on the Allocation of Construction Fees for the Land Development Project in Fengwang Village, Liubao Township, Wudi County, agreeing to directly allocate the construction costs of the project involved in the case implemented by Guanghe Construction Company of 2,884,049.39 yuan to Guanghe Construction Company. According to the "Engineering Construction and Collection Agreement" signed by Guanghe Construction Company and Binzhou Datong Municipal Engineering Co., Ltd., the Wudi County Finance Bureau allocated 2884049.39 yuan to Binzhou Datong Municipal Engineering Co., Ltd. on November 14, 2014. On February 19, 2016, Guanghe Construction Company changed its name to Guanghe Planning Company.
It was also found that on October 23, 2014, the County Land and Resources Bureau and the Jinan Municipal Bureau of Land and Resources signed the Agreement on Supplementary Cultivated Land in Other Places, agreeing to transfer 1,000 mu of the new cultivated land index of the project involved in the case into the Jinan Municipal Land and Resources Bureau's occupancy and compensation balance system. The remaining new arable land indicators of the projects involved in the case have been used.
The court of first instance held that the project involved in the case was applied for by the County Land Bureau, invested by Guanghe Construction Company, issued an acceptance opinion by the Binzhou Municipal Land and Resources Bureau, and the Wudi County Finance Bureau allocated construction funds to Binzhou Datong Municipal Engineering Co., Ltd., the collection unit of Guanghe Construction Company. In the Notice on Further Strengthening the Work of Land Development, Consolidation and Reclamation (hereinafter referred to as Document No. 24 (2004) of the General Office of the People's Government of Shandong Province, Lu Zhengbanfa (2004) No. 24 on "Mobilizing the enthusiasm of all sectors of society to participate in the work of land development, consolidation and reclamation, and carrying out large-scale land development and reclamation with self-financing by enterprises, public institutions and individuals, the newly added cultivated land indicators and the construction land indicators for offsetting and replacing may, after review and confirmation, be owned by investors and transferred for a fee." The provisions are only advocacy opinions in normative documents and are not mandatory. Moreover, how to allocate the newly added cultivated land indicators and the construction land indicators for discount and replacement needs to be clearly agreed upon by both sides. In this case, the plaintiff, Guanghe Planning Company, the defendant, the county government and the county land bureau did not reach an administrative agreement on the project involved in the case, stipulating the rights and obligations of both parties. The defendant county government and the county land bureau did not handle the formalities for the transfer and use of the 802 mu of new cultivated land indicators for the plaintiff Guanghe Planning Company in accordance with the contract and in accordance with the law, and paid the transfer price of the 1,000 mu of new cultivated land indicators that had been transferred. The plaintiff, Guanghe Planning Company, could not be founded and was not supported. In accordance with the provisions of Article 69 of the Administrative Litigation Law of the People's Republic of China, the judgment rejected the litigation claims of Guanghe Planning Company.
Guanghe Planning Company appealed against the judgment of the court of first instance, and requested that the judgment of the court of first instance be revoked and the judgment be changed according to law on the grounds that the court of first instance had misunderstood and applied the relevant laws and policies in the case that it had determined that the appellant had invested in land consolidation, and that the judgment result violated the principle of fairness. The main reasons are as follows: 1. In accordance with the requirements of the Land Administration Law of the People's Republic of China, the Notice of the Ministry of Land and Resources on Further Strengthening the Work of Land Consolidation and Reclamation and Development (hereinafter referred to as Document No. 176 of the Land Consolidation and Reclamation and Development) (hereinafter referred to as the Notice of the Ministry of Land and Resources (2008) No. 176), and the Document No. 24 of the Lu ZhengBanfa (2004), the government encourages social funds to participate in land consolidation and reclamation, and if the basic interests of investors cannot be guaranteed, it violates the basic requirements of the policy. 2. Although the existing policies do not make mandatory provisions on the relevant rights and interests of social capitalists, they do not point out that all the indicators generated by socially invested land development projects belong to local governments and must be disposed of and obtained by the government. The State has the basic policy principle of who invests and who benefits, and even from the simplest principles and fairness principles, the appellant is entitled to the benefits of the investment. If the appellant who paid the money and services is not entitled to the benefits, or even the costs cannot be recovered, but the appellee who has not invested or paid for the services has taken advantage of it, it is a clear violation of the principle of fairness. 3. In this case, there are the following established facts, the appellant has completed the investment and development of the project involved in the case and generated new cultivated land indicators, the appellee has transferred some of the above indicators for a fee and obtained huge profits, and the appellee has allocated part of the investment costs, that is, the project construction fee, to the appellant according to the audit results. According to the above facts, the appellee also unilaterally completed the disposal of the cultivated land target generated by the land development project invested by the appellant in the absence of clear provisions of the policy and regulations and obtained huge profits, while the appellant's investment was not limited to the construction link, and it was obviously unreasonable for the appellee to only pay part of the investment cost to the appellant. 4. According to the principle of legal application of law with legal basis, policy without legal basis, and legal basis without policy basis, in the absence of clear legal provisions, this case needs to take the purpose of formulating the policy as the starting point and the policy principle of who invests and who benefits as the basis for judging the case. 5. The court of first instance found that the appellant did not have the right to ownership and income of the indicators generated by the project involved in the case, and rejected the appellant's litigation claim, which was contrary to the spirit of the law and the national policy, on the grounds that the existing policies and provisions of the government at all levels on social investment land development and consolidation projects were only guiding opinions and not mandatory. 6. Although the appellant and the appellee have not reached a written agreement, they have formed an agreement relationship through factual acts, which is not without an administrative agreement. The appellant cannot be deprived of the right to proceeds simply because no written agreement has been signed. The Court of First Instance found that the parties had not reached a written agreement and was wrong to dismiss the appellant's claim accordingly. 7. In the context of the state's policy of encouraging social capital investment to participate in land consolidation, there are similar land consolidation projects in various places, which are handled according to the basic principle of who invests and who benefits. For example, in the cooperation agreement between Anhui Shihe Land Reclamation Investment Co., Ltd. and Weishan County Land and Resources Bureau and Weishan County People's Government land development and reclamation project, the investor enjoys the income from the new cultivated land indicator, and the investor and the government distribute the income according to the proportion of 50% each.
The appellee county government replied that the judgment of the court of first instance found that the facts were clear and the law was correct, and requested that the appeal be rejected and the original judgment upheld. The main reasons are as follows: 1. The judgment of the court of first instance found that the facts were clear, the investment entity of the project involved in the case was the county land bureau, the appellant was only the main body of the project construction, and the rights and obligations between the two could only be determined in accordance with the agreement between the two parties or the provisions of the law. 2. The court of first instance found that the provisions of Circular No. 24 (2004) issued by lu zhengban were only advocacy opinions in normative documents and were not mandatory. The allocation of the newly added cultivated land indicators and the discounted and replaced construction land indicators requires a clear agreement between the two parties, and since the two parties have not reached an agreement on this, the court of first instance based on this rejected the appellant's litigation claim, which is in line with the basic principles prescribed by law. 3. According to the Appellant's "Application for The Allocation of Funds for the Development of Unused Land", what the appellant claimed was only 11.3106 million yuan invested by him, and after the audit of the auditing agency, the appellant's actual investment amount (construction cost) in the project involved in the case was only 2884049.39 yuan, and the appellant's investment in the project involved in the case had received a corresponding return, which was in line with the principle of "who invested, who benefited". 4. The appellant's investment income has been obtained through the construction cost of the project, the huge income from the land indicators and transfer claimed by the appellant is mainly caused by the national land-related policies, which is determined by the government-led balance of the total amount of cultivated land in different places, this work is a compensation for the local government's arable land protection work, not a market economic behavior, and is not directly related to the appellant's investment, so the appellant should not obtain the income.
The respondent's county land bureau's defense opinion is the same as the county government's defense opinion.
In the second instance, the appellant claimed that he was unaware of the current specific use of the remaining 802 mu of cultivated land indicators of the land development and consolidation project involved in the case, and the appellee county government and the county land bureau claimed that the remaining indicators had been used at the original trial, but did not provide evidence to prove the objective use of this part of the indicators, and applied in writing to this court to investigate and collect evidence. Before the trial, this court served the appellee with a "Notice of Evidence", and the appellee county government and the county land bureau submitted a piece of evidence such as "Explanation on the Use of the Balance Indicators for Land Development Projects in Fengwang Village and Other 2 Villages, Liubao Township, Wudi County" and "Detailed List of the Use of The Balance Indicators for Cultivated Land occupation and Compensation in 2 Villages Land Development Projects including Fengwang Village, Liubao Township, Wudi County" during the trial, in order to prove that the use of the balance indicators of each batch of occupancy and compensation involved in the case was examined and approved by the Municipal Land and Resources Bureau and submitted to the Shandong Provincial Land and Resources Department for approval. It was finally approved by the Shandong Provincial People's Government. After cross-examination at trial, the appellant claimed that the authenticity of the evidence could not be determined, but at the same time stated that if the 802 mu of cultivated land indicator had been used, the appellee was required to pay the corresponding amount according to the standards of the transfer to the Jinan Municipal Bureau of Land and Resources. Since the appellant had changed its litigation claim, and the evidence provided by the appellee met the basic requirements of the evidence, this court found that the evidence could prove that the remaining 802 mu of cultivated land indicators of the land development and consolidation project involved in the case had been used and that the cultivated land reclamation fee had been paid in the use of the balance indicators in each batch.
In the second instance, the appellant claimed that the case should be treated with reference to the proportion of land consolidation projects in other regions, and submitted the following evidence to the court: 1. The Government Procurement Contract signed between Guanghe Planning Company and xintai Municipal Land and Resources Bureau. To prove that Guanghe Planning Company invested in the implementation of land consolidation projects, the two parties agreed that 57% of the new arable land indicators formed by the remediation project would be used by the government free of charge, and the remaining indicators would be used by the appellant. 2. Government Procurement Contract signed by Jinan Runtu Engineering Construction and Development Co., Ltd. and Xintai Land and Resources Bureau. It is used to prove that in the land consolidation project, the two parties agreed that 58% of the new cultivated land indicators will be used by the government free of charge, and the remaining indicators will be used by the company. 3. Government Procurement Contract signed by Jinan Jindadi Agricultural Engineering Co., Ltd. and Xintai Land and Resources Bureau. It is used to prove that in the land remediation project, the two parties agreed that 57% of the new cultivated land indicators will be used by the government free of charge, and the remaining indicators will be used by the company. After cross-examination at trial, the appellee county government and the county land bureau held that the above three pieces of evidence were not related to the case, and the appellant claimed that there was no legal and factual basis for distributing benefits with reference to government procurement agreements in other places. This Court held that the above three pieces of evidence submitted by the appellant were not relevant to the case and were not used as valid evidence in this case, but the content of the relevant agreements could be used as a reference for judicial discretion.
The evidentiary materials submitted by the parties during the original trial have been transferred to this court with the case file, and the above evidence has been cross-examined during the original trial. Upon review, the parties have no objection to the procedural facts ascertained by the court of first instance, and this court agrees with the relevant procedural facts ascertained by the court of first instance.
Based on the cross-examination of the evidence at the trial and the evidence provided by the parties in the original trial, this court also ascertained the following facts: On October 23, 2014, the County Land and Resources Bureau and the Jinan Municipal Land and Resources Bureau signed the "Agreement on Supplementary Cultivated Land in Ex-Situ", transferring 1,000 mu of the new cultivated land indicators of the project involved in the case to the Jinan Municipal Land and Resources Bureau's occupancy and compensation balance system, and the Jinan Municipal Land and Resources Bureau paid the county Land and Resources Bureau 55,000 yuan per mu of land development and consolidation subsidies, totaling 55 million yuan. The remaining 802 mu of new cultivated land target of the project involved in the case has been used, and the standards for the county government and the county land bureau to collect cultivated land reclamation fees in each batch of construction land projects are 225,000 yuan / ha (2014, 2015) and 900,000 yuan / ha (2016), respectively. The arable land reclamation fees collected for each batch of construction land were 2,578,185 yuan (11.4586 hectares) in 2014, 5,613,4125 yuan (24.9485 hectares) in 2015, and 15,339,420 yuan (17.0438 hectares) in 2016, totaling 23,531,0175 yuan. The county government and the county land bureau gained a total of 78,531,0175 yuan in the new cultivated land indicators of the projects involved in the case.
This court believes that with the acceleration of the urbanization process in the mainland, the contradiction between supply and demand of land resources is prominent, and adhering to the red line of 1.8 billion mu of arable land is facing severe challenges. The "Land Administration Law of the People's Republic of China" establishes the system of "balance of occupation and compensation" of cultivated land implemented by the state, that is, the cultivated land occupied by non-agricultural construction after approval should be supplemented with cultivated land of comparable quantity and quality in accordance with the principle of "how much to occupy, how much to supplement", so as to ensure that the total amount of cultivated land does not decrease. The government encouraged social funds to participate in land development and consolidation in a market-oriented manner, introduced relevant policies and established the basic principle of "who invests, who benefits". The dispute in this case is formed by the different understandings of relevant laws and policies between the parties. According to the parties' opinions, the main focus of the dispute in this case focused on the following aspects: whether there was a "land development and consolidation cooperation agreement" between the parties in this case; whether the appellant Guanghe Planning Company was the main investor in the land development and consolidation project involved in the case; whether the appellant Guanghe Planning Company should enjoy the new cultivated land indicators and the right to transfer proceeds; the current use status of the remaining 802 mu of cultivated land indicators of the land development and consolidation project involved in the case, and the appellant's request to order the appellee county government The county land bureau handles the issue of whether the procedures for the transfer and use of the 802 mu of new cultivated land indicators should be supported.
I. On the issue of whether there was a "land development and consolidation cooperation agreement" between the parties in this case.
The appellant, Guanghe Planning Company, claimed that although it had not reached a written agreement with the appellee county government and the county land bureau on the land development and consolidation project involved in the case, it had formed an agreement relationship through de facto cooperation with the county land bureau, and it was not without an administrative agreement. The appellee county government and the county land bureau argued that the two sides had not reached an agreement on this.
The Court held that Article 10 of the Contract Law of the People's Republic of China (hereinafter referred to as the Contract Law) stipulates that "the parties conclude a contract in writing, oral form and other forms. Where laws or administrative regulations provide for the use of written form, it shall be in written form. Where the parties agree to adopt written form, it shall be in writing. "Because social funds invest in land consolidation projects have a strong policy nature, the relevant laws and regulations are not perfect when the land development and consolidation project involved in the case is implemented, and the parties should clarify the rights and obligations of both parties and carry out relevant cooperation through the form of agreement, but because the parties cannot provide evidence to prove that the parties signed a relevant written agreement, it is an objective fact that the parties did not sign a written land development and consolidation project cooperation agreement in this case." According to the comprehensive inference of a series of acts and daily life rules of thumb carried out by the parties to implement the land development and consolidation project involved in the case, the parties in this case should have conducted oral negotiations on cooperation in the land development and consolidation project involved in the case, and a de facto land development and consolidation cooperation relationship has been formed and has been actually performed. The appellee county government and the county land bureau stated during the trial that "according to our understanding, the appellant actually contacted Feng WangCun and Guo Yicun first to apply for inclusion in the policy development project, and the government approved the project and determined that the appellant would develop it as the builder, and then the government organized acceptance" can also verify this issue. However, since no written agreement on cooperation in land development and consolidation projects has been formed between the parties, and the parties have not provided effective evidence to prove whether there is an oral agreement on specific rights and obligations between the parties, the relevant rights and obligations relationship cannot be judged entirely based on the agreement, and the people's court needs to refer to the Contract Law and other relevant laws and regulations and the spirit of the policy to make a discretion.
2. On the issue of whether the appellant Guanghe Planning Company was the main investor in the land development and consolidation project involved in the case.
The appellant, Guanghe Planning Company, claimed that it had carried out land consolidation for the investment in the land development and consolidation project involved in the case, and was the main investor in the land development and consolidation project involved in the case. The appellee county government and the county land bureau claimed that the investment entity of the project involved in the case was the county land bureau, and the appellant was only the main body of the project construction.
The Court held that, in accordance with the "Agreement on Engineering Construction and Collection of Funds" signed between Guanghe Construction Company and Binzhou Datong Municipal Engineering Co., Ltd., Guanghe Construction Company entrusted Binzhou Datong Municipal Engineering Co., Ltd. to be responsible for the construction of the land development project in 2 villages, including Feng Wang, Liubao Township, Wudi County, and Binzhou Datong Municipal Engineering Co., Ltd. collected the project funds from the Finance Bureau on behalf of Guanghe Construction Company. It can be seen that Guanghe Construction Company should be the investor in the land development and reclamation project involved in the case, and Binzhou Datong Municipal Engineering Co., Ltd. is responsible for the construction of the project. According to the rule of thumb of daily life, if the investment entity of the project involved in the case is the county land bureau, the county land bureau can directly fund and entrust the relevant enterprises to carry out the construction of the land development and consolidation project, and there is no need to entrust Binzhou Datong Municipal Engineering Co., Ltd. to be responsible for the construction of the land development project in 2 villages, including Feng Wang, Liubao Township, Wudi County. On June 5, 2013, the Land Bureau of the appellee county submitted to the county government of the appellee in the "Request for Liquidation of Construction Project Fees for Unused Land Development Projects", which also stated that "Guanghe Construction Company and Shandong Haicheng Ecological Science and Technology Group, in response to the requirements of the Opinions of the Shandong Provincial People's Government on Strengthening the Development and Consolidation of Land in the Province, respectively invested in the implementation of the land development project of Fengwang Village in Liubao Township, Wudi County and the unused land development project of Mengjiazhuangzi Village, Chengkou Town, Wudi County in 2009. ...... We believe that according to the spirit of the document "Opinions on Strengthening the Land Development and Consolidation Work of the Province" issued by the Shandong Provincial People's Government on November 1, 2007, the land development and consolidation work can be changed from relying solely on the government's leadership to government guidance, market operation and social participation, and in accordance with the principle of 'who invests, who benefits', liquidate compensation for its project investment. "According to the above-mentioned opinion of the County Land Bureau, combined with the relevant evidence in this case, it is shown that the appellee County Land Bureau has approved the appellant's investment in the implementation of the Fengwang Village Land Development Project in Liubao Township, Wudi County, and the County Land Bureau has not provided evidence to prove that it invested in the implementation of the Fengwang Village Land Development Project in Liubao Township, Wudi County, so it can be determined that the appellant Guanghe Planning Company is the investment entity involved in the land development and consolidation project involved in the case. On July 28, 2010, the "Completion Acceptance Form for the Land Development and Consolidation reclamation and Reclamation Supplementary Cultivated Land Project" stated that the project implementation unit of the land development project in Feng Wang and other two villages in Liubao Township, Wudi County was the County Land Bureau, but the determination of the implementing unit did not contradict the determination of the investment entity of the land development and consolidation project involved in the case. Although the appellee county government and the county land bureau argued at the trial that "the project involved in the case was mainly carried out by the appellant in the form of project construction, and the investment and construction in the government documents were mixed", it was obviously unreasonable and there was no evidence to support it, and this court did not accept it.
III. On the question of whether the appellant Guanghe Planning Company should enjoy the rights to the new cultivated land targets and the transfer proceeds involved in the case.
The appellee county government and the county land bureau claimed that the land indicators involved in the case and the proceeds from the transfer were mainly caused by the relevant policies of the state land, which was a kind of compensation for the local government's farmland protection work, and was not directly related to the appellant's investment, and the appellant should not receive the proceeds. Moreover, the appellee has paid the appellant 2884,049.39 yuan in construction fees, and the appellant's investment in the project involved in the case has received a corresponding return on income. The appellant, Guanghe Planning Company, argued that in accordance with the requirements of laws and policies such as Document No. 176 (2008) and Circular No. 24 (2004) of the LuZheng Office, the government encouraged social funds to participate in land development, consolidation and reclamation, and the appellee's refusal to pay it the income from the new arable land target clearly violated the principle of fairness. The appellant carried out the construction after carrying out the feasibility study, survey, planning and design, and compensation of the villagers for the implementation of the project involved in the case, and the appellant actually invested more than 11 million yuan, and the construction cost claimed by the appellee was only one of its investment costs, not the income.
This court held that the 2,884,049.39 yuan paid by the appellee county government and the county land bureau to the appellant Guanghe Planning Company was the project construction fee, which was not the income from the new cultivated land index of the land development and consolidation project involved in the case, and the actual investment amount of the appellant in the land development and consolidation project involved in the case was not the scope of the examination of this case. Document No. 176 of the Land and Assets Development (2008) requires that "actively explore market-oriented operation models and guide companies, enterprises and other social funds to participate in land consolidation and reclamation development projects." The increased arable land can be used for a fee under the overall arrangement of the provincial land and resources department. Document No. 24 (2004) of the Lu Government Office requires that "(1) newly added arable land through land development can be used by investors, and relevant taxes and fees can be reduced." In accordance with the principle of 'who invests, who benefits', enterprises, public institutions and individuals invest in the development of newly added cultivated land in barren mountains, wastelands, and barren beaches that have not yet determined the right to use and meet the conditions for reclamation, after the experience is qualified, they can be used by them, and the use period is not less than 30 years, and during the contract or lease period, they can be inherited and transferred for a fee; those engaged in the production of grain, forest fruits, and aquaculture are exempted from agricultural taxes for 3 years. (2) Implement the 'three priorities' for large-scale land development and reclamation carried out by enterprises, public institutions and individuals with self-financing, that is, the land and resources department shall, in accordance with the annual plan, give priority to arranging land development and consolidation and reclamation projects, and the newly added cultivated land indicators and the discounted and replaced construction land indicators may, after review and confirmation, belong to investors and be transferred for a fee; when arranging the balance of construction land projects, priority shall be given to the use of the indicators; and the supplementary cultivated land indicator funds shall be paid in accordance with the contract. Article 7 of the Regulations on Land Consolidation in Shandong Province (effective from January 1, 2016) also stipulates that "people's governments at or above the county level shall encourage and guide units and individuals to use social funds to participate in land consolidation activities in accordance with the principle of who invests and who benefits." Where social funds are used to participate in land consolidation activities, their lawful rights and interests are protected by law. Referring to the above policy requirements and relevant laws and regulations, the government encourages social funds to participate in land development and consolidation in a market-oriented manner, and establishes the basic principle of "who invests, who benefits", and the legitimate rights and interests of those who use social funds to participate in land consolidation activities should be protected by law. The court of first instance held that the provisions of Circular No. 24 (2004) issued by the Lu ZhengBan office were only advocacy opinions in normative documents and were not mandatory. This court believes that the determination is a misreading of the relevant policy requirements and laws and regulations, which is biased and should be corrected. Administrative organs are trusted by administrative counterparts because of their authority, and administrative counterparts act in accordance with their policy guidelines or administrative guidance because they trust administrative organs, and administrative organs should cherish and protect the trust of administrative counterparts, which is the value of the principle of protecting the interests of trust. Especially in the case where the acts carried out by administrative counterparts involve the implementation of the basic national land policy, local people's governments and administrative organs should be more cautious from the perspective of ensuring the implementation of the basic national land policy. Therefore, from the perspective of supervising administrative power, protecting the legitimate rights and interests of administrative counterparts, safeguarding the need to fully implement the spirit of national policies and relevant laws and regulations, and relying on the principle of interest protection, administrative counterparts make certain acts based on trust in public power, and the legitimate interests arising from such acts should be protected. Although the rights and obligations between the parties in this case were not agreed upon by agreement, the appellant shall enjoy the right to the new cultivated land target and the transfer of the income in the case where the appellant actually invested in the implementation of the land development and consolidation project involved in the case, and the appellee county government and the county land bureau obtained benefits from the new cultivated land development and consolidation project involved in the case. The appellee county government and the county land bureau held that the new cultivated land target and the proceeds of the transfer were not directly related to the appellant's investment, and the refusal to pay the appellant the proceeds of the new cultivated land target was obviously improper and should not be supported.
4. Regarding the current use status of the remaining 802 mu of cultivated land indicators in the land development and consolidation project involved in the case, and whether the appellant's request to order the appellee county government and county land bureau to handle the procedures for the transfer and use of the 802 mu of new cultivated land targets should be supported.
The evidence in this case shows that 1,802 mu of new cultivated land was added to the land development and consolidation project involved in the case, and the County Land and Resources Bureau and the Jinan Municipal Land and Resources Bureau signed the "Agreement on Supplementing Cultivated Land by Ex-Situ", and 1,000 mu of the new cultivated land index of the project involved in the case has been transferred to the Jinan Municipal Land and Resources Bureau's occupancy and compensation balance system, and the remaining new cultivated land indicators have been used by the county government and the county land bureau. Therefore, the appellant's claim could not be supported in fact, so the appellant changed the litigation claim at the trial to require the appellee to pay the corresponding amount according to the standard of the transfer to the Jinan Municipal Bureau of Land and Resources according to the standard of the 802 mu of new cultivated land. This court held that the appellant's modification of his litigation claim when the remaining new cultivated land indicators of the project involved in the case had already been used by the county government and the county land bureau were in accordance with the provisions of the law and should be allowed.
V. On the issue of the amount of proceeds that the appellee county government and the county land bureau shall compensate to the appellant Guanghe Planning Company.
Article 25 of the Regulations on Land Consolidation in Shandong Province stipulates that "where social funds invest in land consolidation projects, the people's government at the county level shall sign a contract with the investment entity, clarify the rights and obligations of both parties, and carry out the assessment of the quality grade of cultivated land and the acceptance of completion in accordance with the provisions of these Regulations." "However, when the land development and consolidation project in this case was implemented, the Shandong Provincial Land Consolidation Regulations had not yet been implemented. Since there was no written agreement between the parties in this case on the cooperation of the land development and consolidation project, the relevant rights and obligations could not be judged entirely on the basis of the agreement. The valid evidence in this case shows that the county government and the county land bureau have a total of 78,531,0175 yuan in the new cultivated land indicators of the projects involved in the case. The appellant's claim at trial was to refer to the proportion of the income distribution of other similar projects, and demanded that the appellee pay it 42% of the income from the new cultivated land indicator of the project involved in the case. If 42% of the proceeds of the new arable land index involved in the case are compensated to the appellant, there is no prior mention of the agreement. However, according to the appellee's argument, it paid the appellant for the construction of the project, and the appellant's investment in the project involved in the case has been returned accordingly, which obviously does not conform to the basic principle of "who invests and who benefits" for social funds participating in land consolidation activities, and in the case where the appellant actually invests in the implementation of the land development and consolidation project involved in the case, it is unfair to pay only the project construction fee to him.
This court held that if the appellant invested in the implementation of the land development and consolidation project without signing a cooperation agreement with the county government or the county land bureau of the appellee or without the written commitment of the appellee, the appellant should bear certain legal consequences of insufficient investment risk prejudgment and inability to produce evidence. In the case where the parties in this case have formed a de facto cooperative relationship in land development and consolidation, and have actually performed it, how to determine the amount of income that the appellee county government and the county land bureau should compensate the appellant should have been reasonably determined by the appellee on the basis of discretion, but because the appellee refused to pay the appellant other new farmland target income in addition to the project construction fee of 2884049.39 yuan, this court should refer to the Contract Law and other relevant laws and regulations and the spirit of the policy, On the basis of discretion, reasonably determine the amount of proceeds compensated by the appellee to the appellant, so as to conform to the basic principle of "who invests, who benefits" when social funds participate in land consolidation activities, and also conforms to the principle of proportionality in administrative law. With regard to the issue of remedies in the case of unclear contractual provisions, Article 61 of the Contract Law stipulates that "after the contract takes effect, if the parties have not agreed on quality, price or remuneration, place of performance, etc., or the agreement is unclear, they may supplement it by agreement; if a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or trading habits." Article 62 stipulates that "if the parties do not agree on the content of the relevant contract and are still uncertain in accordance with the provisions of Article 61 of this Law, the following provisions shall apply: ... (2) Where the price or remuneration is unclear, it shall be performed in accordance with the market price of the place of performance at the time of conclusion of the contract; where government pricing or government guidance prices shall be enforced in accordance with law, performance shall be carried out in accordance with regulations. "With reference to the above-mentioned relevant legal provisions and the spirit of the policy, the following factors should also be considered to reasonably determine the amount of income that the appellee should compensate the appellant: 1. The investment cost of the appellant in the land development and consolidation project involved in the case; 2. The degree of difficulty of land development and consolidation in different geological environments; 3. The trading habit of proportionally dividing the new cultivated land indicators in other similar land development and consolidation projects provided by the appellant; 4. The local economic and social development status; 5. The policy attributes of supplementary cultivated land indicators and construction land indicators formed by land development and consolidation are paid for the use of the policy attributes to obtain benefits. Taking the above factors into consideration, this court believes that it is appropriate for the appellant to account for about 20% of the new cultivated land indicators or transfer proceeds involved in the case, calculated according to the income of the county government and the county land bureau in the new cultivated land indicators of the project involved in the case of 78.5310175 million yuan, and the appellee county government and the county land bureau compensated the appellant Guanghe Planning Company for 20% of the new cultivated land index income price of 78.5310175 million yuan to the appellant Guanghe Planning Company. (i.e., 15,706,2035 million yuan) is reasonable, but the construction fee of 2,884,049.39 yuan that the appellee has already paid to the appellant should be deducted, that is, the county government and the county land bureau of the appellee shall compensate the appellant Guanghe Planning Company for 12,822,154.11 yuan.
In summary, the implementation and improvement of the system of "balance of occupation and compensation" of cultivated land is an important measure to adhere to the red line of 1.8 billion mu of cultivated land, and it is also an important guarantee for the central government to implement the rural revitalization strategy and strengthen the institutional supply of rural revitalization. In accordance with the basic principle that "who invests, who benefits" when social funds participate in land consolidation activities, the lawful rights and interests of those who use social funds to participate in land consolidation activities shall be protected by law. The judgment of the court of first instance found that the facts were basically clear, but there were some inaccuracies in the application of law and the understanding of relevant policies, and should be corrected. The appellant's grounds of appeal are partially established and should be upheld. Pursuant to Article 73 of the Administrative Procedure Law of the People's Republic of China, Article 89, Paragraph 1, Item (2), and Article <中华人民共和国行政诉讼法>92 of the Interpretation of the Supreme People's Court on Application, the judgment is as follows:
1. Revoke the Binzhou Intermediate People's Court's (2017) Lu 16 Xingchu No. 16 Administrative Judgment;
2. Ordered the Wudi County People's Government and the Wudi County Land and Resources Bureau to pay Shandong Guanghe Planning, Surveying, Mapping and Research and Development Co., Ltd. RMB 12,822,154.11 for the compensation for the income from the new cultivated land target of the land development and consolidation project involved in the case within two months from the date of receipt of this judgment;
3. Reject other litigation claims of Shandong Guanghe Planning Surveying and Mapping Research and Development Co., Ltd.
The acceptance fee for the first- and second-instance cases is RMB 50 each, which is borne by the appellee, the Wudi County People's Government and the Wudi County Land and Resources Bureau.
This judgment is final.
Chief Judge Zhang Chengwu
Judge Huang Mingchun
Judge Hou Yong
May 31, 2018
Clerk Li Qian
Lawyer Shan Yun in Beijing