Qingdao News Network, April 20 (Reporter Chen Zhiwei Correspondent He Wenjie Lv Ling) Today, the Qingdao Intermediate People's Court held a press conference to report on the administrative trial work of Qingdao courts in 2021, and released the Qingdao court's 2021 judicial review report on administrative cases (administrative trial white paper) and typical cases.
It is understood that in 2021, the courts at the two levels in Qingdao accepted a total of 8,024 administrative cases of various types and concluded 7,699 cases, which was basically the same as that of the same period last year. Cases mainly show the following characteristics: The number of first-instance administrative litigation cases shows an increasing trend. The city's courts accepted 3,055 first-instance administrative cases, an increase of 17.5% year-on-year. 36％。 New fields and new types of cases continue to emerge, involving foreign-related marriage registration, announcements on the placement of housing for talents, village merger adjustments, division of property management areas, water conservancy and flood discharge, enrollment procedures, preschool education permits and other fields. The first-instance trial concluded 1247 cases by way of judgment, accounting for 44.5% of the first-instance cases. 25%, up 2. 29％。 Administrative organs lose 9. 51%, down 1. 27％。 3681 non-litigation enforcement cases were accepted and 3653 cases were concluded. 55 cases were awarded for non-enforcement, and the non-enforcement rate was 1. 51%, up 0.5% year-on-year 62％。 36 cases of State compensation were concluded. Handled 128 judicial aid cases, rescued 164 people in need, and decided to issue more than 5.97 million yuan in relief funds.
The white paper introduces the key work of administrative trial in the city's courts in five aspects: the responsible persons of administrative organs appearing in court to respond to lawsuits, pre-trial settlement of administrative disputes, serving the demonstration and creation of a rule of law government, escorting the smooth progress of key work, and innovating the administrative trial work mechanism.
Among them, the city's courts continued to deepen the work of responsible persons of administrative organs appearing in court to respond to lawsuits, and the rate of responsible persons of administrative organs in the city remained 100% for the second consecutive year, and responsible persons spoke in court accounted for 81. 95％。 In court cases, the person in charge participated in the settlement accounted for 71. 31%, substantive resolution methods accounted for 7. 75％。
Deeply promote the construction of pretrial settlement mechanisms for administrative disputes, jointly issue the Measures for Pretrial Settlement Work and the Rules for Pretrial Settlement Work with the Qingdao Municipal Bureau of Justice, establish the city's first administrative circuit court for relocation, and expand the types of cases that introduce pre-trial settlement platforms. The city's courts settled 1307 administrative cases, an increase of 37.5% year-on-year. 15%, settlement success rate 41. 31%, the number of successful settlement cases ranked first in the province.
Actively serve the creation of a model government under the rule of law, and send 18 judicial suggestions throughout the year. Fully escorted the smooth progress of key work, launched 9 measures to provide judicial guarantees for the city's key rectification projects, and concluded nearly 200 cases of compensation for relocation and demolition of violations of governance.
Deepen the reform of diverting complicated and simple cases, the division president takes the lead in handling major and complex cases, handling cases online, and promoting innovation in administrative trial work mechanisms, with 442 administrative cases heard by the city's courts on the Internet and 2693 electronically served them.
The white paper analyzes the reasons for administrative organs' failures, points out the problems existing in administrative organs' response to lawsuits, and makes suggestions on improving administration and response to lawsuits according to law: improve the thinking of the rule of law, standardize law enforcement behavior in key areas and key links; promote the construction of multiple dispute resolution mechanisms and improve the ability and level of administrative dispute resolution; focus on administrative compensation issues, and properly handle compensation matters with the awareness of responsibility; deepen the work of responsible persons appearing in court to respond to lawsuits, and make new breakthroughs in speaking out to solve the law; and strengthening the capacity building of the rule of law in the team. Promote administration according to law and ability to respond to lawsuits to a new level.
The Qingdao Intermediate People's Court selected ten cases of typical significance from the administrative cases concluded by the city's courts in 2021, including cases that are closely related to the people's lives and require key interpretation of the law, as well as cases closely related to the construction of a rule of law business environment. The Qingdao Intermediate People's Court hopes to give play to the value guidance role of typical cases, guide the masses to safeguard their rights according to law, rationally safeguard their rights, and improve the level of administrative organs in accordance with law.
Typical cases of administrative trials in Qingdao courts in 2021
1． The plaintiff, a protective equipment company, sued the defendant, a district market supervision bureau, and a district people's government for administrative punishment and administrative reconsideration
Basic facts of the case
In February 2020, the defendant's market supervision and administration bureau in a certain district conducted a case investigation into the plaintiff's mask sales behavior based on the clues of the complaint. After the relevant administrative punishment procedures, an administrative punishment decision was made on July 8, 2020, holding that the commercial publicity content made by the plaintiff in the instruction manual of the mask involved in the case was not true, constituting an illegal act of false or misleading commercial publicity, and decided to fine the plaintiff 200,000 yuan while ordering the illegal act to be stopped; it was held that the publicity content made by the plaintiff in the online store was a commercial advertising activity, and because the publicity content was not true, it constituted the illegal act of publishing false advertisements. The decision was to order the plaintiff to stop publishing illegal advertisements and eliminate the impact within the corresponding scope while fining the plaintiff 200,000 yuan; the total of the above fines was 400,000 yuan. Dissatisfied, the plaintiff applied to the people's government of a certain district for administrative reconsideration, and after the people's government of a certain district upheld the administrative punishment decision, it filed an administrative lawsuit.
The result of the referee
The court's effective judgment held that the plaintiff marked the instructions for the use of the masks involved in the case that it sold with "... Gathering top air experts and scientific research teams in various fields, investing tens of millions of dollars in the false content, and admitting in the administrative punishment procedure that the above-mentioned commercial publicity content is not true, is enough to cause consumers to misunderstand the performance and quality of the masks involved in the case, constituting false or misleading commercial publicity behavior. At the same time, the plaintiff's promotion of "anti-bacterial, anti-virus and anti-contagion" and "virus-protecting, coronavirus, pneumonia virus, standards much higher than N95, also higher than N99..." and many other contents advertised by the plaintiff on the online store page and in chats with consumers are not true, and are inconsistent with its implementation of product standards "suitable for protective masks worn to filter particulate matter in air pollution environments in daily life", constituting the act of publishing false advertisements on the Internet. According to the relevant provisions of the Anti-Unfair Competition Law of the People's Republic of China, the forms of false publicity include advertising and other forms of publicity, and where false publicity is carried out through advertising, the provisions of the Advertising Law of the People's Republic of China shall apply. The plaintiff's above two illegal commercial publicity acts shall be punished by applying the Advertising Law of the People's Republic of China and the Anti-Unfair Competition Law of the People's Republic of China respectively. The court accordingly ruled to dismiss the plaintiff's claim.
Typical
This case occurred in the early days of the outbreak of the new crown epidemic, and was an administrative litigation case caused by the administrative punishment imposed by the market supervision department on the illegal acts of false publicity in the sale of masks. When trying such administrative cases, the people's courts insist on combining accurately ensuring epidemic prevention and control with strict handling of cases in accordance with law, ensuring that the facts are ascertained accurately, the law is applied correctly, and the discretion of administrative punishment is reasonably determined. The typical significance of this case lies in the fact that it is clear that if a business operator has false advertising and other forms of false publicity at the same time, the Advertising Law of the People's Republic of China and the Anti-Unfair Competition Law of the People's Republic of China shall be applied to punish them respectively, and there is no problem of competition and appropriate use of laws and regulations. This case provides adjudication guidance for the trial of similar cases, and also warns market entities through judgments that at present, they must consciously abide by laws and regulations, actively assume social responsibility, participate in market competition fairly, and must not mislead consumers and disrupt market order.
2． Plaintiff Li sued defendant, a brigade of the traffic police detachment of a public security bureau, and a traffic management administrative punishment and administrative reconsideration motion of a municipal people's government
Basic facts of the case
Photographs captured by the electronic monitoring equipment of a traffic police brigade of the defendant show that: From 15:35:32 to 15:36:41 on October 19, 2020, the driver Li drove a vehicle to stop on a certain motorized road, and the stop side of the road was set up with a stop sign and a prohibited parking line. On June 2, 2021, the traffic police brigade found that Li mou had violated the instructions of the prohibition sign, and decided to impose a fine of 200 yuan on Li in accordance with articles 114 and 90 of the Road Traffic Safety Law of the People's Republic of China, and 3 points were recorded according to the Regulations on the Application and Use of Motor Vehicle Driver's Licenses. The plaintiff was not satisfied, and submitted an administrative reconsideration to the defendant municipal people's government, and after the reconsideration organ upheld it, the plaintiff was dissatisfied and filed an administrative lawsuit. During the trial, the plaintiff argued that it was only temporary parking and that the provisions on temporary parking in Article 93 of the Road Traffic Safety Law of the People's Republic of China should be applied to punish it.
The result of the referee
The effective judgment of the court held that according to the relevant laws and regulations of the mainland, the parking of motor vehicles is divided into three situations, one is to allow parking, that is, to allow parking at the prescribed place and in the parking spaces designated by the government; the second is to prohibit parking, that is, to prohibit parking in the places provided for in article 63, paragraphs 1, 2 and 3 of the Implementing Regulations of the Road Traffic Safety Law of the People's Republic of China; and the third is to allow temporary parking, that is, to allow temporary parking in places other than the legally permitted parking and prohibited parking. The meaning of the stop sign and the marking line is that parking is absolutely prohibited, and the length of time the vehicle is parked is not taken as a consideration, so the plaintiff's claim that it is temporarily pulling over and driving away quickly does not constitute a reason that can exclude punishment. The plaintiff's temporary parking on the side of the road with the no-stop sign and the prohibition line on it constituted an illegal act of violating the no-stop sign and the instructions of the no-stop line, and the defendant's punishment was not improper. The court accordingly ruled to dismiss the plaintiff's claims.
Typical
With the substantial increase in the number of public motor vehicles, the problem of urban parking difficulties has become prominent, and illegal parking has occurred frequently. However, there are still misunderstandings among the public about the parking rules for motor vehicles and the penalties for illegal parking. The typical significance of this case is that through the effective judgment of the court, the rules on the parking of motor vehicles in the laws and regulations on road traffic safety are reiterated, and the majority of drivers are reminded that within the scope of the prohibition of parking signs and markings, it is absolutely forbidden to park vehicles, otherwise, regardless of the length of parking, it constitutes an illegal act of violating the instructions of the prohibition sign and the line of prohibition, and should be punished according to law. The case also aims to remind the majority of drivers to strictly abide by traffic rules, be participants, practitioners and maintainers of civilized traffic, and jointly build a harmonious and smooth road traffic environment that shares civilized norms.
3． The plaintiff, a food culture company, sued the defendant, a district market supervision bureau, and a district people's government for market supervision administrative penalties and administrative reconsideration
Basic facts of the case
The plaintiff, a food culture company, purchased bulk astragalus black tea from other companies on two separate occasions and sold it in separate packages on the online store. On July 17, 2020, the defendant, a district market supervision and administration bureau, found that the plaintiff's sub-packaging of astragalus black tea was a food production act, and because it did not obtain a food production license, it constituted an illegal act of engaging in food production activities without permission, and the plaintiff was punished with an administrative penalty of confiscating 4,290 yuan of illegal gains and fining 51,000 yuan. The plaintiff was not satisfied and applied to the people's government of a certain district of the defendant for administrative reconsideration. The people's government of a certain district believed that the penalty decision involved in the case was not improper, but in the administrative procedure, it was obviously improper to suspend the investigation of the case on the grounds that "the case could not be investigated temporarily due to force majeure", which was a minor violation of the law, so it was confirmed that the punishment decision made by the defendant market supervision and administration bureau of a certain district was illegal. The plaintiff was dissatisfied and filed an administrative lawsuit.
The result of the referee
The effective judgment of the court held that the Food Safety Law of the People's Republic of China and the Measures for the Administration of the Safety Review of New Food Raw Materials stipulate the food and the meaning of the new food. The original Ministry of Health approved that "if it is necessary to develop the items in the List of Articles Available for Health Food for ordinary food production, it should be assessed for food safety in accordance with the procedures stipulated in the Measures for the Administration of New Resource Foods and declared for approval". Because astragalus has been included in the "List of Items Available for Health Food", it can be used as a new food raw material. According to the Ministry of Health's "Reply on Issues Related to Food Packaging Processing and Food Supervision and Management", the plaintiff's wholesale sale of astragalus black tea is a food production and operation act, and a food production license should be obtained in accordance with the law, so the punishment according to the relevant provisions of the Food Safety Law of the People's Republic of China is correct. The defendant's market supervision and administration bureau in a certain district could not find the contact person of the plaintiff's company during the on-site inspection, and it was necessary to wait for the reply letter of the market supervision and administration bureau where the manufacturer of the product involved in the case was located, resulting in the case being unable to continue the investigation, and the act of suspending the investigation was not improper, and the administrative procedures were legal. The court then ruled to revoke the decision to reconsider the lawsuit and rejected the plaintiff's claim for revocation of the penalty decision.
Typical
In recent years, traditional Chinese medicine health care products have been favored by more and more consumers, but how to legally and effectively supervise them has also become an important issue to be solved. The typical significance of this case is that the court of second instance started from the connotation and extension of "food" and "new food raw materials" in laws and regulations, and found that the medicinal material astragalus can be used as a new food raw material, and astragalus black tea belongs to food; from the perspective of the code of conduct for food sub-packaging, it is a food production and operation act, and it should obtain a food production license according to law, and the Food Safety Law of the People's Republic of China should be applied to supervise it. This case clarifies the legal basis for the administrative supervision of traditional Chinese medicine health care products, provides adjudication guidance for the judicial review of such cases, and also reminds industry entities to operate legally and compliantly while seizing market business opportunities, so as to promote the healthy development of the traditional Chinese medicine health care industry.
4． The plaintiff, a Qingdao petroleum company, sued the defendant, Qingdao Municipal Market Supervision and Administration Bureau, for administrative punishment for market supervision
Basic facts of the case
On November 5, 2018, the Qingdao Municipal Market Supervision and Administration Bureau conducted a sampling test on the No. 92 vehicle gasoline (V) sold by the gas station of the plaintiff, Qingdao Petroleum Co., Ltd., and the quality of the oil involved in the case was unqualified. The defendant served the above-mentioned inspection report to the plaintiff in accordance with the law and made a record of the scene. The plaintiff did not submit an application for re-inspection within the statutory time limit, and the legal representative of the plaintiff stated that he recognized that the inspection results were true and valid and abandoned the re-inspection. Accordingly, the defendant imposed an administrative penalty of a fine of 3,490 yuan and confiscation of illegal gains of 375 yuan. Dissatisfied, the plaintiff argued that the enterprise standards it formulated should be applied to test the gasoline involved in the case, so it filed an administrative lawsuit.
The result of the referee
The effective judgment of the court held that the standards include national standards, industry standards, local standards, group standards, and enterprise standards. National standards are divided into mandatory standards and recommended standards, and industry standards and local standards are recommended standards. Mandatory standards must be implemented, and the state encourages the use of recommended standards, but the technical requirements of recommended national standards, industry standards, local standards, group standards, and enterprise standards must not be lower than the relevant technical requirements of mandatory national standards. The plaintiff argued that the enterprise standard formulated by its company should be applied, which was not a mandatory national standard, nor a recommended national standard, and clearly did not meet the relevant technical requirements of the mandatory national standard "Gasoline for Vehicles (National Standard of the People's Republic of China GB17930-2016)". Therefore, the plaintiff's claim that the application of the enterprise standard is obviously unfounded by law, and the No. 92 vehicle gasoline (V) sold by it does not meet the technical requirements of the mandatory national standard, and belongs to the sale of products that do not meet the national standards for protecting human health and personal and property safety. The court then ruled to dismiss the plaintiff's claim.
Typical
Standardized implementation standards are the key to standardizing the production and operation activities of enterprises from the source. In order to occupy an advantage in market competition and enhance the market competitiveness of themselves and the industry, enterprises often actively formulate enterprise standards, but enterprise standards must not be lower than mandatory national standards first, and the technical requirements stipulated in mandatory national standards are the bottom line requirements that the whole society should comply with. The production and sale of products that do not meet the technical requirements of mandatory national standards constitutes the illegal act of "producing or selling products that do not meet the national standards for protecting human health and personal and property safety", and shall be punished in accordance with law. The typical significance of this case is to standardize the formulation and implementation of enterprise standards, further clarify that enterprise standards should first meet the relevant technical requirements of national mandatory standards, encourage the formulation of enterprise standards that are higher than national mandatory standards, and fully protect the personal and property safety of the people.
5． The plaintiff, a branch of a property insurance company limited by another, sued the defendant, a municipal social insurance business center, a municipal people's government, and a third party, Yang, for social security audit and administrative reconsideration
Basic facts of the case
On September 16, 2020, the defendant, a municipal social insurance business center, received a complaint from a third party, Yang, that the social insurance premiums paid by a branch of a property insurance company of the plaintiff were incorrect. On November 26, 2020, the defendant issued an Opinion on the Audit of Social Insurance Premiums, ordering the plaintiff to increase the third party's monthly payment base from May 2010 to December 2019. After the plaintiff appealed to this, the defendant replied that the plaintiff's company's salary payment consisted of two parts: "wages" and "business expenses", of which the "wages" part contained "heating costs" and "high temperature fees", and "business expenses" consisted of performance wages. The social security contributions involved in the case can be deducted from the "heating fee" and "high temperature fee", and the other parts should be used as the payment base, so the appeal is rejected. Dissatisfied, the plaintiff applied to the defendant municipal people's government for administrative reconsideration, and the defendant municipal people's government upheld the above-mentioned "Opinion on The Audit of Social Insurance Premiums". The plaintiff filed an administrative lawsuit for this, and claimed that "annual extended sunshine welfare" and "assessment of sunshine welfare" belonged to employee welfare expenses, and "employee performance wages", "sales promotion incentives" and "value promotion awards" belonged to business expenses, and held that these five items should be deducted in the calculation of the payment base.
The result of the referee
The effective judgment of the court held that the "Notice on Issues Concerning the Regulation of the Social Insurance Payment Base" issued by the Social Insurance Business Management Center of the former Ministry of Labor and Social Security [2006] No. 60 stipulates that all items that are not clearly stipulated in the relevant documents of the National Bureau of Statistics that are not used as wage income statistics should be used as the social insurance payment base. Article 4 of the circular lists the specific contents of "items that are not included in the payment base". Accordingly, whether it is a welfare fee for employees that is not included in the social security contribution base should be judged in strict accordance with the items specified in the above-mentioned notice, and cannot be based on whether the word "welfare" is included in the distribution project. The plaintiff failed to submit evidence to prove that the "annual extended sunshine welfare" and "assessment sunshine welfare" belonged to the employee welfare fees that met the provisions of the aforementioned notice, "employee performance wages", "sales promotion incentives" and "value promotion awards" were business expenses, and according to the above notice, the "bonuses", "allowances" and "subsidies" issued by the employer were also calculated as total wages. Therefore, the plaintiff's claim that the above-mentioned amount should be deducted from the payment base cannot be established, so the judgment rejects the plaintiff's claim.
Typical
The social insurance premium payment base is directly related to the social insurance treatment of workers. According to the relevant laws and regulations of the mainland, the base of social insurance premium contributions is determined according to the wage income of employees. According to the relevant regulations, the employee welfare fee paid by the unit to the individual worker does not belong to the scope of wage income and is not included in the social insurance premium payment base. Therefore, whether the relevant payment paid by the unit to the employee can be recognized as the employee welfare fee will have an important impact on the social security treatment of the employee, and the identification standard should strictly implement the provisions of the Labor Social Insurance Center Letter [2006] No. 60 Notice, and cannot be expanded arbitrarily. The typical significance of this case is that it not only gives legal support to the legal compliance audit work of the social security department, but also reminds the employers to do a good job in the social security accounting of employees in accordance with laws and regulations, and effectively protects the social insurance rights and interests enjoyed by employees in accordance with the law.
6． The plaintiff, a building materials development company, sued the defendant, a district natural resources bureau, a third party, Yan X, and a construction group co., LTD
Basic facts of the case
There was a construction project construction contract relationship between the plaintiff, a building materials company, as the contractor, and a third party, a construction group co., LTD., as the contract issuer, and the two parties entered into an agreement stipulating that the house involved in the case would cover part of the amount owed to a building materials company. On January 18, 2016, a real estate development enterprise that involved in the housing involved in the case, and a third party, Yan X (the actual builder of some projects, the plaintiff's then manager signed a housing payment agreement with him) signed a pre-sale contract for commercial housing for the real estate involved in the case and jointly applied to a district natural resources bureau for the registration of real estate for Yan. On December 12, 2018, the plaintiff sued a construction group co., LTD. and a certain development company to the court, requesting the court to confirm the legal validity of the signed roof payment agreement, ordering the above two entities to deliver the house to them, and assisting in filing registration and property rights transfer and other related procedures. On May 7, 2020, the court rendered an effective judgment rejecting its claims. On October 5, 2020, the plaintiff filed an administrative lawsuit to revoke the real estate registration made by the defendant's district natural resources bureau on July 10, 2017 for the third party, Yan Mou.
The result of the referee
The effective judgment of the court held that the focus of the case was whether the plaintiff's lawsuit in this case exceeded the time limit for filing the lawsuit. The period of prosecution is not a constant period, and the relevant system on the suspension and interruption of the limitation period is applicable to it. With regard to the interruption of the time limit for filing a lawsuit, the Administrative Procedure Law of the People's Republic of China does not provide for it, and reference may be made to the provisions on the application of civil law norms. Although the plaintiff in this case had already learned of the fact that the house involved in the case was sold to a third party, Yan Mou, during the trial of the relevant civil case, he subsequently filed a lawsuit in other related civil cases, and it was not until May 7, 2020 that the civil case made an effective judgment, so that the plaintiff could determine whether his claim to obtain the ownership of the house involved in the case could finally be supported, and then determine whether it was necessary to file an administrative lawsuit, so it was a statutory reason for the interruption of the litigation period. Therefore, the court of first instance held that the plaintiff's lawsuit had exceeded the statutory time limit for filing a lawsuit, and the court of second instance corrected it.
Typical
The reason why the system of litigation time limit is set up in administrative litigation is to urge counterparts to exercise their rights in a timely manner, maintain the public determination of administrative acts and the stability of rights and obligations, but it is necessary to be cautious in judging whether the time limit for litigation is exceeded, and to seek the best value balance between ensuring the right to sue and the stable management order. In this case, if we look at it simply from the time node, the plaintiff has exceeded the statutory one-year litigation period when it files an administrative lawsuit, but in fact the plaintiff is in civil remedies, and only after the relevant civil judgment takes effect can the plaintiff clarify whether it is necessary to file an administrative lawsuit. Therefore, it is more fair and reasonable for the plaintiff to recalculate the time limit for filing an administrative lawsuit in this case from this time. The typical significance of this case is that it provides guidance and reference for correctly understanding and grasping the time limit system for administrative litigation, and actively responds to the concerns of all sectors of society about increasing the protection of administrative litigation rights.
7． The plaintiff, a flower company in Qingdao, and Hei, sued the defendant, a municipal people's government, in a case of administrative compensation for requisition and relocation
Basic facts of the case
The plaintiff, Mr. Hei, had 5 acres of land in a village of a street office in a certain city, and 8 houses were built on it, which were leased to a flower company in Qingdao for use. Later, due to the needs of major project construction, the land involved in the case was included in the scope of relocation, and the municipal people's government was the relocation person, and the unit implementing the relocation was a street office and the village committee where the house was located. On August 26, 2015, the plaintiff, Mr. Hei, signed the Monetary Compensation Agreement for Housing Relocation with a street office, in which it promised not to claim other compensation payments and compensation costs in any other name for the relocation. On September 23, 2017, the plaintiff, a flower company in Qingdao, signed a "Compensation Agreement for Attachments on the Ground" with a villagers' committee of a street office, stating that the village committee would not pay any other amounts. Both plaintiffs confirmed that the above-mentioned agreement had been fulfilled and that the relevant funds had been actually received. After the second plaintiff submitted a request to the defendant's municipal people's government for a business subsidy, the defendant did not reply, and the plaintiff filed an administrative lawsuit.
The result of the referee
The effective judgment of the court held that the relocators of the houses involved in the case were a municipal people's government, and the unit implementing the relocation was a street office and the village committee where the house was located. The plaintiff, Mr. Hei, signed a compensation agreement with a street office on the basis of equal consultation on the house involved in the case, and the plaintiff, a flower company, also signed a compensation agreement with the village committee on the trees and ancillary facilities planted by its company, all of which are legal and valid, are legally binding on the parties to the agreement, should be complied with, and the agreement has been actually performed, and there is no violation of the law or revocable. Therefore, the second plaintiff once again put forward the claim for operating subsidies, which had no factual and legal basis, so the judgment rejected the litigation claims of the two plaintiffs.
Typical
The compensation agreement for land and housing expropriation is a typical administrative agreement stipulated in the Administrative Procedure Law, which has the dual attributes of "administrative" and "consensual". Among them, "consensuality" is mainly reflected in the need for the two parties to reach a consensus to sign, which is the true intention of both parties, and is binding on both parties on the premise that there is no invalid situation such as violation of legal prohibitions. Where the subject of compensation explicitly does not require other compensation benefits in the agreement, and then submits a claim again, the people's court shall, based on the provisions of the Contract Law and the principle of good faith, find that the claim has no factual and legal basis and will not support it. The typical significance of this case is that it clarifies that the people's courts may refer to the relevant provisions and principles of civil legal norms on civil contracts when determining the validity of administrative agreements, and also suggests that the parties to administrative agreements should abide by the contract and keep their promises in accordance with the law.
8． The plaintiff, a mirror industry company in Qingdao, sued the defendant, a district comprehensive administrative law enforcement bureau of Qingdao City, in an administrative compulsory demolition case
Basic facts of the case
In the course of law enforcement, the Comprehensive Administrative Law Enforcement Bureau of a certain district found that there were many houses built in a certain place in the district, and after correspondence with the district planning bureau, it was confirmed that there was no planning approval information for relevant buildings (structures) in the plot since January 1, 1993. Zheng Mou, the legal representative of a mirror industry company involved in the construction unit involved in the case, said when questioned that except for one house in the plot that was a temporary building approved in 1998, no other planning approval procedures had been completed. For the temporary buildings mentioned by Zheng, the temporary construction procedures for planning approval were not submitted. After that, the bureau successively issued the "Notice of Order for Demolition within a Specified Period", "Decision on Demolition within a Specified Period", and "Reminder of Compulsory Demolition", but the company did not file an administrative reconsideration or administrative lawsuit within the statutory time limit, nor did it dismantle itself, and the comprehensive administrative law enforcement bureau demolished the building involved in the case after making the "Compulsory Demolition Decision". The "Decision on Compulsory Demolition" was confirmed by the first instance and retrial. A mirror company also filed an administrative lawsuit on the grounds that the district's comprehensive administrative law enforcement bureau had violated the law in forced demolition.
The result of the referee
The effective judgment of the court held that before the administrative organ in this case forcibly demolished the illegal building, the "Decision on Demolition within a Time Limit" that had taken effect determined that the building involved in the case was an illegal building, and a mirror company did not apply for administrative reconsideration or file an administrative lawsuit against the "Decision on Demolition within a Time Limit", so it had entered the administrative compulsory enforcement procedure after the Comprehensive Administrative Law Enforcement Bureau made the "Decision on Compulsory Demolition". The bureau shall carry out forced demolition in accordance with the relevant procedural provisions of the Administrative Compulsory Enforcement Law of the People's Republic of China on compulsory enforcement, and shall follow the principle of proportionality, such as inventory and registration of legal property in demolished illegal buildings, proper storage and transfer, etc. However, in the course of the execution of this case, the bureau did not count the items on the spot, nor did it make a list of items, which was a procedural violation, so the judgment confirmed that the administrative compulsory demolition act involved in the case was illegal.
Typical
In administrative law enforcement practice, there are differences of opinion on the nature of forced demolition of illegal buildings, between administrative compulsory measures and administrative compulsory enforcement. According to the Administrative Compulsory Law of the People's Republic of China, the forced demolition of illegal buildings is administrative compulsory enforcement in the nature of the law, and its basic legal act is the decision to demolish illegal buildings. If the administrative counterpart believes that the house is not illegally built, it shall actively exercise its rights and apply for administrative reconsideration or initiate an administrative lawsuit against the decision to demolish within a time limit. People's courts reviewing such cases shall distinguish between "basic acts" and "enforcement acts" in the process of administrative compulsory demolition, and review the acts in accordance with relevant provisions to make elements such as subjects, authority, and procedures. In addition, in the process of forced demolition, attention should be paid to following the principle of proportionality, while achieving the goal of demolishing illegal buildings, and protecting the legitimate property rights of the parties. The typical significance of this case is to determine the nature of the administrative compulsory demolition of illegal buildings, solve the confusion in law enforcement practice, and clarify the basis of the code of conduct on this basis.
9． Plaintiff Mou X sued defendant, a municipal administrative examination and approval service bureau, and a third party, Chen X, in a case of cancellation of the company's administrative registration
Basic facts of the case
A certain production company in Qingdao was registered by the shareholders Chen xxx and Mou xxx to the industry and commerce department and obtained the company's business license, and Chen xx was appointed as the legal representative. Later, Mr. Wan claimed to be entrusted by the company to submit relevant materials to a municipal administrative examination and approval service bureau to apply for cancellation of the company, and the bureau applied the simplified cancellation procedure to cancel it. Later, the plaintiff, Mou XX, received the court's ruling and added him and Mr. Chen as the executors of the enforcement case on the grounds that "the two shareholders applied for cancellation of the company's industrial and commercial registration on the grounds that the company had not incurred creditor's rights and debts, and applied for the cancellation of the company's industrial and commercial registration in order to apply for summary cancellation, resulting in the company being unable to liquidate, and they should bear the promised legal liability". Mou unsuccessfully raised an objection to a municipal administrative examination and approval service bureau, so he filed an administrative lawsuit. It was also found that when applying for the deregistration of the company, the legal representative, Mr. Chen, was serving a prison sentence.
The result of the referee
The effective judgment of the court held that, according to the relevant documents of the "decentralization service" reform, for those that meet the conditions for simplified deregistration, enterprises can independently choose to apply the general cancellation procedure or the simplified cancellation procedure. The enterprise involved in the case chose to apply the simplified deregistration procedure and submitted the formalities, and there is nothing wrong with the administrative organ granting the deregistration in accordance with the principle of formal review. However, according to the facts ascertained during the court's trial, the company's application for cancellation had problems such as unpaid external debts, the legal representative of the enterprise serving his sentence in prison, and doubts about the signature of the shareholders, which did not meet the substantive conditions for applying for enterprise cancellation in accordance with the simplified deregistration procedure. In view of the fact that the people's court has listed Mou as the person subject to enforcement in the relevant case, in order to avoid a conflict between the administrative licensing procedure and the court's enforcement procedure and affect substantive justice, it is not appropriate to revoke the deregistration of the case, so it is confirmed that the act procedure is illegal. The above problems arise because the applicant conceals the relevant circumstances or provides false materials, and if Mou believes that his legitimate rights and interests have been damaged due to the deregistration, he may claim his rights separately in accordance with law.
Typical
With the further advancement of the reform of "decentralization service", simplifying the procedures for enterprise deregistration has become a major trend, making the market easy to enter and easy to get out. However, while facilitating the withdrawal of market entities, attention should also be paid to preventing individual market entities from using simple deregistration to maliciously evade legal liability. Market entities that conceal the true situation or commit fraud in the simplified deregistration shall bear legal responsibility in accordance with law. The typical significance of this case is that when the people's court hears an enterprise deregistration case, in addition to examining whether the enterprise meets the conditions for deregistration and whether the registration organ has fulfilled its review obligations, it also comprehensively considers the realization of enforcement benefits and avoids the idling of relevant procedures, and makes a judgment on the deregistration of the case from the perspective of substantive justice, which provides a reference for the trial of similar cases.
10． The plaintiff, Qingdao Group Co., Ltd., sued the defendant, a municipal people's government, in an administrative agreement on investment promotion
Basic facts of the case
In August 2009, a Qingdao Group Co., Ltd. signed an investment promotion agreement with a municipal people's government, agreeing to provide 1,200 mu of project land, build an industrial park with an investment intensity of 2.4 billion yuan, and stipulate the development and utilization of land. A Qingdao group co., LTD. has built a number of buildings in accordance with the agreement, and due to the change of land planning, a municipal people's government cannot perform the relevant contents of the agreement. Later, the two parties reached a mediation agreement, but due to a dispute over the understanding of the content of the mediation agreement, the agreement could not be fulfilled. In June 2020, a Qingdao Group Co., Ltd. filed an administrative lawsuit with the Qingdao Intermediate People's Court, requesting that a municipal people's government be ordered to handle the relevant property rights certificates, complete the construction project procedures, and pay a reward of 33.08 million yuan and liquidated damages4. 500 million yuan and compensation for economic losses.
The result of the referee
The Qingdao Intermediate People's Court has held three hearings, comprehensively and deeply examined more than a dozen contentious issues, and actively organized the parties to settle. In the course of the trial of the case, the leader in charge of a municipal people's government appeared in court to respond to the lawsuit and actively spoke out, leading the formulation of a settlement plan, the main responsible person of a municipal people's government took the lead in studying key nodes and actively participating in the peace talks, and the people's court guided the two parties to carry out dozens of rounds of negotiations, and finally promoted the two sides to conclude a settlement agreement on the performance of the investment promotion agreement. A group applied to withdraw the lawsuit and continued to invest and build in the local area, and the dispute that lasted for 11 years was substantively resolved.
Typical
This case is a typical case of a dispute over an investment promotion agreement, and "one judgment" is likely to cause a lose-lose situation in which enterprises relocate and government compensation, which will have a negative impact on the local business environment. People's courts persist in combining lawful review with diversified dispute resolution, giving full play to the role of trials in clarifying legal relationships, and guiding both parties to the dispute to form prejudgments on their respective strengths and weaknesses. On this basis, we have given full play to the role of the system of responsible persons of administrative organs appearing in court to respond to lawsuits, and promoted the principal responsible persons of the government to appear in court, take the lead in research plans, and promote peace talks at the top, thus achieving a good effect of coming out of the court and coming out of the government. The substantive resolution of the dispute in this case has played a positive role in stabilizing the investment confidence of enterprises and optimizing the business environment under the rule of law, and has exemplary significance for the people's courts to resolve major disputes over investment promotion agreements.