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1. Zhao X v. Licheng District People's Government of Jinan City, Shandong Province, for Failure to Perform the Compensation Agreement for Demolition and Resettlement
2. Wang xxx and Chen xx v. Liangzhu Street Office, Yuhang District, Hangzhou City, Zhejiang Province, for changing the agreement on compensation and resettlement for demolition and relocation
3. Wang x v. Huaining County Land and Resources Bureau of Anhui Province in the case of administrative transfer of land management
4. A certain industry and trade limited liability company in Fenggang County sued the People's Government of Fenggang County, Guizhou Province, for revocation of the compensation and resettlement agreement
5. An international limited company and a hubei expressway company sued the people's government of Jingzhou Municipality, Hubei Province, and the hubei provincial people's government for the termination of the concession agreement and administrative reconsideration
6. A parking management limited liability company v. Beijing Mentougou District Urban Management Committee administrative agreement termination notice case
7. A real estate development company in Zhongshan City sued the Natural Resources Bureau of Zhongshan City, Guangdong Province, for the termination of the administrative agreement
8. Ning X v. Housing Expropriation Compensation and Resettlement Agreement of the Housing and Urban-Rural Development Bureau of Anding District, Dingxi City, Gansu Province
9. Mr. Han v. Housing Expropriation Office on State-owned Land in Songshan New District, Jinzhou City, Liaoning Province, for failure to perform the pre-expropriation administrative agreement
10. A Commercial and Trading Company in Chengdu v. Wenjiang District Planning and Natural Resources Bureau of Chengdu City, Sichuan Province
1. Zhao X v. Licheng District People's Government of Jinan City, Shandong Province, for Failure to Perform the Compensation Agreement for Demolition and Resettlement
Basic facts of the case
The People's Government of Licheng District of Jinan City, Shandong Province (hereinafter referred to as the Licheng District Government) established the Xueshan Area Headquarters to be responsible for the integrated resettlement housing project of four villages in the Xueshan Area. In October 2015, the Xueshan Area Headquarters and Zhao Moumou entered into a demolition and resettlement compensation agreement, which stated that Zhao Moumou's family had a total of two people, and the total room selection area was 94 square meters. After the agreement was concluded, Mr. Zhao handed over the house involved in the case for demolition. In July 2017, the Xueshan Area Headquarters notified Zhao to change the agreement. The Licheng District Government believes that when Zhao moumou concealed the fact that he had already enjoyed the demolition and resettlement housing in the integration of villages in the surrounding area of Jigang when signing the agreement, the resettlement house had the nature of welfare sub-housing, and according to article 9 of the "Measures for Demolition and Resettlement in the Xueshan Area" on "the demolished person has already enjoyed welfare sub-housing and will no longer be resettled", this resettlement is a duplicate resettlement, and it is decided that Zhao's family will no longer be resettled according to the agreement. Zhao Moumou argued that he had never enjoyed the welfare housing treatment, and the demolition and resettlement of housing in other areas was not the scope of welfare housing. Unsatisfied with the Failure of the Licheng District Government to perform the compensation agreement for demolition and resettlement, Mr. Zhao filed an administrative lawsuit requesting confirmation that the compensation agreement for demolition and resettlement was valid, and ordered the Licheng District Government to continue to perform the compensation agreement for demolition and resettlement and deliver 94 square meters of resettlement housing to him.
The result of the referee
The Intermediate People's Court of Jinan City, Shandong Province, held in the first instance that the Licheng District Government had not provided evidence to prove that the demolition and resettlement compensation agreement concluded between the Xueshan Area Headquarters and Zhao Moumou had a legal basis, so the act of the two parties entering into the agreement should be confirmed as invalid. The court of first instance then ruled that the act of entering into a compensation agreement between the Licheng District Government and Mr. Zhao for demolition and resettlement was invalid and rejected Mr. Zhao's litigation claims. Zhao moumou was not satisfied and filed an appeal.
The Shandong Provincial Higher People's Court held in the second instance that when the Licheng District Government concluded the compensation agreement for demolition and resettlement, it conducted a corresponding review of the basic situation and resettlement qualifications of Zhao X's family, and after signing the agreement and demolishing the house involved in the case, it requested to change the agreement on the grounds that Zhao X had cheated and did not conform to the local demolition and relocation policy, but it did not provide sufficient evidence or basis for whether Zhao X's demolition and resettlement house in other areas could be classified as welfare housing, nor did it make a reasonable and legal explanation. Therefore, when the Licheng District Government performed the agreement, it regarded the demolition and resettlement housing involved in the case as a welfare house and did not perform the agreement on the grounds of duplicate resettlement, which was insufficiently justified. Because once the administrative agreement is concluded, it has credibility and established power, and there is no evidence in the Licheng District Government to prove that the demolition and resettlement compensation agreement is material and obviously illegal, or it should be determined to be invalid or revocable according to the legal norms of the contract, the agreement shall be found to be legal and valid, and the Licheng District Government shall fully perform its obligations in accordance with the agreement. The court of second instance then ruled to revoke the first-instance judgment and ordered the Licheng District Government to continue to perform the compensation agreement for demolition and resettlement.
Typical
Honesty and trustworthiness are the basic requirements of administration according to law and an important part of the core values of socialism. When concluding, performing, or modifying administrative agreements, administrative organs must not only follow administrative legal norms, but also follow the general principles of equality and voluntariness, good faith, and performance of responsibilities in accordance with contracts. People's courts cannot simply refer to the traditional rules of evidence in administrative litigation to deny the validity of administrative agreements on the grounds that administrative organs have not provided evidence to prove the legality of administrative agreements. Where a dispute arises as to whether an administrative agreement should be performed, the administrative organ with the obligation to perform shall bear the burden of proof for its non-performance of the obligation. Where an administrative organ does not make a clear definition or agreement on the grounds for non-performance of an administrative agreement at the time of the conclusion of the agreement, and cannot make a lawful and well-founded interpretation after the conclusion of the agreement, and cannot prove that the performance of the agreement might seriously harm the interests of the state or the societal public interest, the people's court shall make an interpretation favorable to the counterparty to the agreement in light of the circumstances of the case and the objective reality. In this case, the conclusion of the compensation agreement for demolition and resettlement was the embodiment of the consensus reached by the parties, and after entering into the agreement and demolishing the house, the Licheng District Government improperly interpreted the performance obligations in accordance with the demolition policy, and did not perform the agreement in accordance with the agreement, causing damage to the legitimate rights and interests of the counterparty to the agreement. In the circumstances where the Licheng District Government fails to provide effective evidence or legal basis to prove that the administrative agreement is invalid or revocable, the people's court finds that the agreement involved in the case is legal and valid and orders it to continue to perform, effectively protecting the legitimate rights and interests of the people, and at the same time highlighting the function of administrative adjudication in supervising administrative organs to keep their promises and administer according to law.
2. Wang xxx and Chen xx v. Liangzhu Street Office, Yuhang District, Hangzhou City, Zhejiang Province, for changing the agreement on compensation and resettlement for demolition and relocation
Basic facts of the case
Liangzhu Street Office of Yuhang District People's Government of Hangzhou City, Zhejiang Province (hereinafter referred to as Liangzhu Street Office) (Party A) and Wang X (Party B) entered into the "Agreement on Compensation and Resettlement of Collectively Owned Land and Houses" (hereinafter referred to as the "Resettlement Agreement"), in which Article 6, Paragraph 1 stipulates that after preliminary review, Party B resettles 6 people (excluding Wang X's son-in-law Chen X), the household can enjoy a resettlement construction area of 480 square meters. After the conclusion of the Resettlement Agreement, Mr. Wang received the compensation for demolition and relocation under the Resettlement Agreement and vacated the house. Chen X is an active military man, currently registered in the military station (Gongshu District, Hangzhou City), Chen X and Wang X's daughter registered for marriage on November 7, 2006, and had two children. In the process of negotiating the compensation and resettlement of the house involved in the case, Wang X's household repeatedly requested That Chen X be used as the resettlement population, but the Liangzhu Street Office refused. Chen xxx and Wang xx sued the court, requesting that the resettlement population determined in the "Resettlement Agreement" be changed from 6 to 7 people, and the resettlement area was increased by 80 square meters.
The result of the referee
The Yuhang District People's Court of Hangzhou City, Zhejiang Province, held in the first instance that the agreement between the Liangzhu Street Office and Wang Mou's household to agree on the resettlement matters after consultation was an expression of the true intention of both parties, and the agreement was legal and valid, and was binding on both parties. Chen xxx is not a person in Wang xx's household, and his household registration is not within the jurisdiction of the jurisdiction, naturally it is not the object of house demolition and resettlement on the land owned by the collective. The court of first instance then ruled to reject the litigation claims of Chen xxx and Wang xx. Mr. Chen was not satisfied and filed an appeal.
The Intermediate People's Court of Hangzhou Municipality, Zhejiang Province, held in the second instance that the house involved in the case needed compensation and resettlement due to the expropriation of the collective land occupied, and the relevant provisions of the Hangzhou Municipal Regulations on Compensation for the Expropriation of Collectively Owned Land and Housing (hereinafter referred to as the "Hangzhou Collective Supplement Regulations") should be applied. Paragraph 2 of Article 20 of the Hangzhou Regulations on Supplementary Compensation stipulates: "Although the family members of the compensated person have an impermanent residence in the urban area of this city, a person who falls under one of the following circumstances may be counted into the resettlement population: (1) a spouse who has been married for more than three years; ..." Although Chen xxx has an impermanent residence in Yuhang District, Hangzhou City, he belongs to the spouse of a compensated person in Wang xx's household who has been married for more than three years, and according to the above provisions of the "Hangzhou Collective Supplement Regulations", it may be counted into the resettlement population. When the Liangzhu Street Office entered into an agreement with Wang X's household, it refused to include Chen X in the resettlement population, which did not conform to the above provisions and also caused obvious unfair consequences, which should be corrected according to law. The court of second instance then ruled to revoke the first-instance judgment, changing the resettlement population identified in Article 6, Paragraph 1 of the Resettlement Agreement to 7 people, and the resettlement area of 480 square meters to 560 square meters accordingly.
Typical
The agreement is the result of an agreement between the parties, and the content of the agreement should conform to the expression of intent of the parties, and neither party can, in principle, compel the other party to accept its expression of intent against its will. Administrative agreements have the characteristics of consensuality, and should also follow the spirit of the above-mentioned laws, strictly limit the application of changes to agreements, and respect the agreement reached between the parties to the agreement and not change them arbitrarily. However, what is different from civil contracts is that the administrative nature of administrative agreements takes precedence over agreements, legality takes precedence over contracts, and administrative agreements should give priority to the principle of legality. When the contractuality and legality of an administrative agreement conflict, that is, the content of the agreement does not conform to the provisions of the law, the people's court shall not recognize the validity of the content. If specific and explicit requirements have been made in the legal provisions on which the administrative agreement is based, and all parties to the agreement should abide by them without room for consultation, and the parties to the agreement request to be modified in accordance with the provisions of law, the people's court may support it in accordance with law. In this case, the Resettlement Agreement did not conform to the Hangzhou Regulations on Collective Supplementation that should be followed when it was concluded, and the compensation treatment of 1 resettlement person was omitted, and the court of second instance ruled to change the Resettlement Agreement in accordance with the statutory standards at the request of the counterparty to the agreement, which could efficiently and fully protect the legitimate rights and interests of the counterparty to the agreement.
3. Wang x v. Huaining County Land and Resources Bureau of Anhui Province in the case of administrative transfer of land management
Basic facts of the case
The Land and Resources Bureau of Huaining County, Anhui Province (hereinafter referred to as the Huaining Land Bureau) issued an auction announcement to auction the state-owned land use rights of the land involved in the case, and Wang successfully bid and concluded a transaction confirmation with the Huaining Land Bureau. Wang delivered the land transfer fee to the Huaining Land Bureau and paid the auction fee to the auction company, and the Huaining Land Bureau also handed over the actual control of the land involved in the case to Wang for construction preparations. In order to develop and operate the plot, Wang set up a project company to start building, completed the exploration design and construction design of the building, and paid the relevant expenses for the design and construction of the building. When Wang requested to conclude a transfer contract and apply for a land use right certificate, he was told that the design and planning indicators of the plot were incomplete, the plot ratio of the plot involved in the case had not been determined, the land transfer contract could not be concluded, and the approval procedures related to construction could not be handled. Wang repeatedly asked the Huaining Land Bureau and the People's Government of Huaining County, Anhui Province, to solve the problem, but it has not been resolved. After that, the high-voltage corridor of the Shankou-Qinglan 220KV transmission and transformation project of Anqing City's key project overwhelmed the plot involved in the case, and the widening of the G206 national highway required the expropriation of the plot involved in the case, resulting in wang's bid for the plot of land could not be realized. Wang mou asked for the implementation of a new solution, but has not been able to implement it, so he sued to confirm that the administrative act of the Huaining Land Bureau was illegal and compensate for the losses.
The result of the referee
The Qianshan Municipal People's Court of Anhui Province held in the first instance that the Huaining Land Bureau had sold and auctioned the land involved in the case that had not determined the important planning conditions of the land plot ratio, which violated Article 38 of the Urban and Rural Planning Law of the People's Republic of China. Based on his trust in the credibility of the government department, Wang paid the land transfer fee and fulfilled his contractual obligations, and was not at fault. Knowing that the plot involved in the case was not planned for the plot of land plot ratio, unable to conclude a land transfer contract, unable to handle land use right certificates, and unable to pass construction approval, the Huaining Land Bureau still concluded an auction transaction confirmation with Wang, collected the land transfer fee paid by Wang, and handed over the land involved in the case to Wang for development preparations, and has not yet completed the approval of planning conditions for Wang, so that Wang's development purpose has not been realized. The court of first instance then ruled to confirm that the Auction of the land plot involved in the case by the Huaining Land Bureau was illegal and compensate Wang for losses. Wang and the Huaining Land Bureau appealed against the verdict. The court of second instance ruled that the auction of the land involved in the case was illegal, and appropriately increased the amount of compensation for losses determined by the first-instance judgment.
Typical
Unlike civil contracts, the procedure for concluding an administrative agreement may have multiple links due to the explicit requirements of the law, and the administrative organ usually needs to make corresponding administrative acts before entering into such an administrative agreement. Correctly handle the relationship between the pre-administrative act and the conclusion of the administrative agreement, especially if the legality of the pre-administrative act directly affects whether the administrative agreement can be concluded, it has a direct impact on the lawful rights and interests of the parties to the agreement. In this case, the conclusion of the agreement involved in the case needs to go through preliminary procedures such as bidding, auction, and confirmation in accordance with the law, and when all the preliminary acts have been completed and an administrative agreement should be concluded, the administrative organ refuses to conclude the pre-administrative acts on the grounds that the previous administrative acts violate the provisions of the law. In response to the administrative organ's above-mentioned claims, the counterparty to the agreement may distinguish between different circumstances to determine its litigation claims: First, if the pre-administrative act is legal or flawed but does not affect the conclusion of the administrative agreement, the counterparty to the agreement may request that the administrative organ be ordered to conclude an administrative agreement in accordance with law. Based on the legality characteristics of an administrative agreement, where the law provides that the conclusion of an administrative agreement is the statutory duty of the administrative organ, the administrative organ cannot refuse to conclude it in accordance with law. Where the counterparty to the agreement requests that an administrative agreement be concluded in accordance with law, the people's court shall support it. The agreement counterparty may request the conclusion of an administrative agreement in accordance with law, which is one of the differences between an administrative agreement and an ordinary civil contract, and can more directly and comprehensively protect the legitimate rights and interests of the agreement counterparty. Second, if the pre-administrative act is not legal and therefore an administrative agreement cannot be concluded according to law, the counterparty to the agreement may request a judgment confirming the illegality of the pre-administrative act and compensating its losses. The counterparty to the agreement may claim administrative compensation from the administrative organ for losses suffered based on reliance on the previous administrative act. In this case, the land involved in the case could not be transferred to the out-of-office according to law because it did not have the statutory conditions, and because the planning of the land involved in the case was subsequently adjusted, the administrative organ could not take remedial measures to make the land involved in the case meet the statutory conditions for the outgoing transfer, so the land transfer agreement involved in the case could not be concluded according to law. Where the counterparty to the agreement requests the conclusion of a land transfer agreement, the people's court cannot support it in accordance with law. However, because the administrative organ has carried out land auction, transaction confirmation, etc., and the counterparty to the agreement has also paid the land transfer fee and invested in the development of the land, that is, the counterparty to the agreement has suffered corresponding losses because the land transfer agreement involved in the case cannot be concluded, and its request to confirm that the pre-auction land is illegal and compensate for the loss, the people's court shall support it in accordance with law.
4. A certain industry and trade limited liability company in Fenggang County sued the People's Government of Fenggang County, Guizhou Province, for revocation of the compensation and resettlement agreement
Basic facts of the case
On March 7, 2001, an industry and trade limited liability company in Fenggang County (hereinafter referred to as an industry and trade company) obtained a state-owned land use certificate for the land involved in the case, built a factory to engage in the production of cement poles, and then stopped production due to poor management. In October 2006, an industrial and trade company and Mr. Zhou entered into a "Letter of Agreement", stipulating that an industrial and trade company would lease the vacant land of the pole factory to Mr. Zhou for use, and the rent would be refunded on a monthly basis. At the same time, it is agreed that when an industrial and trade company needs to use a plant, it should inform Zhou X one decade in advance. In December 2013, an industrial and trade company and Mr. Zhou again entered into the "Letter of Agreement", stipulating the scope of lease and rent. In September 2014, due to the expropriation of houses on the land of an industrial and trade company, the People's Government of Fenggang County, Guizhou Province (hereinafter referred to as the Fenggang County Government) and Mr. Zhou entered into the Agreement on Housing Expropriation and Compensation and Resettlement for the Urban Shantytown Renovation Project in Fenggang County (hereinafter referred to as the "Resettlement Agreement"), and paid the corresponding compensation to Mr. Zhou. An industrial and trade company believed that the houses and structures in the Resettlement Agreement belonged to it, and the Fenggang County Government entered into a Resettlement Agreement with Mr. Zhou and paid compensation for infringement of its property rights, so it filed a lawsuit to request the revocation of the Resettlement Agreement.
The result of the referee
The Intermediate People's Court of Zunyi City, Guizhou Province, held in the first instance that the Fenggang County Government had determined that the houses and structures involved in the case belonged to Mr. Zhou only on the basis of the lease agreement involved in the case and the record of the investigation of Mr. Zhou, and that the conclusion of the "Resettlement Agreement" with Mr. Zhou without notifying the industry and trade company to participate or listen to its stated opinions may cause damage to the legitimate rights and interests of a certain industry and trade company. The court of first instance then ruled to revoke the Resettlement Agreement. Mr. Zhou was not satisfied and filed an appeal.
The Guizhou Provincial Higher People's Court held in the second instance that an industrial and trade company believed that the houses and structures involved in the Resettlement Agreement belonged to it, and that the Fenggang County Government had infringed upon its legitimate rights and interests by entering into a Resettlement Agreement with Mr. Zhou and paying compensation fees to the houses and structures involved in the case, and had the right to file a lawsuit in this case. The housing expropriation department shall conduct an investigation and registration of the ownership of the house within the scope of expropriation, and when investigating and registering, it shall require the expropriated person to provide corresponding evidence in accordance with legal procedures. In this case, Mr. Zhou and an industrial and trade company had different opinions on the ownership of the houses and structures involved in the case, and there were objections to the ownership of the houses and structures involved in the case, and there was no legal and effective evidence to prove that they belonged to Mr. Zhou, the Fenggang County Government directly entered into a "Resettlement Agreement" with Mr. Zhou and lacked factual basis. In addition, according to the principle of due process, the Fenggang County Government, knowing that Mr. Zhou is the lessee and a certain industrial and trade company is the lessor, shall fully listen to the opinions of Mr. Zhou and the industry and trade company on the ownership of the houses and structures involved in the case before concluding the "Resettlement Agreement", and when necessary, guide the two parties to the lease to clarify the ownership of the houses and structures involved in the case before compensating and resettling. The Fenggang County Government directly entered into a "Resettlement Agreement" with Mr. Zhou without notifying an industrial and trade company to participate in and listen to its opinions, which also violated due process. The court of second instance then ruled to reject the appeal and upheld the first-instance judgment.
Typical
Based on the consensual nature of the contract, the contract is only effective against the parties to the contract in principle, and other subjects other than the parties usually cannot claim rights in the contract, which is usually called the principle of relativity of the contract. However, in the case of clear provisions of the law, the principle of relativity of contracts can also be broken. The consensual nature of administrative agreements determines that they should also follow the principle of relativity. However, administrative agreements have both administrative characteristics, public and deterministic force, etc., and the subjects affected by them shall respect and implement them before their validity is denied in accordance with law. When the conclusion of an administrative agreement is a legal form for an administrative organ to perform its statutory duties, the administrative organ may make the administrative agreement it has concluded as a legitimate defense that it has already performed the corresponding statutory duties. Therefore, the system of interested parties in traditional administrative acts can also be applied to administrative agreement litigation in principle. Compared with civil contracts, there are relatively more statutory situations in which administrative agreements break through the principle of contractual relativity. In this case, if an industrial and trade company ignores the existence of the Resettlement Agreement, but instead provides evidence to prove that it has statutory compensation rights and interests, and then claims that the administrative organ should conclude a compensation and resettlement agreement with it or perform the duty of compensation and resettlement, the administrative organ may refuse on the grounds that it has concluded a compensation and resettlement agreement with the statutory expropriated person or has already performed the duty of compensation and resettlement. Before the validity of the Resettlement Agreement was denied, the people's court usually found that the administrative organ's claim was established and did not support the litigation request. Therefore, an industrial and trade company needs to take the initiative to file an administrative lawsuit against the Resettlement Agreement to negate its validity in order to remedy its legitimate rights and interests. Paragraph 2 of Article 5 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases (hereinafter referred to as the Judicial Interpretation on Administrative Agreements) clearly affirms the plaintiff's subject qualifications as the owner of the usufructuary right and the lessee of public housing who have been expropriated for expropriated land, housing and other real estate. Where administrative organs perform their legally prescribed duties by concluding administrative agreements, they shall strictly follow the requirements of legality, ascertain whether they have corresponding statutory duties to the counterparty to the agreement, and stipulate the rights and obligations between the two parties in accordance with law. Where an administrative organ concludes an administrative agreement without ascertaining the relevant facts, thereby causing harm to the lawful rights and interests of subjects other than the counterparty to the agreement, and the interested party requests revocation or partial revocation of the administrative agreement, the people's court shall support it in accordance with law. In this way, administrative agreement disputes can be resolved as a package, reducing the litigation costs of the parties, and avoiding duplicate payments and preventing the improper loss of state-owned assets.
5. An international limited company and a hubei expressway company sued the people's government of Jingzhou Municipality, Hubei Province, and the hubei provincial people's government for the termination of the concession agreement and administrative reconsideration
Basic facts of the case
In April 2008, the People's Government of Jingzhou Municipality, Hubei Province (hereinafter referred to as Jingzhou Municipal Government) and the Transportation Bureau of Jingzhou Municipality of Hubei Province (hereinafter referred to as the Jingzhou Municipal Transportation Bureau) entered into the "Investment Agreement for the Honghu to Jianli Section of the Wuhan-Jianli Expressway" with Party B international co., Ltd. (hereinafter referred to as an international company), and Party A agreed to build-operate-transfer in accordance with BOT (build-operate-transfer) Method (hereinafter referred to as BOT) grants Party B the right to invest and operate in the Honghu to Jianli section of the Wuhan-Jianli Expressway. Party B accepts the authorization and is willing to complete the preliminary work of the project, investment construction, operation and handover work after the expiration of the concession period in accordance with the construction content, plan, base number standard and investment estimate approved by the government department. The concession period is 30 years, calculated from the date of completion of the project construction and the date of acceptance and commissioning into trial operation. In June 2008, an international company established a Hubei Expressway Co., Ltd. (hereinafter referred to as a high-speed company) with which it was a sole shareholder, and then the Jingzhou Municipal Transportation Bureau (Party A) and a high-speed company (Party B) entered into a Concession Agreement, which stipulated in detail the concession period, the rights and obligations of both parties, and the unilateral right of termination. The project involved in the case officially started construction in the second half of 2013, but due to a dispute between a high-speed company and its entrusted construction unit, the project involved in the case has been stalled since July 2015. In November 2015, the Jingzhou Municipal Transportation Bureau issued a Notice of Rectification of Default to a high-speed company, requiring a high-speed company to quickly organize the project funds to be in place and organize the construction unit to fully resume work within 60 days, otherwise it would consider whether to terminate the concession agreement. Since then, the Jingzhou Municipal Government and the Jingzhou Municipal Transportation Bureau have repeatedly asked an international company to organize funds to resume work, and an international company has replied accordingly after receiving the notice, but has not substantively resumed the normal construction of the project. In November 2016, the Jingzhou Municipal Transportation Bureau issued the Notice of Intent to Terminate (Rescind) the Agreement in accordance with Article 77 of the Concession Agreement, notifying a high-speed company to negotiate within 30 days on measures to avoid unilaterally terminating the Concession Agreement. Subsequently, a high-speed company did not reach an agreement with the Jingzhou Municipal Transportation Bureau. In July 2017, the Jingzhou Municipal Transportation Bureau issued the Notice of Termination (Rescission) of the Concession Agreement (hereinafter referred to as the "Notice") after holding a hearing on the proposed termination (rescission) of the Concession Agreement by an international company and a high-speed company and served it. An international company and a high-speed company filed an administrative reconsideration with the Hubei Provincial People's Government (hereinafter referred to as the Hubei Provincial Government) against the Notice, and the Hubei Provincial Government upheld the reconsideration. An international company and a high-speed company appealed to the court, requesting the revocation of the Notice made by the Jingzhou Municipal Government and the decision of the Hubei Provincial Government to uphold the reconsideration.
The result of the referee
The Intermediate People's Court of Wuhan City, Hubei Province, held in the first instance that the agreement involved in the case was an act of exercising administrative power by the Jingzhou Municipal Government in the form of a BOT grant to an international company the right to invest and operate in the Honghu to Jianli section of the project in order to accelerate the construction of expressways in Hubei Province and improve the layout of the highway network. In the process of the conclusion and performance of the administrative agreement, not only shall the administrative organ abide by the statutory authority, not violate the mandatory provisions of laws and regulations, and perform the obligations stipulated in the agreement, but also an international company that is the counterparty to the administrative agreement shall also strictly abide by the statutory and agreed obligations, otherwise the administrative organ shall have the right to exercise the right to terminate the agreement in accordance with the provisions of the law and the agreement. In this case, due to a dispute between a high-speed company and its entrusted construction party, the project involved in the case had not been promoted normally since July 2015, resulting in the inability to achieve the purpose of the agreement, and the conditions for the Jingzhou Municipal Government to exercise the unilateral right of rescission stipulated in the Concession Agreement were fulfilled, and the Notice made by the Jingzhou Municipal Government was in line with the provisions of the law and also in line with the provisions of the Concession Agreement. In addition, in order to properly handle the dispute, the Jingzhou Municipal Government not only gave a period of consultation and rectification in accordance with the agreement, but also gave a high-speed company sufficient statement and defense rights before making the termination agreement and held a hearing as scheduled, making the "Notice" the lawsuit The facts are clear, the evidence is sufficient, and the procedures are appropriate. The court of first instance then rejected the litigation claims of an international company and a high-speed company, but considering that an international company and a high-speed company had made a large amount of investment and construction in the early stage of the construction of the project involved in the case, it was recommended that the Jingzhou Municipal Government properly handle the follow-up audit and compensation matters after the termination of the agreement. An international company and a high-speed company were not satisfied and filed an appeal. The second-instance judgment of the Hubei Provincial Higher People's Court rejected the appeal and upheld the first-instance judgment.
Typical
The government's introduction of social capital to participate in the construction of expressways through the BOT agreement is an inevitable product of the continuous development of the socialist market economy with Chinese characteristics in the new era, and it is also an effective way to give play to government functions, fully release the potential of social capital, and better achieve administrative management and public service goals. Therefore, the nature of a BOT agreement is usually an administrative agreement, and the relevant disputes arising therefrom should be accepted by administrative litigation in accordance with the law. In addition, in this case, the Hubei Provincial Government made a decision to uphold the reconsideration, indicating that the reconsideration organ could also accept the administrative agreement dispute in accordance with the law. When there is a fundamental breach of contract by the counterparty to the agreement, resulting in the inability to achieve the purpose of the agreement, the administrative organ may unilaterally exercise the statutory right of rescission. Because the administrative organ cannot file an administrative agreement lawsuit in its capacity as a plaintiff, the administrative organ usually delivers it to the counterparty to the agreement in the form of a unilateral notice or decision to terminate the administrative agreement in accordance with the law, and the date of service is the time when the administrative agreement is terminated. Where an administrative organ unilaterally terminates an administrative agreement, it shall clarify the legal consequences after the termination of the agreement in the rescission decision, especially where the counterparty to the agreement shall perform the corresponding obligations or bear the corresponding responsibilities in accordance with law. With regard to the legal effect of the rescission of an administrative agreement, reference may be made to the application of the relevant legal norms on civil contracts. In this case, although the counterparty to the agreement was terminated due to its own reasons and should bear the liability for breach of contract according to law, it made a large amount of investment and construction in the early construction, so there is still a possibility that the interests need to be returned as a whole, and the people's court accordingly recommended that the administrative organ properly handle the follow-up audit and compensation matters, which is conducive to the proper resolution of administrative disputes and the protection of the enthusiasm and security of the private sector to participate in public-private cooperation.
6. A parking management limited liability company v. Beijing Mentougou District Urban Management Committee administrative agreement termination notice case
Basic facts of the case
On April 7, 2013, the minutes of the executive meeting of the People's Government of Mentougou District, Beijing, pointed out: "I agree in principle to the "Work Plan for Entrusting Professional Parking Enterprises to Manage Roadside Parking" formulated by the District Municipal Appearance Committee... The meeting requested the District Municipal Appearance Committee to conclude a commission agreement with a professional parking operation enterprise to clarify the content of the entrusted management and the rights and responsibilities of both parties. On April 19 of the same year, the former Beijing Mentougou District Municipal Appearance Management Committee (hereinafter referred to as the former Municipal Appearance Committee) and a parking management limited liability company (hereinafter referred to as a parking company) entered into the Mentougou District Motor Vehicle Parking Entrusted Management Agreement (hereinafter referred to as the Entrusted Management Agreement). The agreement stipulates: "The District Municipal Appearance Committee shall provide the side occupation of mentougou New Town Road, the parking lot of public venues, and the site with government management attributes within the red line of the municipal planning, and entrust it to a parking company for management." Involving the main avenues within the new city with parking spaces, there are more than 3,200 parking spaces for motor vehicles... The entrusted management period for motor vehicle parking in Mentougou District is 10 years, that is, from June 1, 2013 to June 1, 2023. On April 27, 2017, the General Office of the Beijing Municipal People's Government issued the "Beijing Roadside Parking Management Reform Plan" (hereinafter referred to as the Beijing Government Office Zi [2017] No. 20 Document), which stipulates: "Reform the roadside parking management model." Cancel the roadside parking management franchise, and the district government shall adopt the purchase service method, entrust 1 or 2 professional parking management enterprises with scale, strength and standardized operation through bidding, and be responsible for the roadside parking management within the administrative region. On July 25 of the same year, the Beijing Municipal Traffic Congestion Alleviation Work Promotion Group issued the "Implementation Plan for the Reform of Roadside Parking Management in Beijing" and the "Three-Year Work Plan for the Construction of the Beijing Roadside Parking Electronic Toll Collection System" (hereinafter referred to as the Beijing Slow Blocking Letter [2017] No. 3 Document), which stipulates: "In accordance with the requirements of the roadside parking management reform plan, each district shall adopt the method of government procurement of services, and select 1-2 enterprises through bidding and bidding to be responsible for the roadside parking management in the administrative region." And from January 1, 2019, the roadside parking fee began to fully implement the management of revenue and expenditure. "On August 17, 2017, the former District Municipal Appearance Committee issued a Notice to a parking company (hereinafter referred to as the Notice of Litigation), the main content of which is: the entrusted management agreement can no longer be actually performed, so I hereby notify your company that the entrusted management agreement will be terminated on the date of delivery of this notice, and your company is requested to vacate the entrusted management site before August 31, 2017, and go to the original district municipal appearance committee to handle the formalities for the termination of the agreement before August 31, 2017. A parking company appealed to the court, requesting: 1. to revoke the notice of being sued made by the former district municipal appearance committee; 2. to review the legality of the "Guiding Opinions on the Government's Purchase of Roadside Parking Management Services (Trial)" (hereinafter referred to as the Beijing Slow Blockage Office Letter [2017] No. 27) and the Beijing Slow Blocking Letter [2017] No. 3.
The result of the referee
The Mentougou District People's Court of Beijing Municipality held in the first instance that document [2017] No. 27 of the Beijing Municipal Mentougou District People's Court held that document No. 27 had not been issued at the time of the notice of the lawsuit, which did not fall within the scope of review of normative documents, and the court did not review it. Beijing Slow Blocking Letter [2017] No. 3 document belongs to the category of normative documents with review, the provisions on the reform of roadside parking management in the article are in line with the laws, regulations and rules that the urban road management work should meet the requirements of road traffic safety and smoothness, and can also ensure the standardized management of roadside parking, effectively improve the travel environment, especially to meet the needs of the masses for parking spaces to the greatest extent. The entrusted management agreement is premised on the parking management responsibilities enjoyed by the former district municipal appearance committee, with the purpose of implementing administrative management objectives and the management of social and public affairs as the content, which is a government franchise agreement in a typical administrative agreement. The administrative organ is based on a major adjustment of policy, and the cancellation of the government concession agreement is based on the consideration of public interest. The court of first instance then ruled to dismiss a parking company's claim. A parking company was not satisfied and filed an appeal. The second-instance judgment of the Beijing Municipal No. 1 Intermediate People's Court rejected the appeal and upheld the first-instance judgment.
Typical
Administrative organs enjoy the power to unilaterally rescind or modify the agreement in accordance with the law, which is usually called the right of administrative advantage, which is one of the major differences in the form of administrative agreements and civil contracts. But in essence, the spirit of the law followed by the two is no different. Because civil contracts do not have administrative characteristics, it usually does not occur that they are legal and valid at the time of conclusion, and the continued performance will harm the public interest. Even if such a situation arises due to a major change of circumstances, the parties to the civil contract should take the initiative to stop performance. Otherwise, the relevant representative entities of the state shall prevent the contract from continuing to perform in accordance with the original agreement in accordance with law. As far as administrative agreements are concerned, the administrative organ that is a party to the conclusion of the administrative agreement shall assume the statutory duty of actively modifying or terminating the administrative agreement, which is externally manifested as the exercise of administrative advantages. Therefore, the right of administrative superiority has the dual attributes of power and responsibility. In contrast, the legal consequences after the modification or rescission of a contract or agreement based on a change in circumstances are a substantive difference between an administrative agreement and a civil contract. Civil contracts usually do not exist in which one party compensates the other party, but administrative agreements require administrative organs to compensate the agreement counterparty in accordance with the law, which can better protect the legitimate rights and interests of the agreement counterparty, and Article 16 of the Judicial Interpretation on Administrative Agreements also clarifies this. Because the exercise of administrative advantages will directly infringe on the consensuality of administrative agreements, they must be strictly limited to statutory circumstances and comply with statutory requirements. The administrative agreement, when concluded, does not harm the national interest or the public interest, otherwise it is an invalid agreement. However, in the process of performing the administrative agreement, the relevant situation changes, resulting in the continued performance of the administrative agreement, which may seriously damage the national interests or the social public interest, and the parties to the agreement cannot change or negate the situation according to law. In such a case, the administrative organ shall first consider changing the content of the administrative agreement, maintain the legal effect of the administrative agreement as much as possible, and only choose to terminate the administrative agreement if the change cannot achieve its purpose. In this case, in the process of performing the administrative agreement involved in the case, the local public policy on roadside parking management was reformed according to law, and the roadside parking management system, management mode, charging method, etc. were improved, which was conducive to standardizing the roadside parking management behavior, ensuring the safety and orderliness of urban roads, and improving the parking difficulties, but the continued performance of the administrative agreement involved in the case would damage the implementation of the public policy, and changing the content of the administrative agreement could not make it conform to public policy, and the administrative organ unilaterally terminated the administrative agreement accordingly, in line with the law. In addition, the administrative nature of the administrative agreement determines that the administrative organ may conclude and perform the administrative agreement on the basis of relevant normative documents, and if the counterparty to the agreement requests an incidental review of the normative document on which the administrative agreement is based when initiating an administrative agreement lawsuit, the people's court shall conduct a review in accordance with law.
7. A real estate development company in Zhongshan City sued the Natural Resources Bureau of Zhongshan City, Guangdong Province, for the termination of the administrative agreement
Basic facts of the case
On September 30, 2015, the former Land and Resources Bureau of Zhongshan City, Guangdong Province (hereinafter referred to as the former Zhongshan Municipal Land Bureau) determined that the land involved in the case used by a real estate development company in Zhongshan City (hereinafter referred to as a real estate company) was idle land, but it was caused by the government. On July 19, 2016, the former Zhongshan Municipal Land Bureau and a real estate company entered into a "Supplementary Agreement to the Contract for the Transfer of State-owned Land Use Rights" (hereinafter referred to as the "Supplementary Agreement"), stipulating that the date of commencement and development of the land involved in the case was September 30, 2015, and the completion period was 2 years, and also agreed on the standards for the commencement of construction and development. A real estate company argued that the date of commencement of construction and development stipulated in the Supplementary Agreement was earlier than the date of conclusion of the contract, and that the former Zhongshan Municipal Land Bureau had breached the contract and caused the purpose of the contract to be unattainable, so it filed a lawsuit and requested an order to terminate the Supplementary Agreement. In addition, the Office of the Leading Group for the Disposal of Idle Land in Zhongshan City (hereinafter referred to as the Idle Office of Zhongshan City) has agreed that the land involved in the case can go through the formalities of planning and construction and construction permits before September 30, 2016, but the former Zhongshan Municipal Land Bureau did not inform a real estate company in time. A real estate company had applied for a construction project planning permit for two phases of commercial residential projects on the land involved in the case, but the planning management department still issued two notices of non-administrative permit on two occasions, on the grounds that "the project situation is inconsistent with the municipal general regulations".
The result of the referee
The First People's Court of Zhongshan City, Guangdong Province, held in the first instance that the Supplementary Agreement was concluded on July 19, 2016, but agreed that the start of construction and development date was September 30, 2015, the completion period was two years (i.e., September 30, 2017), and at the same time agreed on the progress of the project construction and other restrictive conditions, that is, a real estate company must actually complete the planning and construction permits, excavation of foundation pits, and the entry of all foundation piles on the land involved in the case within more than two months after the conclusion of the agreement. It is clearly counterintuitive that one-third of the foundation construction has been completed and must be completed by 30 September 2017. At the same time, the former Zhongshan Municipal Land Bureau, in the Zhongshan Idle Office, had agreed that the land involved in the case could apply for planning and construction permits before September 30, 2016, and failed to inform a real estate company of the situation in a timely manner, resulting in a real estate company subsequently failing to obtain the planning and construction permit from the planning department and failing to perform the development and construction obligations stipulated in the land transfer contract in a timely manner in accordance with the provisions of the Supplementary Agreement, resulting in the actual purpose of the contract being unrealized, and the Supplementary Agreement meeting the conditions for rescission prescribed by law. However, the rescission of the Supplementary Agreement will not be conducive to the land management department exercising the authority of management and supervision over idle land, nor will it be conducive to the rational allocation and utilization of state-owned land, thus harming the interests of the state, the public interest and the legitimate interests of others. The court of first instance then ruled to reject a real estate company's claims. A real estate company was not satisfied and filed an appeal.
The Intermediate People's Court of Zhongshan City, Guangdong Province, held in the second instance that the court of first instance found that the Supplementary Agreement had actually met the statutory conditions for rescission, had sufficient factual basis and was accurate in characterization. On the question of whether the termination of the Supplementary Agreement will harm the interests of the state, the public interest and the legitimate interests of others, the purpose of the Supplementary Agreement is to end the idle state of the land involved in the case and develop and utilize the land involved in the case as soon as possible, which involves the national interests of land management and social public interests in the efficient, compliant and rational use of land, but due to the fault of the former Zhongshan Municipal Land Bureau, it is obviously impossible to achieve it, and it is no longer in line with the national interests and social public interests for the two parties to continue to be confined to an agreement relationship whose contractual purpose can no longer be realized. On the contrary, confirming the effect of the termination of the Supplementary Agreement involved in the case, so that the parties to the agreement can return to the original point of solving the problem of idle land involved in the case, and avoid the continued idle waste of land resources, so as to be more in line with the national interests and social public interests of land management. The court of second instance then ruled to revoke the first-instance judgment, confirming that the Supplementary Agreement involved in the case was terminated on April 29, 2019 (that is, the date on which the court of first instance served the case complaint and notice of response to the case to the former Zhongshan Municipal Land Bureau).
Typical
Because the administrative agreement has the characteristics of an agreement, the counterparty to the agreement is the same as the parties to the civil contract, and the administrative agreement may be terminated in accordance with law, provided that the statutory conditions are met. However, the conclusion of the administrative agreement is based on the objectives of administrative management or public services, and the termination of the administrative agreement will lead to the inability to achieve the purpose of the establishment, which may harm the public interest or other legitimate rights and interests. Therefore, the administrative characteristics of the administrative agreement determine that the counterparty to the agreement cannot make the effective administrative agreement lose its legal effect through its unilateral acts. Unlike the parties to a civil contract, if the counterparty to the agreement is eligible for statutory rescission, it is usually not possible to terminate the administrative agreement directly by unilaterally notifying the administrative organ, but it is necessary to further seek the statutory remedy path, which is clarified in Article 17 of the Judicial Interpretation of the Administrative Agreement. When hearing cases in which an administrative agreement is terminated, the people's courts shall focus on reviewing whether the administrative agreement meets the statutory requirements for rescission, and whether it causes harm to other lawful rights and interests, especially the societal public interest, after the administrative agreement is terminated. For the determination of statutory conditions for rescission, reference may be made to the application of legal norms on civil contracts. The determination of national interests and societal public interests shall refer to the criteria for determining "national interests and social public interests" in the first paragraph of article 74 of the Administrative Procedure Law, and the interests of administrative organs cannot simply be equated with them. The termination of an administrative agreement will have corresponding legal consequences in accordance with the law, and the time of rescission will have a direct impact on the rights and obligations of the parties to the administrative agreement. Due to the limitation of space, the Judicial Interpretation on Administrative Agreements does not further stipulate the time for the termination of administrative agreements. This case has made a useful exploration of this, that is, with reference to the legal spirit of the civil contract to terminate the lawsuit, it is determined that the court of first instance will terminate the lawsuit on the date when it serves the complaint and the notice of response to the lawsuit to the administrative organ.
8. Ning X v. Housing Expropriation Compensation and Resettlement Agreement of the Housing and Urban-Rural Development Bureau of Anding District, Dingxi City, Gansu Province
Basic facts of the case
In October 2013, the Fengxiang Town Expropriation Office (Party A) under the Housing and Urban-Rural Development Bureau of Anding District, Dingxi City, Gansu Province (hereinafter referred to as the Anding District Housing and Urban-Rural Development Bureau) and the expropriated person Ning X (Party B) entered into the "Housing Expropriation Compensation and Resettlement Agreement" (hereinafter referred to as the "Compensation and Resettlement Agreement"), stipulating that Party A would provide Party B with six houses (to be built) as resettlement compensation, and if Party B could not vacate and deliver the expropriated house according to the time limit stipulated in the agreement, Party A shall bear a liquidated damages of 1,000 yuan to Party A for each overdue day The property rights exchange house shall be delivered within 10 days after the completion and acceptance, the construction period shall not exceed 15 months from the date of construction (the number of effective construction days), if Party A cannot deliver the property rights exchange house according to the time limit agreed in the agreement, Party A shall bear a liquidated damages of 1,000 yuan to Party B for each overdue day. In November 2013, Mr. Ning handed over the expropriated house to the expropriation department. A real estate development company in Dingxi is the construction unit of the above-mentioned resettlement housing, and delivered two houses to Ning in July 2015 and October 2016 respectively, and the remaining four houses have not been delivered. Mr. Ning then filed a lawsuit, requesting that the Anding District Housing and Urban-Rural Development Bureau be ordered to immediately deliver the four houses stipulated in the Compensation and Resettlement Agreement; if the above four houses could not be delivered immediately after the judgment took effect, it would be compensated at the market price, and bear the liquidated damages calculated from 1,000 yuan per day from February 9, 2015 to the date of actual delivery of the house.
The result of the referee
The Lanzhou Railway Transport Court held in the first instance that the Compensation and Resettlement Agreement is legal and valid, and both parties should fully perform it. The Housing and Urban-Rural Development Bureau of Anding District failed to deliver the resettlement house to Mr. Ning on time in accordance with the agreement, and shall bear the liability for breach of contract. The liquidated damages clause of the Compensation and Resettlement Agreement is unclear, and the agreed liquidated damages are significantly higher than the actual losses of Mr. Ning, which shall be calculated based on the actual losses, that is, the income that can be generated by the resettlement of the house. The court of first instance then ruled: First, the Anding District Housing and Urban-Rural Development Bureau shall deliver to Mr. Ning within 30 days after the judgment takes effect three houses that have been completed (specifically omitted), and for the houses that have not yet been completed, the Anding District Housing and Urban-Rural Development Bureau will replace them with houses of the same location and the same area, and the difference in price shall be implemented in accordance with the Compensation and Resettlement Agreement. 2. The Housing and Urban-Rural Development Bureau of Anding District shall pay a liquidated damages of 21,000 yuan to Mr. Ning within 30 days after the judgment takes effect. Mr. Ning was not satisfied and filed an appeal.
The Lanzhou Railway Transport Intermediate Court held in the second instance that, according to the relevant contents of the Compensation and Resettlement Agreement and the application submitted by Ning X when the two parties handed over the first house, the six resettlement houses belonged to different buildings in two residential communities, and the construction period and delivery period were calculated on the date of construction of each building, which was in line with the scope and true meaning of the parties at the time of conclusion of the agreement, and Ning X's claim that six sets of resettlement houses were delivered at one time could not be established. Regarding the determination of the amount of liquidated damages, the "Compensation and Resettlement Agreement" stipulates that the delivery of property rights to exchange houses shall bear a liquidated damages of 1,000 yuan to Mr. Ning for each overdue day. The liquidated damages of the agreement are obviously too high and may be adjusted in accordance with law. The adjustment of liquidated damages should be based on actual losses, taking into account the performance of the contract, the degree of fault of the parties and the expected benefits, and other comprehensive factors, and be measured according to the principles of fairness and good faith. In this case, the price of the house in the area where the house is located showed an upward trend, and the delay in delivery did not have the price loss caused by the loss of trading opportunities. Calculating losses based on housing rental income is more objective and reasonable. Regarding the loss of rental income from the delay in delivery of the house, it is necessary to consider not only the rent level of the area where the house is located, but also the cost factors such as the need for the lessor to renovate the investment to reach the corresponding rent level, but also consider the punishment function of moderately reflecting the liquidated damages, combined with the rent level of the area where the house is located stated by the two parties in the trial, and determine the calculation of the liquidated damages based on the loss of rental income of 10 yuan per square meter per month. The court of second instance then rendered a judgment: 1. Revoke items 1 and 2 of the first instance judgment. 2. The Housing and Construction Bureau of Anding District delivered the remaining four houses to Ning. The completion of the three houses is limited to 10 days after the judgment, and the unfinished house is limited to the performance before October 31, 2020. 3. The Housing and Urban-Rural Development Bureau of Anding District paid a liquidated damages of 84,993 yuan to Mr. Ning (see the list for details of the calculation), which is limited to performance within 10 days after the judgment. 4. From December 31, 2019, the Housing and Urban-Rural Development Bureau of Anding District shall pay a monthly liquidated damages of 1,006 yuan to Mr. Ning, which will be paid before the end of the month, until the actual delivery date of the unfinished house within the performance period determined by the judgment (if the actual delivery date is less than one month, it shall be paid in January).
Typical
In the course of performing an administrative agreement, if the parties to the agreement dispute the content of the agreement, there may be two types of situations: first, the agreement is clear, but there are differences in understanding between the parties; second, the agreement is not clear, and the parties cannot reach an agreement afterwards. Based on the dual nature of administrative and agreement nature of an administrative agreement, where a dispute arises between the parties to the agreement over their understanding of the content of the agreement, it shall be determined in accordance with the order of administration first and agreement later. Where a valid normative document has made clear provisions on the content of the dispute, the meaning of the content of the dispute shall be determined in accordance with that provision; and if the content of the valid normative document is not clearly stipulated and falls within the scope of the agreement's agreement, the meaning of the disputed content may be determined by reference to the legal rules on the interpretation of the expression of intent in the legal norms of civil contracts, that is, in accordance with the words and phrases used in the agreement, combined with the relevant provisions, the purpose of the agreement, the customs, and the principle of good faith. If the meaning of the content of the dispute cannot be determined according to the above methods, it is a situation where the agreement is unclear, and the parties to the agreement may reach a supplementary agreement, and if a supplementary agreement cannot be reached, the meaning of the content of the dispute may be determined by reference to the legal rules of the civil contract legal norms on the performance when the contract agreement is unclear. In this case, when the parties to the agreement disputed whether the agreed matters were whether the six houses exchanged for property rights were delivered in one lump sum, the people's court found that Mr. Ning had expected and knew that the non-one-time delivery of the property rights exchange house was expected and known at the time of the conclusion of the agreement, and calculated the liability for breach of contract borne by the administrative organ on this basis. Where administrative organs do not perform the obligations stipulated in the administrative agreement in accordance with the law and cause losses to the lawful rights and interests of the counterparty to the agreement, they shall bear administrative compensation liability from the administrative perspective, and shall bear the liability for breach of contract from the agreed perspective. However, no matter what the point of view, the spirit of the law followed by the two is no different, that is, the losses suffered by the counterparty to the agreement should be compensated. Among them, losses include the loss of benefits that have already occurred and the benefits that can be obtained but have not been obtained according to law after the performance of the agreement, which is also clarified by the Civil Code and the newly revised judicial interpretation of administrative compensation. Where the liquidated damages stipulated in the agreement are lower or excessively higher than the losses caused, and the parties request that the adjustment be made in accordance with the standard of losses, the people's court may support them in accordance with law. In this case, the people's court found that the agreed standard for calculating liquidated damages clearly exceeded the losses caused to the counterparty to the agreement, and in accordance with the principle of loss compensation, it was determined that the rental income of the house was the calculation standard, which was more in line with the legal spirit of liability for breach of contract or administrative compensation liability.
9. Mr. Han v. Housing Expropriation Office on State-owned Land in Songshan New District, Jinzhou City, Liaoning Province, for failure to perform the pre-expropriation administrative agreement
Basic facts of the case
The Housing Expropriation Office on State-owned Land in Songshan New District, Jinzhou City, Liaoning Province (hereinafter referred to as the Songshan Expropriation Office) issued the "Draft Implementation Plan for housing expropriation compensation around the CPPCC", which clarifies that the lot adopts the appointment-based expropriation method, the expropriator and the expropriated person enter into an appointment-based compensation agreement with effective conditions, and the pre-signing ratio reaches more than 70% within the specified time, and the housing expropriation compensation and resettlement agreement concluded takes effect, and the lot is officially expropriated. Mr. Han and the Songshan Expropriation Office entered into the "Pre-signing Agreement for the Exchange and Resettlement of Housing Property Rights on State-owned Land" (hereinafter referred to as the "Pre-signing Agreement"), which stipulated the relocation fee, temporary resettlement fee, appurtenance compensation, etc., and agreed to resettle the relocated residence, and the seventh item of the agreement stipulates that "this agreement shall take effect when the pre-signing reaches _%". After the conclusion of the Pre-signing Agreement, the lot was not expropriated because the 70% signing conditions were not met. Mr. Han filed a lawsuit in this case, requesting the Matsuyama Expropriation Office to perform the Pre-signing Agreement and compensate him for various economic losses.
The result of the referee
The Taihe District People's Court of Jinzhou City, Liaoning Province, held in the first instance that Article 17 of the Measures for the Expropriation and Compensation of Houses on State-Owned Land in Jinzhou City stipulates that if a house needs to be expropriated due to the reconstruction of an old urban area, the competent department for housing expropriation may organize the expropriated person to conclude a compensation agreement with effective conditions in advance based on the results of the pre-assessment and the compensation plan for expropriation. Municipal and district people's governments may decide whether to make a decision on housing expropriation based on the proportion of pre-signed agreements. The proportion of pre-signed agreements shall be determined by the municipal and district people's governments. The "Pre-signing Agreement" concluded by Mr. Han and the Songshan Expropriation Office is an agreement with effective conditions, although the content of the agreement does not stipulate the pre-signing ratio, but in the "CppcC Peripheral Housing Expropriation Compensation Implementation Plan For Comments" clarifies that the signing ratio should reach 70%, because the conditions have not been fulfilled, the "Pre-signing Agreement" has not taken effect. The court of first instance then ruled to dismiss the claim. Mr. Han was not satisfied and filed an appeal.
The Intermediate People's Court of Jinzhou City, Liaoning Province, held in the second instance that the "Implementation Plan for Compensation for Housing Expropriation Around the CPPCC" issued by the Management Committee of Songshan New District of Jinzhou City, Liaoning Province, clarified that the lot adopted the method of reservation expropriation, and the plan was issued in the form of an announcement, which has legal effect on all expropriated persons. The proportion of the pre-signed agreement for housing expropriation compensation has been determined to be 70%, which can be used as the basis for the compensation agreement in dispute in this case. It was found that the actual signing rate of pre-signed agreements should be 25.4 per cent. Therefore, the pre-signing agreement did not reach 70% of the pre-signing ratio within the prescribed time period, and the agreement did not enter into force. The court of second instance then ruled to reject the appeal and upheld the first-instance judgment.
Typical
In order to better achieve the objectives of administrative management or public services, the parties to an administrative agreement may stipulate the conditions for the entry into force of the administrative agreement, provided that they do not conflict with the provisions of the law. For example, the agreements concluded by the administrative organs and the owners and users of the land to be expropriated on compensation, resettlement, etc. as stipulated in the newly revised Land Administration Law are typical administrative agreements with effective conditions. The agreement on compensation for the expropriation of houses on state-owned land involved in this case also falls under such administrative agreements. In practice, where an agreement counterparty initiates an administrative lawsuit against an administrative agreement whose effective conditions have not yet been established, there are different views on how the people's courts should handle it: first, it is decided to dismiss the lawsuit on the ground that the administrative agreement has not yet had an actual impact on the rights and obligations of the agreement counterpart; second, when it is determined that the effective conditions are not established in accordance with law, the people's court should rule to reject the litigation claim. Since whether the effective conditions are established requires substantive review, and the litigation claims raised by the counterparty to the agreement may not directly involve whether the effective conditions are established, the people's court may accept it in accordance with the law and may determine the points in advance to stop the dispute and obtain better adjudication results, so this case adopts the second view. The parties to the agreement may negotiate and agree on the conditions for entry into force, which may be expressly or implicitly embodied in the administrative agreement. In this case, although the effective conditions were not directly and explicitly written into the compensation agreement, since the compensation plan clearly stipulates the effective conditions, and it is the main basis for concluding the compensation agreement, it can be presumed that the parties to the agreement know and recognize the effective conditions of the compensation agreement stipulated in the compensation plan. In such cases, the people's court shall focus on examining whether the agreed effective conditions violate the provisions of the law, whether the effective conditions are established, and whether there are reasons attributable to the parties to the agreement for failing to establish the effective conditions. Where an administrative agreement is not effective because it does not have the conditions to take effect, and the parties to the agreement request to perform the rights and obligations of the agreement, the people's court may rule to reject the litigation claim in accordance with law.
10. A Commercial and Trading Company in Chengdu v. Wenjiang District Planning and Natural Resources Bureau of Chengdu City, Sichuan Province
Basic facts of the case
On May 9, 2017, the former Wenjiang District Land and Resources Bureau of Chengdu City, Sichuan Province (hereinafter referred to as the former Wenjiang District Land and Resources Bureau) filed a civil lawsuit with the Wenjiang District People's Court of Chengdu City, Sichuan Province (hereinafter referred to as the Wenjiang District Court) for the dispute over the contract for the transfer of the right to use the land for construction purposes with a certain commercial and trading company in Chengdu (hereinafter referred to as a commercial and trade company), demanding that a commercial and trading company pay liquidated damages and interest arising from the violation of the provisions of the contract for the transfer of the right to use the state-owned land (hereinafter referred to as the contract involved in the case) concluded by the two parties. After trial, the Wenjiang District Court ruled to reject the claim of the former Wenjiang District Land Bureau for liquidated damages, and the civil judgment took effect on June 21, 2018. On November 5, 2018, the former Wenjiang District Land Bureau issued the Decision Letter no. 366 (2018) of Wenjiang District, and decided to pursue liquidated damages for a trading company that was not supported in the civil litigation by making an administrative decision. A trading company then filed an administrative lawsuit to revoke the Decision.
The result of the referee
The Pidu District People's Court of Chengdu City, Sichuan Province, held in the first instance that the "Decision Letter" made by the former Wenjiang District Land Bureau required a commercial and trading company to perform its obligation to pay liquidated damages in the contract involved in the case. Such contracts formed before the implementation of the Administrative Procedure Law of the People's Republic of China, which was amended on May 1, 2015, may be included in the scope of civil disputes in accordance with the laws and regulations at that time. For the liquidated damages that should be charged, the former Wenjiang District Land Bureau, as the responsible entity, can be realized through civil litigation. The contract involved in the case was negotiated between the former Wenjiang District Land Bureau and a trading company on January 9, 2013, and whether there was a breach of contract in the performance of the contract, whether it should bear the liability for breach of contract, and whether it could claim rights through civil litigation. The former Wenjiang District Land Bureau has filed a corresponding civil lawsuit over the dispute over liquidated damages for overdue payment of the land transfer price, and was restrained by the Wenjiang District Court's effective judgment. Therefore, the former Wenjiang District Land Bureau made another "Decision" to recover liquidated damages without legal basis. The court of first instance then ruled to revoke the Decision. The former Wenjiang District Land Bureau was not satisfied and appealed.
The Chengdu Intermediate People's Court of Sichuan Province held in the second instance that the contract involved in the case was concluded on January 9, 2013, and according to the laws and regulations at that time, a civil lawsuit could be filed for relief for the contract for the transfer of state-owned land use rights, and the former Wenjiang District Land Bureau had already chosen to remedy the dispute over liquidated damages in this case through civil litigation, and the people's court accepted it as a civil contract dispute and made an effective rejection civil judgment. In order to avoid confusion in the logic and the path to the realization of follow-up relief, and in order to maintain the res judicata of the effective judgment, it should be found that the former Wenjiang District Land Bureau made an administrative decision on the matters that have been rejected by the effective judgment, and lacked factual basis and legal basis. Accordingly, the second-instance judgment rejected the appeal and upheld the first-instance judgment.
Typical
In judicial practice, there may be greater disputes over whether an agreement or contract is an administrative agreement or a civil contract. However, regardless of the nature of the agreement, the disputes arising therefrom fall within the scope of the people's court's acceptance of the case. Whether it is heard by administrative litigation or civil litigation only involves the internal division of labor of the people's courts, and the people's courts cannot refuse the adjudication or repeat the handling. Article 8 of the Judicial Interpretation on Administrative Agreements stipulates that if a civil effective legal document confirms that the agreement involved in the case does not fall within the scope of civil litigation, and where a party initiates an administrative lawsuit, the people's court shall accept it in accordance with law, so as to avoid the phenomenon of the people's court refusing to adjudicate due to different understandings of the internal division of labor. Administrative agreement litigation can resolve consensual disputes over agreements because of their contractual and legality double-examination. If both the civil litigation and the administrative litigation believe that the agreement involved in the case does not fall within the scope of their case, and the civil litigation has already made an effective legal document that is inadmissible, the administrative agreement litigation shall be accepted, rather than not accepting it and informing the parties to apply for a retrial of the civil effective legal documents. At the same time, avoiding duplicate handling is also a litigation rule that the people's courts should follow. If both civil litigation and administrative litigation consider that the agreement involved in the case falls within the scope of their case acceptance, and one of the types of litigation has already made effective legal documents, the other type of litigation shall be respected and not repeatedly handled. Taking this case as an example, in a civil lawsuit, a substantive effective judgment has been rendered on the contract dispute involved in the case, and the parties to the contract should respect it and enforce it in accordance with law. If the administrative organ that is a party to the contract further makes a conclusion that conflicts with the effective civil judgment in the form of an administrative decision on the same disputed matter, the people's court will not support it in accordance with law.
The source of this article is the WeChat public account of the "Supreme People's Court"