The administrative organ shall determine whether the administrative punishment is lawful in accordance with the general procedures for dealing with illegal construction of houses on collective land that are included in the scope of expropriation

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Zhang Moumou v. the Urban Administration Bureau of a District (Export Processing Zone) revoked the administrative penalty

-- The administrative organ shall determine whether the administrative punishment is lawful in accordance with the general procedures for dealing with illegal construction of houses on collective land that are included in the scope of expropriation

keyword

Administrative Administrative Punishment Revocation of Collective Land Housing Expropriation Illegal Construction Administrative Punishment

Basic facts of the case

The plaintiff Zhang Moumou claimed that the plaintiff lived in the second group of self-built houses in Meishan Village, and the defendant made the "Administrative Penalty Decision" to the plaintiff on March 11, 2021, determining that the plaintiff Jingui Villa was found to have erected a structure of 1,201.35 square meters without authorization, and decided to demolish it without obtaining planning permission procedures. The plaintiff was not satisfied, so he filed a lawsuit, requesting a judgment to revoke the "Administrative Penalty Decision" issued by the defendant on March 11, 2021.

The defendant urban administration bureau of a district (export processing zone) argued that the plaintiff had erected a structure in Jingui Villa, Jiuyuan Road, a certain city, without obtaining planning permission formalities, and the respondent's administrative penalty decision found that the facts were clear, the law was correctly applied, and the punishment was appropriate, and requested that the plaintiff's claim be dismissed in accordance with the law.

The court found that in 2016, due to the launch of the automobile park development land project, the management committee of a district was entrusted by the people's government of a certain city to carry out the expropriation affairs. The plaintiff's house in Meishan Village was included in the scope of expropriation, but the plaintiff failed to reach a compensation and resettlement agreement with the expropriator. The defendant sent a letter to a district planning bureau, requesting that the 1,201.35-square-meter structure erected by the plaintiff without authorization be identified as an illegal building. On December 2, 2020, a district planning branch sent a letter back to the defendant, determining that the 1,201.35-square-meter structure erected by the plaintiff without obtaining planning permission was an illegal building. On December 4, 2020, the defendant opened an investigation against the plaintiff for the illegal building and issued a Notice of Rectification within a Time Limit to the plaintiff on the same day, requiring the plaintiff to demolish or complete the formalities by himself. On March 2, 2021, the defendant issued a Advance Notice of Administrative Penalty to the plaintiff, proposing to impose penalties on the plaintiff for demolishing the illegally erected structures, and informing the plaintiff of the right to make statements and defenses. On March 11, 2021, the defendant issued an Administrative Penalty Decision to the plaintiff.

On November 19, 2021, the People's Court of Hukou County, Jiangxi Province, rendered the (2021) Gan 0429 Xingchu No. 111 Administrative Judgment: revoking the Administrative Penalty Decision No. 1 made by the Urban Administration Bureau of the defendant District (Export Processing Zone) on March 11, 2021. On March 21, 2022, the Intermediate People's Court of Jiujiang City, Jiangxi Province rendered the (2022) Gan 04 Xingzhong No. 67 Administrative Judgment: rejecting the appeal and upholding the original judgment.

Grounds for the Trial

The effective judgment of the court held that: first, according to the Notice of the General Office of the Municipal Party Committee and the General Office of the Municipal Government on Printing and Distribution<某新区管理范围调整工作的意见>, the building involved in the case was located in the planning area of Meishan Village Automobile Industrial Park, and according to the principle of territoriality, the defendant had jurisdiction, so the plaintiff's claim that its house did not belong to the administrative division of a certain district and the defendant had no right to investigate and deal with the house was not supported.

Second, since the people's government of a certain city has decided to expropriate the building involved in this case, and the plaintiff has not been able to reach a resettlement agreement with the expropriator for a long time, which affects the progress of the expropriation, the core issue that needs to be judged in this case is whether the building that the people's government has decided to expropriate is still dealt with in accordance with the general procedures for dealing with illegal buildings, that is, whether the method of "demolishing illegal buildings to promote demolition" does not conform to the basic principle of "proper procedure", which is administration according to law. The management methods adopted by administrative organs in taking administrative acts are consistent with their management purposes, and are one of the contents of the principle of procedural due process. In this case, the matters that should have been adjusted by the legal relationship of expropriation were handed over to the urban planning management for adjustment, especially when there was a negotiation on how to compensate, but because no compensation agreement was reached, the demolition was carried out through the "demolition violation" procedure and no compensation was made, which was not only not conducive to the protection of the rights and interests of the expropriated party, but also made it more difficult to solve the problem of subsequent compensation and affected the administrative efficiency. Such administrative acts that run counter to the legislative purpose directly undermine administrative authority and should be classified as administrative acts that do not meet the basic requirements of due process. After the collective land enters the expropriation procedure, the compensation for the buildings (structures) on the collective land shall be organized and implemented by the land administrative departments of the municipal and county people's Governments. In this case, the plaintiff's house was built without approval and had not been investigated and dealt with by the management department for many years, but it was filed for investigation when it was included in the scope of expropriation and the expropriation had entered the stage of housing compensation. Obviously, the purpose of the defendant's law enforcement was not to strictly manage urban construction, but to circumvent the statutory expropriation procedures, speed up the expropriation process, and force demolition and relocation in the form of demolition, which was obviously improper. Therefore, the administrative punishment imposed by the defendant exceeded its authority and was obviously improper, and should be revoked.

Summary of the trial

1. The value of the principle of due process lies in limiting public power, protecting private rights, and enhancing the credibility of the government. After houses on collective land are included in the scope of expropriation, the administrative authorities then initiate the general procedures for dealing with illegal constructions, which violates the principle of due process. For the investigation and handling of illegal buildings, the administrative organs shall increase the time limit and rationality of administrative law enforcement, and regard the investigation and handling of illegal buildings and structures as a normal work content, and should not be used as a means to promote the expropriation work.

2. After the houses on the collective land are included in the scope of expropriation, the disposal of the houses of the expropriated persons shall be subject to the adjustment of the legal relationship of expropriation. After houses on collective land are included in the scope of expropriation, the expropriation and relocation implementation department shall conduct an investigation of the current status of the expropriated collective land and above-ground houses and make a public announcement of the investigation, rather than having law enforcement departments such as land management and urban and rural planning initiate the general procedures for handling illegal constructions, and carry out illegal identification and demolition of the houses involved in the case. Administrative litigation shall be supervised in accordance with law for administrative organs' conduct of "promoting demolition and relocation through demolition".

Associate indexes

Article 47 of the Land Management Law of the People's Republic of China, Article 31 of the Regulations for the Implementation of the Land Management Law of the People's Republic of China, and Paragraph 2 of Article 24 of the Regulations on the Expropriation and Compensation of Houses on State-owned Land

First instance: Jiangxi Province Hukou County People's Court (2021) Gan 0429 Xingchu No. 111 Administrative Judgment (November 19, 2021); Second instance: Jiangxi Jiujiang Intermediate People's Court (2022) Gan 04 Xingzhong No. 67 Administrative Judgment (March 21, 2022)