1. Introduction to the case
The XX district government applied for a retrial, alleging:
(1) Whether or not villagers enjoy the qualifications of resettled persons is an issue for determining the qualifications of villagers, and there are no relevant provisions in the current law, and in practice it is up to the village or group to determine it on its own. Zhao XX's household registration was originally in Baiyin City, and it was not until 2009 that he moved into XX Village, and it was determined by the village and the group that he did not belong to the villagers who enjoyed the treatment of the demolition and reconstruction.
(2) The homestead under the name of Zhao XX's maternal grandmother, Zhang XX, was occupied in 2003 due to urban reconstruction, and monetary compensation was given to the appurtenances on the homestead at that time, but the old homestead certificate was not recovered. The house involved in the case was built by Zhang Xxia, Zhao XX's mother, after Zhang XX's death, and there was no homestead certificate. According to the "Implementation Plan for Compensation and Resettlement for Demolition and Relocation of XX Villages in XX Township", the compensation and resettlement shall be in accordance with the principle of "one house, one household, one certificate", and the houses involved in the case cannot be resettled and compensated according to the effective houses after being determined at the village, group and township levels.
(3) The administrative act of the administrative organ to make compensation and resettlement is based on the comprehensive consideration of the law and the resettlement policy, the demolition and resettlement plan for rural collective land is not mandatory, and the demolition and resettlement agreement is voluntary, and the people's court cannot determine that the administrative organ should have the obligation to compensate and resettle Zhao XX because he has the right to use the homestead, and judge how the administrative organ should compensate him.
2. The Court's decision
The focus of the dispute in this case is what standard should be used to compensate and resettle the demolished house involved in Zhao XX's case.
In this case, Zhao XX's maternal grandmother, Zhang XX, had a homestead use certificate in Group XX, XX Township, Zhengzhou City, and built a house on the homestead, which should be recognized as a legal homestead. In 2003, due to the construction of a garbage disposal site, the village was relocated to a new site as a whole, and then Zhao XX and his mother Zhang Xxia built the house involved in the case at the new site. On June 30, 2009, Zhao XX's household registration was moved into XX Village, which was earlier than the deadline of September 6, 2015 as stated in the notice of the XX Village Demolition and Reconstruction Project Headquarters of XX Township, and it should not be determined that Zhao XX was a foreigner referred to in Article 7 (2) of the "XX Village Demolition Compensation and Resettlement Plan";
Therefore, Zhao XX should be compensated and resettled in accordance with the standards stipulated in Article 6 of the "XX Village Demolition Compensation and Resettlement Plan". As for the issue raised by the XX District Government in the retrial application that the house involved in the case was built by Zhang Xxia, the mother of Zhao XX, after the death of her mother Zhang XX, and did not have a homestead certificate, although Zhao XX and her mother Zhang Xxia were non-agricultural households in Baiyin City, Gansu Province before moving their household registration to XX Village, the right to use the homestead and the house on it can be inherited by the children of urban household registration in accordance with the law, and it cannot be denied that Zhao XX and her mother Zhang Xxia have the legal right to use the homestead involved in the case on the grounds that Zhao XX and her mother Zhang Xxia were not villagers in the village at the time of inheritance.
3. Dekai analysis
The right to use a farmer's homestead and the house on it may be inherited by the children of urban household registration in accordance with law, and the party concerned cannot be denied the lawful right to use the homestead involved in the case on the grounds that the party was not a villager of the village at the time of inheritance and was a non-agricultural household.
The court found that the lawful acquisition of the house involved in the case did not belong to the purchase of homestead by outsiders, and ruled that it was not improper for the government to compensate and resettle the party in accordance with the compensation and resettlement plan for demolition and relocation.