During the land acquisition period, if the wife is pregnant, can the fetus receive the compensation for the demolition?

In recent years, with the rapid development of cities, the topic of land acquisition and demolition has remained hot, and disputes caused by demolition and relocation are not uncommon. In disputes related to land acquisition and demolition, population and distribution ratio have always been the focus of disputes. Not long ago, Lao Zhou, a resident of Dongyang Town, Liuyang City, Changsha, encountered a troublesome situation when his villager group received compensation for land requisition, but was not distributed according to the population because the child had not yet been born. Now that the child has been born, he asks for a share of the compensation, but refuses.

Can an unborn fetus receive compensation for demolition and relocation calculated on a per capita basis? After the child is born safely, can the reserved compensation for land requisition be distributed to the baby? Recently, the Liuyang City People's Court heard Lao Zhou's case, let's take a look!

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Case: A child was born during the demolition process, and the request for compensation was denied

Looking at the civil judgment sent by the Liuyang Municipal People's Court, the result of which was "rejecting Lao Zhou's claim for payment of 176,000 yuan in compensation for land expropriation", Lao Zhou was deeply angry and decided to appeal his villager group to the Changsha Intermediate People's Court.

What the hell is going on?

It all started in 2021. At that time, the collective land of the villager group where Lao Zhou's hukou belonged was expropriated for the construction project, and a total of 25.5038 million yuan was obtained. How to distribute such a large sum of money and who had the right to divide it became the most talked about topic among the villagers at that time.

In order to reasonably and evenly distribute the land acquisition money, on June 30, 2021, the villager group held a meeting and passed the "Resolution of the Meeting on the Distribution of Land Acquisition Compensation for the Construction of a Reservoir Project in a Village, a Group, and a Reservoir Project". Among them, the "Resolution" states that the distribution will be made according to the registered population of this group of 176,000 yuan/person, and different distinctions are made for the distribution of only children, married daughters, and grandchildren. The distribution plan clearly states: "The deadline for this population allocation is June 30, 2021. ”

After the "Resolution" came out, 25 of the 31 villagers who attended the meeting, including Lao Zhou, signed their names on the "Resolution" in order to express their consent.

Soon after, Lao Zhou's wife found out that she was pregnant, and in April of the following year, Xiao Zhou was born, and her household registration was registered with her father, Lao Zhou, in the village group.

At this time, the compensation for land acquisition and demolition also came down, but Lao Zhou found that his children did not receive relevant compensation, but in other villager groups in the same village, the children with similar birth dates to Xiao Zhou received land expropriation, which made Lao Zhou feel that the villager group violated Xiao Zhou's rights and interests.

For this reason, as Xiao Zhou's legal representative, Lao Zhou sued his own villager group in court, demanding that the villager group pay 176,000 yuan in compensation for land expropriation belonging to Xiao Zhou.

However, in the course of the trial, the Liuyang Municipal People's Court found that the birth medical certificate stated that Xiao Zhou was born and the gestation week was 38 weeks. It is estimated that when the meeting was resolved on June 30, 2021, Lao Zhou's wife was not pregnant. Therefore, the villagers' group did not compensate or reserve a share of the resettlement object when the meeting made a resolution.

Therefore, the court held that Xiao Zhou's claim that the villagers' group had infringed on his legitimate rights and interests and demanded payment of compensation for land acquisition lacked factual and legal basis and was not supported.

But Lao Zhou believes that the provisions put forward by the villagers' group in the "Resolution" such as "the deadline for this allocation of population is June 30, 2021" and "the later period will not enjoy the distribution of collective property on the group" violate laws, regulations and national policies, infringe on the legitimate property rights and interests of the villagers, and are suspected of illegally restricting and depriving the villagers' group of all newborns born during the implementation of the land expropriation work involved in the case, which will inevitably affect their survival, growth and family living standards after birth, and should be found invalid in accordance with law.

Not only that, Lao Zhou found that in the land expropriation work, the villager group to which they belonged was the first to make the "Resolution", and the other villager groups delayed the resolution on the distribution of the compensation they received for a period of time, resulting in all newborns born during the land expropriation period not being able to obtain equal rights protection because of the different villager groups they belonged to.

As a result, as Xiao Zhou's legal representative, Lao Zhou appealed to the Changsha Intermediate People's Court, demanding that the villagers' group pay a corresponding share of the compensation fee for land expropriation.

On the basis of the trial by the court of first instance, the Changsha Intermediate People's Court again ascertained that at the distribution resolution meeting on June 30, 2021, a total of 34 households in the villager group attended the meeting, and 25 households, including Lao Zhou, signed and agreed to the resolution. The procedure and content of the resolution are in accordance with the provisions of the law, and it is an act of using the right of democratic self-government within a reasonable scope, and the agreed deadline for allocation is generally applicable to the members of the collective organization of the villagers' group.

At the same time, the court held that there was a certain time lag between the start of the expropriation and relocation work and the completion of the resettlement houses and the distribution of the expropriation funds, during which the number of people in the collective economic organization was constantly changing due to births, deaths, changes in marital relations, etc. In the absence of a clear deadline for the declaration of compensation for participation in expropriation, each villager group has the right to determine the deadline for the distribution of expropriation compensation according to the actual situation such as the resettlement status of the group's personnel and the progress of project demolition. Therefore, the Changsha Intermediate People's Court upheld the first-instance judgment and rejected the appeal.

Verdict: The 12-week fetus was ordered to be compensated by the court

Whether the fetus has the right to compensation for land expropriation has been controversial in recent years. Today's Women's Daily/Fengwang reporter learned that in the cases involving the land rights and interests of the fetus heard by the Wangcheng District People's Court of Changsha City, there are also cases where the fetus has received compensation for land expropriation as desired.

Xiao Zheng, who was born in September 2022, is one of the members of a residents' group in a community in Wangcheng District. As early as six months before she was born, the land of the residents' group was expropriated for urban construction, and the villagers in the group participated equally in the resettlement compensation.

However, in the "Announcement on the Distribution of Expropriation Benefits" posted by the residents' group later, Xiao Zheng's father, Lao Zheng, found that Xiao Zheng's name was not among them, so Lao Zheng, as Xiao Zheng's legal representative, sued the residents' group in court, demanding that the residents' group and the neighborhood committee pay Xiao Zheng compensation for land expropriation.

After trial, the Wangcheng District People's Court held that the focus of the trial of this case was whether Xiao Zheng had the qualifications of the residents' group as a collective economic organization when the expropriation and distribution plan was determined, which was the basis for her to enjoy the distribution of collective income.

In this case, Xiao Zheng had settled in the residents' group with his father since he was born, and when the compensation for land expropriation was distributed, he already existed in the mother's body, and he originally obtained the membership of the collective economic organization of the group, and should enjoy the same treatment as other residents. The resident group may not refuse to assign the plaintiff on the ground that the plaintiff was not yet born at the time of the assignment.

Therefore, the court ruled that the defendant residents' group should pay the plaintiff Xiao Zheng 10,000 yuan in collective income.

Statement: Whether the fetus has civil rights and interests is crucial

Ren Ding (Lawyer of Hunan Jinzhou Law Firm)

"Whether or not the share of the property interests of the fetus is retained is generally determined by whether there is life at birth, and if it is born alive, it can be enjoyed, and if it is not born alive, the allocated share no longer belongs to it. According to Article 16 of the Civil Code of the People's Republic of China, "if it involves the protection of the interests of the fetus such as inheritance and acceptance of gifts, the fetus shall be deemed to have the capacity for civil rights." However, if the fetus is dead at the time of delivery, its capacity for civil rights does not exist ab initio."

Ren Ding explained that this article stipulates that the fetus should be deemed to have the capacity for civil rights from the time of the mother's pregnancy, and it does not need to wait until the time of its birth to exercise inheritance and other protection of the interests of the fetus.

In addition, Article 24 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Rural Land Contract Disputes mentions that a rural collective economic organization, villagers' committee or villagers' group may, in accordance with the procedures prescribed by law, decide on the distribution of land compensation already received within the collective economic organization. When the land requisition compensation and resettlement plan is determined, the person who already has the membership of the collective economic organization requests to pay the corresponding share, it should be supported. Except where local regulations, autonomous regulations, special regulations, and local government rules that have been reported to the Standing Committee of the National People's Congress and the State Council for the record have other provisions on the methods for the distribution of land compensation fees within rural collective economic organizations.

Ren Ding believes that the fetus protected by law refers to a "person" who is in the process of being conceived, from the moment of conception until it breathes independently from the mother's body and becomes a real civil subject. The content of the villagers' representative meeting shall not contradict the Constitution, laws and regulations and national policies, and shall not deprive the fetus of its legitimate rights and interests, and the land is an important guarantee for the survival of the villagers, and the land compensation fee after the land is expropriated is a fundamental interest to protect the villagers who depend on the land for survival, and the same is true for the fetus after birth, and it should be protected in accordance with the law.

Source: Today's Women's Daily/Fengwang reporter Ouyang Ting

Editor: Yiren

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