Government Legal Services Team: Huaicheng lawyer
Edit | July
Author | Huaicheng lawyer Yan Shipeng
Yan Shipeng
Liaoning Huaicheng Law Firm
Government Legal Services, Administrative Law Enforcement, Land Expropriation Compensation
1
The expropriated person thinks
The government underpaid the loss of production and business suspension
In 2011, the People's Government of Longsha District, Qiqihar City, Heilongjiang Province (hereinafter referred to as the Longsha District Government) expropriated the Sanhe lot of urban villages.
Ma has two licensed non-residential houses in the lot, with an area of 610 square meters and 352.6 square meters respectively.
In October 2011, Mr. Ma and the Office of the Leading Group for the Reconstruction of Urban Villages in Longsha District (hereinafter referred to as the Urban Village Reconstruction Office) entered into two agreements on compensation and resettlement for the expropriation of non-residential houses, stipulating the resettlement area, the loss of production and business suspension, and the calculation standard of compensation for temporary resettlement.
In May 2016, without Ma's consent, the Urban Village Reconstruction Office reserved a set of three-way homes for Ma for two expropriated houses, with an area of 928.84 square meters.
Ma did not agree to merge the two houses into one, so he did not accept the house.
Hou Ma re-signed a compensation agreement with the Urban Village Reconstruction Office, dividing the original two houses into six households for resettlement.
It is also agreed that from the date of acceptance of the relocation to the date of notification to enter the household, the loss of production and business suspension and temporary resettlement expenses will be calculated and paid on a monthly basis.
In September 2018, the Housing Expropriation and Compensation Office of Longsha District, Qiqihar City (hereinafter referred to as the Longsha District Expropriation Office) issued a notice of housing selection and entry for the expropriation and resettlement (off-plan housing) of Sanhe Village.
The Urban Village Reconstruction Office believes that in May 2016, Ma had been notified to enter the household, and the loss of suspension of production and business and the temporary resettlement fee should be paid until May 2016.
Dissatisfied, Ma filed an administrative lawsuit, requesting payment of compensation for the loss of suspension of production and business and temporary resettlement, and the deadline was calculated until September 2018.
2
Unilateral government
The change compensation agreement is invalid
(Click on the image to ask a lawyer)
The case went through the first instance of the Intermediate People's Court of Qiqihar City, Heilongjiang Province and the second instance of the Heilongjiang Provincial High People's Court.
The court held that the Urban Village Reconstruction Office provided Ma with a house with an area of 928.84 square meters, and that the Urban Village Reconstruction Office had combined the houses agreed in the two agreements for resettlement without Ma's consent, which was inconsistent with the compensation agreement.
This act constitutes a breach of contract, and there is nothing wrong with Ma's refusal to accept it.
Mr. Ma did not move in in May 2016, which was caused by the failure of the Urban Village Reconstruction Office to perform the agreement as agreed.
On September 28, 2018, the Longsha District Collection Office notified Ma that the loss of production and business suspension and the compensation for temporary resettlement should be calculated until September 28, 2018.
3
Huaicheng lawyer suggested
Judging from the more than 10 years of experience of Huaicheng lawyers in providing legal services for housing demolition and expropriation, the unilateral change of resettlement houses by administrative organs is not necessarily subjective malice, and may be due to the construction of housing planning and resettlement housing construction.
However, regardless of the reason, the status of the administrative organ and the counterpart in the administrative agreement is equal, and the administrative organ does not have the "privilege" to dispose of it unilaterally.
After an administrative agreement is concluded, neither party can unilaterally change the agreement without the consent of the other party.
Although administrative organs may exercise their administrative preferential rights in accordance with the law, in the absence of statutory circumstances that may seriously harm the national interest, the social public interest, etc., the administrative organ cannot unilaterally change the content of the agreement, but shall fully perform its obligations in strict accordance with the provisions of the administrative agreement, otherwise it shall bear liability for breach of contract in accordance with the law.
In this case, the administrative organ's unilateral change of the resettlement housing situation cannot have the legal effect of the modification of the compensation agreement, and the administrative organ's act is a failure to perform its obligations in accordance with the agreement, and if it causes damage to the lawful rights and interests of the counterparty to the agreement, it shall bear liability for breach of contract in accordance with law.
In practice, if it is necessary to adjust the resettlement housing, it is recommended to negotiate with the expropriated person first to determine whether to sign a supplementary agreement to change the previous agreement.
If an agreement cannot be reached, the agreement may be unilaterally changed and a compensation decision can be made depending on the reasons for the adjustment.
If you have a question to ask a lawyer, there is no problem to learn law, and you can consult and solve legal problems anytime and anywhere, please click below to follow, if the article is useful to everyone, please like and forward it to support the creation of lawyers, thank you!
Source of the case:
A typical case of administrative agreement of the Supreme People's Court, Ma v. the People's Government of Longsha District, Qiqihar City, Heilongjiang Province, a case of non-performance of the housing expropriation compensation agreement
● For the relevant issues involved in this article, you can also enter the "Huaicheng Lawyer" official account and click "Ask" or "Find a Lawyer" at the bottom of the page to communicate with the lawyer.