[Key words] administration / performing the duty of expropriation compensation
[introduction to the lawyer of this case] Li Jing, senior partner of Liaoning Tongfang law firm. He has rich experience in litigation and non litigation in company disputes, land use, real estate development, construction, real estate management, real estate sales, financial disputes, insurance disputes, administrative litigation, etc., and has handled hundreds of civil, economic, administrative cases and non litigation businesses, and has rich practical experience. He served as deputy director of the special committee for the development of young lawyers of Shenyang Lawyers Association, representative of the ninth lawyers' Congress of Liaoning Province, representative of the fifth lawyers' Congress of Shenyang City, and representative of the first Congress of the Shenyang lawyers' Industry Committee of the Communist Party of China.
[key points of judgment] according to the clear provisions in the implementation plan of this demolition, the land used by the enterprise holding the village collective land use certificate shall be compensated according to the compensation standard of the agricultural land. Article 9 of the demolition compensation agreement signed between company a and the demolition Department states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that both parties may sign compensation clauses for matters not covered in the agreement. The government of District B failed to provide corresponding evidence to prove that it had paid the compensation for the land involved to the village committee within the specified time limit during the trial of the first instance. Although three receipts and receipts were provided in the second instance, the above evidence was not sufficient to prove that the compensation for the land involved had been paid to the village committee. The inquiry record provided by company a confirms that the compensation for the land involved has not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. In this case, company a and company C within the same demolition scope both obtained the right to use the collective construction land by signing an agreement with the village collective economic organization. Company C has obtained compensation for the right to use the collective construction land according to the demolition implementation plan. Equal treatment of the parties is the basic principle of administration according to law. If the administrative organ does not treat the parties equally, resulting in excessive infringement of the interests of the parties, it constitutes an abuse of administrative discretion. Therefore, company a has the right to obtain the compensation for the use right of the collective construction land involved in the case, and its reason for requesting the court to order the government of District B to pay the compensation for the use right of the collective construction land is established.
[basic case] in 1999, company a signed the agreement on real estate transaction and land use right with the village collective economic organization, It is agreed in the agreement that "the village Party branch and the village committee decide to sell the permanent use right of the houses and sites of the enterprises affiliated to the village industrial company to company a through discussion, and the land is owned by the village collective. The village collective economic organization guarantees the permanent use right of the site of company A. once the land is expropriated by the state, the compensation for the above ground property belongs to company A. whoever develops and occupies the site of company a will find the site for Party B". Company a paid the transfer price to the village collective economic organization, obtained the right to use the collective construction land involved, and obtained the collective construction land use certificate in December 2000. In 2010, the area was demolished. In February 2011, company a and the demolition Department signed the demolition compensation agreement on the local buildings and equipment. The agreement clearly indicated that the total compensation price determined in the demolition compensation agreement does not include land compensation. For matters not covered in the agreement, both parties can sign compensation clauses. Subsequently, although company a claimed to pay land compensation to the demolition department and the government of District B for many times, no compensation was obtained. Therefore, company a filed a lawsuit to the court, requesting the court to order the government of District B and the demolition department to pay compensation and interest for the collective construction land use right of company A.
[judgment result] the judgment of the first instance: I. The government of District B shall fulfill the obligation to pay the compensation of 1842836.80 yuan for the collective construction land use right of company a within 15 days after the judgment takes effect; 2、 The government of District B shall pay the interest of 1842836.80 yuan as compensation for the collective construction land use right of company a within 15 days after this judgment takes effect (from February 17, 2011 to the date of actual payment, it shall be calculated according to the bank deposit interest of the same period); 3、 Reject other claims of company A. Judgment of second instance: reject the appeal and uphold the original judgment.
[reasons for adjudication] in this case, company a obtained the right to use the collective construction land according to the agreement on real estate transaction and land use right signed by company a and the collective economic organization, and obtained the certificate for use of collective land for construction land in December 2000. The land involved is within the demolition area specified in the demolition announcement. The demolition implementation plan formulated by the demolition department clearly stipulates that the houses of enterprises holding the village collective land use certificate shall be compensated according to the assessment standards of the assessment department. The land used by enterprises shall be compensated according to the compensation standard for agricultural land. Although the government of District B claimed that the provision was not actually implemented, it failed to provide effective evidence to prove it, and failed to provide a reasonable explanation for the compensation basis for the collective construction land use right of company C. Therefore, this court does not support this claim. Article 9 of the demolition compensation agreement signed between company a and the demolition department in February 2011 states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that the parties may sign compensation clauses for matters not covered in the agreement. The court of first instance has requested the government of District B to provide relevant evidence on whether the compensation for the land involved has been paid to the village committee within five days after the court hearing, and informed that if it fails to do so, it will bear adverse consequences. However, the government of District B did not provide corresponding evidence within the specified time limit, and it did not provide three sets of receipts and receipts to the court until the second instance procedure. However, the above evidence is not sufficient to prove that the compensation for the land involved has been paid to the village committee, In addition, the inquiry record provided by company a to the court stated that the village secretary and the accountant of the original village committee confirmed that the compensation for the land involved had not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. Accordingly, company a has the right to obtain the compensation for the use right of the collective construction land involved in the case, and its reason for requesting the court to order the government of District B to pay the compensation for the use right of the collective construction land is established.
Equal treatment of the parties is the basic principle of administration according to law. The principle of equal treatment requires the administrative organs to treat the parties with the same legal status in the same way, and should not treat each other differently. If the administrative organs do not treat the parties equally, and the interests of the parties are excessively infringed, it constitutes an abuse of administrative discretion. In this case, company a and company C within the same demolition scope both obtained the right to use the collective construction land by signing an agreement with the village collective economic organization. Company C has obtained the right to use the collective construction land according to the demolition implementation plan. Although the agreement of company a has not been approved by the District Economic System Reform Commission or notarized by the notary office, these procedural differences do not affect the right of company a to obtain compensation for the use right of collective construction land like company C. As the relocation compensation agreement signed by company C and the relocation office states that the compensation standard for the use right of collective construction land determined through evaluation is 296 yuan / m2, and the collective construction land used by company a is adjacent to the collective construction land of company C, the court of first instance has decided to compensate the use right of collective construction land of company a with reference to the compensation standard of 296 yuan / m2. Company a's delay in obtaining the above compensation was caused by the government of District B refusing to pay the compensation without justifiable reasons. Therefore, its claim that the government of District B should pay overdue interest should be supported.
The first paragraph of Article 46 of the land administration law stipulates that the local people's governments at or above the county level shall announce and organize the implementation of land expropriation by the state after approval according to legal procedures. In this case, the demolition implementation plan was approved by the government of District B, so the court of first instance determined that the government of District B was the subject of collective land acquisition and compensation involved in the case, and the management committee and the demolition office were only specific implementation departments, with factual and legal basis, and there was no improper.
Paragraph 1 of Article 47 of the administrative procedure law of the people's Republic of China and Article 66 of the interpretation of the Supreme People's Court on the application of the administrative procedure law of the people's Republic of China, the above legal provisions specify the calculation method of the time limit for the administrative organ to perform its statutory duties upon application. However, in this case, the duty of expropriation compensation requested by company a to be performed by the government of District B belongs to the statutory duty that the administrative organ should perform according to its functions and powers, Therefore, it is not limited by the above-mentioned time limit for filing a lawsuit.
[relevant laws] Articles 47, 69 and 73 of the administrative procedure law of the people's Republic of China and Article 46, paragraph 1 of the land administration law.
[lawyer's opinion] this is a case involving the compensation dispute over the use right of rural collective construction land. Article 48 of the land administration law stipulates that the compensation fees for collective land acquisition include land compensation fees, resettlement subsidies and compensation fees for ground attachments and young crops, but it does not make clear provisions on the compensation for the use right of collective construction land. Summary of the civil trial work forum of Liaoning Provincial Higher People's Court [LGF (2009) No. 120]: "I. real estate part 3. Land acquisition compensation for the use right of rural collective construction land. For the acquisition of rural collective construction land, appropriate economic compensation shall be given according to law for the land use right of the rural collective construction land user who is not the land owner." It is clearly agreed that appropriate economic compensation shall be given to the land use right of the rural construction land use right holder who is not the land owner according to law. However, there is no case in Liaoning Province on the compensation of the rural collective construction land use right in the process of expropriation. This case involves not only the issue of whether the right to use the rural collective construction land of company a should be compensated, but also the issue of the time limit of the lawsuit and the determination of the subject of the lawsuit.
On the question of whether the use right of collective construction land of company a should be compensated, the two courts expounded from four aspects, stating that company a should obtain compensation for the use right of collective construction land. First, the demolition implementation plan formulated by the demolition department clearly stipulates that the land used by the enterprise holding the village collective land use certificate shall be compensated according to the compensation standard for the agricultural land. In this case, company a has obtained the collective land construction land use certificate, and the land involved is within the demolition area specified in the demolition announcement. Therefore, according to the demolition implementation plan, company a has the right to obtain compensation. Second, Article 9 of the demolition compensation agreement signed by company a and the demolition Department states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that both parties may sign compensation clauses for matters not covered in the agreement. This agreement indicates that both parties know that the original demolition compensation agreement does not include land compensation. Third, government B did not provide evidence to prove that the compensation for the land involved had been paid to the village committee, while the record of inquiry submitted by company a to the court stated that the village secretary and the accountant of the original village committee confirmed that the compensation for the land involved had not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. This fact fully shows that government B has not fulfilled the obligation to pay the collective land compensation to the village committee, and the village committee recognizes that company a should obtain the compensation for the collective construction land use right according to the agreement. Fourth, both company a and company C within the same demolition scope have obtained the right to use the collective construction land by signing an agreement with the village collective economic organization, while company C has obtained the right to use the collective construction land according to the demolition implementation plan. Equal treatment of the parties is the basic principle of administration according to law. Company a has the right to obtain land compensation.
As for the compensation standard for the use right of collective construction land, since the demolition compensation agreement signed by company C and the demolition office stated that the compensation standard for the use right of collective construction land determined through evaluation was 296 yuan / m2, in this case, the collective construction land used by company a is adjacent to the collective construction land of company C, so the court decided to compensate the use right of collective construction land of company a with reference to the compensation standard of 296 yuan / m2.
As for interest, company a's delay in obtaining the above compensation was caused by the government of District B refusing to pay the overdue interest without justifiable reasons. Therefore, its claim that the government of District B should pay the overdue interest should be supported.
As for the subject of the defendant, according to the provisions of paragraph 1 of Article 46 of the land administration law, where the state expropriates land, the local people's government at or above the county level shall make a public announcement and organize the implementation after approval according to legal procedures. In this case, the demolition implementation plan was approved by the government of district B. the court recognized that the management committee and the demolition office were only specific implementation departments, and the government of District B was the subject of collective land acquisition and compensation.
As for the time limit for prosecution, although the legal provisions stipulate the calculation method of the time limit for prosecution in cases where the administrative organ performs its statutory duties according to the application, in this case, the duty of expropriation and compensation requested by company a to be performed by the government of District B belongs to the statutory duty that the administrative organ should perform according to its functions and powers, so it is not limited by the above-mentioned time limit for prosecution.
In the process of acting for this case, the acting lawyer started from the evidence, collected and applied to the court to obtain a large amount of evidence. Because the evidence was full and accurate and the argument was sufficient, the acting view was supported by the court.
[introduction to the lawyer of this case] Li Jing, senior partner of Liaoning Tongfang law firm. He has rich experience in litigation and non litigation in company disputes, land use, real estate development, construction, real estate management, real estate sales, financial disputes, insurance disputes, administrative litigation, etc., and has handled hundreds of civil, economic, administrative cases and non litigation businesses, and has rich practical experience. He served as deputy director of the special committee for the development of young lawyers of Shenyang Lawyers Association, representative of the ninth lawyers' Congress of Liaoning Province, representative of the fifth lawyers' Congress of Shenyang City, and representative of the first Congress of the Shenyang lawyers' Industry Committee of the Communist Party of China.
[key points of judgment] according to the clear provisions in the implementation plan of this demolition, the land used by the enterprise holding the village collective land use certificate shall be compensated according to the compensation standard of the agricultural land. Article 9 of the demolition compensation agreement signed between company a and the demolition Department states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that both parties may sign compensation clauses for matters not covered in the agreement. The government of District B failed to provide corresponding evidence to prove that it had paid the compensation for the land involved to the village committee within the specified time limit during the trial of the first instance. Although three receipts and receipts were provided in the second instance, the above evidence was not sufficient to prove that the compensation for the land involved had been paid to the village committee. The inquiry record provided by company a confirms that the compensation for the land involved has not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. In this case, company a and company C within the same demolition scope both obtained the right to use the collective construction land by signing an agreement with the village collective economic organization. Company C has obtained compensation for the right to use the collective construction land according to the demolition implementation plan. Equal treatment of the parties is the basic principle of administration according to law. If the administrative organ does not treat the parties equally, resulting in excessive infringement of the interests of the parties, it constitutes an abuse of administrative discretion. Therefore, company a has the right to obtain the compensation for the use right of the collective construction land involved in the case, and its reason for requesting the court to order the government of District B to pay the compensation for the use right of the collective construction land is established.
[basic case] in 1999, company a signed the agreement on real estate transaction and land use right with the village collective economic organization, It is agreed in the agreement that "the village Party branch and the village committee decide to sell the permanent use right of the houses and sites of the enterprises affiliated to the village industrial company to company a through discussion, and the land is owned by the village collective. The village collective economic organization guarantees the permanent use right of the site of company A. once the land is expropriated by the state, the compensation for the above ground property belongs to company A. whoever develops and occupies the site of company a will find the site for Party B". Company a paid the transfer price to the village collective economic organization, obtained the right to use the collective construction land involved, and obtained the collective construction land use certificate in December 2000. In 2010, the area was demolished. In February 2011, company a and the demolition Department signed the demolition compensation agreement on the local buildings and equipment. The agreement clearly indicated that the total compensation price determined in the demolition compensation agreement does not include land compensation. For matters not covered in the agreement, both parties can sign compensation clauses. Subsequently, although company a claimed to pay land compensation to the demolition department and the government of District B for many times, no compensation was obtained. Therefore, company a filed a lawsuit to the court, requesting the court to order the government of District B and the demolition department to pay compensation and interest for the collective construction land use right of company A.
[judgment result] the judgment of the first instance: I. The government of District B shall fulfill the obligation to pay the compensation of 1842836.80 yuan for the collective construction land use right of company a within 15 days after the judgment takes effect; 2、 The government of District B shall pay the interest of 1842836.80 yuan as compensation for the collective construction land use right of company a within 15 days after this judgment takes effect (from February 17, 2011 to the date of actual payment, it shall be calculated according to the bank deposit interest of the same period); 3、 Reject other claims of company A. Judgment of second instance: reject the appeal and uphold the original judgment.
[reasons for adjudication] in this case, company a obtained the right to use the collective construction land according to the agreement on real estate transaction and land use right signed by company a and the collective economic organization, and obtained the certificate for use of collective land for construction land in December 2000. The land involved is within the demolition area specified in the demolition announcement. The demolition implementation plan formulated by the demolition department clearly stipulates that the houses of enterprises holding the village collective land use certificate shall be compensated according to the assessment standards of the assessment department. The land used by enterprises shall be compensated according to the compensation standard for agricultural land. Although the government of District B claimed that the provision was not actually implemented, it failed to provide effective evidence to prove it, and failed to provide a reasonable explanation for the compensation basis for the collective construction land use right of company C. Therefore, this court does not support this claim. Article 9 of the demolition compensation agreement signed between company a and the demolition department in February 2011 states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that the parties may sign compensation clauses for matters not covered in the agreement. The court of first instance has requested the government of District B to provide relevant evidence on whether the compensation for the land involved has been paid to the village committee within five days after the court hearing, and informed that if it fails to do so, it will bear adverse consequences. However, the government of District B did not provide corresponding evidence within the specified time limit, and it did not provide three sets of receipts and receipts to the court until the second instance procedure. However, the above evidence is not sufficient to prove that the compensation for the land involved has been paid to the village committee, In addition, the inquiry record provided by company a to the court stated that the village secretary and the accountant of the original village committee confirmed that the compensation for the land involved had not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. Accordingly, company a has the right to obtain the compensation for the use right of the collective construction land involved in the case, and its reason for requesting the court to order the government of District B to pay the compensation for the use right of the collective construction land is established.
Equal treatment of the parties is the basic principle of administration according to law. The principle of equal treatment requires the administrative organs to treat the parties with the same legal status in the same way, and should not treat each other differently. If the administrative organs do not treat the parties equally, and the interests of the parties are excessively infringed, it constitutes an abuse of administrative discretion. In this case, company a and company C within the same demolition scope both obtained the right to use the collective construction land by signing an agreement with the village collective economic organization. Company C has obtained the right to use the collective construction land according to the demolition implementation plan. Although the agreement of company a has not been approved by the District Economic System Reform Commission or notarized by the notary office, these procedural differences do not affect the right of company a to obtain compensation for the use right of collective construction land like company C. As the relocation compensation agreement signed by company C and the relocation office states that the compensation standard for the use right of collective construction land determined through evaluation is 296 yuan / m2, and the collective construction land used by company a is adjacent to the collective construction land of company C, the court of first instance has decided to compensate the use right of collective construction land of company a with reference to the compensation standard of 296 yuan / m2. Company a's delay in obtaining the above compensation was caused by the government of District B refusing to pay the compensation without justifiable reasons. Therefore, its claim that the government of District B should pay overdue interest should be supported.
The first paragraph of Article 46 of the land administration law stipulates that the local people's governments at or above the county level shall announce and organize the implementation of land expropriation by the state after approval according to legal procedures. In this case, the demolition implementation plan was approved by the government of District B, so the court of first instance determined that the government of District B was the subject of collective land acquisition and compensation involved in the case, and the management committee and the demolition office were only specific implementation departments, with factual and legal basis, and there was no improper.
Paragraph 1 of Article 47 of the administrative procedure law of the people's Republic of China and Article 66 of the interpretation of the Supreme People's Court on the application of the administrative procedure law of the people's Republic of China, the above legal provisions specify the calculation method of the time limit for the administrative organ to perform its statutory duties upon application. However, in this case, the duty of expropriation compensation requested by company a to be performed by the government of District B belongs to the statutory duty that the administrative organ should perform according to its functions and powers, Therefore, it is not limited by the above-mentioned time limit for filing a lawsuit.
[relevant laws] Articles 47, 69 and 73 of the administrative procedure law of the people's Republic of China and Article 46, paragraph 1 of the land administration law.
[lawyer's opinion] this is a case involving the compensation dispute over the use right of rural collective construction land. Article 48 of the land administration law stipulates that the compensation fees for collective land acquisition include land compensation fees, resettlement subsidies and compensation fees for ground attachments and young crops, but it does not make clear provisions on the compensation for the use right of collective construction land. Summary of the civil trial work forum of Liaoning Provincial Higher People's Court [LGF (2009) No. 120]: "I. real estate part 3. Land acquisition compensation for the use right of rural collective construction land. For the acquisition of rural collective construction land, appropriate economic compensation shall be given according to law for the land use right of the rural collective construction land user who is not the land owner." It is clearly agreed that appropriate economic compensation shall be given to the land use right of the rural construction land use right holder who is not the land owner according to law. However, there is no case in Liaoning Province on the compensation of the rural collective construction land use right in the process of expropriation. This case involves not only the issue of whether the right to use the rural collective construction land of company a should be compensated, but also the issue of the time limit of the lawsuit and the determination of the subject of the lawsuit.
On the question of whether the use right of collective construction land of company a should be compensated, the two courts expounded from four aspects, stating that company a should obtain compensation for the use right of collective construction land. First, the demolition implementation plan formulated by the demolition department clearly stipulates that the land used by the enterprise holding the village collective land use certificate shall be compensated according to the compensation standard for the agricultural land. In this case, company a has obtained the collective land construction land use certificate, and the land involved is within the demolition area specified in the demolition announcement. Therefore, according to the demolition implementation plan, company a has the right to obtain compensation. Second, Article 9 of the demolition compensation agreement signed by company a and the demolition Department states that the total compensation price determined in the agreement does not include land compensation, and Article 12 stipulates that both parties may sign compensation clauses for matters not covered in the agreement. This agreement indicates that both parties know that the original demolition compensation agreement does not include land compensation. Third, government B did not provide evidence to prove that the compensation for the land involved had been paid to the village committee, while the record of inquiry submitted by company a to the court stated that the village secretary and the accountant of the original village committee confirmed that the compensation for the land involved had not been paid to the village committee. According to the agreement in 1999, company a agreed to receive the compensation for the use right of the collective construction land involved. This fact fully shows that government B has not fulfilled the obligation to pay the collective land compensation to the village committee, and the village committee recognizes that company a should obtain the compensation for the collective construction land use right according to the agreement. Fourth, both company a and company C within the same demolition scope have obtained the right to use the collective construction land by signing an agreement with the village collective economic organization, while company C has obtained the right to use the collective construction land according to the demolition implementation plan. Equal treatment of the parties is the basic principle of administration according to law. Company a has the right to obtain land compensation.
As for the compensation standard for the use right of collective construction land, since the demolition compensation agreement signed by company C and the demolition office stated that the compensation standard for the use right of collective construction land determined through evaluation was 296 yuan / m2, in this case, the collective construction land used by company a is adjacent to the collective construction land of company C, so the court decided to compensate the use right of collective construction land of company a with reference to the compensation standard of 296 yuan / m2.
As for interest, company a's delay in obtaining the above compensation was caused by the government of District B refusing to pay the overdue interest without justifiable reasons. Therefore, its claim that the government of District B should pay the overdue interest should be supported.
As for the subject of the defendant, according to the provisions of paragraph 1 of Article 46 of the land administration law, where the state expropriates land, the local people's government at or above the county level shall make a public announcement and organize the implementation after approval according to legal procedures. In this case, the demolition implementation plan was approved by the government of district B. the court recognized that the management committee and the demolition office were only specific implementation departments, and the government of District B was the subject of collective land acquisition and compensation.
As for the time limit for prosecution, although the legal provisions stipulate the calculation method of the time limit for prosecution in cases where the administrative organ performs its statutory duties according to the application, in this case, the duty of expropriation and compensation requested by company a to be performed by the government of District B belongs to the statutory duty that the administrative organ should perform according to its functions and powers, so it is not limited by the above-mentioned time limit for prosecution.
In the process of acting for this case, the acting lawyer started from the evidence, collected and applied to the court to obtain a large amount of evidence. Because the evidence was full and accurate and the argument was sufficient, the acting view was supported by the court.
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