[Key words]
Administration / performing the responsibility of expropriation compensation / rush construction / expropriation beyond the approved area of land requisition / illegal construction
[introduction of the lawyer in this case]
Wu Jianping, senior partner of Liaoning Tongfang law firm. It has handled hundreds of civil and commercial cases and various civil, commercial and non litigation legal affairs with high legal professional quality, and has been accepted by Hunnan District People's government, Beiche Construction Engineering Co., Ltd., MCC Traffic Engineering Technology Co., Ltd., MCC Northeast company, Shenyang quanyun Investment Management Co., Ltd., Shenyang Wulihe Investment Management Co., Ltd., Shenyang DARUI Investment Management Co., Ltd., Shenyang Information Industry Venture Capital Co., Ltd Shenyang Biomedical Industry Venture Capital Co., Ltd., Hunnan branch of Shenyang planning and Land Resources Bureau, Hunnan District State owned assets company, Liaoning corps of China building materials industry, Shenyang Modern Transportation Co., Ltd., Shenyang tram operation Co., Ltd., Shenyang Wanrun New Town Investment Management Co., Ltd. and other 18 governments, enterprises and institutions are engaged as perennial legal advisers. During his practice, he won the titles of "excellent lawyer of Shenyang City" and "civilized lawyer of Shenyang City".
[referee points]
The district government expropriates the land beyond the area approved by the provincial government, resulting in the loss of the land use right of the expropriated person not within the scope approved by the provincial government for land acquisition and the demolition of buildings. The expropriated person has certain legal rights and interests over the above ground buildings in the part approved by the provincial government for land acquisition. If the expropriated persons rush to build buildings without legal approval procedures after the district government issues the requisition announcement, the compensation amount shall comprehensively consider the factors that the buildings are built after the issuance of the requisition announcement and illegal construction without legal approval procedures.
The compensation for the resettlement fee during the transition period is the subsidy for the enterprises whose property rights are changed during the transition period. If the expropriated person chooses the monetary compensation method, the relevant laws and regulations on the resettlement compensation during the transition period are not applicable.
[basic case]
Shenyang HENGWEI Forging Co., Ltd. (hereinafter referred to as "HENGWEI company") is located in Tanan village, Baita Town, Hunnan district (formerly Dongling District), Shenyang City. After the establishment of the enterprise in June 2000, there was only one plant area (Xichang District) at first. In August 2007, through the coordination of Hunnan District People's Government (hereinafter referred to as "the district government"), Hengwei paid 1.7 million yuan to Dongbao village committee of baitabao Town, Dongling District, Shenyang City in the name of land acquisition to purchase a collective land (Dongchang District) with an area of 16046.93 square meters in the village.
On July 1, 2010, the district government issued the demolition announcement, which decided to demolish 18 villages including huoshiqiao and mozishan in Baita sub district and Taoxian sub district. The plant area of HENGWEI company is within the scope of the demolition announcement. Later, from October 2010 to October 2011, Hengwei started to construct 11 buildings of various types in the East plant area, with a total area of 9788.76 square meters and a wall of 238.1 meters. On July 11, 2012, Hengwei company and Baita sub district office of Dongling District, Shenyang City reached the relocation compensation agreement on Xichang district. After that, Hengwei company withdrew from Xichang District, and there was no dispute between the two parties on the compensation for Xichang district. In November 2012, Hengwei company withdrew from the East plant area and demolished some buildings in the East plant area by itself, and then the district government demolished all the buildings in the East plant area.
On December 31, 2013, the people's Government of Liaoning Province issued the reply to land acquisition (LZD (2013) No. 1967), in which 2338.55m2 of land in the East plant area of HENGWEI company was expropriated. HENGWEI company and the district government did not reach an agreement on the compensation of the above ground buildings in Dongchang District, so HENGWEI company sued the district government to Shenyang intermediate people's court in 2014.
After hearing the administrative judgment (2014) szxcz No. 227 issued by Shenyang intermediate people's court, it was decided that the district government would deal with the compensation of HENGWEI East factory within 60 days from the date when the judgment became legally effective. Both parties appealed to the Liaoning Provincial Higher People's court against the judgment. After hearing the Liaoning Provincial Higher People's court's (2015) lxzz No. 90 administrative ruling, it ruled to cancel the Shenyang intermediate people's court's (2014) szxcz No. 227 administrative judgment; The case shall be sent back to the Shenyang intermediate people's court to form a collegial panel for retrial. Lawyer Tang Ning accepted the entrustment of Hunnan district government to participate in the litigation as an agent ad litem.
[judgment result]
1、 The judgment result of the first instance of retrial:
The Shenyang intermediate people's Court issued [2015] szxcz No. 202 administrative judgment, and the judgment is as follows:
1. The defendant shall, within 30 days from the date when this judgment becomes legally effective, compensate the plaintiff for the houses and appurtenances in Dongchang District of RMB 4232216;
2. The defendant shall, within 30 days from the date of the legal effect of this judgment, compensate the plaintiff for the resettlement fee of 2936628 yuan during the transition period in Dongchang District;
3. The defendant shall, within 30 days from the date when this judgment becomes legally effective, compensate the plaintiff for the relocation cost of Dongguang District of RMB 100000.
The appraisal fee of this case is 70000 yuan and the case acceptance fee is 50 yuan, which shall be borne by the defendant.
2、 Judgment result of second instance of Remand:
The higher people's Court of Liaoning Province made the administrative judgment (2016) No. 1181 on termination of the Bank of Liaoning Province. The judgment is as follows:
1. Annul the administrative judgment (2015) szxcz No. 202 of Shenyang intermediate people's court;
2. The defendant in the original trial shall compensate the plaintiff in the original trial for the houses and appurtenances in Dongchang District of RMB 2539329 within 30 days from the date when this judgment becomes legally effective.
The acceptance fee of the second instance case of 100 yuan shall be borne by the defendant of the original trial, and the appraisal fee of 70000 yuan shall be borne by the plaintiff of the original trial of 70%, that is, 49000 yuan, and the defendant of the original trial of 30%, that is, 21000 yuan.
This judgment is final.
[reasons for adjudication]
The court of second instance of the retrial held that the focus of the dispute in this case was whether the plaintiff in the original trial (HENGWEI company) had legal rights and interests, and whether the amount of compensation determined in the first instance was correct.
1. On whether the plaintiff HENGWEI Forging Co., Ltd. in the original trial has legal rights and interests.
The people's Government of Hunnan District of Shenyang, the defendant in the original trial, as the local people's government at the county level, has the legal responsibility to compensate for the collective land expropriated. The plaintiff in the original trial, Hengwei Forging Co., Ltd. obtained the right to use the land involved in the case through negotiation with the Dongbao villagers' committee of baitabao Town, Dongling District, Shenyang City and paid a certain consideration. The buildings in Dongchang District built by HENGWEI Forging Co., Ltd. are within the scope of the demolition announcement made by the defendant in the original trial, Hunnan district government. Due to the excessive land acquisition by Hunnan district government, Hengwei forging and pressing company lost its land use right not within the scope of the land acquisition Reply of the provincial government and demolished the buildings. Therefore, Hengwei forging and pressing company has certain legal rights and interests to the house in dispute.
2. Regarding the amount to be compensated.
The court of second instance held that the buildings involved in HENGWEI forging and pressing were all constructed after October 2010, that is, after the Hunnan district government issued the demolition announcement on July 1, 2010, without any approval procedures. The court of first instance only considered that the buildings were constructed on agricultural land without approval procedures, and it was inappropriate to determine the compensation amount according to 50% of the assessment conclusion. On the other hand, the Hunnan district government did not obtain the land requisition approval when issuing the demolition announcement, and only 2338.55 square meters of the land used by HENGWEI forging (16046.93 square meters) was in the provincial government's land use approval on December 31, 2013. Therefore, the cost loss of the buildings on HENGWEI forging should be compensated to a certain extent, and it is more reasonable for the court of second instance to decide to give a proportion of 30%.
3. Compensation for resettlement fees during the transition period.
The court of second instance held that according to the measures for compensation for the demolition of collective land houses and ground attachments in Hunnan New City (Provisional) issued by the Hunnan district government on June 28, 2010, the administrative measures for the demolition of urban houses in Shenyang City [2004] No. 31 order of the Shenyang Municipal government, and the implementation plan for the expropriation and compensation of Hunnan New City, the subsidy during the transition period is the subsidy for the enterprises whose property rights are changed during the transition period, and is not applicable to this case. Moreover, Hengwei forging did not provide sufficient evidence to prove that the buildings involved in the case were operating and did not comply with the provisions of Article 6 of the implementation plan of Hunnan New City expropriation and compensation. Therefore, the judgment of the first instance to compensate the loss has no factual and legal basis and should be revoked.
4. Compensation for relocation expenses of East plant area.
The court of second instance held that the existing evidence could not prove that HENGWEI forging had incurred "secondary compensation for equipment disassembly, commissioning, transportation and secondary transportation expenses of products and goods", so the judgment of first instance to compensate for this loss had no factual and legal basis and should be revoked.
[relevant provisions]
Article 2 of the land administration law of the people's Republic of China, the state may, for the sake of public interests, expropriate or requisition land according to law and make compensation.
Article 46 land expropriation by the State shall be announced and implemented by the local people's governments at or above the county level after approval according to legal procedures
Article 47 where land is expropriated, compensation shall be made according to the original purpose of the expropriated land.
According to Article 49 of the administrative measures of Shenyang City on urban housing demolition and relocation, if the property rights of non residential houses are replaced, in addition to compensation according to the provisions of item 1, item 2 and item 3 of Article 48 of these measures, the demolition and relocation personnel shall also bear the following expenses:
（1） For the employees of enterprises that stop production or business due to demolition, subsidies will be given during the transition period. The standard is: for the commercial houses located along the street and directly used for business, such as the demolished shopping malls, shops, stores and gate points, subsidies will be given at 50 yuan per square meter per month according to the building area of the demolished houses; For non-commercial buildings such as office buildings, storage buildings, production plants and garages to be demolished, a subsidy of 25 yuan per square meter per month shall be given according to the building area of the demolished buildings; Where the site is used for production and operation, a subsidy of 10 yuan per square meter per month shall be given according to the land area.
（2） 20% of the total after tax profits of the enterprise in the previous two years shall be paid monetary compensation every year.
[lawyer's opinion]
In this case, the main appeal opinions raised by the acting lawyer are: the buildings in the East factory area of HENGWEI company were built after the district government issued the demolition notice in July 2010, and the buildings in the East factory area were not approved by the rural construction planning and the approval procedures for agricultural land conversion, which were illegal buildings. The acquisition of land in the East plant area by HENGWEI company has not been subject to legal approval procedures. Even if the district government has the behavior of expropriation exceeding the approved area of land requisition, this behavior is independent from the fact that HENGWEI company is rushing to build illegal buildings. That is, no matter whether the district government has the behavior of expropriation exceeding the approved area of land requisition, it will not change the fact that the houses in the East plant area of HENGWEI company belong to illegal buildings. Based on this fact, Hengwei company shall bear the losses incurred in the relocation process by itself and shall not be entitled to any compensation.
The court of second instance supported the appeal opinions put forward by our lawyers, and determined that the East plant area claimed by HENGWEI company belongs to rush construction. However, because the Hunnan district government did not obtain the land requisition reply when issuing the demolition announcement, and only 2338.55 square meters of the land used by HENGWEI forging (16046.93 square meters) were in the reply of the provincial government on December 31, 2013, the court of second instance held that the district government should compensate the cost loss of the buildings on HENGWEI forging, Therefore, it is decided to pay 30% compensation according to the appraisal conclusion. The lawyer believes that the judgment of the court of second instance conforms to judicial practice, is reasonable and legal, and takes into account the legitimate rights and interests of the appellant's district government and the respondent HENGWEI company.
Administration / performing the responsibility of expropriation compensation / rush construction / expropriation beyond the approved area of land requisition / illegal construction
[introduction of the lawyer in this case]
Wu Jianping, senior partner of Liaoning Tongfang law firm. It has handled hundreds of civil and commercial cases and various civil, commercial and non litigation legal affairs with high legal professional quality, and has been accepted by Hunnan District People's government, Beiche Construction Engineering Co., Ltd., MCC Traffic Engineering Technology Co., Ltd., MCC Northeast company, Shenyang quanyun Investment Management Co., Ltd., Shenyang Wulihe Investment Management Co., Ltd., Shenyang DARUI Investment Management Co., Ltd., Shenyang Information Industry Venture Capital Co., Ltd Shenyang Biomedical Industry Venture Capital Co., Ltd., Hunnan branch of Shenyang planning and Land Resources Bureau, Hunnan District State owned assets company, Liaoning corps of China building materials industry, Shenyang Modern Transportation Co., Ltd., Shenyang tram operation Co., Ltd., Shenyang Wanrun New Town Investment Management Co., Ltd. and other 18 governments, enterprises and institutions are engaged as perennial legal advisers. During his practice, he won the titles of "excellent lawyer of Shenyang City" and "civilized lawyer of Shenyang City".
[referee points]
The district government expropriates the land beyond the area approved by the provincial government, resulting in the loss of the land use right of the expropriated person not within the scope approved by the provincial government for land acquisition and the demolition of buildings. The expropriated person has certain legal rights and interests over the above ground buildings in the part approved by the provincial government for land acquisition. If the expropriated persons rush to build buildings without legal approval procedures after the district government issues the requisition announcement, the compensation amount shall comprehensively consider the factors that the buildings are built after the issuance of the requisition announcement and illegal construction without legal approval procedures.
The compensation for the resettlement fee during the transition period is the subsidy for the enterprises whose property rights are changed during the transition period. If the expropriated person chooses the monetary compensation method, the relevant laws and regulations on the resettlement compensation during the transition period are not applicable.
[basic case]
Shenyang HENGWEI Forging Co., Ltd. (hereinafter referred to as "HENGWEI company") is located in Tanan village, Baita Town, Hunnan district (formerly Dongling District), Shenyang City. After the establishment of the enterprise in June 2000, there was only one plant area (Xichang District) at first. In August 2007, through the coordination of Hunnan District People's Government (hereinafter referred to as "the district government"), Hengwei paid 1.7 million yuan to Dongbao village committee of baitabao Town, Dongling District, Shenyang City in the name of land acquisition to purchase a collective land (Dongchang District) with an area of 16046.93 square meters in the village.
On July 1, 2010, the district government issued the demolition announcement, which decided to demolish 18 villages including huoshiqiao and mozishan in Baita sub district and Taoxian sub district. The plant area of HENGWEI company is within the scope of the demolition announcement. Later, from October 2010 to October 2011, Hengwei started to construct 11 buildings of various types in the East plant area, with a total area of 9788.76 square meters and a wall of 238.1 meters. On July 11, 2012, Hengwei company and Baita sub district office of Dongling District, Shenyang City reached the relocation compensation agreement on Xichang district. After that, Hengwei company withdrew from Xichang District, and there was no dispute between the two parties on the compensation for Xichang district. In November 2012, Hengwei company withdrew from the East plant area and demolished some buildings in the East plant area by itself, and then the district government demolished all the buildings in the East plant area.
On December 31, 2013, the people's Government of Liaoning Province issued the reply to land acquisition (LZD (2013) No. 1967), in which 2338.55m2 of land in the East plant area of HENGWEI company was expropriated. HENGWEI company and the district government did not reach an agreement on the compensation of the above ground buildings in Dongchang District, so HENGWEI company sued the district government to Shenyang intermediate people's court in 2014.
After hearing the administrative judgment (2014) szxcz No. 227 issued by Shenyang intermediate people's court, it was decided that the district government would deal with the compensation of HENGWEI East factory within 60 days from the date when the judgment became legally effective. Both parties appealed to the Liaoning Provincial Higher People's court against the judgment. After hearing the Liaoning Provincial Higher People's court's (2015) lxzz No. 90 administrative ruling, it ruled to cancel the Shenyang intermediate people's court's (2014) szxcz No. 227 administrative judgment; The case shall be sent back to the Shenyang intermediate people's court to form a collegial panel for retrial. Lawyer Tang Ning accepted the entrustment of Hunnan district government to participate in the litigation as an agent ad litem.
[judgment result]
1、 The judgment result of the first instance of retrial:
The Shenyang intermediate people's Court issued [2015] szxcz No. 202 administrative judgment, and the judgment is as follows:
1. The defendant shall, within 30 days from the date when this judgment becomes legally effective, compensate the plaintiff for the houses and appurtenances in Dongchang District of RMB 4232216;
2. The defendant shall, within 30 days from the date of the legal effect of this judgment, compensate the plaintiff for the resettlement fee of 2936628 yuan during the transition period in Dongchang District;
3. The defendant shall, within 30 days from the date when this judgment becomes legally effective, compensate the plaintiff for the relocation cost of Dongguang District of RMB 100000.
The appraisal fee of this case is 70000 yuan and the case acceptance fee is 50 yuan, which shall be borne by the defendant.
2、 Judgment result of second instance of Remand:
The higher people's Court of Liaoning Province made the administrative judgment (2016) No. 1181 on termination of the Bank of Liaoning Province. The judgment is as follows:
1. Annul the administrative judgment (2015) szxcz No. 202 of Shenyang intermediate people's court;
2. The defendant in the original trial shall compensate the plaintiff in the original trial for the houses and appurtenances in Dongchang District of RMB 2539329 within 30 days from the date when this judgment becomes legally effective.
The acceptance fee of the second instance case of 100 yuan shall be borne by the defendant of the original trial, and the appraisal fee of 70000 yuan shall be borne by the plaintiff of the original trial of 70%, that is, 49000 yuan, and the defendant of the original trial of 30%, that is, 21000 yuan.
This judgment is final.
[reasons for adjudication]
The court of second instance of the retrial held that the focus of the dispute in this case was whether the plaintiff in the original trial (HENGWEI company) had legal rights and interests, and whether the amount of compensation determined in the first instance was correct.
1. On whether the plaintiff HENGWEI Forging Co., Ltd. in the original trial has legal rights and interests.
The people's Government of Hunnan District of Shenyang, the defendant in the original trial, as the local people's government at the county level, has the legal responsibility to compensate for the collective land expropriated. The plaintiff in the original trial, Hengwei Forging Co., Ltd. obtained the right to use the land involved in the case through negotiation with the Dongbao villagers' committee of baitabao Town, Dongling District, Shenyang City and paid a certain consideration. The buildings in Dongchang District built by HENGWEI Forging Co., Ltd. are within the scope of the demolition announcement made by the defendant in the original trial, Hunnan district government. Due to the excessive land acquisition by Hunnan district government, Hengwei forging and pressing company lost its land use right not within the scope of the land acquisition Reply of the provincial government and demolished the buildings. Therefore, Hengwei forging and pressing company has certain legal rights and interests to the house in dispute.
2. Regarding the amount to be compensated.
The court of second instance held that the buildings involved in HENGWEI forging and pressing were all constructed after October 2010, that is, after the Hunnan district government issued the demolition announcement on July 1, 2010, without any approval procedures. The court of first instance only considered that the buildings were constructed on agricultural land without approval procedures, and it was inappropriate to determine the compensation amount according to 50% of the assessment conclusion. On the other hand, the Hunnan district government did not obtain the land requisition approval when issuing the demolition announcement, and only 2338.55 square meters of the land used by HENGWEI forging (16046.93 square meters) was in the provincial government's land use approval on December 31, 2013. Therefore, the cost loss of the buildings on HENGWEI forging should be compensated to a certain extent, and it is more reasonable for the court of second instance to decide to give a proportion of 30%.
3. Compensation for resettlement fees during the transition period.
The court of second instance held that according to the measures for compensation for the demolition of collective land houses and ground attachments in Hunnan New City (Provisional) issued by the Hunnan district government on June 28, 2010, the administrative measures for the demolition of urban houses in Shenyang City [2004] No. 31 order of the Shenyang Municipal government, and the implementation plan for the expropriation and compensation of Hunnan New City, the subsidy during the transition period is the subsidy for the enterprises whose property rights are changed during the transition period, and is not applicable to this case. Moreover, Hengwei forging did not provide sufficient evidence to prove that the buildings involved in the case were operating and did not comply with the provisions of Article 6 of the implementation plan of Hunnan New City expropriation and compensation. Therefore, the judgment of the first instance to compensate the loss has no factual and legal basis and should be revoked.
4. Compensation for relocation expenses of East plant area.
The court of second instance held that the existing evidence could not prove that HENGWEI forging had incurred "secondary compensation for equipment disassembly, commissioning, transportation and secondary transportation expenses of products and goods", so the judgment of first instance to compensate for this loss had no factual and legal basis and should be revoked.
[relevant provisions]
Article 2 of the land administration law of the people's Republic of China, the state may, for the sake of public interests, expropriate or requisition land according to law and make compensation.
Article 46 land expropriation by the State shall be announced and implemented by the local people's governments at or above the county level after approval according to legal procedures
Article 47 where land is expropriated, compensation shall be made according to the original purpose of the expropriated land.
According to Article 49 of the administrative measures of Shenyang City on urban housing demolition and relocation, if the property rights of non residential houses are replaced, in addition to compensation according to the provisions of item 1, item 2 and item 3 of Article 48 of these measures, the demolition and relocation personnel shall also bear the following expenses:
（1） For the employees of enterprises that stop production or business due to demolition, subsidies will be given during the transition period. The standard is: for the commercial houses located along the street and directly used for business, such as the demolished shopping malls, shops, stores and gate points, subsidies will be given at 50 yuan per square meter per month according to the building area of the demolished houses; For non-commercial buildings such as office buildings, storage buildings, production plants and garages to be demolished, a subsidy of 25 yuan per square meter per month shall be given according to the building area of the demolished buildings; Where the site is used for production and operation, a subsidy of 10 yuan per square meter per month shall be given according to the land area.
（2） 20% of the total after tax profits of the enterprise in the previous two years shall be paid monetary compensation every year.
[lawyer's opinion]
In this case, the main appeal opinions raised by the acting lawyer are: the buildings in the East factory area of HENGWEI company were built after the district government issued the demolition notice in July 2010, and the buildings in the East factory area were not approved by the rural construction planning and the approval procedures for agricultural land conversion, which were illegal buildings. The acquisition of land in the East plant area by HENGWEI company has not been subject to legal approval procedures. Even if the district government has the behavior of expropriation exceeding the approved area of land requisition, this behavior is independent from the fact that HENGWEI company is rushing to build illegal buildings. That is, no matter whether the district government has the behavior of expropriation exceeding the approved area of land requisition, it will not change the fact that the houses in the East plant area of HENGWEI company belong to illegal buildings. Based on this fact, Hengwei company shall bear the losses incurred in the relocation process by itself and shall not be entitled to any compensation.
The court of second instance supported the appeal opinions put forward by our lawyers, and determined that the East plant area claimed by HENGWEI company belongs to rush construction. However, because the Hunnan district government did not obtain the land requisition reply when issuing the demolition announcement, and only 2338.55 square meters of the land used by HENGWEI forging (16046.93 square meters) were in the reply of the provincial government on December 31, 2013, the court of second instance held that the district government should compensate the cost loss of the buildings on HENGWEI forging, Therefore, it is decided to pay 30% compensation according to the appraisal conclusion. The lawyer believes that the judgment of the court of second instance conforms to judicial practice, is reasonable and legal, and takes into account the legitimate rights and interests of the appellant's district government and the respondent HENGWEI company.
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