The appellant (a training Service Co., Ltd.) sued the respondent (a District Peo

Release Time:：2022-05-12    Source：    Author：Undertaking lawyers: Yang Xingquan, Liu Kai [focus of litigation]:
1. Although the buildings involved in the case of a training Service Co., Ltd. have not obtained the construction project planning permit, the reasons for not obtaining the construction project planning permit and the principles of fair and reasonable administrative law should also be considered for compensation.
2. Whether the administrative act of the people's Government of a district to demolish the buildings of a training Service Co., Ltd. is illegal.
3. The construction of the buildings involved in the case in the secondary drinking water source protection zone is not the standard for identifying illegal buildings.
4. The case involves whether the notice of demolition within a time limit should be tried.
[judging points]:
On whether the people's Government of a certain district should compensate for the demolition of the above 14 buildings. Article 7 of the State Compensation Law of the people's Republic of China stipulates that: "Where an administrative organ and its staff infringe upon the lawful rights and interests of citizens, legal persons and other organizations in the exercise of administrative functions and powers and cause damage, the administrative organ shall be the organ liable for compensation.... where an organization or individual entrusted by an administrative organ infringes upon the lawful rights and interests of citizens, legal persons and other organizations in the exercise of entrusted administrative powers and causes damage, the entrusted administrative organ shall be the organ liable for compensation." Although the 14 buildings involved in the case do not belong to the buildings that have obtained the construction project planning permit in accordance with the urban and rural planning law of the people's Republic of China, it should also be considered that the project involved in the case belongs to the investment attraction project of a certain government, the appellant built a tourism project for the purpose of promoting local economic development, not a villa project for living and use, and the appellant actively responded to the investment attraction policy of the people's Government of a certain district, Actively invest, develop and construct the project. The appellant has made a lot of investment in the development and construction of the project involved in the case. The people's Government of a certain district has affirmed and supported the appellant's investment project in all previous work meetings and government work reports, and required all relevant departments to actively cooperate with and deal with the matters that the appellant needs to negotiate and handle relevant procedures in the process of investment and construction. The appellant also actively handled various legal procedures required by the project during the investment and construction process. The 14 buildings involved in the case did not finally obtain the construction project planning permit, which was not solely caused by the appellant's unilateral reasons, and the people's Government of a certain district also had certain responsibilities.
[basic facts]:
On October 17, 2007, Mr. Wang, the legal representative of the appellant, signed the "barren mountain transfer contract" with a village committee, leasing 200 mu of land; On March 5, 2008, the legal representative of the appellant obtained the business license of an aquaculture farm, and the enterprise was a sole proprietorship enterprise; On March 18, 2010, the urban and Rural Construction Committee of a District issued the construction land planning license for the farm, with a land area of 200 mu; On September 7, 2010, the Forestry Department of Liaoning Province made the decision on granting administrative license, agreeing that the construction project of the breeding farm occupied 1.845 hectares of collective forest land; On September 12, 2012, the appellant company was established, and a district administration for Industry and Commerce issued a business license for it; On May 20, 2013, the development and Reform Commission of a district made the confirmation of enterprise investment project filing; On January 15, 2018, the Environmental Protection Bureau of a district made a reply of tqhs (2018) No. 1. After implementing the environmental protection measures proposed in the project report, the appellant's project is feasible from the perspective of environmental protection.
On October 11, October 14, and November 1, 2019, the leading group for the special action of checking and rectifying the problem of illegal villas in a certain district made three notices of ordering the removal of illegal buildings within a time limit against the buildings of a certain training Service Co., Ltd. on the ground that 14 buildings of a certain training Service Co., Ltd. did not obtain the construction planning permit and were illegal construction, According to the provisions of Article 64 of the urban and rural planning law of the people's Republic of China, the Appellant was ordered to dismantle the buildings involved within a time limit.
On November 2, 2019, the appellant made a notification letter to the illegal building inspection team of a certain district. The main contents were: it is not our fault that caused the situation today. Our company actively cooperated with the action team and agreed to the demolition. The above buildings shall be demolished by the relevant departments organized by the people's Government of a certain district.
On November 28, 2019, the illegal construction inspection team of a certain District issued the notice of removal within a specified time limit. According to the requirements of the letter from the provincial and municipal illegal construction special office, the Appellant was allowed to remove the six buildings with partial procedures within seven days. If the buildings were not removed within the specified time limit, the illegal construction inspection team of a certain district would handle them according to the law and regulations.
[judgment result]:
1、 Maintain the first item of the (2019) Liao XX Xing Chu No. XX administrative judgment of an intermediate people's court, that is, confirm that the "Notice of order to demolish illegal buildings within a time limit" issued by the special action leading group for the investigation and rectification of illegal villas in a certain district on October 11, 2019, October 14, 2019 and November 1, 2019 is illegal;
2、 Cancel the second item of the administrative judgment (2019) No. XX of liaoxx xingchu of an intermediate people's court, that is, reject other litigation claims of a training Service Co., Ltd;
3、 The people's Government of a district shall, within two months from the effective date of this judgment, make a compensation decision for the 14 buildings involved in the notice of ordering the demolition of illegal buildings within a time limit made on October 11, 2019, October 14, 2019 and November 1, 2019;
4、 Instructing an intermediate people's court to continue to hear the notice of demolition within a time limit issued by the leading group of the special action for the investigation and rectification of illegal villas in a district on November 28, 2019.
The first instance case acceptance fee is 50 yuan, and the second instance case acceptance fee is 50 yuan, a total of 100 yuan, which is borne by the people's Government of a district.
[lawyer's experience]:
This case is representative and progressive. It fully applies the basic principles of administrative law and reflects the determination of Liaoning Province to optimize the business environment and build a society ruled by law. The implementation of the national policy of "green water and green mountains are golden mountains and silver mountains" by local governments should not be realized at the expense of the legitimate rights and interests of enterprises, and should reflect the protection and kindness of enterprises. With the efforts and insistence of the acting lawyers, good results have been achieved.
The specific administrative act in this case is the demolition caused by the protection of the water source environment, rather than the demolition of illegal buildings. Both the court of first instance and the district government considered that illegal buildings were demolished. However, the appellant is an enterprise and tourism project built by the district government of the appellee for the purpose of attracting investment and promoting local economic development. It is not to build villas for living and use. The project site of the appellant company was not located in the class I and class II water source areas during the construction. During the operation, the appellant company consulted the relevant departments on the water source area and environmental protection for many times, and continued to operate after receiving a positive reply. At the same time, the appellant has invested a lot in the construction of environmental protection facilities to ensure that the water source environment is not polluted.
In this case, the appellee did not consider the above situation when making the specific administrative act, and the court of first instance of this case did not examine the case situation and background. The judgment and evaluation were simply made from the perspective of the appellee's government's demolition of illegal buildings, and the background of the case to protect the water source environment and the adjustment of the water source protection area were not reviewed.
Local governments should implement the national policy of "green water and green mountains are golden mountains and silver mountains" in the construction of ecological civilization, and the specific administrative actions should not be realized at the expense of the rights and interests of enterprises and investors. On the contrary, they should protect and treat enterprises and investors well. At this time, due to the adjustment of the water source protection area and the change of the policy, the legal rights and interests of the appellant were infringed without legal basis.
At the same time, according to the evidence provided by the appellee in the first instance of this case, the superior government and the superior leading group of the appellee requested the appellee to "make compensation first and then demolish".
Therefore, the specific administrative act of the appellee not only violated the provisions of laws and regulations, but also violated the requirements of the superior government and the superior leading group of the appellee, and also violated the spirit of the basic national policy of building a socialist ecological civilization. However, the court of first instance did not review the facts and found that the facts were unclear. The first instance judgment also failed to objectively and fully identify the illegality of the administrative act of the appellee and ordered him to bear corresponding responsibilities, which also damaged the legitimate rights and interests of the appellant.
In this case, the higher people's Court of Liaoning Province (court of second instance) made a fair judgment from the perspective of respecting facts, respecting history, safeguarding the legitimate interests of enterprises and optimizing the business environment in the province. With the efforts and insistence of the acting lawyer for 15 months, good results of the case have been achieved. This case is typical and of great progressive significance, which reflects our province's determination to optimize the business environment and build a society ruled by law.