Foreword

For administrative dispute cases, the author searched the Chinese judicial documents online with "administrative cases" as the key word, and retrieved a total of 3074063 judicial documents (as shown in Figure 1). However, when the author further searched with "demolition within a time limit" as the key word, it was found that on the basis of administrative cases, 125731 judicial documents were dismantled within a time limit (as shown in Figure 2), accounting for 4% of administrative dispute cases.

Picture one

Picture 2

As a lawyer who has been engaged in the field of administrative dispute resolution for many years, seeing this proportion, I am very impressed: in administrative dispute cases, the proportion of demolition cases within a time limit is already very high. From the end of last year to the beginning of this year, Evergrande's "Haihua Island" deadline for demolition occupied the top few hot searches and once topped the list of hot searches. The author took Evergrande's "Haihua Island" deadline for demolition as a starting point and made the following analysis on Evergrande's Haihua Island project and its relief:

01

Introduction of Evergrande "Haihua Island" Project

Brief Introduction of (I) Haihua Island Project

Evergrande Haihua Island is an artificial island, located in the bay area between Pai Pu Port and Yangpu Port in Danzhou City, Hainan Province, starting from Pai Pu Town in the south and Baimajing Town in the north, about 600 meters from the coast, with a total span of about 6.8 kilometers. The island is composed of three independent offshore islands, with a planned reclamation area of about 8 square kilometers. The planned plane shape is three flowers blooming in the sea, so it is named "Haihua Island". The leading functions of Haihua Island 1 are tourism and vacation, business exhibition, hotel conference, entertainment and leisure, catering and marine sports and leisure. The dominant function of Island 2 and Island 3 is the residential functional area, equipped with certain public service facilities.

(II) Haihua Island Project Procedure Planning

In December 2009, the State Council's Guofa [2009] No. 44 "Several Opinions of the State Council on Promoting the Construction and Development of Hainan International Tourism Island" mentioned that Hainan was approved by the State Council to build an "international tourism island"; October 14, 2010, The People's Government of Danzhou City signed the "Investment and Development Framework Agreement for the Baimajing Reclamation Project in Danzhou City, Hainan Province" with Evergrande Group through investment promotion; August 30, 2012, the State Oceanic Administration organized experts to review the "Special Topic on Marine Environmental Impact of Marine Environmental Impact Planning for Regional Construction of Baimajing Haihua Island Tourism Complex in Danzhou City"; on December 3, 2012, the Department of Marine Environmental Protection of the State Oceanic Administration issued the "Letter on Review Opinions on the Special Chapter of Marine Environmental Impact Planning for Regional Construction of Baimajing Haihua Island Tourism Complex in Danzhou City"; December 14, 2012, the State Oceanic Administration approved the "Sea Use Plan for the Construction of Haihua Island Tourism Complex in Baimajing, Danzhou City"; on August 28, 2013, Evergrande obtained the "Sea Area Use Certificate"; in 2015, Evergrande obtained land use rights through public bidding, auction and listing, and began development and construction; on November 19, 2015, the Danzhou Housing and Urban-Rural Development Bureau announced the detailed regulatory planning plan for Haihua Island; on December 25, 2017, Evergrande obtained some presale permits.

(III) Haihua Island Project Demolition Background

In 2016, Hainan resolutely implemented the "two suspension" regulation and control policy of real estate, comprehensively strengthened the control of the real estate market, encouraged and guided housing consumption, and actively digested the inventory of commercial housing; from August 10 to September 10, 2017, the fourth environmental protection supervision group of the Central Committee carried out environmental protection supervision on Hainan, and Haihua Island was defined as "bulging the purse and destroying the ecology"; August 8, 2018, the Department of Oceans and Fisheries of Hainan Province announced the ''Hainan Province Implementation of the National Marine Supervision Feedback Rectification Plan'', and proposed rectification measures and rectification deadlines for multiple real estate projects, including Haihua Island; July 14, 2019, The third ecological environmental protection inspection team of the central government launched the second round of central ecological environmental protection inspections in Hainan Province, including the problem of damage to the ecological environment by the construction of Haihua Island; on May 11, 2020, 39 presale permits were withdrawn; on May 15, 2020, the environmental protection department revoked the Environmental Impact Registration Form for 39 construction projects; on October 25, 2020, the filing and registration system for 39 buildings was closed.

(IV) Haihua Island Project Demolition Decision

On December 30, 2021, Danzhou Municipal Comprehensive Administrative Law Enforcement Bureau issued [2021] Dan Zong (Zhi) Di Jue Zi No. 0152. The specific contents are as follows: "Danzhou Xinheng Tourism Development Co., Ltd. is located in the third phase (VI) project of Haihua Island 2, Baimajing Town, Danzhou City, with a total construction area of 434941.46 square meters. The planning permit obtained illegally has been revoked and the project violates Article 40 of the People's Republic of China Urban and Rural Planning Law, the company was ordered to demolish the above-mentioned illegal buildings within 10 days. If it is not dismantled within the time limit, the Law Enforcement Bureau will organize the demolition according to law."

02

Whether the 39 buildings involved were illegally built

The Legal Elements of (I) Administrative Act

The legal elements of administrative acts include formal legal elements and substantive legal elements.

Formal legal requirements: legal jurisdiction, legal procedure, due process, effective requirements; Substantial legal requirements are divided into general substantive legal requirements and special substantive legal requirements, of which general substantive legal requirements: the appropriateness of legal constituent requirements, the legality of legal effect selection, the clarity of administrative behavior content, and the rationality of administrative behavior content.

Nature of (II) Demolition

　　Definition of administrative penalty

Article 2 of the "Administrative Punishment Law" stipulates: "Administrative punishment refers to the act of administrative agencies punishing citizens, legal persons, or other organizations that violate the administrative order in accordance with the law by reducing rights and interests or increasing obligations."

　　2. Types of administrative penalties

Article 9 of the "Administrative Punishment Law" stipulates that "the types of administrative penalties: (1) warnings, notifications and criticisms; (II) fines, confiscation of illegal gains, confiscation of illegal property; (III) temporary suspension of licenses, lowering of qualification levels, and revocation of licenses; (IV) restrictions Carry out production and business activities, order production and business operations, order closure, and restrict employment; (V) administrative detention; (VI) other administrative penalties prescribed by laws and administrative regulations."

　　3. Sanctions are one of the essential attributes of administrative penalties.

The sanction of administrative punishment is an additional burden imposed on the administrative organ in order to punish the violator who has committed the illegal act. Sanctions are a very important criterion when identifying administrative penalties.

　　4. Ordered to correct behavior

The first paragraph of Article 28 of the "Administrative Punishment Law" stipulates: "When an administrative agency imposes an administrative penalty, it shall order the party concerned to correct or correct the illegal act within a time limit."

Ordering to correct the illegal act means to directly repair the illegal status quo into a legal state, so it has the function of restoring the original state.

From the perspective of the nature of sanctions, it is the original obligation of the parties to correct the illegal act and restore it to a legal state. Ordering them to perform this obligation does not constitute a sanction, so it does not constitute an administrative penalty.

The first paragraph of Article 33 of the Administrative Punishment Law stipulates: "If the illegal act is minor and corrected in time, and no harmful consequences are caused, no administrative punishment shall be imposed. If the illegal act is minor for the first time and the harmful consequences are minor and corrected in time, no administrative punishment may be imposed."

　　5. The nature of the deadline for demolition

The Legislative Affairs Office of the State Council wrote in its reply to the "Request for Instructions on Whether" Ordering to Dismantle within a Time Limit "is an Administrative Punishment Act" by the Legislative Affairs Office of the Shaanxi Provincial People's Government (Guo Fa Secret Research Letter [2012] No. 665): "... Your" Request for Instructions on Whether "Ordering to Dismantle within a Time Limit" is an Administrative Punishment Act "(Shan Fu Fa Zi [2012] No. 49) has been received. After studying and negotiating with the Legal Work Committee of the Standing Committee of the National People's Congress, we hereby reply as follows: According to Article 23 of the "the People's Republic of China Administrative Punishment Law", "When an administrative organ imposes an administrative penalty, it shall order it to correct or correct the illegal act within a time limit". Ordering to correct or correct the illegal act within a time limit is a different administrative act from administrative punishment. Therefore, the "demolition within a time limit" stipulated in Article 64 of the "the People's Republic of China Urban and Rural Planning Law" and the "order to demolish within a time limit" stipulated in Article 68 should not be understood as an act of administrative punishment.

The Interim Provisions of the Supreme People's Court on the Cause of Action in Administrative Cases (Fa [2020] No. 44) states: "...... (I) administrative punishment 15. Order to dismantle within a time limit.......".

Although the decision to place the first-class case within a time limit shall be subject to administrative punishment, its nature is not administrative punishment, and the reason for the case is only to accurately determine the accused administrative act. The following author gives an example to facilitate the above problems, namely:

In the Supreme Court (2018) Supreme Law Xingshen No. 4718 case, the Supreme Court held: "...... The focus of the dispute in this case is whether the administrative act of ordering Huashi Company to correct within a time limit made by the Housing Provident Fund Management Center of Zibo City, Shandong Province is an administrative penalty, that is, whether the order to correct or correct the illegal act within a time limit is an administrative penalty. First of all, the concept of ordering correction (or correction within a time limit) is different from that of administrative punishment. Administrative penalty is the legal sanction given by the administrative subject to the legal procedure for the violation of the administrative order, and the order to correct or correct the illegal act within a time limit refers to the order issued by the administrative organ to the offender in the process of implementing the administrative penalty. Secondly, the nature and content of the two are different. Administrative punishment is a legal sanction, a restriction and deprivation of the personal freedom and property rights of the offender, and a punishment for causing damage to the spirit and reputation of the offender; and ordering to correct or correct the illegal act within a time limit is not a sanction in itself, but only requires the offender to fulfill his legal obligations and stop the illegal act. Eliminate the adverse consequences and restore the status quo ante. Third, the two have different regulatory perspectives. Administrative punishment is a new obligation to the administrative counterpart from the perspective of punishment, in order to warn the offender not to break the law again. Otherwise, they will be punished; and ordering correction or correction within a time limit is to order the offender to fulfill his existing legal obligations, correct the violation and restore the status quo ante. Fourth, the two are different. Article 8 of the Administrative punishment Law stipulates the specific types of administrative penalties, which include: warning, fine, confiscation of illegal income and illegal property, order to suspend production and business, temporary suspension or revocation of license, license and administrative detention, etc.; and order to correct or correct illegal acts within a time limit, due to different specific illegal acts, they are manifested in the form of stopping illegal acts, ordering return, ordering compensation, ordering correction, and dismantling within a time limit. To sum up, ordering correction or correcting illegal acts within a time limit is an administrative act different from administrative punishment, and the court of second instance holds that it does not belong to administrative punishment and is not improper."

From the above we can see,The nature of the deadline for demolition is an administrative order. Distinguish the nature of the demolition within a time limit, the relationship between the adverse behavior is applicable to the relevant provisions of the administrative punishment law. Although the decision on demolition within a time limit involved in the case is called an administrative penalty, it is actually an administrative order. Therefore, the Danzhou Comprehensive Administrative Law Enforcement Bureau does not need a hearing of evidence to make the decision on demolition within a time limit, let alone a collective discussion and decision by the person in charge of the administrative organ. However, regardless of the nature of the demolition within a time limit, the administrative act that makes the decision to demolish within a time limit must adhere to the principle of due process, effectively protect the administrative counterpart's right to know, and respect the administrative counterpart's right to state and defend.

(III) Haihua Island Project Demolition Decision

According to the law, there are two situations in which hearings should be held. The first is that laws, regulations, and rules expressly stipulate that hearings should be held. For example, the first paragraph of Article 63 of the "Administrative Punishment Law": "The administrative agency intends to make the following administrative penalty decisions, and it shall inform the parties that they have the right to request a hearing. If the parties request a hearing, the administrative agency shall organize a hearing: (1) A large amount of fine; (II) confiscation of a large amount of illegal income, confiscation of large value illegal property; (III) lowering of qualification level and revoking of licenses; (IV) order to suspend production and business, order to close down, or restrict employment; (V) other heavier administrative penalties; (VI) other circumstances prescribed by laws, regulations, and rules." The second is that the administrative organ considers it necessary to hold a hearing.

The nature of the decision made by the Danzhou Comprehensive Administrative Law Enforcement Bureau to demolish the case within a time limit is called administrative punishment, which is actually an administrative order and does not require a hearing.

(IV) the requirements for the issuance of construction project planning permits

The second paragraph of Article 40 of the "Urban and Rural Planning Law" stipulates: "To apply for a construction project planning permit, relevant certification documents for the use of land, construction project design plans and other materials shall be submitted. For a construction project that requires the construction unit to prepare a detailed constructive plan, the detailed constructive plan shall also be submitted. For those who meet the regulatory detailed planning and planning conditions, the urban and rural planning department of the city or county people's government or the town people's government determined by the people's government of the province, autonomous region, or municipality directly under the Central Government shall issue a construction project planning permit."

That is to say, the regulatory detailed planning and planning conditions are the elements for the issuance of construction project planning permits.

Article 10 of the Measures for the Preparation and Approval of Controlled Detailed Planning of Cities and Towns stipulates:"Regulatory detailed planning should include the following basic elements(1) The nature of land use and its compatibility and other land use function control requirements; (II) floor area ratio, building height, building density, green space rate and other land use indicators; (III) infrastructure, public service facilities, public safety facilities, land scale, scope and specific control requirements, underground pipeline control requirements; "Four lines" and control requirements, such as the control boundary of (IV) infrastructure land (yellow line), the control line of various green areas (green line), the protection boundary of historical and cultural blocks and historical buildings (purple line), and the geographical boundary of surface water protection and control (blue line)."

The first paragraph of Article 38 of the Urban and Rural Planning Law stipulates: "Where state-owned land use rights are provided by way of transfer in urban or town planning areas, before the transfer of state-owned land use rights, the urban and rural planning departments of the people's governments of cities and counties The planning conditions such as the location, nature of use, and development intensity of the transferred land shall be proposed based on the regulatory detailed planning as part of the state-owned land use right transfer contract. No state-owned land use right shall be granted to a plot of land for which the planning conditions have not been determined."

Article 39 stipulates: "if the planning conditions are not included in the contract for the transfer of the right to the use of state-owned land, the contract for the transfer of the right to the use of state-owned land shall be invalid; if the construction unit has not obtained the construction land planning permit, the people's government at or above the county level shall revoke the relevant approval documents; if the land is occupied, it shall be returned in a timely manner; if losses are caused to the parties, compensation shall be made according to the parties."

The legal basis for the (V) to make a deadline for demolition

Article 64 of the Urban and Rural Planning Law: "If construction is not obtained or carried out in accordance with the provisions of the construction project planning permit, the competent department of urban and rural planning of the local people's government at or above the county level shall order the construction to stop; if corrective measures can be taken to eliminate the impact on the implementation of the plan, it shall be corrected within a time limit, and a fine of 5% to 10% of the construction project cost shall be imposed, if it cannot be dismantled, the physical objects or illegal income shall be confiscated, and a fine of less than 10% of the construction cost may be imposed."

(VI) Necessary Conditions for Demolition

If corrective measures cannot be taken to eliminate the impact, it is a specific situation where corrective measures cannot be taken to eliminate the impact. The Urban and Rural Planning Law does not clearly stipulate this. Some local laws and regulations provide for this, such as the second paragraph of Article 72 of the regulations on Urban and Rural Planning of Shandong Province: "the circumstances mentioned in the preceding paragraph that cannot take corrective measures to eliminate the impact and should be demolished within a time limit include: (1) unauthorized occupation of roads, squares, green spaces, river and lake water surfaces, coastal zones, rail transit, bus stations, gas facilities, heating facilities, water supply and drainage facilities, public service facilities, etc; (II) construction in violation of the mandatory content determined by technical specifications, standards or planning conditions such as building spacing, building concessions; (III) unauthorized occupation of roads, green spaces or other sites shared by the owners in the property management area for construction; (IV) unauthorized construction on the top of the building, The construction of the ground floor or the retreat platform; (V) other illegal construction activities that have a serious impact on the implementation of the plan."

(VII) the standard of "unable to take corrective measures to eliminate the impact"

According to the above, it can be seen that the regulatory detailed planning and planning conditions are the criteria for determining that "corrective measures cannot be taken to eliminate the impact.

(IX) the conclusion of "39 buildings built against the law or not"

According to public information, we seeOn December 13, 2017, Danzhou Municipal Bureau of Natural Resources and Planning approved the detailed regulatory planning of plot 2-14-1 of Haihua Island 2.Evergrande has obtained the land use right of plot 2-14-1 of Haihua Island 2 through bidding, auction and listing. For plots without determined planning conditions, the state-owned land use right shall not be transferred. The planning conditions of plot 2-14-1 have been determined.The construction project planning permit issued by Danzhou Natural Resources and Planning Bureau according to the control regulations and planning conditions of the 2-14-1 plot.

The construction project planning permit obtained by Evergrande is revoked, and its effect is retroactive when the construction project planning permit is made, that is, there is no construction project planning permit.

The author believes that no license is not the same as illegal construction. The construction of 39 buildings conforms to the control regulations and planning conditions and is not illegal construction.

03

Forced demolition can be dismantled or not

(I) the subject of forced demolition

The Supreme People's Court issued the Law Interpretation [2013] No. 5 on March 27, 2013, which stipulates: "According to the spirit of the relevant provisions of the Administrative Compulsory Law and the Urban and Rural Planning Law, the law has granted the administrative organ the power of enforcement to the compulsory demolition of illegal buildings, structures and facilities that violate the Urban and Rural Planning Law, the people's court shall not accept applications for non-litigation administrative enforcement filed by administrative organs."

Article 65 of the "Urban and Rural Planning Law" stipulates: "If a rural construction planning permit is not obtained in accordance with the law in a township or village planning area or construction is not carried out in accordance with the provisions of the rural construction planning permit, the township or town people's government shall order it to stop Construction and make corrections within a time limit; if it fails to make corrections within the time limit, it can be demolished." The main point of understanding this regulation is that the township and town people's governments are not only the main body that makes administrative decisions such as ordering to stop construction and making corrections within a time limit, but also the main body that directly implements compulsory demolition activities.

Article 68 stipulates: "after the competent department of urban and rural planning has made a decision to order the suspension of construction or demolition within a time limit, if the party concerned does not stop the construction or does not demolish within the time limit, the local people's government at or above the county level where the construction project is located may instruct the relevant departments to take measures such as sealing up the construction site and compulsory demolition." The purpose of this article is that the competent department of urban and rural planning is only the subject of administrative decisions such as ordering to stop construction and demolishing within a time limit, while the subject who directly carries out compulsory demolition activities shall be organized and implemented by the local people's government at or above the county level.

In practice, through the author's many years of experience in acting for such cases, the subject of forced demolition is mostly the Comprehensive Administrative Law Enforcement Bureau.

(II) Danzhou Comprehensive Administrative Law Enforcement Bureau cannot directly implement compulsory demolition according to the decision to demolish within a time limit.

According to the first paragraph of Article 37 of the "Administrative Enforcement Law", "If the party fails to perform the administrative decision within the time limit after a reminder, and there is no justifiable reason, the administrative agency may make an enforcement decision", the decision to demolish within a time limit is to limit the relative party. If you demolish it yourself, the administrative agency still needs to make a compulsory demolition decision.

The (III) shall be urged before making a decision on compulsory demolition.

According to Article 35 of the "Administrative Enforcement Law", "Before an administrative agency makes a compulsory enforcement decision, it shall urge the parties to perform their obligations in advance", the administrative agency shall first urge the parties to perform their obligations before making a compulsory demolition decision.

(IV) reminder time

The Administrative Division of the Supreme People's Court made on June 17, 2019 (2019) the Supreme People's Court's No. 48 "Reply of the Supreme People's Court on the Time for Administrative Organs to Urge the Parties to Perform Obligations Before Applying to the People's Court for Enforcement" stated: "Beijing Higher People's Court: Your" Request for Instructions on the Time for Administrative Organs to Urge the Parties to Perform Their Obligations Before Applying to the People's Court for Enforcement "(Beijing High Law (2019) No. 137) has been received. After research, you agree with the first opinion of your court, that is, if the parties fail to perform their obligations after the expiration of the performance period determined by the administrative decision, the administrative agency may urge the parties to perform their obligations. The administrative organ may not only implement the reminder after the expiration of the time limit for administrative reconsideration and administrative litigation, but also implement the reminder before the expiration of the time limit for administrative reconsideration and administrative litigation."

That is to say, according to the above reply, the administrative organ can not only implement the reminder after the expiration of the time limit for administrative reconsideration and administrative litigation, but also implement the reminder before the expiration of the time limit for administrative reconsideration and administrative litigation.

04

Disadvantages of (I) application for reconsideration

　　1. Problems during the relief period

Judging from the date of the deadline demolition decision, the deadline demolition decision was made on December 30, 2021, combined with Evergrande's application for reconsideration on January 4, 2022 (the first day after the legal holiday on New Year's Day), Evergrande will receive the deadline demolition decision at least on December 31, 2021. As shown in Figure 3 below:

Figure III

　　2. During the litigation period, the execution of the demolition decision shall be suspended.

According to the above, if Evergrande chooses litigation relief, then, during the reconsideration litigation, according to the principle of "administrative acts do not stop execution, stop execution as an exception", during the litigation period, Haihua Island can temporarily avoid being demolished.

According to Article 44 of the Administrative Enforcement Law, if illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative agency shall make an announcement, and the parties concerned shall demolish them on their own within a time limit. If the party concerned does not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and does not dismantle it, the administrative organ may forcibly dismantle it according to law. The statutory time limit in the clause refers to the time limit for reconsideration of the application and the time limit for prosecution, which is what we call the "relief period". Then, Danzhou Comprehensive Administrative Law Enforcement Bureau cannot forcibly demolish 39 buildings involved in the case before June 30, 2022.

　　3. Reconsideration accelerates the compulsory demolition procedure compared to litigation.

Article 17 of the Administrative Reconsideration Law stipulates that after receiving an application for administrative reconsideration, the administrative reconsideration agency shall conduct a review within five days, decide not to accept an application for administrative reconsideration that does not comply with the provisions of this law, and notify the applicant in writing; For administrative reconsideration applications that comply with the provisions of this law but are not accepted by this agency, the applicant shall be notified to submit to the relevant administrative reconsideration agency.

In addition to the provisions of the preceding paragraph, an application for administrative reconsideration shall be accepted from the date of receipt by the institution responsible for legal affairs of the administrative reconsideration organ.

The first paragraph of Article 31 stipulates that the administrative reconsideration organ shall make an administrative reconsideration decision within 60 days from the date of accepting the application; except that the administrative reconsideration period stipulated by law is less than 60 days. If the situation is complicated and the administrative reconsideration decision cannot be made within the prescribed time limit, it may be appropriately extended with the approval of the person in charge of the administrative reconsideration organ, and the applicant and the respondent shall be notified; however, the extension period shall not exceed 30 days at most.

According to Figure 3, if Evergrande applies for reconsideration on January 4, 2022, the reconsideration organ shall make a reconsideration decision at least before March 6, 2022. If Evergrande refuses to accept the reconsideration decision, it shall file a lawsuit within 15 days after receipt, that is, before March 21.

　　However, if Evergrande directly sues the deadline for demolition decision, the relief period will be before June 30, 2022.In other words, the reconsideration has accelerated the start of the compulsory demolition procedure of the administrative organ.

The author believes that,When faced with the decision to demolish within a time limit, the only thing Evergrande can do is to "delay the compulsory demolition procedure" and ensure that 39 buildings will not be demolished.

(II) Revocation of Time Limit Demolition Decisions Litigation Can Achieve Evergrande's Purpose

According to public information, we learned that the Danzhou Comprehensive Administrative Law Enforcement Bureau made the decision to demolish within a time limit because the construction project planning permit obtained by Evergrande was revoked. In other words, the revocation of the construction project planning permit is a prerequisite for the Danzhou Comprehensive Administrative Law Enforcement Bureau to make a decision to demolish within a time limit. Evergrande filed a lawsuit to revoke the decision to remove the time limit, the purpose of which is to revoke the decision to remove the time limit.

Then, according to the principle of one case, one lawsuit in administrative litigation, the author believes that if Evergrande files a decision to cancel the demolition within a time limit, the court only reviews the legality of the decision to cancel the demolition within a time limit, and does not review the legality of the act of "revoking the construction project license. In other words, before the legality of "revoking the construction project planning permit" is not denied, the possibility of the court's decision to revoke the deadline for demolition is almost zero.

So, what does Evergrande need to do if it wants to achieve its purpose? The author believes that it should file a revocation lawsuit against the "revocation of construction project planning permit. Whether the "revocation of the construction project planning permit" can also bring a lawsuit depends on whether the legal prosecution period is exceeded, and whether the competent department has fulfilled its teaching obligation when revoking the construction project planning permit.

According to Item 7 of Paragraph 1 of Article 41 of the Regulations on the Implementation of the Administrative Reconsideration Law, and Item 6 of Paragraph 1 of Article 87 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Litigation Law, the case The trial needs to be based on the trial results of other cases, and if other cases have not been concluded, the reconsideration or litigation shall be suspended.

(III) there are no other remedies for Evergrande other than a lawsuit against the decision to demolish within a time limit.

According to the effect of administrative acts on the legal interests of the relative, administrative acts can be divided into administrative acts of granting benefits, administrative acts of burden and administrative acts of mixed effect.

Because of the beneficial effect on the relative person, there is the problem of trust protection, that is, the principle of trust protection.

The construction project planning permit is an administrative act of granting benefits to Evergrande, and in the absence of untrustworthy protection of Evergrande, the competent department shall give appropriate compensation to Evergrande while revoking the construction project planning permit issued to Evergrande.

In summary, in addition to the decision to remove the deadline, Evergrande can also file a revocation lawsuit against the "revocation of the construction project planning permit", and can also file a compensation payment lawsuit directly based on the principle of trust protection.

In addition, on October 14, 2010, Danzhou Municipal People's government signed the framework agreement on investment and development of Baimajing reclamation project in Danzhou City, Hainan Province through investment promotion. If the administrative organ makes a certain commitment to Evergrande in the agreement, the administrative organ needs to fulfill the commitment. At this time, Evergrande can file an administrative lawsuit against the agreement: the nature of the agreement is an administrative agreement.

(IV) whether the owner has the right to sue for a time-limited demolition decision

According to the theory of protection norms, that is, whether the administrative organ is required to consider, respect and protect the rights or legal interests of the plaintiff's claim for protection, as an important criterion for judging whether there is a public law interest, the administrative organ is required to consider, respect and protect the rights or legal interests that the plaintiff claims to protect.

Danzhou Comprehensive Administrative Law Enforcement Bureau does not need to consider the interests of the buyers (owners) of 39 buildings when making the decision to demolish within a time limit, that is, the impact of the decision to demolish within a time limit on the owners belongs to reflective interests: reflective interests refer to the de facto interests obtained by an individual due to public laws and regulations, and the individual cannot make a request to the administrative organ alone. That is to say, when an objective statute orders an administrative subject to act or omission for the purpose of the public good, it should have a purely reflective effect, and the benefits enjoyed by the individual in fact, because the law does not give the individual the right to claim his own interests for the referee, but is only a de facto expectation and opportunity.

Therefore, the buyer of 39 buildings has no interest in the decision to demolish the building within a time limit and has no right to sue.

Lawyer Zhang Hegang, Senior Partner of Beijing Huixiang Law Firm, graduated from Peking University.

　　Areas of expertise:

Proficient in administrative law, administrative procedure law and administrative reconsideration law, he has been committed to the research of administrative disputes, real estate expropriation and other legal practices, and is based on the field of rights protection of small and medium-sized enterprises.

　　Research results:

His works include "Classic Analysis of Winning Cases of Expropriation and Demolition" and his personal WeChat public number "Research on Administrative Law" has nearly 100000 fans.

　　Main performance:

Dali Butterfly Haiyue Hotel Management Co., Ltd. and others refused to accept the Dali Municipal People's Government to suspend business within a time limit. The 1. rejected the lawsuit in the second instance and applied to the Supreme People's Court for a retrial. The Supreme People's Court ordered the Yunnan Higher People's Court to retrial.

Du Mou because Gaomi City Comprehensive Law Enforcement Bureau made a deadline for demolition, forced demolition without compensation case, Gaomi City People's Court revoked the deadline for demolition, forced demolition, and then filed a state compensation lawsuit, Weifang City Fangzi District People's Court ruled that Gaomi City Comprehensive Law Enforcement Bureau compensation 1.25 million

Mentougou Cui refused to accept the Mentougou District Government's housing expropriation compensation decision, and the Beijing Fourth Intermediate People's Court revoked the housing expropriation compensation decision in the first instance;

Shandong Runhua Property Management Co., Ltd. refused to accept the approval of the Beijing Chaoyang District People's Government for work safety accidents, and in the administrative litigation, the Beijing Chaoyang District People's Government revoked the accident approval on its own.

Fu Mou, Guangshan County, Xinyang City, and other 4 people refused to accept the approval of the Guangshan County Government to recover the land, and the final judgment of the Henan Higher People's Court confirmed that the approval of the land recovery was illegal.

Du and other three people refused to accept the approval of the land transfer plan of the Gaomi Municipal Government, and the final judgment of the senior people of Shandong Province partially revoked the land approval involving Du and other three people.