Recently, Beijing Huixiang Law FirmZhang HechaoThe lawyer team handled a house demolition case to help the parties get reasonable compensation. In order to express gratitude, the parties sent the banner of "loyalty to the law, fairness, due diligence and honest service" to the host lawyer Zhang Hechao and his team members to thank Zhang Hechao and his team for their strong help in safeguarding his legal rights.

　　Basic case

Mr. Chen is a villager in Jinzhou City, Liaoning Province. In September 1997, Mr. Chen bought a house from Liu. At that time, he only knew that Liu was the actual owner and user of the house involved in the case. The house was a village collective permit building after paying the fee according to law. In 2021, the District Housing Construction and Transportation Bureau forcibly demolished Mr. Chen's house, and the illegal demolition caused great losses to Mr. Chen's property.

　　handling process

In order to safeguard his legitimate rights and interests, Mr. Chen found and entrusted Zhang Hechao, the host lawyer of Beijing Huixiang Law Firm, and his team members to protect his rights. Through many times of communication with the host lawyer Zhang Hechao and his team members, a trust relationship was established.

　　After a careful study of the case, Zhang Hechao, the host lawyer with rich experience in land acquisition, demolition and rights protection, and his team members believe that:

1. The plaintiff legally owns a house located in a village in Jinzhou City, Liaoning Province, which is the only residence of the couple. First of all, the house involved in the case was not built by the plaintiff, but the plaintiff bought the house from Liu mou in September 1997. at that time, it was only known that Liu mou was the actual owner and user of the house involved in the case, and its house was a collective licensed building in the village after paying fees according to law. whether Liu mou was a villager of the village and whether the house was legal or not has nothing to do with it. In addition, for 25 years from 1997 to before the house was demolished, no one else raised any objection to the ownership of the house, and no administrative organ proposed that the house was an illegal construction, which had already passed the period of legal responsibility.

As a disabled person, the plaintiff belongs to a vulnerable group in society. It is not easy to accumulate savings to obtain a real estate. Moreover, the plaintiff has raised some cattle and sheep as a daily source of livelihood. Due to the defendant's illegal behavior, the plaintiff and his wife can only live in a simple shed, and there is no proper place for cattle and sheep. The defendant's behavior is seriously illegal.

2. The "Notice on Demolition of Illegal Buildings" made by the District Housing Construction and Transportation Bureau to the plaintiff did not inform the plaintiff of the right to reconsideration or litigation, the content was illegal, and it did not provide the court with the basis of its authority to carry out the demolition. According to the law of our country, only the township people's government has the right to enforce the illegal construction in violation of Article 65 of the Urban and Rural Planning Law. In this case, the defendant made the above notice and carried out the demolition according to the Land Management Law. The defendant does not have the administrative law enforcement authority to demolish the plaintiff's house, not to mention the 1997 Urban and Rural Planning Law has not yet come into effect, therefore, the defendant carried out compulsory demolition without legal authorization and legal basis, which was a serious violation of the law.

According to Article 34 of the "Administrative Enforcement Law": After the administrative agency has made an administrative decision in accordance with the law, if the parties fail to perform their obligations within the time limit decided by the administrative agency, the administrative agency with the power of administrative enforcement shall enforce it in accordance with the provisions of this chapter. In this case, the defendant did not make any administrative decision, such as demolishing illegal buildings within a time limit, and forcibly demolished the plaintiff's house, which violated the law and should be confirmed to be illegal.

According to Article 35 of the "Administrative Enforcement Law": Before an administrative agency makes an enforcement decision, it shall urge the parties to perform their obligations in advance. The reminder shall be made in writing and shall set out the following matters: (1) the time limit for the performance of the obligation; the manner in which the (II) performs the obligation; the (III) involves the payment of money, there shall be a clear amount and manner of payment; (IV) the right of presentation and defense enjoyed by the parties in accordance with the law.

Article 36 stipulates: "The parties shall have the right to make statements and defend themselves after receiving the reminder. The administrative organ shall fully listen to the opinions of the parties and shall record and review the facts, reasons and evidence put forward by the parties. If the facts, reasons or evidence put forward by the parties are established, the administrative organ shall adopt them." Before the forced demolition, the defendant did not issue a written "reminder" to the plaintiff, did not listen to the plaintiff's opinions, and the defendant did not perform the reminder procedure, depriving the plaintiff of the right to state and defend. In this regard, the defendant has serious procedural violations.

3. Even if (assuming) it is a unit with the power of enforcement, according to Article 44 of the Administrative Enforcement Law, "Where illegal buildings, structures, facilities, etc. need to be forcibly demolished, the administrative organ shall make a public announcement and the party concerned shall demolish them on his own within the time limit. If the party concerned does not apply for administrative reconsideration or file an administrative lawsuit within the legal period, and does not demolish it, the administrative organ may forcibly demolish it in accordance with the law."

In this case, no compulsory demolition decision was made, no administrative agency made an announcement, and the plaintiff's right to file an administrative reconsideration or lawsuit was not guaranteed. The defendant's administrative act of forcibly demolishing the plaintiff's house and ancillary facilities violated the above-mentioned legal provisions, and it should be confirmed that its forced demolition is illegal. To take a step back, according to Article 83 of the Land Administration Law, if a construction unit or individual is not satisfied with the administrative penalty decision ordering the demolition within a time limit, it may, within 15 days from the date of receiving the decision to order the demolition within a time limit, bring a lawsuit to the people's court; if it does not sue and does not dismantle itself at the expiration of the time limit, the organ that made the penalty decision shall apply to the people's court for compulsory enforcement according to the people's court, the defendant, as an organ without the power of administrative punishment, failed to apply to the court to demolish the house involved in the case in accordance with legal procedures, and the demolition was seriously illegal.

As a result, Huixiang's lawyer assisted Mr. Chen to file an administrative lawsuit with the court. In the lawsuit, lawyer Huixiang's professional ability, professional standard and belief in upholding justice deeply moved the client. The victory of the case will not only help the client recover the economic loss, but also the best maintenance and extension of the concept of fairness and justice. In the end, the court approved the opinion of Huixiang's lawyer and ruled that the demolition party was illegal.

 

Introduction to the Author

 

 

Lawyer Zhang He-chao

Full-time lawyer of Beijing Huixiang Law Firm,He is good at legal service fields such as administrative expropriation, administrative enforcement, and administrative punishment dispute resolution; he has rich experience in class action, civil infringement, contract dispute litigation and non-litigation business practice; through years of work practice, he has explored and summarized a set of unique And effective rights protection plan, is an experienced lawyer. In addition, while safeguarding the legitimate rights and interests of the parties and maximizing the interests of the parties, lawyer Zhang Hechao also actively offered advice and suggestions to the administrative organs, contributed his own strength to promoting the construction of the rule of law in government departments, and won high praise from both sides.

 

Areas of Expertise:

Administrative litigation, tort, contract and other business areas

 

Host Case:

1. A collection project of a flower and tree farm in Fu'an City, Fujian Province, represented Mr. Zhang in the first instance of the administrative compulsory dispute case. After the agent investigated and collected evidence from multiple parties, conducted multiple on-site investigations, and confirmed that the administrative compulsory act was illegal through litigation;

2. The first and second instance of the dispute over the qualification of industrial injury insurance between Wang, Lincang City, Yunnan Province, the Bureau of Human Resources and Social Security and the Municipal people's Government; through the meticulous preparation of the hearing by the agent, both the first and second instance won the case;

3. In the case of collective land and house expropriation in Liaocheng City, Shandong Province, Mr. Xu and other eight houses were forced to demolish, the agent obtained satisfactory compensation for them through negotiation;

4. After accepting the entrustment of Li Shipyard in Neijiang, Sichuan Province, the attorney communicated and negotiated with the local government many times through non-litigation means, and finally won the ideal price for the client and signed the resettlement compensation agreement perfectly;

5. Wuxi Liangxi District Housing Expropriation Project, Yu Mou and other nine households and the street office expropriation compensation dispute case, through non-litigation means to communicate and negotiate with the local government, and finally the compensation from 1: 1 resettlement, to 1: 1.8 replacement ratio, and finally signed a resettlement agreement satisfactory to the parties;

6. In the first instance of the administrative compulsory dispute between Zou and the town government in Laiwu, Shandong Province, the agent's efforts confirmed that the town government's administrative forced demolition was illegal through litigation;

7. Wu Mou and other 22 die steel enterprises in Huangshi City, Hubei Province, due to a compulsory dispute over ecological and environmental protection, the agent confirmed through litigation that the administrative acts of the district government and the Ecological Environmental Protection Bureau were illegal;

8. In the case of a dispute over the performance of a contract between Xie and the subdistrict office in Tongren City, Guizhou Province, the agent won the judgment in both the first and second instance.