Appellant (first trial accuser) : Plum X China, plum X civilian
Attorney: 10 thousand Wang Weizhou of law attorney office's lawyers of Beijing, Zhang Sha's lawyer.
Appellee (first trial the accused) : Government of people of division of peony of He lustre city
※ basic details of a case:
On March 9, 2017, government of people of division of peony of lustre city of the accused He is made " building of plot of peony area 2016-X collects decision book " .
On April 2, housing of area of peony of lustre city of 2 accuser and He and bureau of urban and rural construction signed compensation agreement.
The building that accuser makes with the accused after collects a decision to break the law for, appeal to to the court, request lawfully cancel the accused makes " decision book " .
※ tries a process:
※ focus problem: First trial court, collect a decision with experience case building legitimate to appellant rights and interests does not produce practical effect apparently for, the ruling rejects the prosecution of two appellant, correct?
※ first instance: Cognizance of classics of court of intermediate people of He lustre city is found out, on March 9, 2017, government of people of division of peony of lustre city of the accused He is made " building of plot of peony area 2016-X collects decision book " . This main content that collects a decision is: One, collect limits: ? She Shi fragrance Lao of far ⒎ hangs down of dizzy a huge legendary turtle of peach of Shan of Qian of こ of Di Yuexi ⒒ Huan Fen protect ㄒ to complain Biao have a nightmare of angry of vomit ǖ dips in illuminate Nao slash Zhan of have a nightmare of Han of class of 6 ⒎ ? He lustre city. 3, does the building collect executive unit: ? ?2017 of know well of Zhu of of バ of Zhan Gou of have a nightmare of ┱ of ┒ of ⑶ of copy of K of copy of travel of Duo of of Zhan of have a nightmare of ⒄ of of zinc of scabbard of of で of archives of heart trying bed year came on March 14 on March 20, 2017, 2 accuser are collected in this house property is owned inside limits, after building be appealinged to collects a decision to make, 2 accuser with He at of the same age housing of area of lustre city peony and bureau of urban and rural construction signed compensation agreement on April 2. The building that accuser makes with the accused after collects a decision to break the law for, appeal to to the court, request lawfully cancel the accused makes " building of plot of peony area 2016-X collects decision book " .
Court of intermediate people of He lustre city made on October 24, 2017 (2017) rash ruling of administration of date of the 17 1XX at the beginning of travel. Think, accuser is collected in building be appealinged to after the decision is made, collected a branch to sign a building to impose compensation agreement with the building, already collected compensation rights and interests to have disciplinary action to the building, the premise of its punish is premise with be being accused the building collects a decision to exist legally, and compensation is collected in the building already also made clear in the agreement carried bright the accused to was made on March 9, 2017 " building of date plot of peony area 2016-9 collects decision book " , accuser is signed after imposing compensation agreement, building be appealinged to collects a decision to already did not produce practical effect to its rights and interests, accuser requests cancel building to collect a decision, should grant to reject lawfully. Standard of the compensation in thinking to amend an agreement like accuser or compensation amount are too small, belong to compensation agreement issue, law also stipulated corresponding right relieves channel, can hold relevant right by legal provision, building be appealinged to collects a decision to already produced practical effect no longer to accuser rights and interests, accuser collects a decision to already did not provide litigant benefit to the building, on put together, according to " top people court about procedural law of administration of applicable < People's Republic of China " the explanation of a certain number of problems " the 3rd the first (8) regulation, the ruling rejects accuser plum X China, plum the prosecution of X civilian.
Plum X China, plum X civilian refuses to obey, to Shandong province senior people court mentions appeal.
※ appellant says:
First trial court is right " practical effect " cognizance mistake, applicable law is wrong, request: 1, ruling of court of cancel first trial; 2, court of instruction first trial continues to hear this case and enter a judgement.
※ appellee: Government of people of division of peony of He lustre city was not referred written rejoin opinion.
Viewpoint of ※ appellant lawyer: First trial court, collect a decision with experience case building legitimate to appellant rights and interests does not produce practical effect apparently for, the ruling rejects the prosecution of two appellant, it is to attribute applicable law mistake.
One, person be expropriationed, be opposite the building collects a decision lawful sex, below the premise that reserves demur right, in order to sign the means of compensation agreement, go ahead of the rest solves compensation problem, allow in practice. Its are for better propulsion the building imposes a program lawfully, orderly, smooth undertake, reduce issue, be encouraged and its also guide.
2, person be expropriationed, authority collects a decision in the light of the building, mention lawsuit of politics of start on a journey. Whether to sign impose compensation agreement, do not affect appellant to serve as the legal status of person be expropriationed. Person be expropriationed, after signing compensation agreement, if insist to think the building collects a decision to break the law, still can be inside legal time limit, collect a decision to mention lawsuit of politics of start on a journey to the building lawfully. And after cannot thinking to sign compensation agreement, building be appealinged to collects a decision, legitimate to appellant rights and interests does not produce practical effect apparently. Unless, compensation agreement is right person be expropriationed abandons relevant lawsuit right, obtain corresponding compensation, had undertaken making clear conventional.
3, in this case, appellant, although be mixed with peony area housing,the city is built bureau, signed compensation agreement, but its do not grant to approbate to should compensating consultative effectiveness. Expression is, appellant, amend an agreement in the light of this, had mentioned administrative lawsuit. Experience case collects a decision make, the building that brings about appellant is collected, appellant is forced to sign impose compensation agreement, collect the executive result of the decision just about. So, experience case collects a decision, produced practical effect to the right of appellant, obligation.
And the agreement that amends an agreement according to this case, collect in experience case plot find a place for inside limits, be collected what choose to buy a house person, collect compensation expenses of short duration to need not pay, be collected as business accounting building and the cost that purchase building price difference. And purchase a building, need signs agreement of the buy that order separately. From this, because agreement of experience case compensation adds a condition to had be notted fulfill, appellant regards the compensation that place of person be expropriationed should get as rights and interests, because compensate consultative effectiveness,return a likelihood, do not sign agreement of the buy that order to wait for a reason, be in the position that cannot come true or cannot expect. This also is, experience case collects a decision, produced the fact of practical effect to the right of appellant, obligation.
So, first trial court thinks, "Appellant is signed after imposing compensation agreement, building be appealinged to collects a decision, already did not produce practical effect to its rights and interests " , it is to attribute applicable law mistake.
On put together, 2 careful court, should support the view of appellant.
2 careful of ※ adjudicate:
Shandong saves cognizance of senior people court to think:
This academy thinks, the focal problem of this case controversy is first trial court collect a decision with experience case building legitimate to appellant rights and interests does not produce what the ruling rejects two appellant for practical effect to sue apparently correct. Impose a program to push a building better lawfully, orderly, undertake smoothly, ought to allow person be expropriationed to be in collect the premise that decides lawful sex reserves demur right to fall to the building, encourage and guide its to solve compensation problem in order to sign the way start off before the others of compensation agreement, in order to reduce issue. But after person be expropriationed signs compensation agreement, if insist to think the building collects a decision to break the law, still can collect a decision to mention lawsuit of politics of start on a journey to the building lawfully inside legal time limit, and after cannot thinking to sign compensation agreement, building be appealinged to collects a decision legitimate to appellant rights and interests does not produce practical effect apparently, unless compensate an agreement to the person abandons relevant lawsuit right and obtain corresponding compensation to be being collected, had undertaken making clear conventional. In this case, appellant although with He housing of area of lustre city peony and urban construction bureau signed compensation agreement, but its do not grant to approbate to should compensating consultative effectiveness, in the light of this compensation the agreement also had mentioned administrative lawsuit. Amend consultative agreement according to this, those who find a place for choose to buy a house inside limits is collect in experience case plot the person collects compensation expenses of short duration to need not pay, be collected as business accounting building and the cost that purchase building price difference, and purchase a building to need to sign agreement of the buy that order separately. From this, experience case is compensated assist say to had be notted fulfill because of attaching a condition, because compensate consultative effectiveness,the compensation rights and interests that appellant should get as place of person be expropriationed returns a likelihood, do not sign the reason such as agreement of the buy that order to be in the position that cannot come true or cannot expect. First trial court thinks appellant is signed after imposing compensation agreement, building be appealinged to collects a decision to already did not produce practical effect to its rights and interests, attribute applicable law mistake.
On put together, first trial court rules cognizance fact is true, but applicable law mistake, basis " procedural law of administration of People's Republic of China " the 89th the first (2) regulation, the ruling is as follows:
One, court of intermediate people of cancel He lustre city (2017) rash ruling of administration of date of the 17 1XX at the beginning of travel;
2, this case dictates court of intermediate people of He lustre city continues to try.
This ruling is final judgment ruling.
(collect a fine)
