■ ask for the ground to tear open change lawyer 4 have new standard: Have special skill or knowledge; Have an attitude; Have public praise; Have the milk of human kindness
■ authority of the dimension that tear open change has a way; Compensation of high specified number has clever court
Change the propulsion of the process as town, ask for the ground to tear open the happening with change more and more frequent also job to be beside us. For public interest this give no cause for more criticism, but in reality, hard to avoid has some of person to stem from the consideration of all sorts of interests, willing the big irreverent forced releasing that risks the world is asked for the building of the ground, person that tear open change. Laws and regulations of even if law and repeated orders of the State Council prohibit the happening of behavior of illegal forced releasing, however reality is to be banned repeatedly more than. Because,the tragedy that leads to because of forced releasing is done not have " the byelaw that tear open change " prevent and somewhat cease, since such, when encountering illegal forced releasing, does the ground that be asked for tear open change person to be become again how does thought for the time being? The lawyer's viewpoint is, when facing illegal forced releasing, absolutely cannot " with cruel make cruel " , ought to counterpoise according to dimension of legal principle wisdom. The lawyer will is opposite from the following angle how should the ground that be asked for, person that tear open change undertake to forced releasing brief analysis is mixed discuss.
The executive authority violates the behavior of forced releasing to be able to appeal to
" administrative procedural law " the 2nd regulation, citizen, legal person is other perhaps the organization thinks the specific administration action of executive authority and executive authority staff member encroachs his legitimate rights and interests, according to having right this law to people court to lodge a complaint. Specific administration action, it is to point to laws and regulations of national executive authority and executive authority staff member, law organization of the organization of accredit, executive authority precatory, or the individual is in administration activity exercise administration powers and authorities of office, be aimed at specific citizen, legal person other perhaps organization, with respect to specific specific item, make about this citizen, legal person the home remedy behavior of obligation of right of other perhaps organization. The government is the administrative principal part of comfortable case, the behavior of the illegal forced releasing that applies actually, it is to use its administration powers and authorities of office specific and opposite person (client) the right is compulsory (lawful property rights and interests) the home remedy conduct that make (forced releasing) .
In the meantime, " administrative procedural law " eleventh set a provision: "People court accepts citizen, legal person and other organization to refuse to obey to action of following and specific administration the lawsuit that mention: (One) to detaining, licence of amerce, revoke and charter, order stop production stop business, confiscate the administration such as property to punish disaffected;(2) right perhaps to limitting person freedom of belongings close down, distrain, freeze wait for disaffected of administrative coercive measures;(3) think the executive authority violates law, the;(that the executive authority rejects to issue or do not grant to reply 5) the legal duty that applies for an executive authority to fulfill tutelar body authority, property right, the;(that executive authority repudiate perhaps does not grant to reply 6) the;(that thinks the executive authority did not grant pension lawfully 7) the;(that thinks the executive authority violates a requirement to fulfil obligation 8) think the executive authority violates authority of someone else body, property right. Outside provision of the section before dividing, it is OK that people court accepts law, code to set the other administration case of to lodge a complaint. " knowable, the specific administration action that citizen, legal person and other organization think the executive authority is made encroachs his property right of person authority, money mentions of administrative lawsuit, people court ought to be accepted lawfully. The executive authority is aimed at the forced releasing behavior that the building of client carries out, already enroach on the lawful property right of client, cause client has authority to mention lawsuit of politics of start on a journey in the light of its.
About forced releasing, basis " the country compensates for a law " regulation, can affirm behavior of this forced releasing breaks the law above all already, also can mention in administrative indictment along with all the others the country compensates for a program.
Notable is, the court refuses put on record with belonging to people court to suffer for case limits normally, but its are issued absolutely definitely however written do not grant to accept a ruling, judge of front courtyard of visible put on record is very clear, the executive authority violates the behavior of forced releasing to be able to appeal to, it is oral prevaricate client only, this also is case of the administration in practice " put on record is bad " a specific reflect.
The executive authority violates forced releasing behavior to be able to appeal to, also can mention of course the program that reconsider. Handle a case in the process, can try according to particular details of a case consider is applicable.
Above was mentioned, administrative case is put in the question with difficult put on record. Here raised taller requirement to our quote. Encounter problem of illegal forced releasing, must notice to withhold relevant testimony, can be data of the recording of car of personnel of forced releasing spot, forced releasing, forced releasing, kinescope, also can affirm forced releasing principal part through public security mechanism. But in this one link, must notice sponsorial body is safe.
Sign find a place for after amending an agreement, reject to remove, building of town government forced releasing also breaks the law
Person of the change that be torn open is signed " the compensation that tear open change finds a place for agreement " hind reject to remove, whether does town government have authority to be opposite does building of person of the change that be torn open carry out forced releasing?
Basis " urban house tears open change regulation " the 15th regulation: "After the compensation that tear open change finds a place for the agreement concludes, person of the change that be torn open or building tenant is removing reject to remove inside deadline, the person that tear open change can apply for the arbitration to arbitral committee lawfully, also can sue to people court lawfully. During lawsuit, the person that tear open change can apply for people court to grant to carry out first lawfully. " knowable, after the compensation that tear open change finds a place for the agreement concludes, person of the change that be torn open or building tenant is removing reject to remove inside deadline, the person that tear open change can apply for the arbitration to arbitral committee lawfully, also can sue to people court lawfully. Visible, person of the change that be torn open is signed find a place for after amending an agreement, reject to remove, law gifts the relief right of the person that tear open change is application merely arbitrate or to lodge a complaint. And, " the compensation that tear open change finds a place for agreement " come up in law tell, it is the civil contract that signs with respect to compensation item between an equal principal part, when one party is not fulfilled according to it, ought to give through civil way by appearance opposite party relieve.
If the executive main body of forced releasing behavior is town government, more do not have at the law according to. Tear open change person and person of the change that be torn open around " the compensation that tear open change finds a place for agreement " the dispute that fulfills problem happening, town government regards one class as the executive authority, have no right to intervene at all, more have no right with be being torn open change person already signed compensation to find a place for for the agreement, executive forced releasing, actually Shi Jiang tears open behavior to should be belonged to break the law.
Sign the compensation that tear open change to find a place for after the agreement, before making a room, to be being torn open change person still has the property of the building, if both sides has issue, can solve through civil way, here as the government organization the circumstance falls, have no right force of direct administration nation demolishs common people building.
" house of state-owned land main rooms is collected with compensation byelaw " after applying, the government must not enjoin concerned branch tears open change compulsively
On January 21, 2011, " house of state-owned land main rooms is collected with compensation byelaw " promulgate carry out, among them thirtieth sets 5 times, this rules applies since the day that announce. The State Council announced on June 13, 2001 " urban house tears open change regulation " abolish at the same time. The building already was obtained to tear open the project of change licence lawfully before this rules applies, continue the provision with original continue to use is dealt with, but the government must not enjoin concerned branch tears open change compulsively. Its are corresponding is " urban house tears open change regulation " the seventeenth regulation, be torn open namely change person or building tenant removes in what adjudication sets did not remove inside deadline, enjoin by government of people of the city of building seat, county concerned branch is compulsive tear open change, perhaps tear open change by the building management department applies for people court to tear open change compulsively lawfully. Carry out before tearing open change compulsively, the person that tear open change ought to be demolished the concerned item of the building, to the notary organization conduction evidence conserves.
By above the regulation can be seen, from January 21, 2011 " house of state-owned land main rooms is collected with compensation byelaw " promulgate after carrying out, administrative forced releasing has been prohibited in the round, even if the project that has acquired a building to tear open change licence lawfully before rules applies, person of the change that be torn open or building tenant removes in what adjudication sets did not remove inside deadline, government of people of the city of building seat, county also has no right to enjoin concerned branch tears open change compulsively, can tear open change by the building only management department applies for people court to tear open change compulsively lawfully.
In view of " house of state-owned land main rooms is collected with compensation byelaw " regulation, the building already was obtained to tear open the project of change licence lawfully before this rules applies, continue the provision with original continue to use is dealt with. When byelaw just came on stage, assault of a lot of places was issued a lot of " change licence is torn open before byelaw " . But, must be in clearly " house of state-owned land main rooms is collected with compensation byelaw " after applying, administrative forced releasing already was prohibited by public proclamation, the government must not enjoin concerned branch tears open change compulsively
Building lot is torn open secretly, how to affirm illegal principal part
Basis " law of police of People's Republic of China " the 2nd regulation: "The task of people police is to maintain national security, uphold order of security of society, freedom of the person security that protects a citizen, person and lawful belongings, protect public property, precaution, check and punish illegal crime activity. The judicatory police of procuratorate of the people police that people police includes education of public security mechanism, national security office, jail, work to run office and courtyard of person civil code, people. " set with what reach the 21st: "People police encounters safety of citizen person, belongings to encroach or be in other jeopardy case, ought to instantly the requirement that deliverance; raises to settle dispute to the citizen, ought to give a help; to the citizen call the police case, ought to investigate in time. People police ought to join rush to deal with an emergency actively to provide disaster relief to work with social commonweal. " knowable, people police is had uphold order of security of society, the law of freedom of the person security that protects a citizen, person and lawful belongings defines Wu. People police encounters safety of citizen person, belongings to encroach or be in other jeopardy case, ought to instantly deliverance; is right of the citizen call the police case, ought to investigate in time. The building encounters forced releasing, public security mechanism is had investigate in time, the law of freedom of the person security that protects a citizen, person and lawful belongings defines Wu.
Public security mechanism regards one class as the executive authority, the behavior of legal to its nonperformance duty, party has authority basis " administration of People's Republic of China reconsiders a law " the 6th regulation: "Have one of following state, citizen, legal person is other perhaps the organization is OK Benfashen asks according to administration reconsiders: () the warning that makes to the executive authority, amerce, confiscate illegal earning, confiscate illegal property, instruct stop production close down, of short duration is buckled or revoke licence, of short duration is buckled or revoke charter, administration is detained wait for administration to punish a decision disaffected;(2) the limitative person freedom that makes to the executive authority perhaps closes down, the;(that encroachs its to close right increase 7) think the executive authority breaks the law collect money, the;(that collects charge of property, apportion to perhaps violate a requirement to fulfil other obligation 8) think coincidence method decides a condition, application executive authority issues the letter such as card of licence, charter, aptitude, qualification card, perhaps apply for an executive authority to examine and approve, register concerned item, the;(that the executive authority did not deal with lawfully 9) application executive authority fulfils the tutelar body right, property right, legal obligation that gets educational right, the;(that the executive authority did not fulfill lawfully 10) application executive authority extends lawfully gold of insurance of pension, society or lowermost life guarantees fee, the;(that the executive authority did not extend lawfully 11) think the action of other and specific administration of the executive authority encroachs his of legitimate rights and interests. " set with what reach the 16th: "Administration of according to of other perhaps organization reconsiders citizen, legal person law the 6th (8) , (9) , (10) formulary application executive authority fulfils legal obligation, the executive authority did not fulfill, following regulation calculates according to of deadline of the administrative application that reconsider: (One) deadline for performance sets, ;(of the computation since the day from at the expiration of one's term of office of deadline for performance 2) set without deadline for performance, receive application from the executive authority calculate since 60 days completely. Citizen, legal person is other perhaps the legal duty that the organization requests an executive authority to fulfill property right of tutelar body authority, money below emergency, of executive authority nonperformance, administration reconsiders the restriction that applies provision of the section before deadline does not suffer. " and " procedural law of administration of People's Republic of China " wait for relevant law provision to mention administration is reconsidered or administrative lawsuit.
A lot of moment, citizen, legal person and other organization right by enroach on when, obtain evidence very hard the enroach on target with specific proof, reconsider in the light of what public security mechanism mentions, proceeding is very big degree is to get evidence, violate principal part certainly, this also is one of dimension authority strategy.
Because demolish a building compulsively to cause belongings loss amount how to be maintained
Because of the losing of belongings of person of the change that be torn open that the executive authority carries out forced releasing and causes specific amount ought to assume quote responsibility by who.
The lawyer thinks, basis " procedural law of administration of People's Republic of China " thirtieth 2 regulation: "The accused has quote responsibility to the specific administration action that make, ought to offer the normative sex document of the testimony that makes this specific administration action and place basis. " and " house of town of People's Republic of China tears open change regulation " the 29th regulation: "Tear open the building with change ambiguous property right, the person that tear open change ought to put forward compensation to find a place for plan, newspaper building tears open change after management department examine and verify agrees, carry out tear open change. Before tearing open change, the person that tear open change ought to be torn open the concerned item of change building conserves to notary organization conduction evidence. " knowable, administrative lawsuit ought to assume quote responsibility legally with respect to its behavior by the executive authority. Involve belongings loss issue, ought to act on " who advocates, whose quote " principle, with respect to its by person of the change that be torn open the loss in forced releasing assumes quote responsibility. But, put when major program breaks the law when forced releasing behavior, carry out mechanism to did not deal with notarization to wait for formalities lawfully for example, ought to assume initial quote responsibility by person of the change that be torn open, executive mechanism ought to assume the quote responsibility of specific loss amount, if its are indemonstrable, the number that ought to advocate according to person of the change that be torn open and provided preliminary evidence proof tries to compensate for. Because tearing open the weak power position in change activity in view of person of the change that be torn open, the belongings loss amount that asks its quote is specific indeed very difficult. Put when major program breaks the law when forced releasing behavior especially, person of the change that be torn open more hard damage of property of sufficient quote proof, destroy the specific amount that lose.
In practice, the executive authority violates the circumstance of executive forced releasing to happen from time to tome, the belongings loss that person of the change that be torn open violates behavior to cause because of its besides value of experience case building, still involve the property inside house occasionally, but allocate as a result of the quote responsibility of specific loss amount ambiguous, the loss of person of the change that be torn open often chases after countervail very hard. It is very complex that quote responsibility allocates an issue, ought to combine particular details of a case to try to analyse, but, must hold to above principle to try to maintain.
Building by forced releasing, how to carry politics of start on a journey to compensate for
When the country is being involved to compensate for in the case that tear open change, how does the program mention? Basis " country of People's Republic of China compensates for a law " regulation, when compensation of country of requirement of compensatory request person is applying for to administration is reconsidered and mention lawsuit of politics of start on a journey, put forward along with all the others, after also can be being affirmed to break the law in administrative action, put forward to compensatory obligation mechanism first, compensatory; exceed the time limit gives not to grant to compensate for or compensate for request person to disagree to compensating for amount inside two months since the day that reimburses voluntary mechanism to ought to receive application oneself, compensatory request person is OK from during to lodge a complaint of court of people of introversion of 3 months since the day of at the expiration of one's term of office.
About asking the effectiveness for a given period of time that the country compensates for. Compensation requests a person to request the effectiveness for a given period of time that the country compensates for to be two years, be affirmed to be the computation since the day that violate lawfully from the behavior when national office and powers and authorities of office of exercise of its staff member, but during be being detained, do not calculate inside. And, this request actual effect is applicable the regulation about break down of effectiveness for a given period of time, what compensate for request person to ask effectiveness for a given period of time in compensation namely is final inside 6 months, because force majeure is other perhaps obstacle cannot exercise requests authority, break down of effectiveness for a given period of time. The day that eliminates from the reason of break down effectiveness for a given period of time rises,
Person of the change that be torn open can be already when encountering executive authority forced releasing in the administrative lawsuit that mentions in the light of behavior of executive authority forced releasing the request that raises administrative compensation along with all the others, enter a judgement lawfully by people court, the action of administrative forced releasing that also can confirm an executive authority above all breaks the law, after waiting for forensic court decision to affirm its violate a gender, to compensation voluntary mechanism puts forward to compensate for a requirement, compensatory; exceed the time limit gives not to grant to compensate for or disagree to compensating for amount inside two months since the day that by compensation voluntary mechanism gets application oneself, can from during to lodge a complaint of court of people of introversion of 3 months since the day of at the expiration of one's term of office.
In practice, be mixed to steal the case common occurance that tear open by forced releasing without judicatory program building, this also is a lot of the astonishing parent that has the murder case that tears open change to happen together. Moment is opposite the program that sets to finishing law to be torn open change person is rude illegal forced releasing, it is serious enroach on is torn open change person violates act badly of legitimate rights and interests, person of the change that be torn open is in building not by forced releasing before, the due and corresponding law consciousness that protects him money property right, start relevant law order to proper motion is relieved or invite professional lawyer to intervene, the governmental information that passes earlier stage is public, investigate application and start reconsider or proceeding lawfully thought fors the time being, once the building is mixed to steal by forced releasing,tear open, completely authority is applied " the country compensates for a law " gifted influence, investigate the legal duty of concerned responsibility person.
Force defies forced releasing, whether to make obstructive and official crime?
Blame of interference with public function is the accusation that forced releasing domain often appears, obstructive and official blame is to show with working personnel of office of state of block up of violent, minatory method, National People's Congress the delegate carries out a post lawfully, perhaps counteract sudden incident in natural disaster in, staff member of Red Cross of block up of use force, minatory method fulfils obligation lawfully, or office of security of state of intended block up, public security mechanism carries out job of national security job lawfully, although did not use force, but the behaviour that causes serious consequence. Basis " criminal law of People's Republic of China " the 277th regulation, carry out a post lawfully with working personnel of office of state of block up of violent, minatory method, manage battle of 3 years of the following set term of imprisonments, arrest, control or fine.
This pain is subjective go up be confined to is intended, must know perfectly well afore-mentioned personnel to carry out official business lawfully and trying for the person all right namely block up, ability makes this crime. Block up is not national office working personnel to undertake some kind of activity, or although be national office working personnel, but what its carry out is not functionary activity, or the activity that its activity is not the functionary range that having lawfully, all do not make this crime. This that is to say, make this crime of enroach on object, must be undertake lawfully, is not the activity that surpasses limits of one's functions and powers. Surpass the activity of limits of one's functions and powers, or the activity that misuse of authority violates country and masses interest, be prevented by other, do not make obstructive and official crime.
Whether is the focus formed in the behavior of person of the change that be torn open centrally impare to carry out official business lawfully. The lawyer thinks, since January 1, 2012 " administration is compulsive law " execute, press this code to decide, forced releasing can be carried out by the court only. The government attributes illegal action without the forced releasing below the circumstance of legal attributive, not be the behavior that carries out official business what place of obstructive and official blame says lawfully, do not make obstructive and official crime so, but the apologetic opinion that the court did not adopt a lawyer finally. Hai Yangfan's lawyer reminds the law here broad person of the change that be torn open, thought fors the time being must lawfully, dimension authority must consider China to rule by law at present diseased national condition, from set out actually the legitimate rights and interests that protects oneself.
Accelerate as what town changes a course, the dimensions that tears open change will rise considerably, when the illegal action that faces the person that tear open change, a lot of common people choose to counterpoise from force dimension, but because do not know law, often become defendant from the victim, the proposal invites a lawyer in time to be your dimension authority, adopt legal approach and not be violent antagonism strives for rights and interests.
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