Does the government enjoin whether to demolish illegal building behavior compulsively to have can yo

■ 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

" law of urban and rural program " the 68th regulation --

So, the government enjoins concerned function branch

Demolish compulsively violate the act that establish,

Whether to have can you appeal to a gender?

The law believes · judgment regulation

1. people government enjoins concerned function branch is demolished compulsively belong to in-house administration action -- Li Rui puts administration of bureau of program of city of hill telling a station compelling case

This case argument: People government enjoins program bureau is carried out demolish compulsively, this belongs to in-house administration action, do not produce legal effectiveness external, its action object is not administration opposite person, however the function branch of inferior executive authority or executive authority, accordingly, the mechanism that administration can remove administrative action with be being carried out actually relative to the person or function branch mention lawsuit of politics of start on a journey for the accused.

Record date: (2009) the river is Sino-French stand row eventually word the 4th

2. is aimed at enjoin tear open behavior compulsively whether outside change and produce legal effectiveness external, need to join a case particular case tries to be judged integratedly -- Xu Xueliang accuses Zhejiang saves government of Hangzhou city people to enjoin the building tears open change issue desk

This case argument: In the light of enjoin tear open behavior compulsively to whether attribute the in-house administration action that cannot relate, this kind of behavior whether outside change and produce legal effectiveness external, need to join a case below the circumstance normally particular case tries to be judged integratedly. On one hand party says urban government administration executes the law bureau with oneself name demolishs a building compulsively, the evidence that on the other hand its provide can't prove the government makes experience case enjoin tear open change behavior compulsively to be opposite already its jural right obligation produces immediate effect. Accordingly, the court should give to the application of party reject.

Record date: (2017) top magic art goes explain 4196

Cognizance court: Top people court

3. government makes enjoin administration demolishs a decision compulsively to did not counterpoise legally to party beneficial produces practical effect, do not belong to administrative lawsuit to get case range -- Wang Chuanhua accuses administration of government of people of blessing quiet town is compulsive issue desk

This case argument: The enjoins administration demolishs decision book compulsively to fasten a government to demolish illegal construction compulsively in the light of bureau of urban and rural program ask for instructions that the government makes reports and make, not to administration opposite person service, attribute fluctuation level the in-house behavior between the executive authority, it is executive authority executive administration a link in compulsive process, have not produce practical effect to the legitimate rights and interests of opposite person. Of practical to arising relative to legitimate rights and interests of the person effect, should be executive authority basis should enjoin those who demolish a decision to carry out is compulsive demolish behavior. Demolish because of enjoining decision and carry out be being demolished compulsively is behavior of a whole, make the legal consequence that enjoins the executive authority of the decision and the executive authority that are enjoined assume administration to be demolished compulsively jointly. Accordingly, party enjoins with respect to what the government makes administration demolishs the lawsuit that decides the book mentions compulsively, do not belong to lawsuit of people court administration to get case range.

Record date: (2017) Fujian goes eventually 460

Cognizance court: The Fujian Province is advanced people court

The law believes · judicatory viewpoint

1. enjoins demolish illegal building behavior compulsively can accuse the gender is maintained

In the light of enjoin tear open those who violate act compulsively to be able to tell sexual problem, in practice, the different court that visit town is known to enjoining the property of behavior is in and hold on abhorrent also. Some courts think, enjoin behavior is the administrative order that has enforcing tearing open violating, it is to tear open the basis that violates executive branch to carry out forced releasing behavior, because this can appeal to; Some courts think, enjoin behavior is the internal order that government of area county people violates executive branch place to release to tearing open, it is in-house administration action, also do not belong to administrative lawsuit get case range.

The author thinks, our country " administrative procedural law " get what administrative coercive measures brings into a court clearly case range, but the administrative coercive measures that does not demonstrate any pattern is had can appeal to a gender. Whether is the administrative coercive measures with specific some had can appeal to a gender, still depend on the independent character that whether this administration coercive measures achieved oneself and mature sex, depend on it and the relation relative to human rights beneficial. Make an on-the-spot investigation from the relation with beneficial of opposite human rights, administration implements measure compulsively adopt also have two kinds of effects: A kind of effect is, administration implements measure compulsively adopt the rights and interests that do not increase or reduces opposite person, also do not increase or reduce the obligation of opposite person, namely the rights and interests of incorrect and opposite person produces consequence of increase and decrease. Accordingly, this kind of administration carries out measure compulsively to be not had can appeal to a gender. Another kind of effect is, administration implements measure compulsively adopt, it is to pass what increase obligation for opposite person " punish sex " means, come to those who come true to fulfil obligation to opposite person supervise and urge, expect the implementation of compulsory content, have can appeal to a gender.

Enjoin with respect to area county government relevant section tears open compulsively violate act and character: Above all, from behavior point to an object to look, ordering conduct is government of area county people right other tear open those who violate executive branch to make, not immediate effect at managing opposite person, opposite person is done not have to this behavior jural direct interests; Next, look from the content of behavior, enjoin behavior is the executive act that violates a decision to tearing open, do not increase or reduce the rights and interests of opposite person and obligation, do not produce immediate effect to the right of opposite person and obligation, accordingly, do not have can appeal to a gender. As contrary as this, if should enjoin behavior gives to relevant party punishment perhaps is exceeded lawfully,tear open those who violate a decision to make clear tear open those who violate range formerly, can appeal to.

(pick from Wang Yan: " demolish illegal construction case compulsively a certain number of problem explore analyse " , " law is applicable " , 2011 the 9th period)

2. tears open the administration that violates a domain to carry out existence compulsively to enjoin, urge accuse the judicatory that waits for a program to examine

Tear open the administration that violates a domain to carry out the government of people of prefectural class above that puts the 68th in law of urban and rural program to set compulsively " enjoin " wait for program and administration compulsive law the 25th, thirtieth sets 7 times urge accuse, make implement a decision compulsively etc, regulation of relevant sex of form a complete set is current still diseased, the level that should notice to hold in judicatory practice is, if government of people of prefectural class above is made with him name " enjoin " behavior turns the result outside direct generation (if make " enjoin decision book " , " carry out decision book compulsively " wait for immediate announcement party) , party is OK government of people of prefectural class above mentions lawsuit of politics of start on a journey for the accused; If enforce,executive decision is made by the branch that is enjoined, criterion party is OK this branch and make enjoin the government of prefectural class above of behavior is corespondent.

What people court examines a key to depend on judgement implementing a decision compulsively is qualitative the lawful sex that reachs a program, if whether accord with illegal building to form,reach whether to enjoin through legal by the requirement, urge accuse a program to wait, people court makes corresponding judgment according to investigating a case.

(pick from " authority of li Qing Dynasty belongs to bounds standard to tear open violate act -- controller of law court of trial of administration of top people court answers the reporter asks " , " people court signs up for " on April 2, 2013 the 3rd edition)

The law believes · law basis

1. " procedural law of administration of People's Republic of China "

The 2nd citizen, legal person is other perhaps the organization thinks the administrative 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.

Fund place calls administration behavior before, include the administrative action that the organization of accredit of law, code, regulations makes.

2. " top people court about procedural law of administration of applicable < People's Republic of China > explain "

The first citizen, legal person is other perhaps the administrative action that organizes pair of executive authorities and its staff member refuses to obey, lawfully of to lodge a complaint, those who belong to lawsuit of people court administration get case range.

Following behavior does not belong to lawsuit of people court administration get case range:

(one) the behavior that the specific authorization of the procedural law of criminal of mechanism according to such as security of public security, state carries out;

(2) intercessory behavior and the arbitral action that law sets;

(3) administrative guidance behavior;

(4) reject party to mention to administrative action the repetition of appeal handles action;

(5) the does not produce exterior law effectiveness conduct that the executive authority makes;

(6) newspaper of the preparation that the executive authority carries out to make administrative action, argumentation, research, layer, seek advice wait for process sexual behavior;

(7) the executive behavior that the executive authority carries out advice note to make according to the become effective judgment of people court, assistance, but the except that the executive authority enlarges executive limits to perhaps adopt illegal means to carry out;

(8) the debrief that ranking executive authority is based on in-house layer class to supervise a relation to be made to inferior executive authority, execute the law examination, supervise and urge walk on duty wait for behavior;

(9) the executive authority is registered in the light of what the letter visits item to make, accept, hand in do, transmit, check, the behavior such as check opinion;

(10) the action that obligation of right of other perhaps to citizen, legal person organization does not produce to be affected actually.

3. " People's Republic of China is urban and rural program law "

Branch of director of the 68th urban and rural program is made instruct stop build or after the decision that deadline demolishs, party does not stop build or exceed the time limit does not demolish, construction project seat government of people of place of prefectural class above can enjoin concerned branch is adopted close down demolish construction site, compulsively wait for measure.

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