[juridical point]
Demolish building behavior compulsively to cause serious effect to great property right of the citizen, no matter reason goes up from jural, policy or it is legal spirit go up, ought to carry out by organization of government of prefectural class above at least. Look from executive circumstance, collective land is collected, house of state-owned land main rooms is collected, the village in the city is transformed, construction of new rural area, be in jural go up to be undertaken by organization of government of prefectural class above with policy, and agency, village appoint the behavior in can organizing executive course, prefectural class government unites an organization to direct next undertaking, these behavior from jural ought to regard as entrust, assume responsibility by prefectural class government. If be not maintained so, with respect to can further unlawful coercive action, also cause the difficulty of citizen claim for compensation, also can affect social government order and social stability. Accordingly, let below current condition at least prefectural class government assumes responsibility, since law asks, also be social requirement, also be the trend place of human rights and social power development at the same time.
[basic details of a case]
Appellant (first instance the accused) comprehensive test division manages Zhengzhou airport economy committee.
Legal representative Ma Jian, director.
Appellee (first instance accuser) Liu Kunlun, male, the Han nationality, unripe on April 22, 1963, stay in city of Henan province new Zheng.
Comprehensive test division manages Zhengzhou airport economy committee (port area of aviation of the following abbreviation is in charge of appoint meeting) because Liu Kunlun accuses its demolish behavior to violate one case, refuse to obey court of Zhengzhou city intermediate people (2017) pleased 922 01 administration at the beginning of travel adjudicate, mention to this academy appeal. Collegiate bench was comprised to hear this case lawfully after this academy is accepted. This case already was tried now terminative.
First instance of Liukun human relations appeals to say, liu Kunlun is in Zhengzhou airport economy is integrated agency of experimental division the Dragon King (agency of the Dragon King of the following abbreviation) have house property, and of affix one's seal of government of people of hold Henan province " collective land construction uses card with the ground " , on November 10, 2016, agency of the Dragon King the lawful building forced releasing Liu Kunlun. To behavior of forced releasing of agency of the Dragon King government of people of city of Liu Kunlun Ceng Yizheng state is sued for the accused, via city of new rural area intermediate people court and Henan save senior people court to rule, think airport area is in charge of appoint can have economy of government of class of the city that save administer and social administrative power to be restricted, assume the society inside area to govern function, the behavior of agency of the Dragon King ought to is in charge of with airport area appoint can be the accused. Reason mentions this case lawsuit, first instance request: Affirm airport area is in charge of appoint behavior of meeting forced releasing breaks the law.
First instance of intermediate people court finds out Zhengzhou city, liu Kunlun fastens villager of the Dragon King of countryside of the Dragon King of new Zheng city. On July 10, 1998, management board of mineral products of land of new Zheng city issued new ground part to build for Liu Kunlun (98) the 6605884th collective land builds the word to use card with the ground, accumulate 39.2m2 with the ground, floor area 39.2m2, utility business. On August 2, 2016, 25 days, government of Henan province people is made respectively " Henan saves a government about new Zheng Fu 2016 year the 27th batch, the give an official that construction of the 26th batch of villages and towns collects land " , to village of the Dragon King of countryside of the Dragon King of new Zheng city two batch add up to 47.8234 hectare land undertakes expropriation. Division of test of airport of government of people of city of new on October 12, 2016 Zheng makes new Zheng Gang accuse [2016]30, 31 " about new Zheng Fu 2016 year the 26th batch, the announcement that construction of the 27th villages and towns collects land " , bureau of natural resources of land of comprehensive test division makes Zhengzhou airport economy new land endowment harbor article [2016]68, 69 " bureau of natural resources of land of new Zheng Fu about new Zheng Fu 2016 year the 26th batch, construction of the 27th batch of villages and towns collects land to ask for ground compensation to find a place for the announcement of plan " . Afore-mentioned announce that collect land, collect land to ask for ground compensation to find a place for the announcement of plan all is in committee of villager of the Dragon King of agency of the Dragon King is in paste announcement. On May 1, 2016, agency of the Dragon King makes to Liu Kunlun " announcement " say: Liu Kunlun should remove before April 30, 2016 demolish reach the designated position, according to actual condition of Liu Kunlun, can push to on May 5, 2016 24 when whole, if had be notted deal with before May 6, 2016, will deduct each to reward 77000 yuan, apply for approval project of garden rich garden builds headquarters to agree at the same time, the organization personnel has demolishing, ensure project of garden rich garden builds success. On October 15, 2016, committee of villager of the Dragon King of agency of the Dragon King makes " compensation decides a book " say: Accuse according to new Zheng Gang [2016]30, 31 announce and new land endowment harbor article [69 2016]68, announcement, agency of the Dragon King decides 238000 yuan to compensate a RMB to Liu Kunlun, this compensation fund already appropriate comes administrative village of the Dragon King of agency of the Dragon King 3 endowment account, ask Liu Kunlun to be signed in time with connection of administrative village of the Dragon King find a place for compensation agreement. On November 7, 2016, committee of villager of the Dragon King of agency of the Dragon King makes to Liu Kunlun " advice note " say: Administrative village of the Dragon King is located in project of garden rich garden to ask for 614.461 mus of collective land inside ground limits to already was turned over entirely, ask Liu Kunlun to receive this announcement to rise oneself as early as possible the adjunct that proper motion Qing Dynasty expresses place to occupy collective land to go up, if exceed the time limit is not clear,express, village appoint meeting general takes up to Liu Kunlun the on collective land adjunct inside limits of ground of Duan Zheng of village of the Dragon King of project of garden rich garden has clear list. On November 10, 2016, agency of the Dragon King demolishs Liu Kunlun's building. On November 14, 2016, liu Kunlun mentions lawsuit of politics of start on a journey for the accused with government of Zhengzhou city people, the action that the requirement confirms to agency of the Dragon King demolishs its building breaks the law. Court of intermediate people of city of new rural area thinks via cognizance the accused is unwell case, make (2016) pleased 266 07 administration at the beginning of travel rule, the ruling rejects Liu Kunlun sue. Liu Kunlun refuses to obey, appeal comes this academy. This academy was made on June 8, 2017 (2017) comfort goes eventually 857 administration ruling, think Liu Kunlun should is in charge of with airport area appoint can be the accused to lodge a complaint, the ruling rejects appeal, maintain original ruling. On September 11, 2017, liu Kunlun is in charge of with airport area appoint can mention for the accused this case administration lawsuit.
[first instance adjudicates]
First instance thinks: One, be in charge of about airport area appoint whether can be this case the problem of comfortable case the accused. Basis " land of People's Republic of China administers a law " the 46th regulation, building of Liukun human relations is demolished to because carry out project of garden rich garden to build place experience land to collect,be fastened, demolish behavior to be carried out by organization of agency of the Dragon King. Airport area is in charge of appoint conference debate says case land collects experience to already was finished, village appoint clean ground of can accountability consign, but agency of the Dragon King and village of the Dragon King of agency of the Dragon King appoint all can not have the powers and authorities of office that imposes land, what its make a decision all is be in charge of to cooperate airport area appoint can finish land to collect. In the meantime, agency of the Dragon King is airport area canal appoint the agency of the meeting, airport area is in charge of appoint can have economy of government of class of the city that save administer and social administrative power to be restricted, assume the society inside area to govern function, it is the executive authority that has function of exercise government share, for its the organization inside area under administration implements the principal part that collects land. In this case, agency of the Dragon King does not have the legal powers and authorities of office that demolishs compulsively, its remove cause the legal consequence that Liu Kunlun building produces ought to is in charge of by airport area appoint can assume, airport area is in charge of appoint the comfortable case the accused that can be this case. 2, basis " land of People's Republic of China administers a law " the 46th the 2nd paragraph, the 47th regulation, average per capita of the droit person of land be expropriationed, access has the right that enjoys compensation to find a place for. Airport area is in charge of appoint of the collective land that meeting place argue weighs collect an object to have for village collective break comprehensive, cannot hold water. Basis " procedural law of administration of People's Republic of China " thirtieth sets 4 times, airport area is in charge of appoint can be below the situation that did not reach agreement of the compensation that tear open change with Liu Kunlun, demolished its building forcibly namely, and did not offer corresponding evidence to prove its demolish behavior compulsively to accord with " administration of People's Republic of China is compulsive law " regulation, ought to maintain its to demolish behavior to break the law. On put together, first instance adjudicates: Airport area is in charge of appoint the behavior that can demolish Liu Kunlun building breaks the law. First instance case accepts fee 50 yuan, be in charge of by airport area appoint meeting burden.
[a:appellant reason]
Airport area is in charge of appoint can refuse to obey first instance court decision, to this academy appeal says, first instance maintains the corresponding consequence that demolishs appellee building to be assumed by appellant without fact and legal basis, also prop up without evidence. Above all, although agency of appellant subordinate the Dragon King has allotted to appellee written demolish an announcement, but its were not carried out demolish behavior. Next, appellant not incite sb to do sth or entrust appellee to be in a village appoint meeting or other principal part are carried out to appellee building demolish behavior. Again, appellee did not offer any direct evidence to prove appellant or agency of its subordinate the Dragon King were carried out to its building demolish compulsively. What the agency of the Dragon King that its provide allots is compulsive demolish advice note to was not carried out, and appellee already informed to lodge a complaint with respect to this. Because cognizance appellant of this first instance did not perform corresponding procedure,lack factual base apparently. On put together, request cancel first instance to adjudicate, send heavy careful or lawfully change the original sentence rejects request of lawsuit of appellee first instance.
Liu Kunlun was not referred written rejoin opinion.
[2 careful adjudicate]
This academy thinks, demolish building behavior compulsively to cause serious effect to great property right of the citizen, no matter reason goes up from jural, policy or it is legal spirit go up, ought to carry out by organization of government of prefectural class above at least. Look from executive circumstance, collective land is collected, house of state-owned land main rooms is collected, the village in the city is transformed, construction of new rural area, be in jural go up to be undertaken by organization of government of prefectural class above with policy, and agency, village appoint the behavior in can organizing executive course, prefectural class government unites an organization to direct next undertaking, these behavior from jural ought to regard as entrust, assume responsibility by prefectural class government. If be not maintained so, with respect to can further unlawful coercive action, also cause the difficulty of citizen claim for compensation, also can affect social government order and social stability. Accordingly, let below current condition at least prefectural class government assumes responsibility, since law asks, also be social requirement, also be the trend place of human rights and social power development at the same time. First instance is illative be in charge of by airport area appoint the responsibility that can assume coercive action, did not provide any evidential basises with coercive action for, affirm demolish building behavior compulsively to break the law, applicable law is correct, should grant to maintain. According to " procedural law of administration of People's Republic of China " the 89th the first regulation, the court decision is as follows:
Reject appeal, maintain first instance to adjudicate.
2 careful case accepts fee 50 yuan, by economy of appellant Zhengzhou airport comprehensive test division manages committee to assume.
This court decision is final judgment to adjudicate.
Adjudgement personnel
2 try a case date: (2018) comfort goes eventually 2671
Member of 2 careful collegiate bench: Ma Chuanxian of Lei of Wang Song horse
