I don't know if the punishment and demolition originally made in accordance with this regulation will be changed again.
The Regulations on Housing Expropriation and Compensation and Resettlement on State-owned Land in Changsha formulated by Changsha Municipal People's Government (hereinafter referred to as the Regulations on Housing Expropriation) does not comply with the law.
1. Changsha's "Regulations on House Expropriation" violates the relevant provisions of our Constitution.
Article 13 of our Constitution stipulates: "Citizens' lawful private property is inviolable. The state protects citizens' private property rights and inheritance rights according to law. In order to meet the needs of public interests, the state may expropriate or requisition citizens' private property in accordance with the law and compensate them. "
Obviously, when the state "expropriates" or expropriates "citizens' private property" for the needs of "public interests", it must and can only be implemented in accordance with the provisions of the law.
The Regulations on House Expropriation formulated and implemented by Changsha Municipal People's Government is only a local normative document, and it is by no means a legal rank. Therefore, the Regulations on House Expropriation promulgated and implemented by Changsha Municipal People's Government violates the provisions of the Constitution.
Second, the Changsha Municipal Government House Expropriation Ordinance violates the relevant provisions of the People's Republic of China (PRC) Legislative Law.
Article 8 of the Legislative Law of People's Republic of China (PRC) stipulates: "The following matters can only be formulated: (1) Matters involving national sovereignty; (2) The formation, organization and functions of people's congresses, people's governments, people's courts and people's procuratorates at all levels; (3) The system of regional ethnic autonomy, the system of special administrative regions and the system of grass-roots mass autonomy; (4) Crime and punishment; (5) Compulsory measures and penalties for depriving citizens of political rights and restricting personal freedom; (6) Expropriation of non-state-owned property; (7) Basic civil system; (eight) the basic economic system and the basic systems of finance, taxation, customs, finance and foreign trade; (9) Litigation and arbitration systems; (ten) other matters that must be formulated by the National People's Congress and its Standing Committee ".
From the sixth item of Article 8 of China's Legislative Law, it can be seen that "expropriation of non-state-owned property" can only be regulated by law.
Changsha Municipal Government's Regulations on House Expropriation has included "individual-owned houses" belonging to "non-state-owned assets" in the scope of expropriation. And this collection regulation does not belong to the scope of the law. Obviously, the "Regulations on House Expropriation" has exceeded the authority stipulated in the "People's Republic of China (PRC) * * * and the National Legislation Law" and is illegal.
3. The house expropriation regulations in Changsha violate the Property Law of People's Republic of China (PRC) and the Urban Real Estate Management Law of People's Republic of China (PRC).
Paragraph 3 of Article 42 of the Property Law of People's Republic of China (PRC) stipulates: "Units and individuals who expropriate houses and other immovable property shall give compensation for demolition according to law and safeguard the legitimate rights and interests of the expropriated person; If a personal residence is expropriated, the living conditions of the expropriated person shall also be guaranteed. "
The newly revised "People's Republic of China (PRC) Urban Real Estate Management Law" only adds Article 6: "For the needs of public interests, the state may expropriate the houses of units and individuals on state-owned land, and give compensation for demolition according to law to safeguard the legitimate rights and interests of the expropriated people; Expropriation of individual houses should also guarantee the living conditions of the expropriated person. The specific measures are stipulated by the State Council. "
The above two laws strictly stipulate three basic principles that should be followed when "expropriation of individual houses", namely:
(a) must be for the needs of public interests, the state can requisition individual citizens' houses;
(2) The expropriation of houses must be based on the law, that is, "in accordance with the law". The "law" here cannot be arbitrarily extended to administrative regulations, and administrative regulations can only be formulated and implemented by the State Council if authorized by law. According to the provisions of the Legislative Law, the rules cannot set the procedures and related systems for expropriation of citizens' private property.
(3) Expropriating a citizen's house "should also guarantee the living conditions of the expropriated person". This is the bottom line requirement for collecting compensation and resettlement for citizens' private houses.
In a word, I personally think that the Regulations on the Expropriation, Compensation and Resettlement of Houses on State-owned Land in Changsha promulgated by Changsha Municipal Government is not in line with the Constitution and relevant laws. When trying an administrative case caused by the government's expropriation of Changsha residents' houses in accordance with the Regulations on House Expropriation, the people's court shall revoke the expropriation decision on the grounds that the expropriation decision is "wrong in applicable laws and regulations" and "illegal in procedure".
Provisions of Changsha Municipality on Housing Expropriation, Compensation and Resettlement on State-owned Land
(Chang [2009] No.21)
Article 1 In order to standardize the compensation and resettlement work of houses on state-owned land in our city, and safeguard the legitimate rights and interests of expropriated persons and interested parties, according to the provisions of the People's Republic of China (PRC) Property Law and the People's Republic of China (PRC) Urban Real Estate Management Law, combined with the actual situation of our city, these working procedures are formulated.
Article 2 These Regulations shall apply to the construction projects in Furong District, Tianxin District, Yuelu District, Kaifu District and Yuhua District of this Municipality that meet the public interests and need to implement house expropriation, compensation and resettlement.
Article 3 The Municipal People's Government shall strengthen its leadership in the work of house expropriation, compensation and resettlement.
The district people's governments shall be responsible for the organization and implementation of house expropriation, compensation and resettlement within their respective jurisdictions, and the departments designated by the district people's governments (hereinafter referred to as the district expropriation implementation departments) shall be responsible for the specific work of house expropriation, compensation and resettlement.
Changsha City Housing Demolition Management Office (hereinafter referred to as the Municipal Demolition Office) is responsible for the supervision and management of housing expropriation and compensation and resettlement.
Article 4 Before the District People's Government makes a decision on expropriation, the district expropriation implementation department shall organize the investigation and registration of the ownership, location, use, construction area, lease, usufructuary right, mortgage and seizure of the expropriated house, and verify with the relevant departments of real estate and planning, and the relevant departments and the expropriated person shall cooperate.
Article 5 After the state-owned land use right within the scope of expropriation is recovered according to law, the District People's Government shall make a decision on house expropriation according to the approval documents of construction projects, construction land planning permits and state-owned land use rights provided by the district expropriation implementation department, and make an announcement within the scope of expropriation.
The announcement of the house expropriation decision shall specify the expropriation purpose, expropriation scope, expropriation implementation department, expropriation implementation period, administrative reconsideration and administrative litigation rights.
Article 6 If the expropriated person or interested party refuses to accept the decision on house expropriation, it may apply to the Municipal People's Government for administrative reconsideration or bring an administrative lawsuit to the people's court according to law.
Article 7 After the announcement of the decision on house expropriation, no new building, expansion or reconstruction of houses shall be allowed within the scope of expropriation. Do not change the use of houses and land, and do not buy, sell, lease or mortgage houses. The district collection and implementation department shall promptly notify the construction, planning, real estate, industry and commerce departments to stop handling relevant procedures.
Article 8 The District People's Government of the land where the house is expropriated shall compensate and resettle the expropriated person in accordance with the methods and standards stipulated in the Regulations on the Administration of Urban House Demolition, Measures for Implementing the Regulations on the Administration of Urban House Demolition in Hunan Province, Regulations on the Administration of Urban House Demolition in Changsha City, Several Provisions on the Administration of Urban House Demolition in Changsha City, and Decision of Changsha Municipal People's Government on Adjusting the Relevant Standards of Compensation for Urban House Demolition in Changsha City.
Article 9 The implementation department of district expropriation shall apply to the Municipal Demolition Office for organizing the classified evaluation of projects, and the Municipal Demolition Office shall organize the implementation according to the Guiding Opinions on the Evaluation of Urban Housing Demolition and the Administrative Provisions on the Evaluation of Urban Housing Demolition in Hunan Province.
The assessment time of house expropriation is the date of announcement of expropriation decision.
Article 10 The district expropriation implementation department shall, according to the classified evaluation price and investigation and verification, draw up the compensation and resettlement scheme for the project house expropriation, and publish a notice for soliciting opinions on the compensation and resettlement scheme for the project house expropriation within the scope of expropriation to solicit the opinions of the expropriated person and interested parties. If the expropriated person or interested party puts forward a hearing, the district expropriation implementation department shall organize a hearing in accordance with the provisions, and the municipal demolition office shall participate in the hearing. The announcement period for soliciting opinions shall not be less than 7 working days.
The implementation department of district expropriation shall study the opinions of the expropriated person and interested parties, and if it is really necessary to amend it, it shall be revised and improved.
The contents of the compensation and resettlement plan for the project house expropriation should include: legal basis, expropriation scope, expropriation implementation steps, property rights details of the expropriated house, specific expropriation compensation standards and resettlement methods, implementation of expropriation compensation funds, resettlement houses and revolving houses, and expropriation implementation period.
Eleventh district levy implementation department will revise and improve the project housing levy compensation and resettlement program approved by the Municipal Demolition Office, and provide the following information:
1, house expropriation decisions, announcements and related materials;
2. If the opinions of the expropriated person and interested party are adopted, a hearing record shall be attached to the hearing;
3, the collection of compensation and resettlement funds or resettlement housing, housing turnover certificate;
4. Collect safety management information of house demolition construction.
According to the approved plan, the district expropriation implementation department will issue an announcement on the implementation of the project housing expropriation compensation and resettlement plan within the scope of expropriation, and organize the implementation.
Article 12 The funds for expropriation compensation and resettlement shall be fully deposited into the special account for expropriation compensation before the announcement of the scheme for expropriation compensation and resettlement of project houses, which shall be used exclusively for expropriation compensation and resettlement, and shall not be used for other purposes, and shall be subject to the supervision of the Municipal Demolition Office. If it is not deposited in full, the district expropriation implementation department shall not issue an announcement on the implementation of the compensation and resettlement plan for the project house expropriation.
The municipal demolition office shall timely monitor the corresponding amount of funds according to the signing of the compensation and resettlement agreement, and supervise and inspect the use of funds.
Article 13 The expropriated person shall, within the implementation period of expropriation, sign an agreement on expropriation compensation and resettlement with the district expropriation implementation department in accordance with the approved project house expropriation compensation and resettlement plan, vacate the house and complete the relocation.
The district collection and implementation department shall report the agreement to the municipal demolition office for the record within 10 working days from the date of signing the compensation and resettlement agreement.
Fourteenth housing expropriation decision announcement period expires, because the expropriation compensation and resettlement agreement has not yet been reached, it is necessary to issue the expropriation compensation and resettlement decision, and the district expropriation implementation department shall handle it according to the following procedures:
1. District expropriation implementation department applies for household appraisal of expropriated houses according to the procedures stipulated in Guiding Opinions on Urban House Demolition and Appraisal and Administrative Provisions on Urban House Demolition and Appraisal in Hunan Province;
2, the implementation of the district levy department according to the results of household assessment, the development of household housing levy compensation and resettlement program and inform the expropriated person in writing;
3, the implementation of the district expropriation departments to apply for mediation of urban demolition, and submit the proposed household housing expropriation compensation and resettlement scheme, household assessment report, consultation records, compensation and resettlement funds, resettlement housing and turnover housing ownership certificate, the expropriation of housing property registration and other related information;
4 city demolition office shall organize mediation within 7 working days from the date of accepting the application for mediation. If the mediation fails, the implementation department of the district expropriation shall apply to the District People's Government, and the District People's Government shall issue a decision on compensation and resettlement for house expropriation.
Fifteenth housing levy compensation and resettlement decisions shall include the following contents:
1, the basic situation of the expropriated house and the obligee
2, the basis and reason for the collection
3, the price and method of compensation and resettlement
4. Relocation period
5, inform the parties of the rights, ways and time limit of administrative reconsideration and administrative litigation;