/10 2005 Jun. 2005 12 Fa [2005] Hang He Zi No.5
Chongqing Higher People's Court:
Your hospital [2004] Gao Yufa Shi Hangzi No.47 "Request for Instructions on Zhao Jian's Request for Revoking the Administrative Decision of Chongqing Shapingba District Bureau of Land and Resources to Order it to Demolish the House and Hand over the Land" has been received. After study, the reply is as follows:
We agree in principle with the first opinion of your hospital, that is, after the administrative organ expropriates the rural collective land, the original rural residents on the expropriated land still enjoy the ownership of the house, and the location of the house has been included in the urban planning area. With reference to the Regulations on the Administration of Urban House Demolition and the relevant provisions, the house owner shall be compensated and resettled.
This reply.
Attached:
Request from Chongqing Higher People's Court for instructions on Zhao Jian's request to cancel the administrative decision of Chongqing Shapingba District Bureau of Land and Resources to demolish houses and hand over land.
2004105/00 Gao Yu Law Cross No.47
The Supreme People's Court:
Zhao Jian, who was accepted by our hospital, requested to cancel the request of the Bureau of Land and Resources of Jingshapingba District of Chongqing Municipality to order him to demolish the house and hand over the land. After research, the Judicial Committee of our hospital found that when the rural collective land was requisitioned, there was no compensation and resettlement for the above-ground houses, and different opinions were formed on the compensation standards for the demolished houses and commercial houses. We hereby ask your hospital for instructions.
First, the origin and trial process of the case
Request to revoke the administrative decision of Chongqing Shapingba District Bureau of Land and Resources (hereinafter referred to as Sha District Bureau of Land and Resources) to demolish houses and hand over land. The People's Court of Shapingba District of Qingcheng District made an administrative judgment (2003) No.48 on June 7, 2004, and upheld the administrative decision of Sha District Bureau of Land and Resources. Zhao Jian refused to accept the administrative judgment and appealed to Chongqing No.1 Intermediate People's Court on February, 2004. After filing a case for review, our hospital asked our hospital for instructions on the application of relevant laws in this case on September 9, 2004. The judicial committee of our hospital studied it on February 5, 2005 and decided to report it to your hospital for instructions.
Second, the facts of the case and the focus of the dispute between the two sides
(1) the facts of the case
Zhao Jianyuan is a villager in Mafangwan Village, Qinjiagang Town, Shapingba District. 1984 At noon, Zhao Jian built a house on the collective land of Dayanggongqiao 1 18 in the former Shapingba District, and used it for living, and successively operated restaurants and hotels. 1On April 5, 1993, the Sha District Land and Resources Bureau indicated in the approval column of the Zhao Jian Collective Land Registration Application that its house occupied residential land, but the Land Use Certificate for Collective Land Construction Land (Yushejianzheng (93) No.5880) issued by the Bureau to Zhao Jian stated that Zhao Jian houses occupied commercial and residential land with a land area of 182 square meters. On April 10 of the same year, the rural housing ownership certificate (No.Sha Zi 14682) issued to Zhao Jian by the Urban and Rural Construction Committee of Shapingba District of Chongqing stated that the housing type was: commercial 282.47m2, residential170m2. 1On September 6, 1994, the Chongqing Municipal People's Government approved the requisition of 204,580 square meters of land in Tongjiaqiao and Mafangwan Village with the reply of Chongfudi (1994) No.309, and turned 630 members of Mafangwan Village into farmers. 1996 to 65438+February, Zhao Jian became the household registration of urban residents, but still engaged in individual business with the houses it built, and its rural house ownership certificate and collective land construction land use certificate remained unchanged. On June 20, 2002, the Chongqing Municipal People's Government approved the transfer of the state-owned land use right of Liyang Road plot to Chongqing Hongkun Property Development Co., Ltd. as the construction land of residential quarters. Zhao Jian's house is within the company's land use scope, and Zhao Jian requires the company to provide facade houses for its non-residence. The two sides failed to reach an agreement. On June 25th, 2003, the Land and Resources Bureau of Shaqu formulated the "Zhao Jian Demolition and Resettlement Plan", which was delivered to Zhao Jian the next day. Its main contents are as follows: according to the provisions of the Measures for Compensation and Resettlement of Land Expropriation in Chongqing, Zhao Jianke will be resettled with a house (two bedrooms and one living room) with a construction area of 40 square meters; For the non-residential part of the house, according to Article 12 of the Measures for Compensation and Resettlement for Land Expropriation in Chongqing, after the compensation is calculated at the replacement price, the house will be owned by the state, and the relocation loss will be calculated at 15-20% of the net depreciation value of the relocated equipment. On June 30th of the same year, the Land and Resources Bureau of Shaqu made the Notice of Hearing [2003] No.3, informing Zhao Jian to make an administrative decision to demolish the house and hand over the land within a time limit according to Article 45 of the Implementation Regulations of People's Republic of China (PRC) Land and Resources Management Law. The Bureau has the right to apply for a hearing before making a formal administrative decision: Zhao Jian did not apply for a hearing after receiving the notice of hearing on 1 day. On July 4th, the Sand Land Bureau made a decision to order Zhao Jian to demolish the house and hand over the land to Zhao Jian. Zhao Jian refused to accept, and applied to the Shapingba District People's Government for reconsideration. On August 25th, the government made the Decision of Administrative Reconsideration (Sha Fu Xing Fu Zi [2003] No.2), and upheld the administrative decision made by Sha District Land and Resources Bureau. Zhao Jian still refused to accept it, so he filed an administrative lawsuit with the court, requesting to cancel the decision made by the Land Bureau in Sandy Area to order Zhao Jian to demolish the house and hand over the land.
(B) the focus of disputes between litigants
1. Zhao Jian thinks that after the land to which his house belongs was expropriated by the Chongqing Municipal People's Government on 1994, the nature of the land has changed to state-owned, and the relevant provisions of the Regulations on the Administration of Urban House Demolition and Resettlement should be applied, but not the relevant provisions of the Land Administration Law of the People's Republic of China and the Implementation Regulations of the Land Administration Law of the People's Republic of China. However, the Bureau of Land and Resources in Shaqu believes that although the land owned by houses in Zhao Jian was expropriated by the government in 1994, compensation and resettlement for demolition were not carried out for various reasons, and its nature is still collective land acquisition and demolition in rural areas, so the relevant provisions on urban house demolition cannot be applied.
2. Whether the "Zhao Jian Demolition and Resettlement Plan" proposed by the Sand Land Bureau complies with the law. Zhao Jian proposed that even if the collective land of rural houses is expropriated according to its nature, the provisions of Article 12 of Chongqing Measures for Compensation and Resettlement for Land Expropriation should be applied, and the "replacement price" should also be the expenses needed for rebuilding hotels of the same scale, so that it can basically maintain its living standard before land expropriation after compensation for land expropriation and resettlement. However, the Bureau of Land and Resources in Shaqu believes that the "replacement price" is calculated according to a 50% increase in the price of brick-wall houses, that is, compensation is made per square meter of 300 yuan.
3. The question of whether Article 45 of the Regulations for the Implementation of the Land Administration Law of the People's Republic of China is applicable to this case (Note: Article 45 of the Regulations: "Anyone who violates the provisions of land administration laws and regulations and obstructs the requisition of land for national construction shall be ordered by the land administrative department of the people's government at or above the county level to hand over the land; If you refuse to hand over the land, apply to the people's court for compulsory execution. " )。 Zhao Jian believes that the premise of applying this clause is that the parties have hindered the land acquisition, and the reason why they have not reached an agreement with the demolition compensation and resettlement is because the compensation standard of the resettlement scheme provided by the Sand Land Bureau is too low, which has not hindered the land acquisition, so this clause should not be applied. The Bureau of Land and Resources in Shaqu believes that Zhao Jian disagreed with the Bureau's "Resettlement Plan for Zhao Jian" and refused to hand over the land, which seriously affected the progress of the construction project on this land and was an act of obstructing land acquisition.
Three. Opinions of the judicial Committee of our hospital
After discussion, the Judicial Committee of our hospital believes that in order to solve the legal application problems involved in the housing compensation in Zhao Jian in this case, it should first be clear whether the compensation should be carried out in accordance with the relevant provisions of the Regulations on the Administration of Urban Housing Demolition, or whether the relevant provisions of the Land Administration Law of the People's Republic of China and the Regulations on the Implementation of the Land Administration Law of the People's Republic of China should be applied, and compensation should be made in accordance with the compensation and resettlement standards for rural land-expropriated houses. If the houses in Zhao Jian are compensated according to the compensation standard for urban house demolition, the commercial houses in Zhao Jian should naturally be compensated according to the non-residential standard; If compensation is carried out according to the compensation standard of rural land-expropriated buildings, the relevant land management laws and regulations do not stipulate the resettlement compensation of commercial housing in rural land-expropriated compensation, so there is no corresponding legal and regulatory basis in actual operation. To this end, two opinions have been formed:
The first opinion is that the houses in Zhao Jian should be compensated according to the compensation standard for urban house demolition. The reason is that the land where Zhao Jian's house is located was expropriated by the state in 1994, and the relevant departments did not give compensation for demolition until 2002. The area where the house is located has long been urbanized, and the nature of the land has actually become state-owned land in cities and towns. The houses in Zhao Jian should be regarded as urban houses on state-owned land. The Land and Resources Bureau in the sand area still applies the compensation standard for land expropriation in Zhao Jian to resettle houses, and the 300 yuan /m2 compensation for commercial houses in the houses is obviously low according to the Measures for Compensation and Resettlement for Land Expropriation in Chongqing. In addition, there is no clear standard in the current laws and regulations on how to compensate the commercial housing on collective land, and compensation can be made with reference to the standards of urban housing demolition.
The second opinion is that the house demolition and resettlement in Zhao Jian still belongs to land acquisition and demolition in nature, and should not be compensated according to the Regulations on the Administration of Urban House Demolition. The reason is: judging from the current laws and regulations in China, the house demolition on rural collective land belongs to the category of land acquisition and demolition in nature, and the provisions of the Land Management Law on land acquisition compensation and resettlement should be applied. Because there are differences between rural houses and urban houses in land ownership nature, ownership subject, land management mode and resettlement object, the Regulations on the Administration of Urban House Demolition has no direct reference. If you refer to it, the compensation standards formulated by the government will be more arbitrary, and the demolition procedures and standards will be more chaotic. Although the houses in Zhao Jian were not compensated in time in the process of land acquisition, this does not change the nature of the compensation for houses belonging to the compensation for land acquisition and demolition of rural collective land.
The judicial committee is inclined to the second opinion, but they all think that it is a common phenomenon that rural collective land is requisitioned in various places during the construction process, and it only compensates for demolition when used. Administrative disputes caused by such compensation disputes are inevitable. How to apply the law to solve such problems in judicial review, the standards and practices mastered in various places are not uniform, and the existing legal provisions are not clear.
Fourth, ask for instructions.
After discussion and decision by the Judicial Committee of our hospital, we now ask for instructions on the following issues: when the rural collective land was expropriated, the houses on the ground were not compensated at that time, and what standards should be used for compensation when the land was demolished? Please indicate.