In order to correctly hear administrative compensation cases, according to the provisions of the State Compensation Law of People's Republic of China (PRC) and the Administrative Procedure Law of the People's Republic of China, the following provisions are made on several issues concerning the trial of administrative compensation cases:
Article 1 Other illegal acts stipulated in Articles 3 and 4 of People's Republic of China (PRC) State Compensation Law include specific administrative acts and acts related to the exercise of administrative functions and powers by administrative organs and their staff, which cause damage to citizens, legal persons or other organizations and violate administrative duties.
Article 2 Where a claimant brings an administrative compensation lawsuit against a specific administrative act that is confirmed illegal by an administrative organ, but decides not to pay compensation or disagrees with the determined amount of compensation, the people's court shall accept it.
Article 3 If the claimant thinks that the behavior carried out by the administrative organ and its staff does not belong to the specific administrative act stipulated in Item (3), Item (4) of Article 3 and Item (4) of the State Compensation Law, which infringes on his personal rights and property rights and causes losses, if the organ liable for compensation refuses to confirm that the harmful behavior is illegal, the claimant may directly bring an administrative compensation lawsuit to the people's court.
Article 4 Where a citizen, legal person or other organization files an administrative compensation claim and an administrative lawsuit at the same time, the people's court shall accept them together.
When the claimant brings an administrative compensation lawsuit alone, it must be handled by the organ liable for compensation first. If the claimant disagrees with the amount of compensation determined by the organ liable for compensation or the organ liable for compensation fails to pay compensation within the time limit, the claimant has the right to bring an administrative compensation lawsuit to the people's court.
Article 5 If a specific administrative act stipulated by law to be finally decided by an administrative organ is confirmed to be illegal by the administrative organ that made the final decision, and the claimant for compensation claims that the organ liable for compensation should make compensation but refuses to make compensation, fails to make compensation within the time limit or disagrees with the amount of compensation, the people's court shall accept it according to law.
Article 6 If a citizen, legal person or other organization brings an administrative compensation lawsuit to the people's court on the grounds that national defense, foreign affairs and other state acts or administrative regulations, rules or decisions or orders with universal binding force infringe upon their legitimate rights and interests, the people's court will not accept it.
Article 7 Where a citizen, a legal person or any other organization requests administrative compensation at the same time, the people's court shall exercise jurisdiction in accordance with the provisions of Articles 17, 18 and 20 of the Administrative Procedure Law.
Article 8 Where the claim for administrative compensation filed by the claimant involves real estate, it shall be under the jurisdiction of the people's court where the real estate is located.
Article 9 Administrative compensation litigation cases filed separately shall be under the jurisdiction of the grassroots people's court where the defendant resides.
The Intermediate People's Court has jurisdiction over the following administrative compensation cases of first instance:
(1) The defendant belongs to the customs or the patent administration authority;
(2) The defendant is a department of the State Council or the people's government of a province, autonomous region or municipality directly under the Central Government;
(3) Other major and complicated administrative compensation cases within its jurisdiction.
The Higher People's Court has jurisdiction over administrative compensation cases of first instance with great influence and complicated cases within its jurisdiction.
The Supreme People's Court has jurisdiction over the first instance administrative compensation cases with great influence and complicated cases nationwide.
Article 10 Where an applicant brings an administrative lawsuit to two or more administrative organs for the same fact, he may bring an administrative lawsuit to the people's court where one of the administrative organs is domiciled. Where a claimant brings an administrative compensation lawsuit to two or more people's courts with jurisdiction, it shall be under the jurisdiction of the people's court that first received the complaint.
Article 11 If a citizen refuses to accept the administrative compulsory measures that restrict personal freedom, or refuses to accept the specific administrative actions that the administrative compensation organ has taken against the same party to restrict personal freedom and take compulsory measures against property based on the same fact, and brings an administrative lawsuit at the same time, it shall be under the jurisdiction of the people's court that accepted the administrative case; Where an administrative compensation lawsuit is filed separately, it shall be under the jurisdiction of the people's court where the defendant's domicile or the plaintiff's domicile or the real estate is located.
Article 12 If a people's court finds that the case it accepts is not under its jurisdiction, it shall transfer it to the people's court with jurisdiction; The transferred people's court may not transfer it again.
Article 13 Where a people's court has a dispute over its jurisdiction, it shall be settled by both parties to the dispute through consultation. If negotiation fails, it shall be reported to their superior people's court for designation of jurisdiction. The two sides are people's courts across provinces, autonomous regions and municipalities directly under the Central Government. If the Higher People's Court fails to reach an agreement through consultation, the Supreme People's Court will promptly designate jurisdiction.
When reporting to the people's court at a higher level for designated jurisdiction in accordance with the provisions of the preceding paragraph, it shall be handled step by step.
Fourteenth other citizens, legal persons or other organizations that have a legal interest in the outcome of administrative compensation cases have the right to participate in administrative compensation litigation as a third party.
Article 15 If a damaged citizen dies, his heirs and other dependent relatives, as well as the disabled who were supported by the deceased before his death, have the right to bring an administrative compensation lawsuit.
Article 16 If an enterprise as a legal person or any other organization is revoked, changed, merged or cancelled by an administrative organ, and considers that its business autonomy has been violated, it shall bring an administrative compensation lawsuit according to law. The original enterprise legal person or other organization, or the legal person or other organization that enjoys rights to it, has the plaintiff qualification.
Seventeenth more than two administrative organs * * * with infringement, the claimant for compensation filed an administrative compensation lawsuit against one or more infringing organs, if the claim is divisible, the defendant is one or more infringing organs; If the claim is indivisible, the people's court shall add other infringing organs as co-defendants.
Article 18 If the reconsideration decision of the reconsideration organ aggravates the damage, the compensation claimant only brings an administrative compensation lawsuit against the administrative organ that made the original decision, and the administrative organ that made the original decision is the defendant; If the claimant only brings an administrative compensation lawsuit to the reconsideration organ, the reconsideration organ is the defendant.
Article 19 If an administrative organ applies to the people's court for compulsory execution of a specific administrative act in accordance with Article 66 of the Administrative Procedure Law, and an administrative compensation lawsuit occurs due to the wrong basis for compulsory execution, the administrative organ applying for compulsory execution shall be the defendant.
Article 20 The people's court needs to replace the defendant when trying administrative compensation cases. If the plaintiff does not agree to the replacement, it shall rule to dismiss the prosecution.
Article 21 An applicant who brings an administrative compensation lawsuit alone shall meet the following conditions:
(1) The plaintiff is entitled to request;
(2) Having a clear defendant;
(3) There are specific claims for compensation and factual basis for damages;
(four) the damage is a specific administrative act, which has been confirmed to be illegal;
(five) the organ liable for compensation handles it first or refuses to handle it within the statutory time limit;
(six) belonging to the scope of administrative compensation litigation of the people's court and the jurisdiction of the people's court;
(seven) the time limit for prosecution prescribed by law.
Article 22 Where a claimant brings an administrative compensation lawsuit alone, he may bring it within three months from the expiration of two months after filing an application for compensation with the organ liable for compensation.
Twenty-third citizens, legal persons or other organizations in the administrative proceedings at the same time, the administrative compensation request, the prosecution period in accordance with the provisions of the administrative proceedings.
The plaintiff in an administrative case may file a claim for administrative compensation after bringing an administrative lawsuit to the end of the trial of first instance in the people's court.
Article 24 Where the organ liable for compensation fails to inform the claimant of the right of action or the time limit for prosecution when making the compensation decision, so that the claimant brings a suit in a people's court within the time limit, the time limit for prosecution shall be counted from the date when the claimant actually knows the right of action or the time limit for prosecution, but the time limit shall not exceed one year from the date when the claimant receives the compensation decision.
Twenty-fifth victims of the death of a citizen, their heirs and dependents shall provide the proof of the death of the citizen and the relationship between the claimant and the deceased citizen.
Article 26 If a party is subjected to compulsory measures such as administrative compulsory measures or criminal detention, and claims compensation because it is confirmed that the compulsory measures are illegal, the people's court shall apply administrative compensation procedures and criminal compensation procedures respectively according to the nature of his behavior.
Twenty-seventh people's court shall, within seven days after receiving a separate request for administrative compensation from the plaintiff, examine and file a case or rule that it will not be accepted.
If the people's court can't determine whether it can accept the appeal for administrative compensation within seven days after receiving it, it shall accept it first. If it is found during the trial that the conditions for acceptance are not met, the prosecution shall be dismissed by ruling.
If a party refuses to accept the ruling of not accepting or rejecting the prosecution, he may appeal to the people's court at the next higher level within ten days from the date of service of the ruling.
Article 28 If a party brings an administrative lawsuit and requests administrative compensation at the same time, or if a specific administrative act and other acts related to the exercise of administrative functions infringe upon and cause damage, the people's court shall file a case separately, and may try it jointly or separately according to the specific circumstances.
Article 29 The people's courts try cases of administrative compensation, and try and decide administrative compensation disputes between the parties.
Thirtieth people's court in the trial of administrative compensation cases, on the premise of legality and voluntariness, can mediate on the scope, method and amount of compensation. If mediation is established, a conciliation statement for administrative compensation shall be made.
Article 31 Before the judgment of first instance, the defendant and the plaintiff reached a compensation agreement, and the plaintiff applied to withdraw the lawsuit, the people's court shall examine it according to law and decide whether to grant it.
Article 32 In administrative compensation proceedings, the plaintiff shall bear the burden of proof for his own claims. The defendant has the right to provide evidence of not paying compensation or reducing the amount of compensation.
Article 33 If the defendant's specific administrative act violates the law, but it does not harm the plaintiff's legitimate rights and interests, or the plaintiff's claim has no factual basis or legal basis, the people's court shall rule to reject the plaintiff's claim for compensation.
Article 34 The people's court shall confirm whether the damage caused by the organ liable for compensation is illegal or not when hearing a case in which the claimant directly files an administrative compensation lawsuit without confirmation procedure.
Article 35 The names of legal documents that people's courts make judgments on individual cases of administrative compensation are administrative compensation judgment, administrative compensation ruling or administrative compensation mediation.
Thirty-sixth legally effective administrative compensation judgment, ruling or mediation agreement, the parties must perform. If one party refuses to perform, the other party may apply to the people's court of first instance for execution.
The time limit for applying for execution is one year if the applicant is a citizen and six months if the applicant is a legal person or other organization.
Article 37 The trial period of administrative compensation cases of first instance accepted separately is three months, and that of second instance is two months; The trial period for accepting administrative compensation claims together is the same as that for administrative cases. If the case cannot be closed on schedule due to special circumstances and it is necessary to extend the trial period, it shall be submitted for approval in accordance with the relevant provisions of the Administrative Procedure Law.
Article 38 In handling administrative compensation cases, the people's courts shall apply the relevant provisions of administrative litigation, provided that they are not in violation of the State Compensation Law, except for the provisions on administrative compensation procedures.
Thirty-ninth the claimant requests the people's court to confirm the appraisal, inspection, audit and other expenses involved in the illegal harm behavior, which shall be paid by the applicant in advance and finally borne by the losing party.
Fortieth the Supreme People's Court before the relevant judicial interpretation is inconsistent with these provisions, according to these provisions.
Extended data:
Case:
Without reaching a compensation agreement and making a compensation decision, the district government forcibly demolished the house.
The Third Circuit Court ruled in court that administrative compensation should be paid.
Xu, who lives in Jinhua City, Zhejiang Province, made a living by tearing down the wall of the old house built by his parents when they were alive. He worked as a tailor and then engaged in the flower and bird business. In 200 1 year, Xu's house was included in the scope of demolition, but 10 has never signed a demolition compensation agreement for many years. The old city was rebuilt more than three years ago, and the house was demolished because of dissatisfaction with resettlement compensation.
Since then, Xu sued the case of "people suing officials" to the Higher People's Court of Zhejiang Province. Both courts ruled that the government's compulsory demolition was illegal. Because the compensation was not supported, he took the lawsuit to the Supreme People's Court.
2018 65438+1October 25th, the Third Circuit Court of the Supreme Court held a public hearing to hear the retrial of administrative incidental compensation. The collegiate bench made a final judgment in court, confirming that the administrative act of compulsory house demolition by the Wucheng District Government of Jinhua City was illegal, and ordered that administrative compensation be made according to law within 90 days from the effective date of the judgment.
Authoritative experts pointed out that the Third Circuit Court not only actively responded to many hot issues in the forced demolition, but also standardized and prevented the "zero cost" phenomenon of illegal administration by administrative organs through judicial decisions, which is of typical significance for protecting property rights and promoting the administration of cities and counties according to law.
References:
Baidu Encyclopedia-Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases
People's Daily Online-The Third Circuit Court ruled in court that administrative compensation should be paid.