judging from the litigant's claim, it is a general payment lawsuit to stop the infringement and remove the obstruction. The Supreme People's Court's "Interpretation on the Application of the Administrative Procedure Law of the People's Republic of China" stipulates in Article 68, paragraph 1, paragraph 2 that "there are specific litigation requests as stipulated in Article 49, paragraph 3 of the Administrative Procedure Law", including "requesting the judgment administrative organ to perform specific statutory duties or payment obligations". The request for the judgment of the administrative organ to fulfill the specific payment obligation mentioned here refers to the general payment lawsuit. It is the same as "requesting the judgment administrative organ to perform specific statutory duties", and it belongs to the lawsuit of payment. The difference is that the latter requires the judgment administrative organ to make specific administrative acts, while the former requires the judgment administrative organ to make various acts other than administrative acts. In many cases, this kind of lawsuit involves factual behavior. The action of general payment is called "multi-purpose weapon in litigation", and the parties can exercise the right to claim money payment and factual behavior, as well as the right to claim the return of unjust enrichment and the elimination of consequences. These claims may come from the provisions of administrative regulations, administrative acts, administrative commitments and administrative agreements, and may also come from the analogy application of civil law norms.
the misuse of litigation types will not only lead to the incompatibility of litigation claims, but also greatly reduce the effective settlement of administrative disputes. If the people's court confirms that the government's act of building a fence is illegal, the basis for demanding the removal of the fence is Article 74, paragraph 1, item 1 of the Administrative Procedure Law. (1) The administrative act should be revoked according to law, but the provisions of the law that revokes the administrative act will cause great harm to the national interests and social public interests are not supported, which belongs to the category of misuse litigation. The above judgment method is "situational judgment". The so-called "situation judgment", although it also confirms that the administrative act is illegal, strictly speaking, does not belong to the judgment mode of confirming the lawsuit, but is an exception to withdrawing the lawsuit. It means that in the revocation proceedings against an administrative act, although the administrative act is illegal and should be revoked according to law, the people's court only confirms that the administrative act is illegal, and does not revoke the administrative act when it will cause great harm to the national and social public interests. It can be seen that the premise of applying the "situation judgment" stipulated in the first paragraph of Article 74 of the Administrative Procedure Law must be aimed at an administrative act, which should be revoked and has revocable contents. In this case, it is obvious that the act of building a fence is not an administrative act with revocable content, and the parties have not filed a lawsuit to revoke the administrative act. Therefore, the application of "situational judgment" obviously misuses the type of litigation.
Judgment Document
People's Republic of China (PRC) the Supreme People's Court
Administrative Award
(218) Supreme Law Shenzi No.747
Retrial applicant (plaintiff of first instance and appellant of second instance) Zhou, male, born on October 5, 1946, Han nationality, living in Jingzhou District, Jingzhou City, Hubei Province.
attorney: Yan Huang, lawyer of Beijing zhengshan law firm.
Respondent for retrial (defendant in the first instance and appellee in the second instance) Jingzhou District People's Government, Jingzhou City, Hubei Province, Address: No.8 Jingzhou Middle Road, Jingzhou District, Jingzhou City.
the legal representative is Xia, the district head of the people's government of this district.
Zhou, the retrial applicant, appealed to Jingzhou District People's Government (hereinafter referred to as Jingzhou District Government) for administrative infringement, refused to accept the administrative judgment No.471 of Hubei Higher People's Court (218) and applied to our hospital for retrial. In accordance with the law, our court formed a collegial panel composed of Judge Li Guangyu, Judge Wei Yan and Judge Tong Lei to review the case, and the review has ended.
The Intermediate People's Court of Jingzhou City, Hubei Province determined in the first instance that Zhou was not agricultural registered permanent residence and had a house in Jingzhou City, and obtained the land use certificate and the house ownership certificate. Because the house is close to National Highway 318, Zhou rented it as a shop. In order to promote the construction project of Jingzhou North Expressway, Jingzhou District Government needs to expropriate houses in Jingbei Village along National Highway 318, including Zhou's houses. After consultation, the vast majority of the expropriated households in this section have signed contracts, and a few expropriated households such as Zhou are negotiating. From August 265438 to August 27, Jingzhou District Government built a fence in front of Zhoujia, and reserved passages at both ends of the fence. It is also found that the collection department intends to identify Zhou's house as a non-residential business owner. Zhou filed a lawsuit in this case, demanding that the Jingzhou District Government immediately dismantle the fence it built next to the plaintiff's house and stop obstructing the normal operation and use of the shop.
The Intermediate People's Court of Jingzhou City, Hubei Province held in the first instance that the fence built by Jingzhou District Government was related to the house expropriation of Jingzhou Chengbei Expressway project, which was an act of Jingzhou District Government exercising its administrative power and belonged to the scope of administrative litigation. Article 14 of the Regulations on the Administration of City Appearance and Environmental Sanitation stipulates: "No unit or individual may pile materials, erect buildings, structures or other facilities on both sides of streets and public places. Due to special needs such as construction, temporary stacking of materials on both sides of streets and public places to build non-permanent buildings, structures or other facilities must be approved by the administrative department of city appearance and environmental sanitation of the people's government of the city, and the examination and approval procedures shall be handled in accordance with relevant regulations. " According to the above regulations, Jingzhou District Government should submit evidence to prove that it has obtained the consent and recognition of the city appearance and environmental sanitation administrative department before building the enclosure at the front of Zhoujiamen National Highway 318, but Jingzhou District Government has not submitted corresponding evidence. Therefore, it is illegal for Jingzhou District Government to build a fence in front of Zhoujia without the consent and approval of the city appearance and environmental sanitation administrative department. Although the administrative act of Jingzhou District Government to build a fence in front of Zhoujia is illegal, the fence built in front of Zhoujia has a passage for pedestrians to enter and exit, which can ensure the normal passage of people around Zhoujia. Regarding Zhou's view that Jingzhou District Government's construction of the fence violated its right to use the homestead and seriously affected the normal operation and use of its houses, Zhou's view was not supported, because the owner of the land involved was the farmers' collective in XX District, and the land use column of Zhou's land use certificate exceeded the standard square meter, and Zhou did not submit corresponding evidence to prove it. That is to say, even if the Jingzhou District Government's behavior of building a fence in front of Zhoujia has a certain impact on Zhoujia's business as a shop, because Zhoujia's house has been included in the scope of expropriation, its business losses will be compensated according to the provisions of the expropriation compensation plan. The dispute between Zhou and Jingzhou district government is essentially a collection of legal relations, and Zhou's request for Jingzhou district government to bear the responsibility of property right infringement lacks legal basis. In view of the fact that most of the expropriated households in Jingbei Village where Zhou's house is located have signed contracts, the wall built by Jingzhou District Government can ensure the smooth demolition of houses from the aspects of construction safety and environmental protection, which is in the public interest. According to Item 1, Paragraph 1, Article 74 of the Administrative Procedure Law of the People's Republic of China (hereinafter referred to as the Administrative Procedure Law), an administrative act shall be revoked according to law, but if the revocation will cause great damage to the national and social public interests, the people's court will confirm the judgment as illegal, but will not revoke the administrative act. Therefore, Zhou's request for Jingzhou District Government to immediately dismantle the fence next to his house was not supported. To sum up, according to Article 14 of the Regulations on the Administration of City Appearance and Environmental Sanitation, Article 74, Paragraph 1, Item 1 of the Administrative Procedure Law and Article 56, Item 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China, the administrative judgment No.34 (217) E 1 was made: 1. Second, reject Zhou's other claims.
Zhou refused to accept the appeal.
The Hubei Higher People's Court held in the second instance that according to Article 14 of the Regulations on the Administration of City Appearance and Environmental Sanitation, "no unit or individual may pile materials on both sides of streets and public places to erect buildings, structures or other facilities. Due to special needs such as construction, temporary stacking of materials on both sides of streets and public places to build non-permanent buildings, structures or other facilities must be approved by the administrative department of city appearance and environmental sanitation of the people's government of the city, and the examination and approval procedures shall be handled in accordance with relevant regulations. " Jingzhou District Government did not submit evidence to prove that its construction of the wall involved was approved by the local city appearance and environmental sanitation administrative department, and the court of first instance ruled that its administrative act of building the wall involved was illegal and correct. Jingzhou District Government has built a fence for the expropriation of houses on collective land to ensure the public transportation and construction safety around the buildings. Zhou believed that Jingzhou District Government's act of building a wall violated its right to use the homestead, but he did not submit evidence to prove his lawsuit. The house rented by Zhou is within the scope of the Jingzhou District Government's house expropriation, and its operating losses can be compensated according to the provisions of the expropriation compensation plan, and its legitimate rights and interests have not been damaged. The original judgment found the facts clearly, the applicable law was correct, and the trial procedure was legal. Zhou's appeal reason cannot be established, and his appeal request is not supported. According to this judgment, the appeal was dismissed and the original judgment was upheld.
Zhou applied to our court for retrial, claiming that the court of first instance's determination of "conforming to social public interests" was seriously insufficient. According to relevant regulations, the above-mentioned "public interest" should be based on the premise that legal and effective expropriation projects are about to start. However, according to the evidence provided by the retrial respondent in the first instance, the Jingzhou Chengbei Expressway project has only obtained the approval document for the project, and has not obtained other approval documents, so it may not be started according to law. Part of the homestead of the retrial applicant was fenced, and the judge of first instance found that the retrial respondent did not fulfill the obligation of review and did not occupy the homestead of the retrial applicant, which was a factual error. In addition, according to the reply of Jingzhou Land and Resources Law Enforcement Supervision Bureau, which was obtained by the retrial applicant after trial and supplemented to the court of first instance, the land acquisition of Chengbei Expressway project has not yet been implemented, and Jingzhou Land and Resources Law Enforcement Supervision Bureau clearly requires that the project shall not occupy land without approval. The determination of "public interest" by the court of first instance obviously lacks factual basis. According to the recorded evidence submitted by the retrial applicant in the first instance, the respondent did not build the fence out of public interest, but had to move as soon as possible in order to prevent the applicants who had not moved from operating normally. In short, it was "forced relocation". To sum up, request: 1. Revoke the administrative judgment of second instance according to law; 2. Send it back for retrial or change the judgment to support the retrial applicant's following claims: order the retrial respondent to immediately remove the enclosure built next to the retrial applicant's house and stop obstructing the normal operation and use of the store.
we think that the dispute in this case was caused by the fence. The retrial applicant Zhou has a house near Jingzhou, which is now rented as a shop. In August 217, the Jingzhou District Government built a enclosure in front of Zhoujiamen, which is said to be related to the expropriation of houses for the construction of Jingzhou Chengbei Expressway project. In order to widen and transform this section of National Highway 318, houses along the first line of National Highway 318 in Jingbei Village, including houses in Zhou, were expropriated. At this time, Zhou did not reach an agreement with the Jingzhou District Government on the issue of expropriation compensation. Zhou believed that the wall built by Jingzhou District Government seriously affected the normal operation and use of its house as a shop, so he filed a lawsuit in this case, demanding that Jingzhou District Government immediately dismantle the wall built next to the plaintiff's house according to law and stop obstructing the normal operation and use of the shop.
Although the courts of first instance and second instance confirmed that the fence built by Jingzhou District Government was illegal, they did not support the lawsuit asking Jingzhou District Government to immediately dismantle the fence it built next to the plaintiff's house. The judgment of the two-level courts is based on Article 74, Paragraph 1, Item 1 of the Administrative Procedure Law. The regulation: "If an administrative act is in any of the following circumstances, the people's court will rule that it is illegal, but it will not revoke the administrative act: (1) The administrative act should be revoked according to law, but the revocation will cause great damage to the national interests and social public interests." Obviously, the judgment mode of this provision is "situational judgment". The so-called "situation judgment", although it also confirms that the administrative act is illegal, strictly speaking, does not belong to the judgment mode of confirming the lawsuit, but is an exception to withdrawing the lawsuit. It means that in the revocation proceedings against an administrative act, although the administrative act is illegal and should be revoked according to law, the people's court only confirms that the administrative act is illegal, and does not revoke the administrative act when it will cause great harm to the national and social public interests. It can be seen that the premise of applying the "situation judgment" stipulated in the first paragraph of Article 74 of the Administrative Procedure Law must be aimed at an administrative act, which should be revoked and has revocable contents. In this case, the defendant's behavior of building a fence obviously does not belong to an administrative act with revocable content, and the parties have not filed a lawsuit to revoke the administrative act. The courts of first and second instance applied "situational judgment", which obviously misused the types of litigation.
the misuse of litigation types will not only lead to the incompatibility of litigation claims, but also greatly reduce the effective settlement of administrative disputes. In this case, the retrial applicant's claim is to order the Jingzhou District Government to immediately dismantle the fence it built next to the plaintiff's house and stop obstructing the normal operation and use of the shop. Judging from the litigant's claim, he filed a general payment lawsuit, demanding to stop the infringement and remove the obstruction. The Supreme People's Court's "Interpretation on the Application of the Administrative Procedure Law of the People's Republic of China" stipulates in the second paragraph of the first paragraph of Article 68 that "there are specific litigation requests as stipulated in the third paragraph of Article 49 of the Administrative Procedure Law", including "requesting the judgment administrative organ to perform specific statutory duties or payment obligations". The request for the judgment of the administrative organ to fulfill the specific payment obligation mentioned here refers to the general payment lawsuit. It is the same as "requesting the judgment administrative organ to perform specific statutory duties", and it belongs to the lawsuit of payment. The difference is that the latter requires the judgment administrative organ to make specific administrative acts, while the former requires the judgment administrative organ to make various acts other than administrative acts. In many cases, this kind of lawsuit involves factual behavior. The action of general payment is called "multi-purpose weapon in litigation", and the parties can exercise the right to claim money payment and factual behavior, as well as the right to claim the return of unjust enrichment and the elimination of consequences. These claims may come from the provisions of administrative regulations, administrative acts, administrative commitments and administrative agreements, and may also come from the analogy application of civil law norms.
As far as this case is concerned, Article 35 of the Property Law of People's Republic of China (PRC) can be analogously applied, which stipulates that "if the property right is damaged or may be damaged, the obligee may request to remove the obstruction or danger", as the right basis for the retrial applicant to request Jingzhou District Government to immediately dismantle the fence built next to the plaintiff's house and stop obstructing the normal operation and use of the shop. The retrial applicant believes that "according to the evidence provided by the retrial respondent in the first instance, the Jingzhou Chengbei Expressway project has only obtained the approval of the project, and has not obtained other approval documents, and it is not allowed to start construction according to law. In addition, according to the reply of Jingzhou Land and Resources Law Enforcement Supervision Bureau, which was obtained by the retrial applicant after trial and supplemented to the court of first instance, the land acquisition of Chengbei Expressway project has not yet been implemented, and Jingzhou Land and Resources Law Enforcement Supervision Bureau clearly requires that the project shall not occupy land without approval. The court of first instance's determination of' public interest' obviously lacks factual basis. " Although the courts of first instance and second instance both found that "Zhou's house has been included in the scope of expropriation", judging from the evidence submitted by the retrial respondent in the judgment of first instance, it did not submit the land requisition reply, land requisition announcement and other relevant evidence to prove that the collective land involved had been expropriated according to law, nor did it submit the evidence that it reached an expropriation compensation agreement with the retrial applicant or compensated the retrial applicant according to law before building the fence. In this case, the retrial respondent is retrial applicant.