1, which is determined according to the registration purpose of the real estate license.
2. If the registered purpose of the house permit is inconsistent with the actual situation, it should be analyzed in detail.
Send you a verdict for your reference.
Appellant (plaintiff in the original trial) Zhaozhou Town People's Government of Zhaozhou County.
Legal representative Hou Yanguo, mayor.
Entrusted agent Song, male,1born on March 26th, 968, Han nationality, a cadre of the people's government of Zhaozhou Town, Zhaozhou County, living in Jianshe Street, Zhaozhou Town, Zhaozhou County.
Appellee (defendant in the original trial) Zhaozhou County Construction Bureau, address: Heping Street, Zhaozhou Town, Zhaozhou County.
Legal Representative: Zhao Tieyu, director.
Authorized Agent: Tang Qingguo, male, born on June 23rd, 1973, Han nationality, cadre of the demolition management office in Zhaozhou County, living in Heping Street, Zhaozhou Town, Zhaozhou County.
The third person, Jiang Yanfu, male, born in 1964 65438+ 10/3, Han nationality, is a cadre of Personnel Bureau of Zhaozhou County and lives in Jianshe Street, Zhaozhou Town, Zhaozhou County.
Authorized Agent: Sun Zongxuan, lawyer of Heilongjiang Far East Law Firm.
The appellant Zhaozhou Town People's Government of Zhaozhou County refused to accept the administrative judgment No.6 of Zhaozhou County People's Court (200 1) and appealed to our court. A collegiate bench was formed in our hospital according to law, and the case was heard in public on February 3, 2006 at +0 65438. Song, the entrusted agent of the legal representative of Zhaozhou Town People's Government of Zhaozhou County, Tang Qingguo, the entrusted agent of the legal representative of Zhaozhou County Construction Bureau, and Jiang Yanfu, the third person, entrusted Sun Zongxuan to attend the proceedings. The case has now been closed.
The original judgment found that, according to Article 29 of the Regulations on the Administration of Urban House Demolition, the third person in this case, Jiang Yanfu, registered as a residence on the real estate license, went to the real estate department to apply for a house lease license with the daily necessities business license of the lessee Huang Yadong during the use period, which was the approval of the real estate management department for this change in the nature of use, and the house was still operated by the lessee at the time of demolition. Therefore, the fact that the house moved by the demolished person is a commercial house is clear and the evidence is sufficient. Although the determination of the price of commercial housing is not determined by the national guidance price or price limit, the price evaluation of replacement housing by Zhaozhou County Price Office conforms to the requirements of People's Republic of China (PRC) Price Law and Code of Conduct for the Transaction Price of New Commercial Housing in Cities and Towns of Heilongjiang Province, and should be considered as legal. And the ruling is based on the above facts and legal price evaluation, and the provisions of Articles 29 and 22 of the Regulations on the Administration of Urban Housing Demolition in People's Republic of China (PRC) are not applicable to the house demolition of the demolished people. According to the provisions of the first paragraph of Article 54 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows: the ruling on house demolition. Maintain zhaozhou county construction bureau 1. The People's Government of Zhaozhou Town, Zhaozhou County, the plaintiff of the original trial, refused to accept the judgment of the original trial and appealed, arguing that it was wrong for the court of first instance to identify Jiang Yanfu's 25-square-meter house as a commercial house, and there was no legal basis. The court of first instance wrongly determined the price of commercial housing. Request the court to cancel the original judgment, and at the same time cancel (200 1)No. 1. Zhaozhou County Construction Bureau, the defendant in the original trial, replied that the relocation ruling (200 1)No. 1 made by our bureau had sufficient factual and legal basis, and was correct and legal, and requested that it be upheld in the second instance. The third person, Jiang Yanfu, participated in the lawsuit: the house is for commercial use, and the price determined by the price firm is correct and legal. The original judgment was correct and the second trial should be upheld.
In the second trial, our hospital re-examined and certified the evidence given by the parties in the first trial, and considered that the procedures and rules of cross-examination and certification of the court of first instance were in compliance with the law, and the second trial confirmed the evidence and facts identified by the court of first instance.
The arguments and reasons of the parties form the following controversial points: (1). Should Jiang Yanfu's house be considered residential or commercial? (2) Is the appraisal by Zhaozhou County Price Bureau legal and effective? The focus of disputes between the two parties in the first instance and the second instance is as follows:
First, the question of whether Jiang Yanfu's house should be recognized as a residence or a business place. The appellant Zhaozhou Town Government of Zhaozhou County believes that Jiang Yanfu's house should be recognized as a residence, not as a business house. In his opinion, the definition standard of housing use should be the registration of housing property rights in the real estate bureau. If Jiang Yanfu's housing use is registered as a residence, it should be recognized as a residence. In addition, Jiang Yanfu's house lease certificate is not true, and the certificate of Huang Yadong, the lessee of the house, has not been inspected annually, so there is no legal basis for the determination of the nature of Jiang Yanfu's house in the original trial. The appellee believes that Jiang Yanfu's house was rented to Huang Yadong to open a grocery store before the house was demolished. The appellant does not deny this. Jiang Yanfu's lease certificate is the best proof of the use of the house, and it is legal to identify Jiang Yanfu's house as a non-residential house. The third person, Jiang Yanfu, thinks that the fact that the relocated house is a non-residential house is beyond doubt. The house has been used for many years, and the lease and operation procedures are legal, and the function and use cannot be changed because of the appellant's relocation.
We believe that according to Article 29 of the Regulations on the Management of Urban House Demolition, "Non-residential houses refer to houses used as non-residential houses by industrial and commercial enterprises, hotels and warehouses." In this case, Jiang Yanfu's house has been used as a commercial house since 1994, and the appellant also approved it. The criteria for determining the use of a house should be based on the actual use, not just the registered use. Jiang Yanfu has obtained a legal and valid house lease license, and the lessee also operates legally, so Jiang Yanfu's relocated house is identified as a non-residential house.
2. Whether the appraisal made by Zhaozhou County Price Bureau is legal and valid. The appellant believes that the price of commercial housing is not a commodity in the national price, but should be decided by the market, and the appraisal conclusion of Zhaozhou County Price Bureau is illegal. The appellee believes that the commodity house price appraisal made by Zhaozhou County Price Bureau is correct and legal, and there is nothing wrong with it as a basis. The third person thinks that when the house is demolished, the appellant unilaterally applies for a price firm to evaluate the demolished house. At this time, the price firm is qualified for evaluation, but when compensating the demolished houses, it is considered that the price appraisal made by using the same standard is illegal, and the appellant adopts double standards, which violates the principle of fairness.
We believe that Zhaozhou County Price Firm, as a price appraisal institution, has the right to accept the entrustment of relevant departments to make a price appraisal of commercial housing prices, and the appraisal conclusion conforms to the provisions of relevant laws and regulations. It is correct for Zhaozhou County Construction Bureau to take this as the basis for resettlement compensation, and the appellant's above viewpoint cannot be established.
To sum up, we believe that the original judgment is clear in facts, the applicable laws and regulations are correct, the procedures are legal, and the judgment made is not improper, which should be upheld according to law. The appellant's appeal grounds cannot be established and are not supported. According to Item (1) of Article 61 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows:
Reject the appeal and uphold the original judgment.
The acceptance fee for the second instance case is 100.00 yuan, which shall be borne by the people's government of Zhaozhou Town, Zhaozhou County.
This is the final judgment.
Presiding judge Liang Xiaojun
Acting Judge Cai Libin
Acting Judge Xie Lixin
20011211day
Staff Yang He
Name of trial: Zhaozhou Town People's Government of Zhaozhou County v. Zhaozhou County Construction Bureau.
Trial procedure: second instance
Classification of cases: management
WeChat official account:
Name of judgment document: (200 1) Qing Zhong Xing Zi No.51
Type of judgment document: administrative judgment
Referee time: 200 1 year 65438+February 1 1 day.
Court of acceptance: Daqing Intermediate People's Court of Heilongjiang Province.