Kunming Li Weiheng Trading Co., Ltd. v. Kunming Planning Bureau and Donghua Sub-district Office of Panlong District People's Government of Kunming.
[summary of referee]
1. According to Article 32 of the Administrative Punishment Law of the People's Republic of China, before making a decision on administrative punishment, the administrative organ shall inform the parties of the facts, reasons and basis for making the decision on administrative punishment, and inform them of their rights according to law. If the administrative organ fails to fulfill the obligation of informing in accordance with the above provisions, it constitutes an illegal administrative punishment procedure;
2. Article 40 of the Urban Planning Law of People's Republic of China (PRC) stipulates: "In an urban planning area, if construction is carried out without a construction project planning permit or in violation of the provisions of the construction project planning permit, which seriously affects urban planning, the competent department of urban planning administration of the local people's government at or above the county level shall order it to stop construction and dismantle or confiscate illegal buildings, structures or other facilities within a time limit; If it affects urban planning and corrective measures can be taken, the competent department of urban planning administration of the local people's government at or above the county level shall order it to make corrections within a time limit and impose a fine. " The object of the above punishment is the builder who has not obtained the construction project planning permit or carried out the construction in violation of the provisions of the construction project planning permit. Only when the illegal construction reaches the level of "seriously affecting urban planning" can a decision on the punishment of demolition within a time limit be made.
the Supreme People's Court
the administrative ruling
(2008) line end word 1
Appellant: Kunming Li Weiheng Trading Co., Ltd.
Legal Representative: Chen Meili, general manager of this company.
Authorized Agent: Ma Huaide, lawyer of Beijing Jietong Law Firm.
Authorized Agent: Li, lawyer of Beijing Shanggong Law Firm.
Appellee (defendant of first instance): Kunming Planning Bureau.
Legal Representative: Zhou, Director of the Bureau.
Authorized Agent: Xiong Bin, lawyer of Yunnan Liuhe Le Law Firm.
Authorized Agent: Jin, lawyer of Yunnan Liuhe Le Law Firm.
Third party of first instance: Donghua Sub-district Office of Panlong District People's Government of Kunming.
Legal Representative: Hua Pirui, director of the office.
Authorized Agent: Chen Lei, lawyer of Jianwei (Kun) Law Firm.
Authorized Agent: Yuan, lawyer of Jianwei (Kunming) Law Firm.
The appellant Kunming Li Weiheng Trading Co., Ltd. (hereinafter referred to as Kunming Li Weiheng Company) refused to accept the No.2 administrative judgment of Yunnan Higher People's Court, and made a decision on administrative punishment of illegal construction by Kunming Planning Bureau on June 65438+10/October 65438 +02, 2006 (Kun Gui Fa Punishment (2006) No.0063). The case has now been closed.
According to the evidence provided by the parties and the cross-examination in court, the Higher People's Court of Yunnan Province found the following facts: On June 5438+1October 65438+February, 2006, the defendant Kunming Municipal Planning Bureau accepted the "12345" hotline and letter (interview) from the mayor of Kunming Municipal Committee and Kunming Municipal People's Government. There are five floors above ground, with a building area of12484.16m2), which violates the provisions of Article 32 of the People's Republic of China (PRC) Urban Planning Law and Article 27 of the Yunnan Urban Planning Management Regulations, and is illegal construction. According to the provisions of Article 40 of the Urban Planning Law of People's Republic of China (PRC), the Decision on Administrative Punishment for Illegal Construction (Kun Gui Fa Punishment (2006) No.0063) was made, which restricted the third party Donghua Sub-district Office from demolishing the illegally constructed comprehensive building project by itself before June 65438+1October 3/2006. Kunming Li Weiheng Company, the plaintiff, refused to accept it, and filed an administrative lawsuit with Xiaolong Road Complex Building on the grounds that the defendant Kunming Planning Bureau found that the facts were unclear, the procedure was illegal and the administration exceeded its authority, which infringed the legitimate rights and interests of Kunming Li Weiheng Company. It appealed to cancel the decision of Kunming Planning Bureau on administrative punishment for the defendant's illegal construction (Kun Gui Fa Punishment (2006) No.0063), and ordered the defendant to change the punishment measures into fines and go through the formalities, and ordered the defendant to bear all the litigation costs. In the course of litigation, the defendant Kunming Planning Bureau revoked the defendant's specific administrative act on June 65438+1October 65438+1October 2007 with the cancellation decision of Kunming Planning Bureau (2007 [2007] No.0063).
After trial, the Higher People's Court of Yunnan Province held that according to Article 32 of the Administrative Punishment Law of the People's Republic of China, before making a decision on administrative punishment, the administrative organ should inform the parties of the facts, reasons and basis for making the decision on administrative punishment, and inform them of their rights according to law. The defendant, Kunming Planning Bureau, failed to inform the third party of the facts, reasons and basis of the punishment decision made by Donghua Sub-district Office and the rights enjoyed by the third party before making the punishment decision, which was illegal. According to Article 40 of "People's Republic of China (PRC) Urban Planning Law", if construction is carried out in a planned urban area without obtaining a planning permit for construction projects or in violation of the provisions of the planning permit for construction projects, which seriously affects urban planning, the competent department of urban planning administration of the local people's government at or above the county level shall order it to stop construction and dismantle or confiscate illegal buildings, structures or other facilities within a time limit; If it affects urban planning and corrective measures can be taken, the competent department of urban planning administration of the local people's government at or above the county level shall order it to make corrections within a time limit and impose a fine. " According to the regulations, the penalty object for construction without obtaining the construction project planning permit or in violation of the provisions of the construction project planning permit is the builder of illegal construction. Only if the illegal construction has "seriously affected the urban planning" can the penalty decision for demolition be made within a time limit. The evidence provided by Kunming Planning Bureau is not enough to prove that the builder of Xiaolong Road Complex Building in this case is a third person, and the construction of Donghua Sub-district Office and Xiaolong Road Complex Building has reached the fact of "seriously affecting urban planning", and the main evidence for making specific administrative actions is insufficient. In this case, the evidence of the defendant's specific administrative act is insufficient and the procedure is illegal, so it should be revoked. However, in the course of litigation, the defendant Kunming Planning Bureau made a cancellation decision. According to the third paragraph of Article 50 of the Supreme People's Court's Interpretation on Several Issues, "If the defendant changes the original specific administrative act and the plaintiff does not withdraw the lawsuit, the people's court shall make a judgment confirming that the original specific administrative act is illegal after examination; If the original specific administrative act is found to be legal, the plaintiff's claim shall be rejected. " The provisions of the people's court shall make a judgment to confirm its illegality. The specific administrative act of the defendant has been revoked by the defendant Kunming Planning Bureau in the course of litigation. Therefore, the plaintiff Kunming Li Weiheng Company's claim of "requesting an order to change the punishment measures of Kunming Planning Bureau into fines and completing the formalities" cannot be established. The judgment confirmed that the Decision on Administrative Punishment for Illegal Construction made by Kunming Planning Bureau on June 5438+1October 65438+February 2006 (Kungui Penalty Zi (2006) No.0063) was illegal. Reject the plaintiff Kunming Li Weiheng Trading Co., Ltd.' s claim for an order to change the punishment measures of Kunming Planning Bureau into fines and go through the formalities.
Kunming Li Weiheng Company refused to accept the judgment of the first instance and appealed to our hospital, saying that the project involved was a government project and a government investment attraction project, which did not reach the point where it had to be demolished to "seriously affect the urban planning" and was sued for administrative action obviously unfair. It is not enough for the first-instance judgment to only confirm that the accused administrative punishment decision is illegal. We should change the obviously unfair punishment decision from the perspective of protecting the trust interests of the parties. The appeal requested to cancel the judgment of first instance and second instance, and ordered Kunming Planning Bureau to change its punishment decision into a fine.
The appellee Kunming Planning Bureau replied that the construction project in this case was an illegal building without planning approval, and the court of first instance confirmed that the revoked specific administrative act was illegal and rejected the respondent's request to change the punishment measures, and the applicable law was correct. Request the court of second instance to uphold the judgment of first instance.
Donghua Sub-district Office of the People's Government of Panlong District, Kunming, the third person in the first instance, said that it had no objection to the appeal request of Kunming Li Weiheng Company, but said that the project involved was a comprehensive renovation, demolition and resettlement project led by Panlong District Government, which was inconsistent with the objective facts of this case.
The relevant evidence provided by the parties to the court of first instance mainly includes: the assignment of the hotline of the mayor of Kunming Municipal Government, the emergency report, the letter of transfer (visit) from the employees of Yunnan Building Materials Company, the organization code certificate of Donghua Sub-district Office of the third party, the power of attorney issued by Donghua Sub-district Office of the third party, Dong Shiquan's identity card, the general plan and mapping map, and the decision on administrative punishment for illegal construction. Notice (stub) and receipt of stopping using illegal buildings (structures) in Kunming, thoughts on coordinating and solving problems related to "Flower and Bird Market in Sifang Street of Xiaolong", and decision of Kunming Planning Bureau on revocation (Kun Gui Fa PunishmentNo. [2006]0063), etc.
The above evidence was transferred to our hospital with the volume. After examination, it can be used as the basis for determining the facts of this case, and the facts determined by our court based on the above evidence are no different from the original judgment.
We believe that according to Article 32 of the Administrative Punishment Law of the People's Republic of China, before making a decision on administrative punishment, the administrative organ shall inform the parties of the facts, reasons and basis for making the decision on administrative punishment, and inform them of their rights according to law. The appellee, Kunming Planning Bureau, did not inform the third party of the facts, reasons and basis of the punishment decision made by Donghua Sub-district Office and the rights enjoyed by the third party before making the administrative punishment decision of Kun Gui Fa Punishment (2006) No.0063. The first-instance judgment procedure was illegal and there was nothing improper.
Article 40 of the Urban Planning Law of People's Republic of China (PRC) stipulates: "In an urban planning area, if construction is carried out without a construction project planning permit or in violation of the provisions of the construction project planning permit, which seriously affects urban planning, the competent department of urban planning administration of the local people's government at or above the county level shall order it to stop construction and dismantle or confiscate illegal buildings, structures or other facilities within a time limit; If it affects urban planning and corrective measures can be taken, the competent department of urban planning administration of the local people's government at or above the county level shall order it to make corrections within a time limit and impose a fine. " Accordingly, the penalty object for construction without obtaining the construction project planning permit or in violation of the provisions of the construction project planning permit is the builder of illegal construction. Only if the illegal construction has "seriously affected the urban planning" can the penalty decision of demolition be made within a time limit. The evidence provided by Kunming Planning Bureau, the appellee, is not enough to prove that the builder of Xiaolong Road Complex is a third person, and the construction of Donghua Sub-district Office and Xiaolong Road Complex has reached the fact of "seriously affecting urban planning". The judgment of first instance found that the main evidence for making a specific administrative act was insufficient and had factual and legal basis.
During the first trial, Kunming Planning Bureau made a decision to revoke the original specific administrative act, but Kunming Li Weiheng Company did not withdraw the lawsuit. The Higher People's Court of Yunnan Province made a judgment and confirmed that the specific administrative act was illegal, which was in line with the provisions of the third paragraph of Article 50 of the Supreme People's Court's Interpretation on Several Issues concerning Implementation. The appellant Kunming Li Weiheng Company requested that the punishment decision of Kunming Planning Bureau be changed to a fine for completing the formalities. Because the defendant's specific administrative act was revoked by Kunming Planning Bureau in the course of litigation, there is nothing wrong with the first-instance judgment rejecting his claim. The appellant's grounds for appeal cannot be established.
To sum up, the first-instance judgment found the facts clearly, the applicable laws and regulations were correct, and the trial procedure was legal. 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.
50 yuan, the court acceptance fee for the second instance case, shall be borne by the appellant Kunming Li Weiheng Trading Co., Ltd.
This is the final judgment.
Presiding judge Li Guangyu
Judge Qi Shukui
Acting Judge Wang Da
2009 1 month 13
Bookkeeper Li Lintao