(1) Appellant: Jiangyan Moufeng Transportation Co., Ltd. (hereinafter referred to as Moufeng Company), whose domicile is No.70, Toarey Yang East Road, Jiangyan City.
Authorized Agent: Wang Moshu, lawyer of Jiangsu Youcheng Law Firm, tel: 139 139586**.
Appellee: Jiangyan Mouan Market Co., Ltd. (hereinafter referred to as Mouan Market), domicile: East Turntable of Jiangyan Avenue, Jiangyan City, legal representative: Kang Zujian, position: chairman.
Appellee: Jiangyan Town People's Government of Jiangyan City (hereinafter referred to as the town government), domicile: Changjiang West Road 16, Jiangyan City, legal representative: Dai Moping, and position: mayor.
Appeal request
1. Requested to cancel the civil judgment of Taizhou Intermediate People's Court (2006) Taimin Yichuzi No.28, and confirmed that the Agreement on Compensation and Resettlement for Demolition of a Market in Jiangyan City (hereinafter referred to as the Compensation Agreement) signed on June 29th, 2003 was invalid, and a company compensated the town government 1065438.
2. All the litigation costs of the first and second trials of this case shall be borne by the two appellees.
Facts and reasons
1. The compensation agreement signed by the Appellant and the two Appellees on June 29th, 2003 has not been fulfilled. All the demolished houses and land have never been delivered to the demolition people. The Appellant has carried out normal production and business activities as usual, and the Appellee has not fulfilled its obligations in accordance with the compensation agreement.
Paragraph 2 of page 15 of the first-instance judgment holds that? The agreement signed by the parties in this case on June 29th, 2003 is the demolition compensation and resettlement agreement? It is beyond reproach, but what about the agreement that was later determined? And it has been cashed? There is no basic factual basis. It was found through trial that the houses and land involved in the case have been in normal production and operation on the appellant's side so far, and the appellee has not carried out demolition since it broke the law, and even became angry from embarrassment today.
Second, the appellee has no securities market at all? Demolition person? Qualification, and the appellee Jiangyan town government is impossible? Demolition implementation unit? .
Paragraph 2, Article 4 of the Regulations on the Administration of Urban House Demolition stipulates: The term "demolisher" as mentioned in these Regulations refers to the unit that has obtained the permit for house demolition? . Article 10 stipulates that the house demolition management department shall not act as a demolition person or accept the entrustment of demolition? . The State Council's "Notice on Controlling the Scale of Urban House Demolition and Strict Demolition Management" further clearly stipulates that government administrative organs shall not interfere or forcibly determine the compensation standard for demolition, and shall not directly participate in and interfere with the demolition activities that should be undertaken by the demolition people. Should we correctly exercise the right of forced demolition according to law? .
It can be seen that the appellee An Market has not obtained the demolition permit, so it is not qualified to sign the compensation agreement as the main body, and the appellee Jiangyan Town Government is also illegal as the demolition implementation unit!
3. The expression of the true will of the parties to the agreement, even if it is true, is not a sufficient condition for the validity of the agreement. Violation of mandatory provisions of laws and administrative regulations? The agreement is invalid!
No demolition activities can be carried out without a demolition permit, which is not only a mandatory provision in the Regulations on the Management of Urban Housing Demolition, but also an illegal act prohibited in the Notice of the State Council on Controlling the Scale of Urban Housing Demolition and Strict Demolition Management. The court of first instance will not consider the behavior of urban house demolition? Approved by the house demolition management department? It is legal (paragraph 15 of the first-instance judgment). According to the provisions of the above administrative regulations,? Local governments shall not, in violation of legal procedures and legal provisions, substitute the minutes of government meetings or documents for the demolition permits and planning changes determined by laws and regulations, and expand the scale of demolition without authorization? . ? Housing demolition management departments should conscientiously perform the demolition permit approval procedures? . ? Strict and unified management of demolition permit approval? ,? Strengthen the management of demolition projects. No demolition permit will be issued to any project that has no demolition plan, no demolition and resettlement plan, insufficient funds for demolition and resettlement, and no demolition plan will be implemented, and no demolition will be carried out? . ? Only after obtaining the house demolition permit can the demolition be carried out? . This shows that the appellee's demolition behavior is illegal and invalid.
Four. The house demolition permit obtained by the appellant from the court of first instance on July 22, 2007 was issued on June 30, 2007. At best, it can only show that the demolition permit was obtained from June 30, 2007 to June 30, 2007+February 30, 2007, which cannot prove that the agreement three years ago is valid, not to mention that the demolition permit itself is illegal.
The agreement is invalid from the beginning! The illegal demolition in 2003 was invalid because there was no demolition permit. Since it is invalid, there is no question of restoring its validity. The house demolition permit provided by the appellee before the judgment (J.S.Z.Z. Zi (2007)No. 13) simply cannot prove the effectiveness of the demolition activities three years ago. The so-called administrative license refers to the behavior that the administrative organ allows the parties to engage in specific activities within a certain period of time after legal examination according to their applications. Hearing procedures must be carried out when the interests of interested parties are involved, and the provisions on administrative licensing must be announced; Without publication, it shall not be used as the basis for the implementation of administrative license. The parties have the right to apply for administrative reconsideration or bring an administrative lawsuit according to law.
As far as the procedure is concerned, the demolition permit has not taken effect and shall not be used as the basis for demolition activities; As far as relevance is concerned, the period of the demolition permit is from June 30, 2007 to February 3, 20071day, which has nothing to do with the 2003 demolition compensation agreement in this case; As far as legality is concerned, the demolition permit is illegal, which not only violates the Regulations on the Management of Urban House Demolition and the Notice on Controlling the Scale of Urban House Demolition and Strict Demolition Management, but also directly violates the provisions of the Administrative Licensing Law.
4. The appellee and the relevant government departments seriously hindered judicial justice, used the Commission for Discipline Inspection to interfere with normal judicial activities, openly threatened the appellant to withdraw the lawsuit, and requested the Provincial Higher People's Court to put forward judicial suggestions to the higher authorities, and seriously investigated and dealt with the corruption of relevant departments and responsible persons.
According to Article 4 1 of the Constitution of People's Republic of China (PRC), People's Republic of China (PRC) citizens have the right to criticize and make suggestions to any state organ or state functionary; Have the right to lodge a complaint, accusation or report to the relevant state organs about the illegal and dereliction of duty of state organs and state functionaries? . Jiangyan city commission for discipline inspection and other departments have repeatedly asked many people, including the appellant, to carry out the so-called? Talk? , openly asked the appellant to withdraw the lawsuit, and even threatened to take including? Arrest people? And other means to force the appellant to submit. To this end, the appellant repeatedly reported to the court of first instance. Interfering in the affairs of other departments is itself a kind of corruption. The people's court has the right to examine this kind of behavior that seriously hinders judicial justice, and even if the parties are forced to withdraw the lawsuit, the people's court shall not allow it. The people's court has the right to put forward judicial suggestions to the relevant departments to investigate and deal with the responsible person. Maintain the basic dignity of the law!
To sum up, the compensation agreement signed by the Appellant and the two Appellees on June 29th, 2003 is illegal, because the Appellee, as the demolisher, did not get the permission to demolish the house at that time! Moreover, the demolition activities of that year have not been implemented so far, so the compensation agreement is invalid! It was invalid from the beginning!
I am here to convey
Jiangsu Higher People's Court
Appellant: Jiangyan Moufeng Transport Co., Ltd.
August 6(th), 2007
Model petition for demolition (II) Appellant: Zhang Mouquan Gender: Male Date of birth:1June 4, 933 Nationality: Han nationality.
Setting: A chemical plant in South China Position: Party Secretary, Factory Director (retired)
Tel: 130 167782**
Appellee: Nanmou Real Estate Management Bureau.
Address: No.9 Beihaoqiao Road Tel: 855295**
Legal Representative: Name: Chen Mou Position: Director.
The appellant did this because the plaintiff Zhang Mouquan thought that the defendant Chengnan Real Estate Administration Bureau? (J.F.J. [2006]No. 154) Award on Compensation and Resettlement for House Demolition? Lack of administrative basis according to law infringed on the legitimate rights and interests of the plaintiff Zhang Mouquan, and filed a lawsuit with the Chongchuan District People's Court of a city in South China on February 22, 2006, requesting cancellation? (J.F.J. [2006]No. 154) Award on Compensation and Resettlement for House Demolition? On March 5, 2007, the Chongchuan District People's Court of a city in South China made a judgment (2007) Chongxingchuzi No.0003, dismissing the plaintiff Zhang Mouquan's claim. The appellant and plaintiff Zhang all refused to accept the judgment of Chongchuan District People's Court of a city in South China (2007) Chongxingchuzi No.0003, and now they appeal.
Appeal request:
1. Revoke the judgment of Chongchuan District People's Court of a city in South China (2007) Chongxingchuzi No.0003.
Second, support the plaintiff to withdraw the lawsuit in the first instance? (J.F.J. [2006]No. 154) Award on Compensation and Resettlement for House Demolition? Litigation request.
Reasons for appeal:
1. The plaintiff Zhang Mouquan disputed the main facts identified by the Chongchuan District People's Court of a city in South China in the first instance. Zhang Mouquan, the plaintiff, thinks that the judgment (2007) Chongxingchuzi No.0003 made by the Chongchuan District People's Court of a city in South China completely avoids the unauthorized examination and approval of the real estate administration of a city in South China in violation of national laws and regulations? House Demolition Permit (Xiang He Zi (2006) No.062)? And the basis has no legal effect? Anchang Real Estate Appraisal [2006] No.21-023? Is it related to the decision of house demolition and compulsory use evaluation report on state-owned land in a city in South China? Collective land? The main factual basis for illegal acts such as housing demolition policies and terms. The main facts that the Chongchuan District People's Court of a city in South China deliberately avoided in hearing this case are as follows:
1, approved by the real estate management bureau of a city in South China on August 8, 2006? House Demolition Permit (Xiang He Zi (2006) No.062)? This is an illegal demolition permit. Main factual basis:
① According to the evidence provided by the defendant, 19 approval document of state-owned land use right? Document of the Bureau of Land and Resources of a city in South China, Document No.25 [2006] of the Ministry of Land and Resources: Letter from the Municipal Bureau of Land and Resources on agreeing to carry out preliminary land work, 1. It is agreed that your unit will carry out preliminary work on 68,353 square meters of state-owned land on the east side of Wuyi Road and the north side of Renmin East Road extension line according to the position shown in the planning red line. 2006.7. 12? . 68,353 square meters is converted into 6.8353 hectares. According to the fifth chapter of the Regulations on Land Management in Jiangsu Province, if a specific construction project needs to occupy the state-owned unused land determined in the overall land use planning, it shall be handled in accordance with the following examination and approval authority:
(a) less than one hectare, within the administrative area of the county, approved by the county people's government; Within the administrative area of a municipal district, it shall be approved by the municipal people's government with districts.
(two) more than one hectare but less than five hectares, approved by the municipal people's government of the district.
(three) more than five hectares, approved by the provincial people's government.
? House Demolition Permit (Xiang He Zi (2006) No.062)? Based on what? Document No.25 [2006] of a certain land and resources? Indicate that the land to be demolished is 6.8353 hectares, which must be approved by the Jiangsu Provincial People's Government. The real estate administration of a city in South China does not have the approval document of the state-owned land use right approved by the Jiangsu Provincial Department of Land and Resources, which shows that the state-owned land use right of the land to be demolished above 5 hectares has not been approved by the Jiangsu Provincial People's Government! It is illegal land occupation and demolition.
(2) According to the State Council's Regulations on the Management of Urban House Demolition (200 1)? Eighth housing demolition management departments in the issuance of housing demolition permits at the same time, should be specified in the housing demolition permit demolition, demolition scope, demolition period and other matters, in the form of housing demolition notice to be published. ? A demolition notice (H.Z.Zi. (2006) No.062) only says in general terms that the scope of demolition is:? North of Renmin Dongyan and east of Wuyi Road? There is no specific red line map, and the land acquisition in this area involves the land acquisition announcement of Nanmou Municipal People's Government [2006] 16, and the approval document for construction land in Jiangsu Province: Tuhan [2005]1KLOC-0/43; The approval document for construction land in Jiangsu Province relates to the land requisition announcementNo. [2006]36 of Nanmou Municipal People's Government: Tuhan [2005] 1029; After inquiring with Jiangsu Provincial Department of Land and Resources, the plaintiff was told that all construction land approval documents can be inquired in the construction land inquiry database of the website of Jiangsu Provincial Department of Land and Resources, but the plaintiff did not exist after inquiring in the construction land inquiry database? Tu Su Zihan [2005]No. 1029 and Tu Su Zihan [2005]No. 1 143? Two documents of approval for construction land.
A demolition announcement (X. X.Zi (2006) No.062) also relates to the Announcement of Land Expropriation [2006] No 10 issued by the People's Government of a city in South China and the Approval Letter for Construction Land [2003] No 1 issued by Jiangsu Province on March 29, 2006. After the conversion of agricultural land or land expropriation is approved according to law, if the city or county does not use the land or fails to implement the land acquisition compensation and resettlement plan within two years, the relevant approval documents will automatically become invalid; If it is not provided to the specific land use unit within two years, the index of agricultural land conversion plan of the city and county in the next year will be deducted according to the area of land not provided. ? Tu Han [2003]No. 1 has exceeded the two-year limitation and lost its legal effect.
③ There is no demolition project in the demolition announcement No.062 (2006) of Xianghe Zi, only? Early development? In other words, according to the "Opinions of the Municipal Government on Strengthening the State-owned Land Reserve in Urban Areas" issued by the Southern Municipal Government No.43 [2000]? Third, the early development, utilization and supply of reserve land-the early development of reserve land. Before the reserve land is supplied, the preliminary development work such as the demolition of buildings and other attachments on the reserve land, land leveling and supporting facilities shall be completed. ? Visible, the so-called? Early development? Just? Demolition of buildings and other attachments on the ground, land leveling and supporting facilities? It's not a construction project at all.
(4) The real estate management bureau of a city in the south did not provide it? House Demolition Permit (Xiang He Zi (2006) No.062)? The first demolition person? Chengnan Land Assets Reserve Investment Center? What about the second demolition person? Chongchuan Urban Construction Investment Co., Ltd.? By who? A certificate of relocation compensation and resettlement funds issued by a financial institution handling deposit business? The evidence in the judgment of the people's court of Chongchuan District, a city in South China (2007) No.0003 on March 5, 2007? 23. Proof of availability of funds? It is a loan certificate of 3.96 million yuan issued by a feather demolition company in Nanyi City by Qicai City Branch of Nangangzha Sub-branch of China Bank. This so-called loan certificate is not a demolition person? A certificate of relocation compensation and resettlement funds issued by a financial institution handling deposit business? .