Legal information

Introduction to the article: Unreasonable resettlement compensation and delayed resettlement compensation are common problems among the demolished people. What does the law provide for this? Today we talk about this topic. This question mainly includes four parts.

1. The relationship between time point, evaluation time point and compensation time point.

When discussing the relationship between expropriation and compensation, it is necessary to discuss the relationship between the time of expropriation, assessment and compensation. From a certain perspective, the state's expropriation of citizens' private houses is essentially the state's "forced purchase" of the expropriated houses, and compensation is the consideration for the government's forced acquisition of private real estate. Some countries do "collect" through "compulsory purchase". In practice, most expropriated persons are not concerned with “upstream” issues such as whether expropriation is for “public interest”, but are more concerned with “downstream” issues such as compensation standards and compensation amounts. After the principle of fair and reasonable market price compensation is determined, it becomes a more critical issue to use the market price at what point as the compensation benchmark. In this regard, Article 19 of the "Regulations on Expropriation and Subsidy" and Article 10 of the "Measures for the Expropriation and Assessment of Houses on State-owned Land" (hereinafter referred to as the "Assessment Methods") both stipulate that the time point for assessing the value of the expropriated houses is the day when the decision to expropriate the houses is announced. For the vast majority of expropriated persons, using the market assessment price on the date of announcement of the expropriation decision as the compensation benchmark can reflect the principle of fair and reasonable compensation.

2. Many years after the expropriation decision was announced, resettlement compensation has not been resolved.

However, in practice, the time interval between a few expropriation decisions and compensation decisions is too long, and some assessment time points and compensation time points are even several years apart, so how to compensate has become the main issue in the case disputes. The Yingting Demolition Team found that in practice, there are many reasons why city and county-level governments fail to sign compensation agreements or make compensation decisions in a timely manner: some are because the city and county-level governments do not have urgent land needs for construction projects or do not have projects; some are because resettlement compensation funds are not in place and are unable to compensate; some are because the construction plans have been adjusted after land acquisition; and some are because the expropriation behavior itself is irregular. Litigation was triggered and the compensation issue was put on hold; in some cases, the expropriation unit failed to perform its duties in accordance with the law because the expropriated people made illegal and unreasonable compensation demands; in some cases, the resettlement and compensation issues were still unresolved several years after the expropriation decision was announced; in some cases, after protracted reconsideration and litigation, the compensation issue was not effectively resolved in the end.

3. Different cases require different treatment.

Judgments on these special cases can only be made on a case-by-case basis: the evaluation price on the date of announcement of the expropriation decision cannot be used as the benchmark for compensation, otherwise it may significantly reduce the housing security conditions of the expropriated people and deviate from the legislative spirit of the "Expropriation and Compensation Regulations" to protect the legitimate rights and interests of the expropriated people. However, it cannot always use the market price at the time of the court's decision as the benchmark, otherwise it will inevitably lead to inconsistent compensation standards, and even induce the parties in disguise to delay the expropriation and compensation process through litigation.

4. Several ways to solve the problem of delay compensation

Different arrangements should be made accordingly for delay compensation issues caused by different reasons. Specifically, the following methods may be considered:

(1) Although compensation can be delayed appropriately, it must still be within a reasonable period. The judgment of the "reasonable period" must be based on factors such as the scope of the construction project and whether the expropriated houses are still in normal and actual use by the expropriated people. If there are no other legitimate reasons, the reasonable period can be referred to Article 26 of the "Real Estate Mortgage Valuation Guidance", which stipulates that "the validity period of the valuation report shall not exceed one year from the date of issuance of the valuation report", that is, the city and county-level governments should generally resolve the compensation issue within 1 year from the date of the expropriation announcement; if the house expropriation decision is not announced in accordance with the law, it can be calculated from the date the expropriation decision is delivered to the person being expropriated.

(2) The way to solve the compensation issue can be to sign a compensation agreement or to make a compensation decision. If the expropriated person voluntarily accepts the compensation plan and compensation content, the compensation issue will be resolved by signing an expropriation compensation agreement; if an agreement on compensation cannot be reached, the city and county-level governments should generally make an expropriation compensation decision within one year, determine the compensation content and compensation amount in writing, and send it to the expropriated person.

(3) The compensation content determined in the compensation decision should be clear and specific, be delivered in accordance with the law, and can be realized immediately; if the expropriated person is still dissatisfied after receiving the compensation, he can still claim his rights in accordance with the law through administrative litigation and other means. The reason why it is emphasized that the compensation decision must be made and delivered is because once the compensation decision is made, it will have the power of publicity, certainty and execution. For the expropriation unit and other relevant administrative agencies, it cannot be revoked without legal procedures; for the expropriated person, the resettlement compensation issue of the expropriated house has been confirmed and fixed through effective legal documents, and the resettlement compensation rights can be realized at any time. After the expropriation compensation decision is made, if the expropriated person does not receive the compensation content, the city and county-level governments should generally handle the relevant withdrawal and deposit procedures in accordance with the law, and notify the expropriated person in writing to receive compensation money, use resettlement housing, etc., to avoid the risk of fluctuations in corresponding real estate prices. If the expropriated person refuses to receive it without legal and legitimate reasons, the expropriation authority will not be liable for compensation for losses caused by the increase in the price of the expropriated property during the relevant period such as litigation. The Yingting Demolition Group learned that the expropriated people have objections to the expropriation compensation decision or the compensation amount and other contents determined in the expropriation compensation agreement, and this cannot hinder the implementation of the expropriation. The housing expropriation department should also strengthen publicity and guidance, persuade and educate the expropriated people to receive compensation first, and inform the expropriated people to receive compensation in advance. This only means respecting the administrative decision and reducing the corresponding possible losses. They still have the right to file an administrative review or administrative lawsuit to resolve the disputes between the two parties. If the city or county-level government has its own fault, resulting in neither signing a compensation agreement with the expropriated person nor making a decision on expropriation and compensation within one year, and the price of the expropriated real estate has increased significantly, and it is obviously unfair to use the announcement time as the time point for compensation, it may be considered to use the market price when the expropriation compensation decision is made or the expropriation compensation agreement is signed as the compensation benchmark.

(4) For compensation decisions made by municipal and county-level governments within a reasonable period, the people's courts generally should not use the judgment time as the benchmark time for compensation. Taking into account the division of labor between judicial power and administrative power, even if the people's court believes that the compensation decision omits relevant content, it should not fundamentally deny the administrative agency's determination of the compensation time point, but should only appropriately adjust it in the judgment. If the people's court revokes the compensation decision and orders the city or county-level government to make a new one, the determination of the compensation time point is still within the scope of the administrative agency's discretion. As long as it does not seriously deviate from a relatively reasonable time limit, it is generally better to refer to the assessed price at the time of the expropriation announcement to avoid unfair compensation standards for the expropriated persons within the entire expropriation scope. When the people's court revokes a compensation decision, it may also partially revoke the judgment, maintain the legal compensation content, and order the city and county governments to pay or deposit the legal compensation content to avoid new losses due to rising real estate prices after the parties win the case.

(5) If the city or county-level government fails to provide compensation beyond a reasonable time limit without justifiable reasons, and it cannot be proven that the expropriated party agrees to postpone the negotiation for compensation, the people's court may use the time when the compensation decision is actually made or the time when both parties negotiate as the time of assessment. If the city or county-level government seriously violates the law, maliciously violates the law and forces relocation without making an expropriation decision or a compensation decision, and refuses to resolve the compensation issue for a long time, causing significant damage to the legitimate rights and interests of the expropriated person, it may even consider the time of the first instance trial as the time point for evaluation. Only in this way can illegal expropriation be made punitive, the offenders can be made to bear the price, and the government can be forced to expropriate in accordance with the law through judicial review. In such cases, when it is necessary to adjust the original assessment content, the gap between the "preparatory realization date of the assessment purpose" and the "actual realization date of the assessment purpose" must be comprehensively considered: that is, the original assessment agency can issue a supplementary report to explain the price increase or decrease during the period, and make corresponding adjustments; the original assessment agency can also issue adjustment instructions for the review adjustment; in special circumstances, the assessment should be re-assessed.

Yingting reminds you:

If you are facing land acquisition and demolition, you must stay clear-headed and follow the agreement no matter what. If the promise can be made verbally, then it must be written in the demolition compensation agreement, otherwise it cannot be signed. Because verbal promises have no legal effect. What can you do if you have objections to resettlement compensation? Some relocated households will petition, but petitioning is not a legal channel, and no matter how long the petition lasts, it does not constitute a reason to interrupt the time limit for prosecution. Many people who were demolished were delayed in filing petitions and missed the statute of limitations. Even if they sued, the court would not accept it. Even if you find a lawyer, there is nothing you can do to help you! In practice, no matter how you report the situation to your superiors, report it to local staff, or visit everywhere, you can't actually solve the problem. What you only waste is your precious time to protect your rights and interests! According to the relevant laws and regulations of our country, the expropriated and demolished persons can file an administrative review within 60 days of receiving the expropriation decision, expropriation compensation decision and other specific administrative actions, and file an administrative lawsuit within 6 months. If your house is forcibly demolished, you must file a lawsuit to defend your rights within 6 months of knowing the date of demolition. If you have not negotiated compensation terms with the government, you can consult a lawyer specializing in land acquisition and demolition, or ask a lawyer to intervene and negotiate with the government using professional legal knowledge to strive for fair and satisfactory compensation.