Legal information

Introduction to the article: Illegal demolition incidents such as forced demolition and illegal demolition occur from time to time, which not only infringes on the property rights of the expropriated and demolished people, but also affects the stability of social order. Today we will talk about a typical case of "forced demolition and demolition" in 2018, and talk about who should claim compensation if a house is demolished and demolished?

Part One: Case Story

I often hear about this phenomenon. The houses of the demolition households have been demolished secretly, but neither party admits it and is unwilling to take responsibility. In November 2016, Mr. An, who lives in Zhengzhou, also encountered this kind of thing. Before Mr. An had negotiated compensation, his house was suddenly demolished. Don’t know who to sue? Mr. An once sued the Zhengzhou Municipal People's Government as the defendant, but the lawsuit was dismissed by the court. However, the Longwang Office that issued the "demolition notice" does not have the qualifications to be a subject, and has never admitted that it committed illegal demolition. After the court found out the facts, the defendant was finally presumed to be the defendant, and the demolition households won the case. This case is of very typical significance. It can not only curb the illegal behavior of illegal demolitions and demolitions, safeguard the legitimate rights and interests of the demolished and expropriated people, but also provide a trial basis for similar cases in the future.

Part 2: Legal provisions related to this case

1. Regarding the issue of whether the Airport Area Management Committee is a qualified defendant in this case. According to Article 46 of the Land Management Law of the People's Republic of China, the Anyuntang house was demolished due to the land expropriation involved in the construction of the Garden Expo project, and the demolition was organized and implemented by the Dragon King Office. Lawyers Wang Qingfeng and Lu Jianan, attorneys for Mr. An, believe that the Airport Area Management Committee argued that the land expropriation involved in the case has been completed and the village committee has the obligation to deliver the clean land. However, neither the Longwang Office nor the Longwang Village Committee of the Longwang Office has the authority to expropriate land. Their decisions are all to cooperate with the Airport Area Management Committee to complete the land expropriation. At the same time, the Longwang Office is a dispatched agency of the Airport Area Management Committee. The Airport Area Management Committee has the economic and social management authority of the provincial and municipal governments, undertakes social management functions in the region, is an administrative agency that exercises some government functions, and is the main body to organize and implement land expropriation within its jurisdiction. In this case, the Longwang Office does not have the legal authority to force demolition, so the legal consequences arising from its demolition of the Anyuntang house should be borne by the Airport Area Management Committee, which is a qualified defendant in this case.

2. According to the provisions of Article 46, Paragraph 2 and Article 47 of the Land Management Law of the People's Republic of China, the owners and users of the expropriated land have the right to enjoy compensation and resettlement. The Airport Area Management Committee's argument that collective land is expropriated to village collectives is incomplete and cannot be established. According to Article 34 of the "Administrative Procedure Law of the People's Republic of China", the Airport District Management Committee forcibly demolished Anyuntang's house without reaching a demolition compensation agreement with Anyuntang, and did not provide corresponding evidence to prove that its forced demolition complied with the provisions of the "Administrative Enforcement Law of the People's Republic of China". It should be deemed that its demolition was illegal. To sum up, the Airport Area Management Committee’s demolition of Anyuntang’s house is illegal.

Part Three: Who is the defendant for illegal demolition and demolition? Compensation from whom?

1. Focus of controversy (1) Who demolished Mr. An’s house?

The Airport Area Management Committee believes that although the Longwang Office under the management committee issued a written demolition notice to Anyuntang, it did not implement the demolition. The Airport Area Management Committee has not authorized or entrusted other entities to carry out the demolition. The demolished person, Mr. An, has no direct evidence to prove that the Longwang Office or the Airport Area Management Committee demolished his house. Because the "forced demolition notice" issued by the Dragon King Office was not implemented. If it is determined that the Airport Area Management Committee is a suitable defendant, it lacks factual basis.

2. Focus of Dispute (2) Who should be held responsible for forced demolitions that no one acknowledges?

(1) After the house was demolished, Mr. An sued the Zhengzhou Municipal People's Government as the defendant. The Xinxiang Intermediate People's Court and the Henan Provincial Higher People's Court ruled that the Airport Area Management Committee has the economic and social management authority of the provincial and municipal governments and assumes social management functions in the region. The actions of the Longwang Office should be made against the Airport Area Management Committee.

(2) Ying Ting believes that the forced demolition of houses has a serious impact on citizens’ major property rights, and should be implemented by at least governments at the county level or above, no matter in terms of law, policy or legal spirit. Judging from the implementation situation, collective land expropriation, house expropriation on state-owned land, urban village reconstruction, new rural construction, etc. are all organized and carried out by governments at or above the county level in terms of law and policy. The actions of offices and village committees in the organization and implementation process are all carried out under the unified organization and command of the county-level government. These actions should be regarded as entrustment in law, and the county-level government shall bear the responsibility. The court believed that failure to do so would encourage illegal and coercive acts, cause difficulties for the demolished persons in claiming compensation, and affect the stability of social order. Therefore, it is a social need for at least county-level governments to take responsibility. At the same time, the legitimate rights and interests of households affected by land acquisition and demolition can be protected.