Legal information

If administrative agencies infringe upon the legitimate rights and interests of citizens, legal persons and other organizations due to demolition violations, what judicial protection and relief can the people's courts provide?

First, when the administrative agency makes a decision, what should the evicted people do?

1. Administrative agencies: Administrative agencies make decisions such as ordering a halt to construction, making corrections within a time limit, and demolition within a time limit on the grounds that the parties have violated the Urban and Rural Planning Law.

2. Demolished persons: The parties concerned have the right to file an administrative lawsuit with the People's Court.

3. Legal basis: The defendant is usually the urban and rural planning department of the city or county people's government or the township or town people's government that made the above decision. The People's Court shall review the legality of the above-mentioned decisions, and may make judgments such as revoking the above-mentioned decisions, confirming the violation of the law, and requiring re-doing within a time limit in case of illegal situations.

4. Judicial practice: When determining whether an unlicensed building or temporary building constitutes an illegal construction during judicial review, a comprehensive review must be conducted taking into account administrative factors, historical factors, actual construction and usage conditions that are not due to the fault of one of the parties, etc.

Second, what should the demolished people do before forced demolition?

1. Administrative agencies: After decisions such as time-limited corrections and time-limited demolitions are made, but before forced demolition activities are carried out, the administrative agencies make enforcement decisions in accordance with the Administrative Enforcement Law.

2. Demolished persons: The parties concerned have the right to initiate administrative litigation.

3. Legal basis: The Yingting demolition team found that if the "command" behavior made by the people's government at or above the county level in its own name directly produces external effects, such as issuing an "command decision letter", "enforcement decision letter", etc., it will directly notify the parties concerned. The party concerned may file an administrative lawsuit as the defendant with the people's government at or above the county level; if the enforcement decision is made by the department that has been ordered to do so, the party concerned may use that department and the government at or above the county level that made the order as co-defendants.

4. Judicial practice: The focus of the People's Court's review is to determine the characterization of the enforcement decision and the legality of the procedure, such as whether it complies with the composition of illegal construction and whether it has gone through the statutory obligations and reminder procedures as required. The People's Court will make corresponding judgments based on the review situation.

Third, how to file an administrative lawsuit after forced demolition?

1. Administrative agency: after the administrative agency implements forced demolition.

2. Demolished persons: The parties concerned may also file a lawsuit in accordance with the law against the forced demolition carried out by administrative agencies.

3. Legal basis; Article 8 of the Administrative Coercion Law stipulates: "Citizens, legal persons or other organizations that implement administrative coercion against administrative agencies have the right to make statements and defend themselves; they have the right to apply for administrative reconsideration or initiate administrative litigation in accordance with the law; and those who suffer damage due to the illegal implementation of administrative coercion by administrative agencies have the right to demand compensation in accordance with the law."

4. Judicial practice: As an administrative act, forced demolition is actionable. Even if the administrative penalty decision and enforcement decision on illegal buildings, facilities, structures, etc. are legal and valid, there may be unqualified implementation subjects, wrong enforcement targets, unauthorized expansion of the scope of enforcement, and failure to take appropriate movable property registration and sealing measures. The parties may file administrative lawsuits or administrative compensation lawsuits in accordance with the law if measures such as storage and safekeeping cause losses to the legal property of the person subject to execution or other persons, or if the measures are implemented at night or on legal holidays in violation of Article 43 of the Administrative Enforcement Law, or if the measures are taken to stop water supply, power supply, heat supply, or gas supply to residents. The Yingting Demolition Team learned that in principle, parties can only file lawsuits against the legality of administrative enforcement actions themselves, and the people's courts generally do not review the legality of the original specific administrative actions. Usually, the administrative agency that directly implements the act or the administrative agency that entrusts others to implement it in its own name is the defendant. The people's court can make a judgment confirming the illegality or administrative compensation judgment for illegal administrative acts.

Yingting reminds you: Many parties will also apply for administrative reconsideration and file administrative litigation to protect their own rights and interests. But some people are afraid of spending money, or think that the matter is simple and can be done by themselves, so they spend some money to ask an acquaintance to write a reconsideration application (complaint), or simply write it themselves. Then go through the legal process of administrative review or administrative litigation. Since legal procedures are a very professional job, it cannot be done by non-legal professionals, civil and criminal lawyers who do not understand administrative cases and land acquisition and demolition, or lawyers who have few successful cases of land acquisition and demolition. Demolition is not a trivial matter, so don’t be greedy for small gains and suffer big losses. A procedure can only be carried out once, and the lawsuit cannot be repeated. Please treat your case with caution. If it is a corporate case, seek legal advice from a corporate demolition and vacation lawyer who has extensive experience in handling cases.