Legal information

Introduction to the article: After the illegal building is forcibly demolished, the demolished building materials are not properly preserved, and the demolished building materials should bear administrative compensation liability. Although buildings and structures built without permission from the planning management department are considered illegal structures, the people being demolished have ownership of the building materials of the buildings and structures. After the demolition party forcibly demolished the illegal building, it transported some of the demolished building materials away from the site and disposed of them. This lack of legal basis is an illegal factual act and should bear administrative compensation liability.

1. Analysis of typical cases

1. Introduction to the case:The defendant, the People's Government of a district in Tianjin issued a "Notice on the Demolition of Illegal Buildings" to a factory of the plaintiff, and organized relevant departments to forcibly demolish the illegal buildings in the plaintiff's factory. The personnel who carried out the forced demolition will transport some of the color steel plates removed from the ground shed away from the site. They also took away more than ten electricity meters belonging to the plaintiff. According to my country's "Property Law" and other relevant laws and regulations, even if some buildings in the plaintiff's factory are confirmed to be illegal buildings, the plaintiff still has ownership of the building materials of these buildings, and the "Decision to Demolish Illegal Buildings within a Time Limit", which is the basis for the defendant's forced demolition, does not include the confiscation of the plaintiff's color steel plates and other building materials. The dismantled color steel plates and other items have use value, and the plaintiff has rights to these properties. The plaintiff filed a lawsuit with the court, requesting: (1) To confirm that the defendant's behavior of misappropriating the plaintiff's color steel plates, electric meters and other items during law enforcement was illegal. (2) The defendant was ordered to return the plaintiff’s color steel plates, electricity meters and other items.

2.The defendant argued:The plaintiff did not demolish the illegal building on its own within the time limit stipulated in the "Decision on Demolition of Illegal Buildings within a Time Limit", so it organized relevant departments to carry out forced demolition in accordance with the law. What the law enforcement officers transported away from the scene was the demolished construction waste, and they did not occupy the property requested by the plaintiff to be returned. The plaintiff filed a lawsuit directly with the court without applying for compensation from the defendant, which was not in compliance with the law.

3.Referee’s opinion:The court of first instance held that the plaintiff failed to demolish the illegal building on its own within the time limit stipulated in the decision to demolish the illegal building within a time limit. The district government, based on the bureau’s application, organized relevant departments to carry out forced demolition in accordance with the law. The forced demolition was an execution of the decision to demolish the illegal building within a time limit and did not create new rights and obligations for the plaintiff. Although it has been deemed an illegal building by the above-mentioned time limit demolition decision, the plaintiff believes that its claim of rights to the construction materials of the demolished buildings and structures can be established. The plaintiff made multiple written requests to the defendant for the return of the property, but received no response. The plaintiff now files this case with the court, which meets the legal conditions for prosecution. The video of the forced demolition scene provided by the plaintiff in the lawsuit can prove the fact that the personnel who carried out the forced demolition transported some of the removed old color steel plates away from the site. Although these old color steel plates have been used for many years, the defendant's law enforcement officers treated them as construction waste improperly when the plaintiff believed that they still had use value, and the defendant should return them in accordance with the law.

2. Determination of the nature of the accused administrative act

There are usually two categories of behaviors that may cause infringement to citizens, legal persons or other organizations when administrative subjects exercise their administrative powers. One category is specific administrative behaviors, and the other is administrative factual behaviors. The Yingting Demolition Group believes that the "Administrative Litigation Law" has clear provisions on the litigability of specific administrative actions and the resulting liability for administrative compensation. The concept of "administrative factual behavior" does not appear clearly in the Administrative Procedure Law and other laws and regulations and the judicial interpretation of the Supreme Court, and is only expressed in terms of "non-specific administrative behavior" and "behavior related to specific administrative behavior". However, in judicial practice, the behaviors listed in Items 3, 4, and 5 of Article 3 and Item 4 of Article 4 of the State Compensation Law are usually understood as factual acts. The so-called factual behavior refers to the behavior carried out by administrative subjects that has no disciplinary content and no legal binding force. Administrative factual acts always occur in the process of administrative subjects exercising their powers, and once they occur, they appear as an objective existence and appear as infringements on the legitimate rights and interests of citizens, legal persons or other organizations. Without the existence of actual harmful consequences, it is difficult to determine the composition of the factual behavior. Therefore, if the factual behavior is confirmed to exist, the administrative subject should bear the corresponding administrative compensation liability. In this case, the plaintiff requested confirmation that the defendant’s misappropriation of its color steel plates and other building materials was illegal. The complaint targets the behavior of law enforcement officers who, during the defendant's forced demolition process, transported and disposed of old color steel plates and other construction materials that were removed from illegal buildings as construction waste away from the law enforcement site and disposed of them as construction waste that the plaintiff believed still had use value. This act was a factual act committed by the defendant during the administrative execution process. Once this act was implemented, it became a fact and caused damage to the plaintiff's legitimate rights and interests in recycling this part of building materials. Based on this, the court determined that the behavior requested by the plaintiff was an administrative factual behavior.

3. Litigation procedures for accountability for administrative factual acts

According to the provisions of the Administrative Litigation Law, Article 3 of the Supreme People's Court's "Regulations on Several Issues Concerning the Trial of Administrative Compensation Cases" (hereinafter referred to as the "Regulations") stipulates that if the compensation claimant believes that the administrative agency and its staff have implemented non-specific administrative acts specified in Article 3 (3), (4), (5) and Article 4 (4) of the State Compensation Law, infringing upon its personal rights and property rights and causing losses, and the agency responsible for compensation refuses to confirm that the injurious behavior is illegal, the compensation claimant may directly file an administrative compensation lawsuit with the court. Article 28 of the "Provisions" also stipulates that if a party files an administrative lawsuit and also files a claim for administrative compensation, or if the party files a claim for administrative compensation together with the damage caused by the infringement of specific administrative acts and other acts related to the exercise of administrative powers, the people's court shall file the cases separately, and the cases may be heard together or separately according to the specific circumstances. The “other behaviors related to the exercise of administrative powers” ​​here include administrative factual behaviors. Accordingly, there are two ways to file an administrative compensation lawsuit due to an administrative factual act. First, if the victim has first made a request to the administrative agency to confirm that the factual act is illegal and is rejected, he can directly file an administrative compensation lawsuit with the court; second, when filing an administrative lawsuit, he can also request confirmation that the administrative factual act is illegal and administrative compensation. In judicial practice, a relatively loose determination method is adopted for the "preliminary confirmation" of administrative factual acts. Under normal circumstances, as long as the plaintiff can prove that he has expressed his intention to the relevant administrative agency to request confirmation that the factual act is illegal and to claim compensation, and the relevant administrative agency expressly refuses or fails to respond within a reasonable period, the plaintiff can directly file a lawsuit in court. In this case, after the defendant carried out forced demolition, the plaintiff Pengpu Electrical Appliance Factory made multiple written requests to the defendant and the Complaints Office of the Tianjin Municipal People's Government for the return of the property, but did not receive any reply. The plaintiff filed a lawsuit in court and met the legal conditions for filing a lawsuit.

4. When determining the scope of damages caused by administrative factual acts and calculating the amount of compensation, care should be taken to avoid confusion with content related to compensation for civil torts.

Administrative compensation falls under the category of state compensation. State compensation is completely different from civil infringement compensation in terms of the reasons for the compensation, the subject of compensation, the scope of compensation, and the compensation procedures. Therefore, when determining the scope of damage compensation caused by administrative factual acts and calculating the amount of compensation, care must be taken to avoid confusion with content related to civil infringement compensation. The Yingting Demolition Group believes that the scope of administrative compensation is limited to the direct losses caused by the administrative factual act itself to the victim's personal and property damage. In this case, the court adopted a combination of procedural and substantive methods to determine the value of the color steel plates and other building materials that the defendant removed and disposed of without authorization. Physically, two main factors are considered, namely the residual value of building materials and their reusability. As far as its residual value is concerned, this part of the building materials has been used for many years and will inevitably produce depreciation. Moreover, the building materials are demolished objects of illegal buildings and will inevitably suffer reasonable losses. This can be confirmed from the on-site demolition video provided by the plaintiff. In terms of reusability, this part of the material has a relatively low recyclability rate due to its age and serious damage. Procedurally, the method of combining evidence by both parties and court investigation is used. Both parties provide evidence on the market price of the corresponding building materials. On this basis, the court also conducts a comprehensive evaluation of the price of color steel plates and other building materials, and takes an intermediate state to make the price calculation base within the range acceptable to both parties.

Yingting reminds you:

1. Whether it involves illegal construction or land acquisition and demolition, it is best not to demolish the house involved yourself. If you dismantle it yourself, it will be difficult to get compensation later.

2. If you encounter illegal forced demolition, the demolished person 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. You must file a lawsuit to defend your rights within 6 months of knowing the date of forced demolition. Don’t miss the statute of limitations through petitions, reports, etc.