environmental shutdown

Zhongyuan District People's Court of Zhengzhou City, Henan Province

administrative judgment

(2015) Bank of China No. 240

Plaintiff Wang Moumou, male, born on December 1, 1938, Han nationality.

The authorized agent is Wang Qingfeng, a lawyer at Beijing Yingtong Law Firm.

The authorized agent is Lu Jianan, a lawyer at Beijing Yingting Law Firm.

The defendant, Zhengzhou Airport Economic Comprehensive Experimental Zone Management Committee, is domiciled in Xinzheng, Zhengzhou City.

Legal representative Ma Jian, job director.

The authorized agent is Wang Zheng, a lawyer at Henan Zhenshi Law Firm.

The entrusted agent is Chen Jianfu, a staff member of the Longwang Office of Zhengzhou Airport Economic Comprehensive Experimental Zone.

The defendant, Zhengzhou Municipal People's Government, is domiciled in Zhengzhou City.

Ma Yi, the legal representative, is the mayor.

The authorized agent is Liu Wenyuan, a staff member of the Zhengzhou Administrative Reconsideration Center.

The authorized agent is Liu Kuixian, a staff member of the Zhengzhou Administrative Reconsideration Center.

The plaintiff Wang Moumou was dissatisfied with the administrative coercion of the defendant Zhengzhou Airport Economic Comprehensive Experimental Zone Management Committee (hereinafter referred to as the Zhengzhou Airport Zone Management Committee) and filed an administrative lawsuit with the Zhengzhou Intermediate People's Court. After accepting the case on January 26, 2015, the court issued (2015) Zheng Xingchu Zi No. 112 Administrative Ruling on February 9, 2015, ruling that the case should be heard by our court. After accepting the case on June 24, 2015, this court served a copy of the complaint and a notice of response to the defendant, Zhengzhou Airport Area Management Committee. Because the case has been reviewed, this court added the Zhengzhou Municipal People's Government as a co-defendant to participate in the lawsuit in accordance with the law. This court formed a collegial panel in accordance with the law and held a public hearing on this case on August 13, 2015. Plaintiff Wang Moumou and his authorized agents Wang Qingfeng and Lu Jianan, and defendants Zhengzhou Airport Area Management Committee’s authorized agents Wang Zheng and Chen Jianfu attended the court to participate in the lawsuit. The defendant, Zhengzhou Municipal People's Government, refused to appear in court without justifiable reasons after being summoned by this court. This case has now been concluded.

The plaintiff Wang Moumou claimed: On July 3, 2014, the Longwang Office of the Zhengzhou Airport Economic Comprehensive Experimental Zone Management Committee (hereinafter referred to as the Longwang Office) served the plaintiff with an illegal construction and demolition notice, stating that the plaintiff's building located in the north of Longwang Village was illegally constructed and required it to be demolished by itself, otherwise it would organize forced demolition. On the morning of July 11, 2014, the Longwang Office organized hundreds of relevant personnel to forcibly demolish the plaintiff’s house. The defendant's forced demolition behavior violated relevant legal provisions. The defendant did not have the right to identify illegal construction or carry out forced demolition. It demolished the plaintiff's house without any reason or authority and without legal procedures, which violated the plaintiff's legitimate rights and interests. The plaintiff filed an administrative lawsuit, requesting the People's Court to rule that the defendant's illegal demolition of the plaintiff's house was illegal.

Plaintiff Wang Moumou provided the following evidence to this court: 1. The illegal construction and demolition notice issued to the plaintiff by the Longwang Office of Zhengzhou Airport Economic Comprehensive Experimental Zone on June 28, 2014, to prove that the defendant’s demolition behavior was illegal; 2. Zheng Zheng (Executive Review) (2014) Administrative Review Decision No. 799, to prove that the plaintiff applied for administrative review.

The defendant Zhengzhou Airport Area Management Committee argued that: 1. The simple house built by the plaintiff privately on the village collective land was an illegal construction. 2. The defendant did not engage in illegal demolition. The villagers group where the plaintiff lives had informed the plaintiff of the illegality of its construction in May 2014 and required it to be demolished. The plaintiff knew that his building was illegal, but still refused to demolish it. On July 3, 2014, after receiving the report from the villagers, the Longwang Office arrived at the scene to understand the situation and informed the plaintiff to provide relevant procedures for building a house. The plaintiff did not go through any formalities and could not provide it. The Longwang Office served the plaintiff with a notice of illegal construction and demolition on the same day. After receiving the notice, the plaintiff refused to demolish the illegal building on his own. In order to eliminate the adverse effects of haphazard construction, the Longwang Office carried out demolition. This demolition was a factual act and was not an administrative act. The actual demolition carried out by the Longwang Office on the plaintiff's illegal construction has nothing to do with the defendant. The Longwang Office is actually a township government, and the township government's demolition of illegal constructions complies with legal regulations. The plaintiff built illegally, and the Longwang Township government demolished the illegal building. It had nothing to do with the defendant. The plaintiff claimed that the defendant was unqualified, and the Longwang Office should bear the consequences. We sincerely request that the plaintiff’s lawsuit be dismissed in accordance with the law.

The defendant Zhengzhou Airport Area Management Committee provided the following evidence and basis to this court: 1. Certificate issued by Longwang Village Committee of Longwang Office of Zhengzhou Airport Economic Comprehensive Experimental Zone on August 7, 2014; 2. Xinzheng City Longwang Township Land Management Committee on August 7, 2014 The certificate issued by the court; 3. The transcript of the Longwang Office’s conversation with Wang Weiqiang on August 7, 2014; 4. The transcript of the Longwang Office’s conversation with Gao Xiangdong on August 7, 2014; 5. A photo proving that the plaintiff had not obtained a building permit and was constructing illegally. 6. The illegal construction and demolition notice and posted photos on July 3, 2014. The demolition involved in this case was carried out by the Longwang Office.

The basis provided by the defendant Zhengzhou Airport Area Management Committee: 1. Zheng Zhengwen (2010) No. 246 Notice of the Zhengzhou Municipal People’s Government on Strengthening the Investigation and Punishment of Illegal Construction; 2. The Urban and Rural Planning Law of the People’s Republic of China.

The defendant Zhengzhou Municipal People's Government argued that: 1. The Zheng Zheng (Executive Review) (2014) Administrative Review Decision No. 799 made by the Zhengzhou Municipal People's Government has clear facts, correct basis and legal procedures. After discovering the illegal construction behavior of the plaintiff, the Longwang Office of the Zhengzhou Airport Area Management Committee issued an illegal construction and demolition notice on June 28, 2014, ordering the plaintiff to demolish it on its own before June 30, 2014. If it fails to dismantle within the time limit, relevant functional departments will be organized to carry out forced demolition. On July 3, 2014, the Zhengzhou Airport Area Management Committee served the plaintiff with a retention notice of illegal construction and demolition. Because the plaintiff failed to demolish the illegal building on his own within the time limit, the Zhengzhou Airport Area Management Committee demolished the illegal building. 2. The Dragon King Office is a dispatched agency established by the Zhengzhou Airport Area Management Committee. The legal consequences of its relevant actions shall be borne by the Zhengzhou Airport Area Management Committee in accordance with the law. According to the "Resolution of the Standing Committee of the Zhengzhou Municipal People's Congress on the Investigation and Punishment of Illegal Construction", the Longwang Office's demolition of the plaintiff's house was not inappropriate. 3. The reconsideration decision was made and served in 2014. According to the provisions of the old "Administrative Litigation Law of the People's Republic of China", the plaintiff who is dissatisfied with the demolition can only bring the Zhengzhou Airport Area Management Committee as the defendant.

The defendant Zhengzhou Municipal People's Government provided the following evidence to this court: The first set of evidence is used to prove that the Zhengzhou Municipal People's Government accepted the plaintiff's administrative review application in accordance with the law and served relevant documents to the relevant parties in accordance with the law: 1. Administrative review application; 2. Supplementary and corrected administrative review application notice and correction instructions; 3. Copy of the plaintiff's ID card; 4. Evidence list and address confirmation; 5. Illegal construction and demolition notice on June 28, 2014, CD and photos; 6 , administrative reconsideration acceptance notice, reply notice and delivery receipt; the second set of evidence is used to prove that the administrative reconsideration respondent and the third party responded as required and submitted relevant materials: 1. Zhengzhou Airport Economic Comprehensive Experimental Zone Management Committee Administrative Reconsideration Reply, legal representative identity certificate, and authorization letter; 2. Photos; 3. Zhengzhou Airport Economic Comprehensive Experimental Zone Longwang Office Longwang Village Committee and Xinzheng City Longwang Township Land Management Office in 2014 One certificate each issued on August 7; 4. The transcript of the conversation between Wang Weiqiang and Gao Xiangdong made by the Longwang Office on August 7, 2014; 5. The notice of illegal construction and demolition on July 3, 2014 and the delivery certificate; The third set of evidence is used to prove that the Zhengzhou Municipal People's Government conducted the trial in accordance with legal procedures and based on relevant laws and evidence, made an administrative review decision, and served the relevant parties in accordance with the law: 1. Notice of postponement of administrative review; 2. Zheng Banwen (2) 010) No. 45 "Notice on Strengthening the Investigation and Punishment of Illegal Construction"; 3. Zhenggang Edition (2013) No. 20 Zhengzhou Airport Comprehensive Experimental Zone Institutional Establishment Committee's Notice on the Establishment of Longwang Office and Minggang Office ; 4. The transcript of the inquiry of Wang Moumou, Bu Weiwei, Wang Dewei, and Wang Weiqiang by the staff of the review agency on October 9, 2014; 5. Administrative review decision letter Zheng Zheng (Executive Review) (2014) No. 799; 6. Service receipt.

After cross-examination in court, the plaintiff’s cross-examination opinions on the evidence provided by the defendant Zhengzhou Airport Area Management Committee are as follows: There is no objection to the authenticity of evidence 1-4, but the time it was produced was August 7, 2014, and the time when the administrative demolition was carried out was July 3, 2014, and the time when the violation notice was issued to the plaintiff was June 28, 2014. These evidences were all obtained after the administrative actions were taken. According to the provisions of the administrative litigation evidence rules, these four pieces of evidence are illegal. The village committee and the soil management office proved that it was not in compliance with the village's planning and village and town construction management regulations. This form of proof is illegal. The conversation partners of Evidence 3 and 4 were outsiders of the case. Whether the plaintiff had the procedures is unknown to outsiders and has no relevance to this case. The evidence does not meet the legal relevance. The identification of illegal buildings is based on relevant legal provisions. The relevant authorities are in accordance with the law. Administrative penalties or administrative decisions made through prescribed procedures. No one can determine that any building is an illegal building before there is an administrative penalty or administrative decision. Evidence 6 is a copy, which was made on July 3, 2014, but the notice to the plaintiff was on June 28, 2014. The notice submitted by the defendant was forged evidence and was inconsistent with the notice in the photo. Basis 1 is a normative document and does not fall within the scope of laws, regulations and rules. It is impossible to set relevant provisions and procedures for penalties, nor to set relevant measures and procedures for administrative enforcement, and has nothing to do with this case. Basis 2 also does not confirm the authority of the management committee or the sub-district office to identify illegal construction and forced demolition.

Regarding the evidence provided by the defendant Zhengzhou Municipal People's Government, the plaintiff's cross-examination opinions are as follows: no objection to the first evidence; no objection to the second set of evidence itself, but no objection to the purpose of proof; no objection to the purpose of proof of the third set of evidence, but the basis of evidence 2 and 3 is not recognized because neither the Zhengzhou Airport Area Management Committee nor the Longwang Subdistrict Office has legal authorization to enforce or demolish. Administrative power, these two bases do not comply with the provisions of the superior law; Evidence 4 is not recognized, and the transcript has no relevance to this case. The dispute involved in the case is whether the forced demolition is legal. The respondent did not provide evidence of legal forced demolition to the review agency. The review agency violated the law by asking about the procedures for investigating the house, because the administrative act of forced demolition and the administrative act of identifying violations are two completely different legal concepts.

Regarding the evidence provided by the defendant Zhengzhou Municipal People's Government, the defendant Zhengzhou Airport District Management Committee's cross-examination opinions are as follows: As for the CD in evidence 5 of the first set of evidence, there is no original carrier, and its authenticity cannot be determined. There is no objection to the other evidence. There is no objection to the authenticity of the second and third sets of evidence.

Regarding the evidence provided by the plaintiff, the defendant Zhengzhou Airport Area Management Committee’s cross-examination opinions are as follows: There is no objection to the authenticity of evidence 1, but there is an objection to the purpose of proof. The time of the notification is inconsistent because of multiple notifications, proving that the plaintiff received the demolition notice. The legal subject should be the Longwang Township Government, and the notice issued by the Longwang Township Government is in compliance with legal regulations. Evidence 2 is unobjectionable.

Based on the above cross-examination opinions, this court certified as follows: The evidence provided by the two defendants to this court: "The certificate issued by the Longwang Village Committee of the Longwang Office of the Zhengzhou Airport Economic Comprehensive Experimental Zone on August 7, 2014, the certificate issued by the Longwang Township Land Management Office of Xinzheng City on August 7, 2014, the transcript of the conversation between the Longwang Office and Wang Weiqiang on August 7, 2014, The transcript of the Longwang Office’s conversation with Gao Xiangdong on August 7, 2014” is evidence formed after the Zhengzhou Airport Area Management Committee implemented forced demolition on July 11, 2014. It cannot be used as evidence to prove the legality of the accused forced demolition administrative act. The evidence provided by the plaintiff and other evidence provided by the two defendants were comprehensively accepted by this court in conjunction with the cross-examination opinions of the court trial.

Based on the above-mentioned valid evidence, this court finds the following facts: Plaintiff Wang Moumou is a former villager of Group 7 of Longwang Village, Longwang Township, Xinzheng City. In November 2013, the Zhengzhou Airport Area Management Committee established the Longwang Office of the Zhengzhou Airport Economic Comprehensive Experimental Zone (hereinafter referred to as the Longwang Office). Its management area includes a total of 14 administrative villages in Longwang Village, where the plaintiff is located. On June 28, 2014, the Longwang Office issued an "Illegal Construction and Demolition Notice" to the plaintiff. The main content of the notice is that in accordance with the requirements of the provincial, municipal, and airport economic comprehensive experimental zones for centralized rectification of illegal construction, after the Party Working Committee and the Service According to the Department's research, your building located in the north of Longwang Village is an illegal construction. The construction should be stopped immediately and required to be demolished before June 30, 2014. If it is not demolished after the deadline, the Airport Economic Comprehensive Experimental Zone will organize relevant functional departments to carry out forced demolition. On July 3, 2014, the Longwang Office issued an "Illegal Construction and Demolition Notice" to the plaintiff, requiring the plaintiff to demolish the above-mentioned building by itself before July 4, 2014. On July 11, 2014, the Longwang Office demolished the above-mentioned house built by the plaintiff. The plaintiff was dissatisfied with the administrative act of forced demolition by the Zhengzhou Airport Area Management Committee and filed an administrative reconsideration application with the Zhengzhou Municipal People's Government on July 17, 2014. After trial, the Zhengzhou Municipal People's Government issued Zheng Zheng (Executive Review) (2014) Administrative Review Decision No. 799 on October 16, 2014, upholding the demolition of Wang Moumou's house by the Longwang Office of the Zhengzhou Airport Area Management Committee. On October 22, 2014, the Zhengzhou Municipal People's Government sent the administrative review decision to Wang Moumou. On January 26, 2015, the Zhengzhou Intermediate People’s Court accepted the case in which the plaintiff Wang Moumou refused to accept the administrative action of Zhengzhou Airport Area Management Committee’s forced demolition. Later, the Zhengzhou Intermediate People's Court transferred the case to our court for trial.

In the lawsuit, the defendant Zhengzhou Airport Area Management Committee did not provide this court with evidence that it informed the plaintiff of the right to statement and defense before implementing administrative coercion, nor did it provide evidence that it fully listened to the plaintiff’s opinions before implementing administrative coercion, recorded and reviewed the facts, reasons and evidence presented by the plaintiff, and made an administrative coercion decision and served it to the plaintiff.

This court held that: Article 8 of the "Administrative Coercion Law of the People's Republic of China" stipulates: "Citizens, legal persons or other organizations that implement administrative coercion against administrative agencies have the right to state and defend themselves; they have the right to apply for administrative reconsideration or initiate administrative litigation in accordance with the law; if they are harmed due to the illegal implementation of administrative coercion by administrative agencies, they have the right to Claim compensation in accordance with the law. "Article 35 of the Law stipulates: "Before making a decision on enforcement, the administrative agency shall urge the party to perform its obligations in advance. The reminder shall be in writing and specify the following matters: (1) The time limit for performing the obligation; (2) The method of performing the obligation; (3) If it involves monetary payment, There should be a clear amount and method of payment; (4) The right of statement and defense enjoyed by the parties in accordance with the law. "Article 36 of the Law stipulates: "After receiving the reminder, the administrative agency shall fully listen to the opinions of the party and review the facts, reasons and evidence submitted by the party. Record and review. If the facts, reasons or evidence proposed by the parties are established, the administrative agency shall adopt it. "In this case, the Longwang Office is a dispatched agency established by the Zhengzhou Airport District Management Committee, and the consequences of the Longwang Office's demolition of the house built by the plaintiff should be borne by the Zhengzhou Airport District Management Committee. Before demolishing the house involved in the case built by the plaintiff, the defendant Zhengzhou Airport Area Management Committee should inform the plaintiff of its right to statement and defense, fully listen to the plaintiff's opinions, record and review the facts, reasons and evidence presented by the plaintiff, and then make an enforcement decision and serve it to the plaintiff. The defendant, Zhengzhou Airport Area Management Committee, did not provide this court with evidence that it informed the plaintiff of the right to statement and defense before implementing administrative coercion, nor did it provide evidence that it fully listened to the plaintiff’s opinions, recorded and reviewed the facts, reasons and evidence presented by the plaintiff, made an administrative coercion decision and served it to the plaintiff before implementing administrative coercion. The defendant Zhengzhou Airport Area Management Committee’s forced demolition of the house built by the plaintiff did not comply with the provisions of the Administrative Enforcement Law and the procedures were illegal. Therefore, the administrative review decision made by the defendant Zhengzhou Municipal People's Government to uphold the demolition of the plaintiff's house by the Longwang Office of the Zhengzhou Airport Area Management Committee should also be confirmed to be illegal. If the defendant Zhengzhou Airport Area Management Committee’s forced demolition infringes upon the plaintiff’s legitimate rights and interests and causes losses to the plaintiff, the plaintiff can resolve the matter through other legal channels. To sum up, in accordance with the provisions of Article 74, Paragraph 2 (1) and Article 79 of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:

The case acceptance fee of 50 yuan shall be borne by both the defendant Zhengzhou Airport Economic Comprehensive Experimental Zone Management Committee and the Zhengzhou Municipal People's Government.

If you are dissatisfied with this judgment, you may submit an appeal in eight copies to this court within fifteen days from the date of receipt of the judgment, and appeal to the Intermediate People's Court of Zhengzhou City, Henan Province. You must pay the appeal fee to the Intermediate People's Court of Zhengzhou City, Henan Province within seven days from the date of appeal, and submit the payment receipt to this court for inspection. Failure to do so will be deemed as giving up the appeal.

Chief Judge Tie Yingying

People's Assessor Bai Lifeng

People's Assessor Yu Junxia

December 14, 2015

Secretary Wang Haili