Wu Lifa was still dissatisfied and applied to the court for retrial within the statutory time limit.
In the case that the law does not stipulate that the district and county-level government has the responsibility of demolishing illegal buildings in rural areas, the evidence provided by the party can not prove that the County-level Government participated in the implementation of forced demolition, and the government also denies its participation.
501, Dongguan Road, Puyan street, Binjiang District, Hangzhou, Zhejiang Province.
Address: Rainbow Building, Binjiang District, Hangzhou, Zhejiang Province.
The main facts and reasons are as follows: 1 The nature of this case is an illegal expropriation, not a violation.
2845 retrial applicant (plaintiff of first instance and appellant of second instance): Wu Lifa, male, born on May 2, 1958, Han nationality, living in Binjiang District, Hangzhou City, Zhejiang Province.
housing administrative compulsion of Binjiang District People’s Government of Hangzhou City, Zhejiang Province (hereinafter referred to as Binjiang District Government), Puyan sub district office of Binjiang District People’s Government (hereinafter referred to as Puyan sub district office) and Binjiang District Urban Administration and Law Enforcement Bureau (hereinafter referred to as Binjiang Urban Administration Bureau), On September 13, 2018, Hangzhou intermediate people’s court made (2018) ZH01 xingchu No.
Respondent (defendant of first instance): Puyan sub district office of Binjiang District People’s Government of Hangzhou City, Zhejiang Province.
☑ Case 1: Article 65 of the urban and rural planning law of the people’s Republic of China stipulates that if a rural construction planning permit is not obtained according to law or the construction is not carried out in accordance with the provisions of the rural construction planning permit in the township or village planning area, the township or town people’s Government shall order the construction to stop and make corrections within a time limit; If it fails to make corrections within the time limit, it may be demolished.
From the facts found out in the first instance, the house involved in the case is located in Xinsheng village, Puyan street.
Retrial applicant Wu Lifa v.
In the case that Puyan sub district office admitted that it organized and implemented the compulsory demolition involved in the case, and the law did not stipulate that the district and county-level government had the responsibility to demolish illegal rural buildings, the evidence provided by Wu Lifa could not prove that Binjiang District Government participated in the compulsory demolition, and Binjiang District government also denied its participation, Therefore, the court of first instance held that Wu Lifa’s prosecution against Binjiang District government lacked factual basis and was not improper.
Entrusted agent ad litem: Ren Zhanmin, lawyer of Beijing Guanling law firm.
There is no factual or legal basis for the party’s request to order the county-level government to perform the duty of demolishing buildings according to law.
194 administrative ruling: rejecting Wu Lifa’s lawsuit against Binjiang District government.
In this case, the preliminary evidence shows that only Puyan sub district office is a qualified defendant.
Address: No.
3.
Respondent (defendant of first instance): urban administration and Law Enforcement Bureau of Binjiang District, Hangzhou City, Zhejiang Province.
Article 65 of the urban and rural planning law of the people’s Republic of China stipulates that if a rural construction planning permit is not obtained according to law or the construction is not carried out in accordance with the provisions of the rural construction planning permit in the planning area of a township or village, the township or town people’s government shall order the construction to stop and make corrections within a time limit; If it fails to make corrections within the time limit, it may be demolished.
According to the provisions on Hierarchical Jurisdiction in Article 15 of the administrative procedure law, this case should not be tried by the intermediate people’s court.
Although the disqualification of some defendants does not necessarily lead to the inability to continue the trial of the case, according to Article 49 of the administrative procedure law of the people’s Republic of China (hereinafter referred to as the administrative procedure law), bringing a lawsuit should also be under the jurisdiction of the people’s court being sued.
Case 2: the first paragraph of Article 77 of the land administration law of the people’s Republic of China stipulates: “if a rural villager illegally occupies land to build a house without approval or by deception, the land administrative department of the people’s government at or above the county level shall order him to return the illegally occupied land and dismantle the new houses on the illegally occupied land within a time limit.” Therefore, if rural villagers illegally occupy agricultural land to build houses, the land administrative department of the local people’s government at or above the county level shall order them to return the land and dismantle the houses within a time limit.
The ruling of the first and second instance made a major error in the determination of the nature of the case.
Strictly speaking, the court of first instance rejected the prosecution of the whole case without explanation for the unqualified cases of some defendants, which is not in line with the provisions of Article 22 of the administrative procedure law that “if the people’s court finds that the cases accepted are not under the jurisdiction of the court, it shall transfer them to the people’s court with jurisdiction”, and should be seriously corrected..
Legal representative: Ying Guohong, director of the Bureau.
Address: No.
The court formed a collegial panel to examine the case according to law, and the examination has been concluded.
Legal representative: Wang Luan, director of the sub district office.
Respondent (defendant of first instance and appellee of second instance): Binjiang District People’s Government of Hangzhou City, Zhejiang Province.
In this case, Wu Lifa filed a lawsuit because he believed that the act of forcibly demolishing his house jointly by Binjiang District government, Puyan sub district office and Binjiang Urban Management Bureau was illegal.
According to the report on rural private building land and the actual situation of the house involved in the case, Puyan Street office believes that the house involved in the case is an illegal building, and then organized and implemented the forced demolition on its own in accordance with the provisions on the disposal of illegal buildings in Zhejiang Province.
1381 administrative ruling on December 13, 2018: rejected the appeal and upheld the ruling of first instance.
Wu Lifa’s house does not have any excess area, which is a legal building.
2.
After Wu Lifa refused to accept the appeal, the higher people’s Court of Zhejiang Province made (2018) zhxz No.
Wu Lifa applied to the court for retrial, requested to revoke the ruling of first and second instance, and brought the case to trial according to law or instructed the lower court to retrial.
The court believes that the core issue of this case is whether the defendant is qualified and whether the judgment method of the court of first instance is correct.
The government is responsible for the illegal expropriation of the project in accordance with the law.
☑ Judgment document administrative ruling of the Supreme People’s Court of the people’s Republic of China (2019) supreme law Xingshen No.
100, Jiangnan Avenue, Binjiang District, Hangzhou, Zhejiang Province.
Legal representative: Li Zhilong, head of the District People’s government.
The sub district office admits that it organized the implementation of forced demolition, so the prosecution of the party against the county-level government lacks factual basis.
