14 Source: FAXIN Selection 6.
However, it is the legitimate rights and interests of the parties concerned to dismantle the available waste building materials in an appropriate and legal manner.
Court of Hearing: Supreme People’s Court Case No.: The building materials in the structures belong to the legal property of the parties and should be protected by law.
However, the construction itself is illegal, which does not mean that construction materials will also become illegal property.
If the administrative organ causes obvious unreasonable and excessive damage to building materials in the process of implementing forced demolition of illegal construction, it shall bear the corresponding compensation responsibility – Guo Guijun v.
The main idea of the case: If the opposite party does not demolish within the specified time limit when the demolition procedure is legal, it should be considered as giving up the ownership of building materials, The administrative organ shall not be liable for damages to building materials; In the case of illegal demolition, the violation status of the building is uncertain or although the violation status is determined, the opposite party can demolish by itself to maximize the protection of the real right value of the building materials.
Judgment gist 1.
The compensation shall be limited to the reasonable loss that may be reduced by building materials.
Beijing Pinggu District People’s Government Administrative Reconsideration Case Case Key point: 1.
Therefore, the scope of compensation is limited to the scope that can be remedied in theory, that is, the loss that can be reduced by the counterpart through self demolition.
Yantai Laishan District People’s Government, Yantai Laishan District People’s Government Jiejiazhuang Sub district Office The gist of the case of administrative compensation for Weizishan Provincial Nature Reserve Management Center in Laishan, Yantai City: the buildings are not legitimate because they have not gone through the approval procedures for construction land and planning, and should not be compensated after forced demolition..
If the administrative organ deprives the opposite party of the right to demolish by itself, it shall give appropriate compensation.
Source: People’s Court Daily, September 29, 2016, 7th Edition 2.
If the administrative organ deprives the opposite party of the right of self relief without legal notification procedure, which leads to the expansion of the loss of building materials, compensation should be made — The case of Tang against the law enforcement organ for the administrative act of compulsory demolition of urban and rural construction is illegal.
Court of Trial: Supreme People’s Court Case No.: The reasonable losses caused by illegal forced demolition and other factors should bear the corresponding liability for compensation — Wang Mou v.
Dongling District People’s Government of Shenyang City, Compulsory Removal of Ground Attachments and Administrative Compensation Case Case Essentials: Illegal buildings and structures do not belong to the scope of legal rights and interests.
If there are recyclable building materials in the process of dismantling illegal construction, the administrative organ shall give the party concerned the opportunity to clean up the residual value of the building by himself.
2.
In the case of administrative compensation, the plaintiff shall provide evidence for the damage caused by the administrative act.
If the compulsory demolition carried out by the administrative organ is illegal, and the legal property of the party concerned is damaged due to failure to fulfill the duty of due diligence and other reasons, the administrative organ shall bear the corresponding liability for compensation according to the reasonable value of building materials, the reasonable losses caused by the illegal compulsory demolition and other factors.
Court of Trial: Beijing No.4 Intermediate People’s Court Source: Beijing No.4 Intermediate People’s Court 2018 Top Ten Typical Administrative Trials 4.
If the plaintiff is unable to provide evidence due to the defendant, the defendant shall bear the burden of proof.
After the illegal building was demolished, there was no case of expansion of losses due to improper demolition methods, etc., and the value of building materials was not compensated — Chen Yalin v.
If the administrative organ forcibly demolishes in violation of the law and causes losses to the recyclable and used waste building materials, it shall make compensation according to law.
Court of Hearing: Shandong Higher People’s Court Case No.: (2017) LXZ No.
If the administrative organ illegally forcibly dismantles the building materials and causes the loss of recyclable and used waste building materials, it should be compensated according to law – Yan Lichen v.
For building materials that are integrated with the building and are not highly divisible, no matter who dismantles them, they will lead to damage of such building materials, and such building materials are not included in the compensation scope; For building materials that are independent and divisible though they are attached to illegal buildings, such as doors and windows, and whose value is less impaired after demolition, if they fail to fulfill the obligation of reasonable care and cause loss in the value of building materials, the administrative organ shall make compensation.
In the process of carrying out compulsory demolition of illegal construction, if the administrative organ violates the legal procedures and adopts inappropriate and improper means, resulting in obvious unreasonable and excessive damage to building materials, it shall bear the corresponding liability for compensation according to the reasonable value of building materials, reasonable losses caused by illegal compulsory demolition and other factors.
The compensation of the administrative organ should be commensurate with its fault, but the fundamental reason for the loss caused by illegal demolition is the illegal act of the counterpart.
Illegal construction itself does not belong to legal property rights and interests, and citizens, legal persons or other organizations should not support the administrative litigation to ask the administrative organ to compensate for the losses of illegal construction.
The construction materials belong to the legal property of the parties.
Beijing Chaoyang District People’s Government Administrative Reconsideration Case Keynote: illegal construction does not belong to legal property rights and interests, The demolition of illegal construction by administrative organs will naturally not result in state compensation.
If the legal rights and interests of the building materials of the parties are lost due to improper means and methods of forced demolition by the administrative organ, the administrative organ shall compensate according to law.
