Beijing court case: can villagers’ houses without planning permission be demolished according to illegal buildings [key points of judgment] 1
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Rural construction projects shall obtain planning permission according to law
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However, based on the particularity that villagers’ houses are used to meet the basic living needs of villagers, administrative regulations also require the administrative organ to order the opposite party to go through the formalities
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This system design considers the historical evolution and practice of “reusing land approval and neglecting planning approval” for villagers to build houses on homestead in rural areas for a long time
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Therefore, it is of great significance
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2
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Different from the general illegal occupation of land for building houses, it is reasonable for villagers to build houses based on their trust in the government after obtaining the collective land construction land use certificate
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3
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At present, the township government is the examination and approval authority of villagers’ residential land
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Even if the procedures of the collective land construction land use certificate held by villagers are imperfect, as the examination and approval authority, it should actively perform its duties and improve the procedures
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After the start of the shed reform project, the township government demolished villagers’ houses without completing the relevant procedures, which is suspected of replacing demolition with demolition
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4
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It has been a common situation in most rural areas for a long time that villagers build houses on the homestead without obtaining the planning permit
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If the administrative organ does not treat equally, it will not only damage the credibility of the government, but also ignore the legitimate interests of the administrative counterpart【 [judgment document] administrative judgment of Shunyi District People’s Court of Beijing (2020) Jing 0113 xingchu No
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394 plaintiff Chen, female, born on August 29, 1954, Han nationality, resident of Shunyi District, Beijing, residing in Shunyi District, Beijing, ID No ×××。 Entrusted agent: Zhu Lu, lawyer of Beijing Jingshun law firm
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Entrusted agent Zhang Wenjun is a trainee lawyer of Beijing Jingshun law firm
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The defendant, Yang Town People’s Government of Shunyi District, Beijing, is domiciled in * * Government Street, Yang Town, Shunyi District, Beijing, with unified social credit code 11110110793420776b
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Legal representative: he Changhua, mayor
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Entrusted agent Li Haijun, a staff member of the people’s Government of Yang Town, Shunyi District, Beijing
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Entrusted agent: Qiao congren, lawyer of Beijing Shunxin law firm
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The plaintiff Chen sued the defendant Yang Town People’s Government of Shunyi District of Beijing (hereinafter referred to as Yang town government) for compulsory demolition of houses and facilities
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After filing the case on October 10, 2020, the court served a copy of the indictment and a notice of response to the lawsuit to the defendant Yang Town government within the statutory time limit
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The court formed a collegial panel according to law and heard the case in public
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Zhu Lu and Zhang Wenjun, the entrusted agents of the plaintiff Chen, and Li Haijun and Qiao, the entrusted agents of the defendant Yang town government, attended the court from person to person
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The trial of this case has been concluded
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On September 5, 2020, Yang town government will Chen in Shunyi District, Beijing × region × village × road × The houses and photovoltaic power generation equipment built on No
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1 were forcibly demolished
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Chen claimed that Chen was from Shunyi District, Beijing × town × Villagers of the village obtained the homestead registration card and collective land construction land use certificate issued by Yang town government in February 2016
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On September 4, 2020, Yang Town Government delivered (2020) No
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47 decision on forced demolition to Chen
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The main contents are as follows: Yang town government targeted Chen in Shunyi district × town × For the brick concrete buildings built in the village, the decision on demolition within a time limit and notice of reminder were issued to Chen on September 2 and September 3, 2020, requiring Chen to demolish the buildings on the homestead before September 4, 2020
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Since Chen did not demolish them on September 4, 2020, Yang Town government decided to demolish the houses involved on September 5, 2020
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At 15:10 on September 5, 2020, Yang town government forcibly demolished all the houses involved and their attached photovoltaic power generation facilities
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Before the forced demolition, Yang town government never served Chen with the decision on demolition within a time limit and the notice of reminder, resulting in Chen losing his right to make statements and plead, failing to announce the decision on forced demolition on the site within a reasonable time, and the demolition object is the house on the homestead where Chen has the legal right of use and residence
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The day of forced demolition is a legal holiday
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The decision on compulsory demolition violates the legal provisions in terms of procedure, substantive content and specific implementation
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To sum up, Yang town government has seriously violated Chen’s legitimate rights and interests
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Therefore, the prosecution, request: 1
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Confirm that the Yang town government forcibly demolished Chen on September 5, 2020, which is located in Shunyi District, Beijing × region × village × road × No
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600 square meter house and photovoltaic power generation equipment are illegal; 2
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Yang Town Government shall bear the litigation costs of this case
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The evidence submitted by Chen to the court and presented in court within the time limit of proof is: 1
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Receipt to prove the origin of Chen’s homestead
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2
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A copy of the residence booklet to prove that Chen is × town × The villagers of the village
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3
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(2020) No
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47 decision on forced demolition proves that Yang town government has not made a notice of forced demolition five days in advance at the forced demolition site
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Chen has never received the demolition restriction notice and reminder notice mentioned in the decision
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Even if he received the demolition restriction notice, he was only less than 3 days away from the defendant’s forced demolition, depriving Chen of his right to make statements and pleadings
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The collective land construction land use certificate and homestead registration card prove that the land involved in the case is the homestead where Chen legally enjoys the right to use and residence, and the forcibly demolished building is Chen’s only residence
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5
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The CD-ROM proves that the house involved in the case has been demolished by Yang town government
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The day is a legal holiday Saturday
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Yang town government argued that: first, Yang town government has the right to dismantle × town × village × road × Legal responsibilities of House No
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According to Article 65 of the urban and rural planning law of the people’s Republic of China (hereinafter referred to as the urban and rural planning law): if a rural construction planning license is not obtained according to law or the construction is not carried out in accordance with the provisions of the rural construction planning license in the township or village planning area, the township or town people’s Government shall order it to stop the construction and make corrections within a time limit; If it fails to make corrections within the time limit, it may be demolished
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According to the provisions of the above laws and regulations, Yang town government has the legal responsibility to dismantle illegal construction for its failure to obtain the rural construction planning license according to law and fail to correct within the time limit
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2、 Demolition of Yang Town Government × town × village × road × The applicable laws of House No
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1 are correct and the procedures are legal
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According to Article 29 of the regulations of Beijing Municipality on urban and rural planning, this Municipality implements the planning permission system according to law
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All construction land and construction projects shall comply with urban and rural planning and obtain planning permission according to law
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Yang town government is demolishing × town × village × road × Before House No
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1, the on-site inspection record, on-site inspection record, inquiry record and letter on confirming the planning approval of buildings built by Chen were made according to law
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After verification, Chen did not obtain the planning permit, which was an illegal construction
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According to law, Chen was served with (2020) No
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47 decision on demolition within a time limit
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Chen did not demolish himself within the specified time limit
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After Yang town government served a notice of reminder to Chen and informed Chen that he had the right to make statements and defend, it served a decision on compulsory demolition to Chen and demolished it
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Video recording shall be taken during demolition
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The demolition behavior complies with the provisions of articles 35 and 37 of the administrative enforcement law of the people’s Republic of China (hereinafter referred to as the administrative enforcement law) and Article 17 of the provisions of Beijing Municipality on the prohibition of illegal construction
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The above procedures are legal
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To sum up, Yang town government demolished × town × village × road × The facts of the act of House No
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1 are clear and the applicable law is correct
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Chen’s claim has no factual and legal basis
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He requests the court to reject Chen’s claim according to law.
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