This case sponsors one of lawyers: Duan Fuhui
Beijing tears open change, building of violate the rules and regulations, construction uses the land, the farm is rented, forced releasing
Building of violate the rules and regulations was to disobey " land management method " , " law of urban and rural program " the set and makes fabric that waits for relevant law laws and regulations. Building of violate the rules and regulations can be divided it is two kinds, it is to disobey " land management method " , did not acquire the fabric that construction uses ground access and makes; 2 it is to disobey " law of urban and rural program " , did not obtain program license to perhaps disobey program license, do sth without authorization enjoys the fabric that makes on the land that builds the access that use the land in oneself.
The branch of land administration director of government of people of place of prefectural class above and urban and rural program are in charge of a branch or government of people of countryside, town is processing respectively administration of architectural of violate the rules and regulations of city and countryside, village is in charge of a branch, it is architectural of violate the rules and regulations affirms mechanism,
Details of a case answers put:In October 2011 the middle ten days of a month, write in a complexion full middleaged man comes to angst hesitant to law place, entrust the lawyer such as Duan Fuhui to save its to be pressed down government " tear open violate " the farm of finish!
Original, in January 2003, 14 mus of land that Beijing arranges slope of justice area horse to press down cooperation of economy of village of goverment office in feudal China to will be located in this village northwest position contract Ma Feng (alias) , do cultivate breed use, contract deadline is 30 years. March 2006, because Ma Feng is managed feebly, will afore-mentioned contracting the subcontract of 9 mus of land in the ground gives Liu Chang (alias) , passed committee of villager of village of goverment office in feudal China agree. In September 2008, after agreeing via talking things over with committee of villager of village of goverment office in feudal China, liu Chang will afore-mentioned contract 9 mus the ground is implicative the building on the ground of 500 much square metre (You Mafeng was built 2003) subcontract gives Guo Yiyao (alias, namely Qian Shunan child) , transfer cost 500 thousand yuan. That day, guo Yiyao and committee of villager of village of goverment office in feudal China were signed " compensatory agreement " , one boast of conventional Guo and village appoint can form directly contract relation.
After the contract is signed, guo Yiyao according to contract the contract agrees construction of devoted and many capital breeds establishment, 2008 the end of the year begins to build cowhouse, milk hall, office, employee temporarily the establishment such as dormitory, storeroom is close 5000 square metre, and in July 2009 classics village appoint registered limited company of science and technology of Beijing XX biology jointly with meaning application.
In March 2010, "Water of hill illumination cage circles corridor, dance Yu Gui Yongchun wind is sweet " , the breed aquatics of limited company of science and technology of biology of Guo Yiyao Beijing XX infrastructure also all fronts complete. However, prepare to postpone great plan greatly in Guo Yiyao when, "Nightmare " come unexpectedly -- all limited company of science and technology of biology of its Beijing XX buildings below the circumstance that town people government is in Ma Po to did not undertake any announcements to Guo Yiyao are demolished compulsively.
After the event, guo Yiyao finds town government the cause that interrogatory without reason tears open a room, town government reply says, the building that be torn open did not obtain license of construction project program, belong to illegal construction.
The lawyer says case:Handle a case only part: The thematic song that appeal to
1.Disease is like meteoric prosecution
The attorney such as Duan Fuhui gets involved after the case, examined the entire agreement that contracts about land in detail. The name that boasts with client Guo subsequently court of people of Xiang Shunyi division mentioned administrative lawsuit, what request court affirms slope of the accused horse presses down people government to carry out is compulsive demolish " violate build " act violates.
In indictment, the 4 big illegal reason of behavior of forced releasing of case of lawyer enumerate experience:
① accuser and village of village of goverment office in feudal China appoint countersign is ordered contract when the agreement, there has been the building of 500 much square metres on this piece land, this building is peak of the first contractor horse contracted in January 2003 build after land, basis " law not go against the river and go to already " bright law, the accused has no right to give demolish;
The land that ② accuser contracts is to breed with the ground, and contract strictly according to land the agreement of the contract undertakes use, applied for to register limited company of science and technology of Beijing XX biology 2009, the program just when, and breed with the ground construction breed aquatics uses a room is not to need to build project program licence, the accused demolishs behavior compulsively to do not have legal basis;
The itself of land program use that ③ accuser contracts is construction uses the land, even if according to " law of urban and rural program " concerned regulation, go up to did not obtain the construction behavior that approve procedure and is to also need not want to adopt the administration that demolishs compulsively to punish measure like that with the ground in construction, "Passable take the effect that corrects measure to eliminate pair of programs to carry out " , ought to deadline is corrected. This case prosecutor place is built breed use a room and plan to carry out without the influence, just did not deal with formalities, need to fill only so do examine and approve formalities can, behavior of the accused forced releasing attributes undeserved administration action apparently;
④ the accused maintains the breed aquatics of accuser with the room demolish compulsively to break the law to build and give, attribute the action that administration punishs, but do not have however before this behavior is carried out notify prosecutor with any forms, the know the inside story that encroached accuser apparently counterpoises and state the right of averment, the program is illegimate.
2.The new evidence of the accused
In Feburary 2012 the first ten days of a month, arrange court of justice division people to made public open a court session to try Guo Yiyao to accuse Ma Po presses down people government to remove one record compulsively. In trying a process, government of well-prepared people of equestrian slope town submitted a new evidence -- " illegal construction demolishs advice note " , say: On March 25, 2010, all buildings that the accused inquires limited company of science and technology of biology of accuser Beijing XX from Beijing program committee did not obtain license of construction project program lawfully, make to accuser thereby " illegal construction demolishs advice note " , contract to accuser that day service has on the ground, because did not find plaintiff, stick this advice note at accuser to contract on the building of the ground. Because accuser was not inside the time limit that advice note sets,dismantle a structure by oneself, adopted then remove measure compulsively.
Apparent, the advice note that government of people of town of slope of the accused horse tries to pass have not of accuser of this one paper to had seen proves behavior of its forced releasing is division to go out famous, and the program just when. Nevertheless, this one " abrupt assault " wishful thinking fails finally start shooting, it is important to was caught two by the lawyer of eyes blazing like torches-blazing with anger instead information:
① " illegal construction demolishs advice note " the gules steel seal that inscribe place is building Ma Po to press down bourg construction division awesomely, the dispatch principal part that proves this announcement is Ma Po division of town bourg construction, and a branch that this is government of people of equestrian slope town only, not be administrative principal part, cannot make administrative action with his name external;
The limited company of science and technology of Beijing XX biology that ② accuser is not being removed lives, the accused is so called service " illegal construction demolishs advice note " when accuser also is absent limited company of science and technology of Beijing XX biology, this kind of circumstance issues the accused general " illegal construction demolishs advice note " " service taking place " not agree with in limited company of science and technology of Beijing XX biology the requirement of the service taking place that lawful law provides.
3.Spring adjudicated season in March
March 2012 the last ten-day of a month, in a spring scenery beautiful afternoon, court of people of Cong Shunyi division got Guo Yiyao " administrative report " . Inside judgment, collegiate bench adopted the point of view of Guo Yiyao's representative lawyer, make with the accused " illegal construction demolishs advice note " the fact presses down bourg to build inflict Ma Po to press down people government name to make according to inadequate, Ma Po " illegal construction demolishs advice note " misconduct, the accused is in accuser uses paste means service below not present condition.
Spring the footstep is ecbolic the flourishing of everythings on earth, forensic justice sentences the haze with the long already load one's writing with fancy phrases in whirling Guo Yiyao heart, keep the hope that look brand-new and faith only...
The lawyer comments on:" house of state-owned land main rooms is collected with compensation byelaw " after carrying out, "Tear open violate " the line of vision that one word takes to tear open worker of statute of change dimension authority widely with each passing day. Cannot leave two factors so:
One of, on the common sense that our country law provides " illegal building " , what basically disobey is " land management method " and " law of urban and rural program " the concerned regulation of the law, be in charge of sectional approval without the program, did not get build project program licence or build project program licence temporarily, building of architectural of do sth without authorization and build thing. In collective of our country big range land and Xiaofan surround state-owned land in, because economy of fluctuant, city grows the history at full speed,wait for objective reason, if the house limits his according to strict law provision lawful sex, be eliminated very hard to be in " illegal building " besides the category. So special national condition setting, the aleatoric sex that the not perfect, administration of together with jurisprudence executes the law two big austere and real questions, with " tear open violate " the solid barpque phenomenon of renown travel forced releasing is to think it is difficult to do not appear really.
Secondly, "Tear open violate " offensive is powerful, tear open change door to be without counteractive ability almost to this but character, because they cannot prove the lawful sex of own house from legal formally. And the branch that tear open change can borrow machine pull down the place building, reduce compensation thereby, it is not to give compensation even.
In this case, the breed aquatics that party Guo boasts did not obtain construction to plan to permit with the ground with the room, be returned to be " illegal construction " appear and do not have misgivings. But, the hall below this kind of circumstance and of emperor forced releasing behavior appropriate? The author thinks to be not like that.
The itself of land program use that Guo Yiyao contracts is construction uses the land, this is different from the house is built on farmland, if the house is built on farmland, it is to disobey " land management method " mandatory regulation, so administrative punishment measure can be to be demolished compulsively only, but what the room builds to did not approve procedure on the ground is use in construction, because do not affect a program to carry out, can fill so do examine and approve formalities. And if demolish 5000 square metre compulsively to just be built,end, have the building that breeds a function, on one hand the great waste that certainly will creates social natural resources, do not accord with " circular economy promotes a doctrine " regulation, boast to Guo on the other hand for, also show break fairness.
Relevant law" land management method "
The 53rd: Via the construction of approval the project needs to use state-owned construction to use the land, construction unit ought to support the relevant document that law, administrative regulations provides, to the government of people of prefectural class above that has approval right branch of land administration director puts forward to build the application that use the land, via land administration director branch is examined, sign up for this class people government to approve.
The 76th: Without approve or taking cheat method diddle is approved, take up illegally of land, by administration of land of government of people of prefectural class above director branch is instructed return the land that takes up illegally, will agricultural to disobeying land to use overall planning do sth without authorization ground instead construction uses the land, deadline demolishs the structure that builds on the land that takes up illegally and other facilities, reinstate land original state, use overall planning to according with land, confiscate the structure that builds on the land that takes up illegally and other facilities, can penalize a fund; Personnel of other to taking up the is in charge of directly director staff of land unit is mixed illegally direct responsibility, give disciplinary sanction lawfully; Those who make crime, investigate criminal duty lawfully.
" land management method " , " law of urban and rural program " although gifted,branch of land administration director and branch of director of urban and rural program build the power that makes processing decision to violate the rules and regulations, but implement power compulsively what law did not stipulate afore-mentioned executive authorities have violate the rules and regulations to build punishment, do not have architectural of formulary violate the rules and regulations to remove right compulsively more.
" administration is compulsive law "
The 53rd: Party does not apply for to administration is reconsidered or mention lawsuit of politics of start on a journey inside legal time limit, nonperformance administration decides, the executive authority that implements power compulsively without administration is OK inside 3 months since the day from deadline at the expiration of one's term of office, courtyard of this civil code of section provision applicant carries out according to compulsively.
This gifted the right that applies for a court to be carried out compulsively lawfully without the land department that implements power compulsively and branch of urban and rural program, also dismantling principal part of architectural of violate the rules and regulations compulsively clearly can be people court only, this regulation makes relevant service handles a decision to architectural of violate the rules and regulations is a mere scrap of paper no longer, have stronger operation sex however.
