Written Time: June 22, 2019
Overview of the case:
In 1986, Yang crossing from the west to the farm price of 2400 yuan to buy the breakout team of the old house garden barn (involved in the building). In August 2003, the East Metro affordable housing project started, involving building within the scope of the demolition, unable to determine the original area before expansion (presumably after Yang has changed after purchase involved the construction, expansion), farm development and construction of headquarters meeting decided the buildings involved in legal terms of floor area 135 square meters, the two sides signed a "relocation compensation agreement" to determine the amount of compensation totaling 14 million yuan.
After the agreement is signed, due to the Yang believes the legal area and the amount of compensation calculation is unreasonable, refused to cooperate with the demolition. In 2005, Furong District People's Court (2005) Line Fu Zhi Zi No. 358 of determining an application Changsha City Land Resources Bureau, and in 2005 May 18 forced removal of the involved buildings.
The following attempts to discuss the case on several key issues:
First, the limitation period issue of administrative proceedings in the case
"People's Republic of China Administrative Procedure Law '(2017 amendment) Article 46 stipulates:" Citizens, legal persons or other organizations filed a lawsuit directly to the people's court shall make knows or should know within six months from the date of the administrative act except as otherwise provided by law. proceedings on cases related to real property from the date of the administrative act to make more than two decades, in other cases since the date of making administrative acts more than five years of litigation, the people's court shall not accept. "
Yang on August 22, 2003 signed the "relocation compensation agreement" with the Furong District land acquisition and relocation firm, its buildings were demolished in 2005, May 18 Furong District people's Court.
Yang indicated that the petition for material acquisition and demolitions of behavior is informed from start to finish, the case has already gone beyond "to make day administrative act within six months" prescribed limitation period of the people's court will not be accepted.
Second, the question of the legality of the expropriation procedure
About the collection procedures "East Metro" affordable housing projects, the government can master file has the following several:
- "Land and Natural Resources Annual 2001 third batch of Changsha City Construction agricultural land conversion and land acquisition approval," Guo Tu Zi Han [2001] 483
- "Hunan Provincial People's Government of agricultural land conversion and approval of land acquisition alone," September 10, 2001
- "Changsha Municipal People's Government of national construction land acquisition approval of a single" December 11, 2001
- "Changsha Municipal People's Government land acquisition program notice" ([2001] No. 11) December 31, 2001
Due to the limited material, difficult to judge whether there is a significant collection procedures illegal place. And, due to the acquisition and relocation occurred relatively long time, related materials collection difficult.
Third, the question of the legality of the demolitions program
"Land Administration Law of the People's Republic of China Regulations for the Implementation" (implemented since 1999) Article 45 states: "The violation of land management laws and regulations, to obstruct national construction land acquisition shall be ordered by the people's governments above the county level land administrative departments to hand over the land; refuse to hand over the land, apply to court for enforcement "," Changsha City land compensation Ordinance "(1999 onwards implementation) Article 47 states:" the violation of these regulations, the levy local obstruct national construction. expropriation of land, the municipal, county (city) land administrative departments of people's governments shall order the demolition Teng;. overdue demolition Teng, and apply to court for enforcement, "
Yang on August 22, 2003 and Furong area land acquisition and relocation firm signed a "relocation compensation agreement", which agreed to Yang, "Teng demolition should be completed before 2003 to work in September 2." the agreement is both true intention, does not violate the law, established by law and effective.
October 10, 2004, to do the demolition had Furong District court request Yang Teng, after the case has been closed to do the demolition withdrawal.
March 15, 2005, Changsha City Land Resources Bureau issued to Yang, "Teng deadline decision" (Guo Tu Zi Teng Long (2005) No. 6), limit Teng Yang fifteen days overdue will apply for court enforcement . 2005 March 28, Furong District, Changsha, land acquisition and relocation firm issued a "Report on the law on compulsory according to the procedure Yang Teng-family homes decisions apply to the people's court" in Changsha City Land Resources Bureau. Thereafter, Changsha City Land Resources Bureau to apply Furong District court for enforcement, the Court made (2005) Fu Zhi Zi No. 358 line ruling, permit enforcement.
2005 May 11, Furong District, Changsha City People's Court issued a "notice" to the Yang and rental households, Yang limit on or before May 14, 2005 demolition Teng, limited rental households in 2005 before May 16 move out on their own.
2005 May 18, Furong District, Changsha City People's Court case involving the forced removal of the building.
Forced removal program in line with "Land Administration Law of the People's Republic of China Regulations for the Implementation", the provisions on mandatory urban housing demolition program "Urban Housing Demolition Management Regulations" and "Changsha City land compensation and resettlement regulations" that there were no obvious breach of the law.
Fourth, with regard to qualify the question of legal construction area of 135 square meters
Yang household construction area of 524.4 square meters, construction area of 135 m2 legally recognized.
According to related statistics: "West Ferry Street, formerly known as Changsha City State-owned West Ferry Farm, founded in 1959, is a state-owned land reclamation enterprises, was placed under the jurisdiction of the 1996 zoning adjustment Furong District in September 1998, West Ferry Street office. formally retained Changsha City state-owned West ferry farm architecture, the implementation of two brands, a Sagittarius management model. "outskirts of Changsha City, formerly municipal districts. Established in 1950, in 1996 the city administrative division adjustment revoked, the administrative system inherited by the newly established Yuhua District. Involved in the original building in the outskirts of Changsha City West Ferry Farm, it falls within the scope of the city area. Administrative Division for the Furong District of West Ferry Farm, still belong to the city area.
According to paragraph 2 of Article V, "Implementation Measures of Changsha City land compensation and resettlement regulations" (Changsha Municipal People's Government No. 60): "area within the city of ......, before March 31, 1982 the construction of the building, not been renovated or expanded, according to the legal treatment of the building. the provisions of Article "and Furong district government," the villagers historic property rights confirmation and registration and certification approach "(Fu Zheng Ban Fa [2000] No. 26) Section : "before 31 March 1982 without the original construction Committee approved the outskirts of historic buildings (with the original 1987 land Bureau outskirts of non-agricultural land inventory data subject), not later were to turn, change , expansion, construction as legitimate. "Changsha City land Bureau in 1987, the suburbs of non-agricultural land within the original jurisdiction to do a check and registration, plant demolition involved in the original West ferry farm 50's breakout farms. (Guess: after Yang in 1986 bought the farm from the farm, has been changed based on the original expansion) since the farm archives, archives were not found in the bureau of census map of the house, could not be verified the actual area of the plant when the case is registered in the 1987 inventory, farm development and construction of headquarters It was decided by 20 m2 / person + 15 square meters × 4 person miscellaneous compensation standard house, calculate the legitimate construction area of 135 square meters. The formula for calculating farm development and construction of headquarters did not find basis.
After the field before the demolitions measure the relevant departments involved in building real area of 172.48 square meters, in 2006, the relevant departments to supplement household legitimate area of 37.48 square meters Yang (172.48 square meters -135 square meters).
Five facts about Yang for wounding of
After April 2006, Yang bought a fierce hatred, any development and construction of West Ferry Street office headquarters Resettlement Office Director Yang 2 pre-injury, a hatred of money, the fact that for wounding the Yang informed 2 Yang Yang 2 report.
May 11, 2006, Yang was arrested, after being sentenced to one year in prison.