Illegal demolition of houses that have not been identified as illegal by legal procedures shall be compensated according to the market value.

1. Illegal buildings generally refer to "public laws" such as the Land Administration Law and the Urban and Rural Planning Law. However, from the perspective of "private law" in the Civil Code, its property attribute cannot be denied because it violates the provisions of urban and rural planning, and its legitimacy cannot be denied until the competent authorities identify it as an illegal building according to legal procedures. The forced demolition of houses by administrative law enforcement organs will inevitably cause property damage to the obligee, who has the right to obtain administrative compensation according to law.

2. Presumption that houses that are not recognized by the competent authorities are legal, and compensation according to the standards of legal buildings, which embodies the spirit of judicial protection of property rights and punishment of administrative organs for illegally exercising their functions and powers. When determining the compensation standard, the administrative compensation obtained by the obligee should not be lower than the compensation obtained by legal demolition, that is, it should not be lower than the market value of similar houses in the lot at the time of compensation. If it is impossible to determine the loss of the party concerned due to objective reasons, the people's court shall, in combination with the litigant's claim and the evidence of filing a case, follow the professional ethics of the judge, use logical reasoning, life experience and common sense, and determine the amount of compensation as appropriate, which is more conducive to solving the problem fairly and justly and ensuring the timely and just relief of the party concerned.

Case index

First instance: No.3 People's Court of Kashgar City, Xinjiang Uygur Autonomous Region (May 30, 2020) 3 10 1.

The second trial: The Intermediate People's Court of Kashgar, Xinjiang Uygur Autonomous Region (2020) No.31line ends (2020165438+1October 28th).

Application for retrial: Higher People's Court of Xinjiang Uygur Autonomous Region (202 1) Shendi 18 (202165438+129 October)

primary facts

Applicant for retrial (defendant in the first instance and appellee in the second instance): Kashgar City Administration Bureau.

Respondent (plaintiff of first instance and appellant of second instance): Jiang Moulong.

Since 199 1, Jiang Moulong has been living in a bridge area of a road in Kashgar (formerly a prefabricated factory). 1On August 23, 1996, Kashgar No.1 Construction Company (Party A) signed a land use lease contract with Jiang Moulong (Party B) to lease 34.6 mu of land on the west side of a prefabricated factory to Jiang Moulong for use. The lease period is from August 1996 to August 1. 2065438+On August 7th, 2009, Kashgar City Administration Bureau (hereinafter referred to as Kashgar City Administration Bureau) considered that the 1524.9 m2 building built by Jiang Moulong on the above road section was illegal without any formalities. In violation of Article 40 of the Urban and Rural Planning Law of People's Republic of China (PRC) (hereinafter referred to as the Urban and Rural Planning Law) and Article 35 of the Measures for the Implementation of the Urban and Rural Planning Law of People's Republic of China (PRC) in Xinjiang Uygur Autonomous Region, the Notice of Illegal Construction (No.0807) was made according to law, and served on Jiang Moulong on the same day, telling him to dismantle it within a time limit. On August 3, 20 19, 19, Kashgar Urban Management Bureau demolished 400 square meters of self-built houses in Neijiang. On August/5, 2005, Kashgar Urban Management Bureau issued the administrative penalty decisionNo. 1002 on August/5, 999. 20 1906 According to the provisions of Articles 40 and 64 of the Urban and Rural Planning Law, Jiang Moulong was given a time limit of 3 days to dismantle illegal buildings by himself, and was informed that the punished person could make statements, defend himself and request a hearing within 3 days from the date of receiving the notice. On August 17, Jiang applied for a hearing to Kashgar Urban Management Bureau. Jiang Moulong believed that the demolition of his 400-square-meter house by Kashgar Urban Management Bureau was illegal and caused losses, so he appealed to the court to confirm that the demolition was illegal according to law and ordered compensation of 605,000 yuan.

Referee result

The court of first instance held that, according to the Reply of the People's Government of Xinjiang Uygur Autonomous Region on Carrying out the Work of Relatively Centralized Administrative Punishment in Kashgar, the Kashgar Urban Management Bureau is the working department of the Kashgar Municipal People's Government and exercises specific powers in a centralized manner. 1.20 19 On August 7th, Kashgar Urban Management Bureau issued the Notice of Illegal Construction (No.0807). From the content point of view, this behavior belongs to administrative punishment and must follow the legal punishment procedure. However, the Kashgar Urban Management Bureau failed to perform the notification procedure before making the punishment decision, and did not hold a hearing after Jiang Moulong applied for a hearing. Moreover, the Kashgar Urban Management Bureau did not submit the original evidence during the trial, which did not meet the documentary requirements. To sum up, it is illegal for Kashgar Urban Management Bureau to forcibly demolish Jiang Moulong's house. 2. According to the provisions of Articles 40 and 64 of the Urban and Rural Planning Law, the building involved 1524.9 square meters is an illegal building without the approval of the relevant government departments. Illegal buildings should have been demolished, which is not a legitimate right. Jiang Moulong's request for compensation from Kashgar Urban Management Bureau for the 400-square-meter house involved in the demolition was not supported according to law. Due to illegal demolitions, the items stored in the house caused an economic loss of 5,000 yuan. Kashgar Urban Management Bureau failed to provide relevant evidence that the items in the house had been removed, so it supported Jiang Moulong's claim for compensation for the economic losses caused by the items in the house. Therefore, a judgment was made according to law: First, it was confirmed that the forced demolition of Jiang Moulong's house by Kashgar Urban Management Bureau was illegal; 2. Kashgar Urban Management Bureau compensated Jiang Moulong for the economic loss caused by the items in the house of 5,000 yuan; Third, reject Jiang Moulong's other claims.

Jiang Moulong refused to accept the above judgment and appealed to the Intermediate People's Court of Kashgar, which held that: 1. According to the provisions of the Urban Planning Law, the administrative department of urban planning where the house is located has the right to identify illegal buildings, but the Kashgar Urban Management Bureau did not provide evidence to prove that it had asked the planning department for advice on whether the house involved was illegal. Kashgar Urban Management Bureau only takes the notice of illegal buildings as the basis of administrative law enforcement, and finds that the facts are unclear and the law is wrong. Therefore, the Kashgar Urban Management Bureau forced the demolition of Jiang Moulong's 400-square-meter self-built house, and did not make a forced demolition decision or make a written notice. Its forced demolition violated legal procedures. 2. The certificate issued by Xinjiang Kashgar River Basin Administration confirmed that Jiang Moulong agreed to carry out flood control, pit filling, land leveling, tree planting, fish pond excavation, residential building, chicken coops and duck sheds in the area involved. According to the principle of trust protection, Jiang Moulong's legitimate trust interests should be protected, and Kashgar Urban Management Bureau should compensate for the illegal demolition of his house. As for the amount of compensation, since Kashgar Urban Management Bureau has no objection to the demolition of the house as a brick-concrete structure, and the house is self-built, the court of second instance comprehensively considers the geographical location of the house involved, the use of the house and the fluctuation of real estate price, and the compensation amount shall not be lower than the compensation amount at that time, and the discretionary price is 1500 yuan/square meter. Jiang Moulong sued for compensation for the compensation price of the house involved 1500 yuan/m2, totaling 600,000 yuan, which conforms to the economic law and market value law of Kashgar. Therefore, the judgment was made according to law: 1. Maintain the first, second and third items of the third line of the administrative judgmentNo. (2020) 3 10 1 made by the People's Court of Kashgar City, Xinjiang Uygur Autonomous Region; 2. Kashgar Urban Management Bureau compensated Jiang Moulong for a loss of 600,000 yuan.

Kashgar Urban Management Bureau refused to accept the above judgment and applied to Xinjiang High Court for retrial. Xinjiang Higher People's Court held that: 1. Before the Kashgar Urban Management Bureau demolished the house involved in Jiang Moulong's case, the Kashgar Urban Management Bureau or other administrative organs with relevant powers did not make relevant decisions on whether the house involved was illegal. Under this circumstance, it is obviously illegal for Kashgar Urban Management Bureau to demolish the houses involved. 2. As the demolition of Jiang Moulong's house by Kashgar Urban Management Bureau is illegal, Kashgar Urban Management Bureau shall bear the corresponding liability for compensation according to the provisions of the State Compensation Law of People's Republic of China (PRC). Since the house involved has not been legally recognized as an illegal building, for the purpose of protecting the legitimate rights and interests of the parties, considering that the house involved has been lost and cannot be evaluated, the court of first instance comprehensively considered the geographical location, housing use, real estate price fluctuation and other factors of the house involved, and determined the value of the house involved as 1500 yuan/square meter based on the principle that the compensation amount should not be lower than the compensation amount. Kashgar Urban Management Bureau did not count the items in the house during the demolition and did not properly arrange them. Jiang Moulong claimed that the loss in the house was 5,000 yuan, which was within a reasonable range. According to Jiang Moulong's claim, the court of first instance found that there was nothing wrong with the loss of 5,000 yuan in the house. Xinjiang Higher People's Court ruled that the retrial application of Kashgar Urban Management Bureau was rejected.

Case notes

This case involves the nature of the building that has not been recognized by legal procedures, and the administrative compensation caused by the illegal demolition of the above-mentioned buildings. The author thinks it is necessary to examine the legality of the forced demolition behavior made by administrative organs, and determine the principle and amount of administrative compensation from two aspects: protecting the rights and interests of the administrative counterpart and embodying the punishment for illegal administrative acts.

I. Definition and identification institutions and procedures of illegal buildings

1. At present, there is no clear concept of illegal building in Chinese laws and regulations, and the concept of illegal building is not unified in academic circles. However, it is generally believed that illegal buildings objectively violate the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations, which are manifested in illegally occupying land for construction or failing to obtain legal construction permits such as construction project planning permits, or building buildings and structures without authorization according to the provisions of construction permits.

2. According to the relevant provisions of the Land and Land Management Law of People's Republic of China (PRC), if agricultural land is changed into construction land without authorization in violation of the overall land use planning, the land administrative departments of the people's governments at or above the county level shall dismantle the newly built buildings and other facilities on the illegally transferred and occupied land within a time limit, restore the land to its original state, and confiscate the newly built buildings and other facilities on the illegally transferred and occupied land if they conform to the overall land use planning. Article 64 of the Urban and Rural Planning Law stipulates that the competent department of urban and rural planning of the local people's government at or above the county level shall order the construction to stop without obtaining the construction project planning permit or failing to carry out the construction in accordance with the provisions of the construction project planning permit; Unable to take corrective measures to eliminate the impact, it should be removed within a time limit. If it cannot be demolished, the real object or illegal income shall be confiscated, and a fine of less than 10% of the project cost may be imposed.

In order to accurately apply the law and make a decision to dismantle illegal buildings within a time limit, we must seriously consider the scope of application, objects and specific powers given to different administrative organs of the above-mentioned laws. The land administrative department has the right to identify and punish the illegal occupation of land for building houses, while the urban and rural planning department, as the planning approval unit for planning, supervising the implementation and construction projects, has the right to identify whether the building violates the planning and constitutes an illegal act. The comprehensive law enforcement organs of urban management administration (hereinafter referred to as administrative law enforcement organs) exercise the power of administrative punishment in a centralized way, and investigate and deal with illegal buildings according to the procedures stipulated in the Administrative Compulsory Law of the People's Republic of China, but they do not have the authority to determine whether the buildings are illegal. Administrative organs should cooperate with each other and exercise their functions and powers according to different legal provisions.

3. Forced demolition of illegal buildings is a typical administrative coercion, which will cause irreparable and serious consequences to the property of the administrative counterpart, and the procedural provisions of administrative coercion must be strictly observed. According to the provisions of the Urban and Rural Planning Law and the Administrative Enforcement Law, the urban and rural planning department should first determine whether the suspected illegal building violates urban and rural planning and should be demolished; Secondly, the competent department of urban and rural planning shall make a written decision to order the demolition within a time limit, and the parties shall dismantle the illegal buildings themselves. At the same time, inform the parties concerned about the facts, reasons and basis, and listen to the statements and arguments of the parties; Third, if the party concerned fails to dismantle the illegal building within the statutory time limit, the people's government shall instruct the relevant departments to forcibly dismantle the illegal building. Before making a decision on enforcement, the administrative organ shall urge the parties to perform their obligations in writing, and listen to the statements and arguments of the parties by means of a combination of announcement and reminder. The reminder and the decision on administrative enforcement shall be served directly on the parties; Fourth, if the parties still refuse to dismantle it within the time limit, they can start the compulsory demolition procedure and forcibly dismantle it according to law.

Two, without the competent authorities in accordance with the procedures identified as illegal houses were illegally demolished by administrative organs, the right holder has the right to compensation according to law.

Illegal building generally refers to the violation of land management law, urban and rural planning law and other "public laws", but from the perspective of "private law" such as the Civil Code, it cannot be denied its property attribute just because it violates the urban and rural planning regulations, nor can it be denied its legitimacy before the competent authorities identify it as illegal building according to legal procedures.

First of all, building a house is a factual act. Although the builder can obtain the legal ownership of the house without administrative registration without obtaining the examination and approval procedures for construction planning, it does not affect the original possession and use right of the house due to construction. The builder's actual possession of the house is a real right interest protected by the Civil Code. In order to maintain the stability of social life order and property order, anyone, including administrative organs, is prohibited from infringing on its "possession". Secondly, administration according to law requires administrative organs to carry out administrative management according to the provisions of the Administrative Law and the Administrative Organization Law, that is, administrative organs should not only determine their functions and powers, but also determine their procedures according to law. Forced demolition of houses that have not been recognized as illegal by the competent authorities is manifested in two aspects: First, it goes beyond the statutory authority. The law cannot be done without authorization. Administrative law enforcement organs have no authority to identify illegal buildings, and when making administrative penalties, they identify houses as illegal buildings, which constitutes ultra vires; The second is violation of legal procedures. According to the above-mentioned legal procedures for identifying and dismantling illegal buildings, it is a violation of legal procedures to fail to identify the nature of the suspected illegal buildings, or to make a decision to dismantle or enforce them within a time limit, or to go through a reminder procedure and fail to protect the rights of the parties to state and defend themselves. At the same time, because the nature of the suspected illegal building has not been identified, the forced demolition behavior is not supported by sufficient and conclusive evidence, and there is no factual basis in entity.

The State Compensation Law stipulates that if an administrative organ and its staff illegally exercise administrative powers and cause property damage, the victim has the right to compensation. The forced demolition of houses by administrative law enforcement organs will inevitably cause property damage to the obligee, and the builder or actual occupant of the house has the right to obtain administrative compensation according to law. The above is the legal basis of private law and public law for the obligee to obtain compensation for illegally demolished houses that have not been identified as illegal by legal procedures of the competent authorities.

Three. Determination of compensation standard and compensation amount for illegal house demolition not determined by the competent department according to legal procedures.

There are different views on how to determine the compensation standard and amount of property losses caused by illegal forced demolition. One view is that the demolished houses violate the laws and regulations related to construction planning and are illegal from the beginning. Neither can it become a legal building, nor can the parties obtain legal ownership through administrative registration. Although forced demolition violates legal procedures, it does not have a substantial impact on the illegal nature of houses. Therefore, only according to the compensation standard for the demolition of illegal buildings, the losses of building materials and articles in the house should be compensated. Another view is that the legitimacy of the demolished houses cannot be denied without the confirmation of the competent authorities. In order to protect people's property rights and interests, and to reflect the punishment for illegal administrative acts, the demolished houses should be presumed to be legal buildings and compensated according to the market value. The author agrees with the second view for the following reasons: 1. Without the confirmation of the competent authority, it means that the nature of the house has not been confirmed by legal procedures at all, and the people's court cannot deny its legitimacy in compensation standards because there are no relevant procedures for construction planning. If the building materials are compensated only according to the compensation standard for illegal buildings, then the demolished houses are actually identified as illegal buildings in disguise; 2. Claiming that the demolished house is an illegal building and making compensation according to the demolition standards of illegal buildings has no factual and legal basis, which may constitute another illegal act; 3. Curbing public rights and protecting private rights are the basic requirements for the construction of a government and a society ruled by law. Presumption of houses that have not been recognized by the competent authorities is legal, and compensation according to the value of legal buildings embodies the spirit of judicial protection of property rights and punishment of administrative organs for illegally exercising their functions and powers.

When determining the compensation standard, the administrative compensation caused by illegal forced demolition of houses should not be lower than that caused by legal demolition, that is, it should not be lower than the market value of similar houses in the lot at the time of compensation. As the house has been demolished, it is impossible to determine the value of the house through evaluation. According to the third paragraph of Article 47 of the Supreme People's Court's Interpretation of Application, if the losses of the parties cannot be determined due to objective reasons, the people's court shall determine the amount of compensation as appropriate, in combination with the claims of the parties and the evidence for filing, following the professional ethics of the judges, using logical reasoning, life experience and common sense. For the house demolished in this case, the people's court, according to the compensation request of the obligee, combined with the factors such as the structure, area, geographical location and local market value of the house, fully considers the losses of the parties and determines the compensation amount, which is more conducive to solving the problem fairly and justly and ensuring the timely and just relief of the parties.

When an administrative organ illegally demolishes a house that has not been identified as illegal by legal procedures, it should compensate it according to the market value of the legal building, which embodies the protection of the property rights and interests of the parties in administration according to law and the concept that "the right must be responsible, the right to use it is supervised, the violation must be investigated and the infringement must be compensated".