Administrative appeal of house expropriation

Lead: House expropriation should be carried out in accordance with laws and regulations. The following is my model essay on administrative appeal of house expropriation, for your reference.

Appellant DDD, female,

Appellant AA, male,

The defendant, ZZ District People's Government of XX City, has its domicile in XX City.

Legal Representative: Wang, District Chief.

Appellants DDD and AA filed an appeal in accordance with the law because they refused to accept the administrative ruling No.00007 of XX Intermediate People's Court (20 1 1).

Appeal request:

Request to cancel the administrative ruling (20 1 1) westbound prefix No.00007 in accordance with the law, and instruct the XX Intermediate People's Court to file a case for acceptance or designate other intermediate people's courts for jurisdiction or arraignment.

Facts and reasons:

First, the basic facts.

Second, the appellant is husband and wife. In 2004, they set up a three-story house in Tianjiawan Village, Dengjiapo Sub-district Office, ZZ District, XX City with the number 1 (08) No.0 1-065438. This house with the land use right area of175.68m2 was the second appeal.

Since 2008, Yang Hongbin has claimed to be? Lao Yang? Call the second appellant and call later? Wei Zi? Yes, call later? Tianma company? One minute it's called XX Hi-Tech, one minute it's called Dengjiapo Land Office, and one minute it's called ZZ District Demolition Office, with only one purpose, which is to demolish five houses in Tianjiawan Village 1 Group in ZZ District, including our home. Therefore, the appellant DDD returned to XX at the end of 20 10 to handle the demolition. ? Lao Yang? The compensation scheme for the proposed demolition is: for the relocated households whose homestead is zoned by the village committee and whose land is rebuilt, the compensation shall be given to 1 1,000 yuan /M2 according to the housing area. Because of his unknown identity, he will not show or publicize the permission documents and resettlement plan for land acquisition and demolition. When they talked about the demolition with the appellant DDD many times, the appellant always disagreed with his proposal. When the second appellant was not at home, a group of unidentified people illegally demolished his house.

After the appellant learned of this matter, he took the ZZ District People's Government of XX City as the defendant, asked the ZZ District People's Government to publish relevant information on land acquisition and demolition, and filed an administrative lawsuit with the Intermediate People's Court of XX City. 12 In April, the Intermediate People's Court of XX decided to refer it to the beilin district People's Court of XX by administrative ruling No.5 (20 1 1). During the proceedings, the two appellants received a reply from the ZZ District People's Government served by the beilin district People's Court, which stated? 2. The collective land where the appellant's house is located was expropriated as state-owned land by Shaanxi Provincial People's Government [2004] No.48 and XX Municipal People's Government [2004] No.289 in 2004; The appellant's mother, Zhu, is represented by, Yang Hongbin? Demolition person? The project department of Chanhe Garden signed a demolition compensation agreement, and Zhu received 640,000 yuan compensation? . On May 27th, the beilin district People's Court held a public hearing, and only the two appellants could see the so-called? Power of attorney? And relevant evidence of land acquisition. In view of the corresponding evidence provided by ZZ District People's Government, the two appellants withdrew their prosecution from beilin district People's Court. II. The appellant brought an administrative lawsuit to the Intermediate People's Court of XX City. On June 3 of the same year, the judge of the filing court returned the complaint and other materials to DDD on the grounds of filing a civil lawsuit. On the same day, the two appellants sent the complaint and other materials to the filing court of XX Intermediate People's Court by express mail. In the case that the Intermediate People's Court of XX City failed to accept or ruled that it would not be accepted for more than 50 days, the second appellant filed a lawsuit with the Higher People's Court of Shaanxi Province in accordance with the provisions of the third paragraph of Article 32 of the Administrative Procedure Law of the People's Republic of China. Since then, the XX Intermediate People's Court has ruled that it will not be accepted.

Second, the illegal facts of ZZ District People's Government and the reasons for the appellant's prosecution.

1, ZZ District People's Government and related staff abused their powers and had no right to decide or acquiesce? No need? what's up Wei Zi Chanhe Garden Project Department? (The third person recorded in the administrative judgment of XX Intermediate People's Court (20 10) XiziNo. 10 is the office of the leading group for the demolition of Chanhe Garden Project in ZZ District), and instigated Yang Hongbin to sign a demolition agreement with Zhu by forging a power of attorney and stamping his fingerprints, so as to forcibly demolish the houses of the two appellants. XX municipal people's government decided in document [2004] No.289 to transfer 347.283 mu of land to XX High-tech Demonstration Industry Investment Co., Ltd. for the construction of Wei Zi Chanhe Garden Project, but the land is now used for the construction of Evergrande Group XX Co., Ltd.? Evergrande Oasis? Project, Wei Zi Chanba Garden Project does not exist at all, so it is illegal for ZZ District People's Government to set up the demolition leading group office of Wei Zi Chanba Garden Project in ZZ District.

2.ZZ District People's Government and relevant staff members have neglected their duties and violated legal procedures. The Supreme People's Court Administrative Court's Reply on Issues Concerning Compensation for Demolition of Houses on the Ground after Expropriation of Rural Collective Land (Law [2005] No.5) stipulates: Chongqing Higher People's Court: Your Request for Instructions on Zhao Jian's Request for Cancellation of the Administrative Decision of Chongqing Shapingba District Bureau of Land and Resources ordering it to demolish houses and hand over land has been received. After research, the reply is as follows: I agree in principle with the first opinion of your institute, that is, after the administrative organ expropriates the rural collective land, the original rural residents on the expropriated land still enjoy the house ownership, and if the house location has been included in the urban planning area, the house owner shall be compensated and resettled with reference to the Regulations on the Administration of Urban House Demolition and related regulations? . What is stipulated in Article 11 of the Opinions of the General Office of XX Municipal People's Government on Further Strengthening the Management of Self-built Housing Construction and Demolition Compensation in Rural Homestead (Trial) (10)? Because of the need of urban construction to demolish villagers' homesteads and build their own houses, the Township People's Government (street offices) shall, in conjunction with the main body of demolition and reconstruction, prepare a compensation plan for demolition and resettlement, which will be discussed and adopted by the villagers' meeting or the villagers' representative meeting, and will be used as an annex to the expropriation of collective land after the preliminary examination by the competent department of the district (development zone). The compensation and resettlement plan for demolition included in the scope of urban village reconstruction shall be implemented in accordance with the relevant policies for urban village reconstruction. ? No matter according to the regulations of the Supreme People's Court or XX Municipal People's Government, the demolition of rural houses needs to go through the corresponding examination and approval procedures. ? Wei Zi Chanhe Garden Project Department? The relevant examination and approval procedures were not handled during the implementation of the demolition.

3. Compensation and resettlement are illegal. The Regulations on the Administration of Urban House Demolition stipulates two compensation methods: monetary resettlement and house replacement. Article 8 of the Notice of the Ministry of Land and Resources on Further Improving the Management of Land Requisition (20 10/26 June) stipulates that reasonable compensation and resettlement shall be implemented for house demolition. Give reasonable compensation to farmers' houses for land acquisition and demolition, adopt diversified resettlement methods according to local conditions, and properly solve the housing problems of farmers who have been demolished. The outer suburbs of the city and rural areas are mainly relocated, and the housing construction on the homestead is rearranged. Demolition compensation should not only consider the houses to be demolished, but also consider the homestead to be expropriated. Housing demolition shall be compensated according to the replacement cost of buildings, and homestead expropriation shall be compensated according to local land acquisition standards. In the urban-rural fringe and villages in the city, in principle, houses are no longer arranged separately on the homestead, but mainly in the form of monetary or in-kind compensation, and the demolished farmers choose their own houses or resettlement houses provided by the government. The sum of the compensation and government subsidies received by the relocated farmers should ensure that they can buy a house with a reasonable living standard. Article 12 of the Opinions of the General Office of XX Municipal People's Government on Further Strengthening the Management of Self-built Housing Construction and Demolition Compensation in Rural Homestead (Trial) stipulates: In principle, villagers shall be resettled according to the area approved by the plan. If the original per capita housing is less than 65 square meters, it will be resettled according to the standard of not less than 65 square meters per capita, and the increased area will be charged according to the replacement price of housing. Before the implementation of this opinion, the villagers have built houses, and the compensation for the parts below the second floor (including the second floor), combined with the original housing construction area, shall be placed according to the standard of not less than 65 square meters per capita. The part beyond the resettlement area shall be compensated in strict accordance with the replacement price; For the part of the temporary building area that is not normally used, in addition to replacing it strictly according to the new price, the demolition fee and construction waste cleaning fee shall be deducted. No matter from the laws, regulations or policies, the second appellant's compensation for house demolition should be monetary resettlement or house replacement.

4. The compensation for land expropriation is illegal. According to the documents of Shaanxi Provincial People's Government [2004] No.48 and XX Municipal People's Government [2004] No.289, the land of 2 1.37 16 hectares (320.574 mu) and 1 2 groups in Tianjiawan Village is expropriated, and the unified land requisition office in ZZ District is located in the first-class Jiapo and the second-class Jiapo. In the land acquisition agreement, the Equal Jiapo Sub-district Office is the land-expropriated unit, but as an agency of ZZ district government, how can it enjoy the rights to the collective land?

5. The effectiveness of the demolition compensation agreement and the power of attorney. The appellant did not authorize Zhu to issue a power of attorney, nor did he sign or seal the power of attorney. In the case of information disclosure of the second appellant and the appellee heard by the beilin district People's Court, we learned from the appellee's defense and the corresponding demolition compensation agreement and power of attorney that there is a so-called "? Power of attorney? However, the ZZ district government only provided a copy, did not explain the source of the demolition compensation agreement and the power of attorney, and did not provide it? Wei Zi Chanhe Garden Project Department? Established in accordance with the law, and obtained the relevant certificates of demolition qualification; ? Wei Zi Chanhe Garden Project Department? It is not an organization established according to law, does not have the qualification for demolition, and does not have the subject qualification for signing the demolition compensation agreement; The demolished house belongs to the second appellant couple, and the appellant DDD has no right to dispose of it. Even if the appellant DDD submits a written entrustment, the power of attorney is still invalid.

According to the provisions of Article 152 of the Property Law of People's Republic of China (PRC), the owner of the homestead has the right to possess and use the collectively owned land according to law, and has the right to use the land to build houses and ancillary facilities according to law. Article 4 stipulates that state, collective and private property rights and the property rights of other obligees are protected by law, and no unit or individual may infringe upon them. Article 42 stipulates that collectively owned land, houses of units and individuals and other immovable property may be expropriated in the public interest in accordance with the authority and procedures prescribed by law. Expropriation of collectively owned land shall pay land compensation fees, resettlement subsidies, ground attachments and young crops compensation fees in full according to law, arrange social security fees for land-expropriated farmers, ensure the livelihood of land-expropriated farmers and safeguard their legitimate rights and interests. The expropriation of houses and other immovable property of units and individuals shall be compensated for demolition according to law, and the legitimate rights and interests of the expropriated person shall be safeguarded; Where individual houses are expropriated, the living conditions of the expropriated person shall also be guaranteed? ZZ District People's Government should first expropriate the houses of the two appellants, and then make compensation for the demolition with reference to the Regulations on the Administration of Urban House Demolition. Judging from the reply of the ZZ District People's Government, the relevant government only expropriated the collective land where the second appellant's house was located, but the ZZ District People's Government did not expropriate the second appellant's house for more than six years, and its acquiescence was false. Demolition person? The demolition of Wei Zi Chanhe Garden Project Department abused its power, seriously violated legal procedures and seriously damaged the legitimate rights and interests of the two appellants.

Three. The administrative ruling No.00007 of XX Intermediate People's Court (20 1 1) is indeed wrong.

1. According to Article 42 of the Administrative Procedure Law of the People's Republic of China? After receiving the complaint, the people's court shall, after examination, file a case or rule that it will not be accepted within seven days. If the appellant refuses to accept the ruling, he may appeal? And the second paragraph of Article 32 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China? If you can't decide whether to accept it within 7 days, accept it first; If the case fails to meet the requirements for prosecution after acceptance, the prosecution shall be ruled to be dismissed? If it is stipulated that the people's court cannot decide whether to accept it within 7 days, it shall accept it first. On June 14, the Intermediate People's Court of XX City, after receiving the complaint filed by two appellants by express mail, ruled that it would not be accepted on August 9, which seriously violated legal procedures.

2. The judgment of first instance found that Wei Zi Chanhe Demolition Project Department (Chanhe Garden Project Department of Wei Zi) reached a demolition compensation agreement with the plaintiff's agent and obtained compensation. It is based on the defense, demolition compensation agreement and power of attorney submitted by the ZZ District People's Government at the public hearing of Beilin District People's Court provided by the second appellant, while ignoring the fact that the demolition compensation agreement and power of attorney were not signed and sealed by the appellant DDD. However, these evidences are used as the basis for ascertaining facts without cross-examination in court, which also violates the rules of evidence.

3. The first-instance ruling that Wei Zi Chanhe Project Department belongs to the demolisher has no factual basis. What organization is Wei Zi Chanhe Project Department? State organs, enterprises, institutions, people's organizations or other organizations need to be established according to law and enjoy corresponding rights and capabilities; Does the demolition need the permission or approval of the administrative organ to obtain the qualification, or who wants to be a demolition without any procedure, as long as the government acquiesces? In the same case of house demolition in the northwest sofa accessories market, the administrative judgment of XX Intermediate People's Court (20 10) W 10 found that the ZZ District Government had given a reply (2008) No.42, and agreed to the implementation plan submitted by the Wei Zi Demolition Office, regardless of whether the house demolition in the same case was compensated together. Regardless of whether the procedure approved by ZZ District Government (2008) No.42 is legal or not, the compensation and resettlement plan for house demolition should be specified in the implementation plan, and the ZZ District People's Government has also made a specific administrative act to allow the third person, Wei Zi Demolition Office and ZZ Branch of XX Municipal Bureau of Land and Resources, to act as the demolition (or implement the demolition). However, there is no evidence to prove how Wei Zi Chanhe Project Department obtained the qualification of demolition in this case.

4. The first-instance ruling is logically wrong and contradictory. The ruling of the first instance held that the plaintiff's request to cancel the specific administrative act of the ZZ District People's Government to expropriate its house had no factual basis. The ruling also said. Before Wei Zi Chanhe Project Department demolished the plaintiff's house? Second, is the objective fact that the appellant's house was demolished a factual basis? Perhaps what the ruling wants to express is that the ZZ district government did not requisition the second appellant's house. Without the government's expropriation (or the approval of demolition), how can the demolition people carry out the demolition? One of the main reasons for the appellant's prosecution is that the appellee's expropriation of the appellant's house violates legal procedures, while the specific administrative act that should have been implemented through due process does not require any procedures.

5. The first-instance judgment is wrong in applying the law. (1) Article 44, Paragraph 1 (1) of the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China stipulates that the request is not within the administrative jurisdiction and will not be accepted. 2. According to Article 11, paragraph 1 (8)? Think that administrative organs infringe upon other personal rights and property rights? Bring a lawsuit to the people's court according to law, there is no illegal expropriation, no illegal demolition, no illegal demolition, and where the appellant's house dust belongs. (2) Paragraph 1 (3) of Article 44 stipulates that if the public prosecutor wrongly lists the defendant and refuses to change, it will not be accepted. First of all, Item (1) of Article 1 of the Opinions of the General Office of XX Municipal People's Government on Further Strengthening the Management of Self-built Houses and Demolition Compensation in Rural Homestead (Trial) stipulates that the district governments (Development Zone Management Committees) shall take overall responsibility for the management of self-built houses and demolition compensation in rural homesteads within their jurisdiction, and shall be responsible for organizing joint law enforcement and investigating illegal acts in the construction of self-built houses in rural homesteads. This is the norm of the administrative organ at a higher level to the organ responsible for the management of demolition compensation, so the appellee is a qualified litigation subject; Secondly, the court of first instance never asked the two appellants to change the defendant's subject, let alone refused to change it.

To sum up, according to the provisions of Article 42 of the Administrative Procedure Law of the People's Republic of China, I appealed to the Higher People's Court of Shaanxi Province. Please refer to the first paragraph of Article 67 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People's Republic of China? When trying an appeal case, the people's court of second instance shall comprehensively examine whether the judgment of the people's court of first instance and the specific administrative act of the defendant are legal? What about article 68? If the people's court of second instance considers that the decision of the people's court of first instance not to accept or reject the prosecution is indeed wrong, and the prosecution meets the statutory conditions, it shall make a ruling to revoke the decision of the people's court of first instance and order the people's court of first instance to file a case for acceptance or continue the trial according to law? The provisions of the ruling according to law.

I am here to convey

Shaanxi Provincial Higher People's Court

Attachment: Relevant evidence

Shaping people:

20 1 1 August16th.