In recent years, administrative disputes caused by land reclaim have become increasingly the focus and difficulty of administrative trials. In combination with the key points of judgments in the people's courts for hearing related cases, the editor has summarized and sorted them out for everyone to refer to in theory and practice!
1. State-owned land reclaim
1. Currently, relevant provisions involving the issue of state-owned land use rights recovery
[Referee Rules] Currently, regulations involving the issue of state-owned land use rights recovery are mainly concentrated in the following legal norms: 1. Article 58 of the Land Administration Law of the People's Republic of China (hereinafter referred to as the Land Administration Law) stipulates: "If any of the following circumstances occurs, the land administrative department of the relevant people's government shall report to the people's government that originally approved the use of land or the people's government with approval approval: (1) If land is required for public interest; (2) If land is adjusted for the reconstruction of old urban areas in order to implement urban planning; (3) If the use period stipulated in the paid use contract such as land transfer expires, and the land user has not applied for renewal or has not been approved for renewal; (4) If the use of the original allocated state-owned land is stopped due to the revocation, relocation, etc.; (5) If the highway, railway, airport, mine, etc. are approved for scrapping. If the state-owned land use right is recovered in accordance with the provisions of items (1) and (2) of the preceding paragraph, appropriate compensation shall be given to the land user." 2. Article 80 of the Land Administration Law stipulates: "If the parties to the state-owned land use right revoke in accordance with the law, if the temporary land use refuses to return it, or if the state-owned land is not used for the approved purpose, the land administrative department of the people's government at or above the county level shall order the land to be returned and a fine shall be imposed." According to this provision, in addition to the circumstances stipulated in Article 58 of the Land Administration Law, Article 58 is not implemented, and the temporary land use refuses to return it after the temporary land use expires, or if the state-owned land is not used for the approved purpose, there are also cases where the state-owned land is ordered to return or recover the state-owned land use right. 3. The "Measures for Disposal of Idle Land" formulated by the Ministry of Land and Resources also stipulates the recovery of state-owned land. This measure divides the reasons for idle land into two situations: idle caused by the government and relevant government departments and idle behavior caused by non-government and relevant government departments. Article 8 lists the situations of idle land caused by acts belonging to the government or relevant government departments, and stipulates that if it is verified to be true, it shall be disposed of in accordance with Articles 12 and 13 of the Measures. Article 12 stipulates: "If the land is idle due to the circumstances stipulated in Article 8 of these Measures, the municipal and county land and resources authorities shall negotiate with the state-owned construction land user and choose the following methods to dispose of the following methods:... (IV) Agreement to recover the state-owned construction land use rights for a fee..." Article 13 stipulates: "After the city and county land and resources authorities have agreed with the state-owned construction land user, they shall formulate an idle land disposal plan and submit it to the people's government at the same level for approval. If the idle land has a mortgage right, the municipal and county land and resources authorities shall notify the relevant mortgagee in writing when formulating the idle land disposal plan." Article 14 stipulates the treatment method for idle land caused by the actions of non-government and relevant government departments, "... (II) The development has not started for two years. If the municipal and county land and resources authorities shall, in accordance with Article 37 of the Land Administration Law of the People's Republic of China and Article 26 of the Urban Real Estate Administration Law of the People's Republic of China, submit the approval of the people's government with the right to approve, issue a "Decision on the Recovery of the Right to Use State-owned Construction Land" to the user of the state-owned construction land, and recover the right to use state-owned construction land free of charge. If there is a mortgage right in idle land, it shall also be copied to the relevant land mortgagee. "In addition, the State Land Administration Bureau issued the "Opinions on the Determination of the Legal Nature of the Administrative Decision on the Recovery of Land Use Rights" ([1997] Land [Law] No. 153) made a detailed distinction between the two legal natures of the administrative decision on the recovery of land use rights in accordance with the administrative handling decision and the administrative penalty decision.——(2017) Supreme People's Court Implementation No. 8467
2. Review of the legality of the decision to reclaim state-owned land use right
[Judgement Rules] 1. In terms of entity, whether the administrative authority can submit evidence to prove that the recovery of the land involved in the case complies with the law, that is, if any of the following circumstances occurs, the land administrative department of the relevant people's government shall report to the people's government that has the original approved land use or have the right to approve it. The people's government approved that the right to use state-owned land may be recovered: (1) If land is needed for public interest; (2) If land is adjusted for the reconstruction of old urban areas in order to implement urban planning; (3) If the use period stipulated in the paid use contract such as land transfer expires, and the land user has not applied for renewal or has not been approved for renewal; (4) If the original allocated state-owned land is stopped due to the revocation, relocation, etc.; (5) Highways, railways, airports, mines, etc. have been approved for scrapping. If the state-owned land use right is recovered in accordance with the provisions of paragraph (1) and paragraph (2) of the preceding paragraph, appropriate compensation shall be given to the land use right holder. 2. In terms of procedures, whether the administrative authority follows the legal procedures before making the decision to accept the land of the accused, and listens to the statements and defenses of the counterparty and interested parties of the administrative management. ——(2018) The Supreme People's Court's Implementation No. 8737
3. Review of the legality of reclaiming state-owned land use rights due to environmental protection policies
[Judgement Rules] Article 58 of the Land Administration Law of the People's Republic of China stipulates that if any of the following circumstances occurs, the natural resources department of the relevant people's government shall report to the people's government that originally approved the use of land or the people's government with approval authority to recover the state-owned land use rights: (1) If land needs to be used for public interests. Article 18 of the "Regulations on Nature Reserves of the People's Republic of China" stipulates that nature reserves can be divided into core areas, buffer areas and experimental areas, and any form of development and construction activities are prohibited from being carried out in the core areas and buffer areas. Administrative agencies initiate the procedure for reclaiming state-owned land use rights in accordance with the law and compensate for land use rights that cannot be developed due to planning control in accordance with the law, which is conducive to nature protection and the protection of the legitimate rights and interests of the parties. However, before making the land settlement decision, the administrative organ did not listen to the parties' statements and defense opinions, nor did it follow the due process requirements stipulated in Articles 5 and 20 of the "Outline for Comprehensively Promoting Administration in accordance with Law", which violated the principle of procedural legitimacy. ——(2020) The Supreme People's Court's No. 100
4. The subject of land reclaiming is not the approval authority
[Judgement Rules] According to the relevant provisions of the "Land Administration Law of the People's Republic of China" and the "Implementation Regulations of the Land Administration Law of the People's Republic of China", the recovery of the original allocated state-owned land use rights and the auction and transfer of state-owned construction land rights must be submitted to the people's government with approval authority for approval, but the subject of land reclaiming is not the approval authority. ——(2019) Supreme Court Implementation No. 11583
5. Is the approval to reclaim state-owned land use rights within the scope of administrative litigation?
[Judgement Rules] Under normal circumstances, the approval of the local people's government to the land administrative department to which it belongs to agree to the recovery of state-owned land use rights is a process-based and internal behavior and does not fall within the scope of the people's court's case. After the government made the appeal, the Natural Affairs Bureau had decided to recover the state-owned land use rights of the land user based on the approval, and did not directly make the recovery decision. It only informed the land user of the decision to recover the state-owned land use rights in the form of a notice and canceled within a time limit. Therefore, the land administrative department has actually directly put the approval into implementation, which has had a practical impact on the rights and obligations of the administrative counterpart. If the administrative counterparty is dissatisfied with the approval, it shall fall within the scope of the case of administrative litigation of the people's court. ——(2017) Supreme Court End No. 8467, (2020) Luxing Zhong No. 261
6. Whether the lessee has a interests in the act of reclaiming state-owned land use rights
[Judgement Rules] The administrative act of reclaiming state-owned land use rights is the state-owned land use rights of the land use rights holder. The lessee and the land user sign a lease contract, and the two form a lease relationship. Therefore, there is no legal interest between the lessee and the act of reclaiming the state-owned land use right.Due to the occurrence of this administrative act, the lease contract cannot be continued, and the lessee claims his rights through civil litigation. ——(2019) Supreme Court Implementation No. 8993
7. Can you sue for land use certificate cancellation registration after reclaiming land
[Judgement Rules] 1. When the land is reclaimed in accordance with the law, the accused cancellation registration is only a subsequent improvement in the internal administrative procedures carried out after the parties have lost their land use rights, and does not have an actual impact on the rights and obligations of the parties, and does not fall within the scope of administrative litigation in accordance with the law. ——(2019) Supreme Court Implementation No. 7976 2. If the land has not been recovered in accordance with the law, the parties may sue for the cancellation of the registration. However, before the land recovery is confirmed to be illegal and the land use rights have not been restored, the parties directly sue for the cancellation of the registration, which lacks factual basis--(2019) Supreme Court Implementation No. 9474.
2. Idle land reclaim
8. Review of the legality of idle land reclaim
[Referee Rules] Land resources are precious non-renewable resources. my country's land management legal system requires cherishing and rational use of land to promote the sustainable development of the society and economy. In the current process of industrialization and urbanization, the contradiction between supply and demand of land resources is particularly prominent, and the supply and demand imbalance caused by idle land is one of the important reasons. (Article 37 of the Land Administration Law of the People's Republic of China stipulates that if non-agricultural construction has completed the approval procedures and has not been used for two consecutive years, the land use rights of the land use unit shall be reclaimed by the people's government at or above the county level for free with the approval of the original approval authority. Article 26 of the Urban Real Estate Administration Law of the People's Republic of China stipulates that if the land use right is obtained by transfer for real estate development, the land must be developed in accordance with the land use purpose and the period of start-up development stipulated in the land use right transfer contract. If the construction and development date have not started for one year after the start-up development date stipulated in the transfer contract, the land may be developed in accordance with the land use right transfer contract. The land idle fee equivalent to less than 20% of the land use right transfer fee is expropriated; if the construction has not started for two years, the land use right may be recovered free of charge; however, this does not apply to the delay in the start of development due to force majeure, the actions of the government or relevant government departments, or the preliminary work necessary for the start of development.) Articles 2, 8 and 14 of the "Regulations on Disposal of Idle Land" stipulate that idle land refers to state-owned construction land that has not started to develop after one year after the paid use contract for the use of the state-owned construction land or the allocation decision. If idle land has not started to be developed for two years, the municipal and county land and resources authorities shall issue a "Decision on the Recovery of the Right to Use State-owned Construction Land" to the user of state-owned construction land after approval in accordance with Article 37 of the Land Administration Law of the People's Republic of China and Article 26 of the Urban Real Estate Administration Law of the People's Republic of China, and issue a "Decision on the Recovery of the Right to Use State-owned Construction Land" to the user of state-owned construction land without compensation, except for delays in the start of construction and development due to force majeure or the actions of relevant government departments or government departments. (Article 30, 31, 32 and 42 of the Administrative Penalty Law of the People's Republic of China (Amendment 2009) stipulates that if a citizen, legal person or other organization violates administrative management order, administrative penalties shall be imposed according to law, the administrative authority must ascertain the facts. Before making an administrative penalty decision, the parties shall be informed of the facts, reasons and basis for making the administrative penalty decision, and the parties shall be informed of the rights enjoyed by the law; the parties have the right to make statements and defenses. The administrative authority must fully listen to the opinions of the parties and make the facts raised by the parties. , reasons and evidence shall be reviewed; if the facts, reasons or evidence proposed by the parties are established, the administrative authority shall adopt them. Before making administrative penalty decisions such as large amounts of fines, the parties shall be informed that they have the right to hold a hearing; if the parties request a hearing, the administrative authority shall organize a hearing. )—— (2019) Supreme Court Implementation No. 9069
[Judgement Rules] Land is a non-renewable precious resource, and idle land is prohibited by our laws. Cherishing and rational use of every inch of land is the foundation of our country's land policy.The recovery of idle land is of great significance to activate land resource elements and revitalize existing land, but the recovery of idle land must comply with the provisions of laws and regulations, and should also be carried out in accordance with statutory procedures. According to my country's current legal system, the legality review of the administrative act of reclaiming state-owned land use rights is mainly carried out from both entity and procedural aspects. In terms of entity, it mainly examines whether the administrative authority submits evidence to prove that the recovery of the land involved in the case is in compliance with the law. Article 37 of the Land Administration Law of the People's Republic of China stipulates that any unit or individual is prohibited from idle or barren arable land. If construction has not started for more than one year, idle fees shall be paid in accordance with the regulations of the province, autonomous region, or municipality directly under the Central Government; if it has not been used for two consecutive years, the people's government at or above the county level shall recover the land use rights of the land use unit free of charge with the approval of the original approval authority. Article 2 of the "Measures for the Disposal of Idle Land" stipulates that the idle land referred to in these Measures refers to state-owned construction land that has not started to develop after one year after the paid use contract for state-owned construction land use rights or the allocation decision. State-owned construction land that has been started but the area of development and construction accounts for less than one-third of the area of development and construction should be started or the amount of investment accounts for less than 25% of the total investment. State-owned construction land that has been suspended for one year can also be considered idle land. In terms of reclaiming procedures, it mainly examines whether the administrative agency has followed the necessary procedures in accordance with the relevant provisions of the "Regulations on Disposal of Idle Land", namely whether it has conducted investigations and verifications, listened to statements and defenses of the administrative management counterparts and interested parties, made legal documents such as "Notice of Investigation of Idle Land" and "Idle Land Authentication", and whether the location of idle land, the name of the user of state-owned construction land, the idle time, and the reason for idleness are disclosed to the public through portals and other forms, and informed the relevant government or government departments in writing. ——(2020) Lu Xingzhong No. 1228
9. Directly delivering the decision to recover idle land by announcement, which violates the statutory procedures
[Judgement Rules] Article 31 of the Administrative Penalty Law of the People's Republic of China stipulates: "Before making an administrative penalty decision, the administrative agency shall inform the parties of the facts, reasons and basis for making the administrative penalty decision, and inform the parties of the rights enjoyed in accordance with the law." Article 32 stipulates: "The parties have the right to make statements and defenses. Administrative agencies must fully listen to the opinions of the parties and make suggestions to the parties The facts, reasons and evidence issued shall be reviewed; if the facts, reasons or evidence proposed by the parties are established, the administrative authority shall adopt them. The administrative authority shall not impose aggravated penalties due to the parties' defense." Article 40 stipulates: "The administrative penalty decision shall be delivered to the parties on the spot after the announcement; if the parties are not present, the administrative authority shall deliver the administrative penalty decision to the parties within seven days in accordance with the relevant provisions of the Civil Procedure Law." Articles 77 to 84 of the Civil Procedure Law of the People's Republic of China stipulate the specific methods of delivery, including: direct delivery, detention delivery, delivery on behalf of others, mail delivery, forwarding delivery and announcement delivery. Article 84, paragraph 1 of the Law clearly stipulates: "If the whereabouts of the recipient are unknown, or if they cannot be delivered by other means stipulated in this section, the announcement shall be delivered. From the date of issuance of the announcement, it shall be deemed to be served after 60 days." Before making the decision to accept the land, the administrative authority made a prior notice to recover the state-owned land use right free of charge, but without providing evidence to prove that all the delivery methods have been exhausted and cannot be served to the parties, it will directly use the announcement, depriving the parties of the right to state, depriving the parties of the right to state, defense and hearing, and the service procedure is illegal. ——(2019) Supreme Court Re-examination No. 2
10. The land department shall fulfill its obligation to investigate and verify in the identification of idle land
[Referee Rules] Article 5 of the "Measures for Disposal of Idle Land", "If the municipal and county land and resources authorities find that there is idle land suspected of constituting the idle land stipulated in Article 2 of these Measures, they shall conduct investigation and verification within 30 days and issue a "Notice of Investigation of Idle Land" to the right holder of state-owned construction land..."Article 9 stipulates, "If it meets the conditions stipulated in Article 2 of these Measures and constitutes idle land, the municipal and county land and resources authorities shall issue a "Idle Land Authentication" to the user of state-owned construction land. "The above stipulates that before the land and resources authorities send relevant documents to the user of state-owned construction land, they must "investigate and verify". The administrative agency fails to provide evidence to prove that it has fulfilled its investigation and verification obligations, and what causes the parties to cause idle land, that is, it makes an idle land identification certificate, which is unclear. —— (2017) Lu 02 Xingzhong No. 59
11. Determining whether it is idle land should of course be based on parcels, rather than Based on the overall project,
[Referee Rules] Idle land refers to state-owned construction land that has not started to develop for one year after the start of development date stipulated in the land transfer contract. The land transfer contract is signed on the unit of parcel. Whether it is idle land is calculated based on the start of development date stipulated in the transfer contract. To determine whether it is idle land, of course, it should be based on the unit of parcel, rather than the unit of the overall project. It cannot be based on the investment of other relevant parties in the overall project in another parcel. As the party involved in this case, the investment in this land cannot be made by more than 25% of the overall project investment, and the fact that the land has not started to be developed and has not made any investment. —— (2018) Supreme Court Enactment No. 8877
12. The land is idle due to planning adjustments or no planning, which is a government reason
[Referee Rules] The site selection and layout of construction projects in urban planning areas must comply with urban planning , without planning, project design and planning cannot be carried out, and the conditions for starting construction are not met. Therefore, the administrative agency attributes all the reasons why the parties failed to develop in time after obtaining the state-owned land use certificate to the parties, which is unfair. The parties' claim that the reason for the inability to develop due to lack of planning is reasonable and should be supported.
13. Whether "three connections and one leveling" is an accompanying obligation to transfer land by administrative agencies
[Judgement Rules] Idle land should be disposed of by free reclaim or paid reclaim based on whether there is force majeure or government reasons. The site selection and layout of construction projects in urban planning areas must comply with urban planning. Without planning, project design and planning cannot be carried out and construction conditions do not meet the conditions for starting construction. Whether the "three connections and one leveling" is an accompanying obligation for administrative agencies to transfer land. Even if the laws, regulations and policy provisions at the time of signing the land transfer contract do not transfer land" three connections and one The administrative agency shall also provide basic development and utilization conditions for the transferred land. As a party to the land transfer contract, the administrative agency shall promote the performance of the land transfer contract is an accompanying obligation based on the principle of trust of the parties. Moreover, as an administrative agency with a responsibility for coordinated management of the land, it shall provide necessary assistance to the land transfer party within its authority to complete the preliminary preparations before the start of construction, and make a good coordination ditches to promote the start of construction. The relevant land area does not have the necessary development of roads, water supply and drainage systems and electricity supply that are suitable for construction and operation. Although there are reasons why the land transferee did not actively carry out related work, some problems are also unsolvable by the transferee through its own efforts, and it needs to be provided by the government and its functional departments. —— (2019) Supreme Court Re-2
14. Incomplete infrastructure supporting facilities Whether the land is idle or not is a government reason and responsibility (controversial)
[Referral Rules] If the "State-owned Land Use Right Transfer Contract" signed by the administrative agency and the counterparty does not stipulate that the government will bear the responsibility for supporting infrastructure, and the law at that time did not mandate that the state must provide complete infrastructure when transferring land. The infrastructure claimed by the counterparty is incomplete and does not meet the development conditions, it cannot be a legitimate reason for idle land due to government reasons.——(2019) Supreme Court Enactment No. 9398
15. Whether to reissue a construction project planning license does not affect the processing of idle land
[Judgement Rules] Whether it is recognized as idle land and whether idle land needs to be repaid is an administrative act of different natures made by two different administrative agencies. The act of reissue a construction project planning license cannot deny the legality of the act of repaid land use rights. Construction project planning permits are timely. If development exceeds the statutory period, land may be idle. They should be dealt with in accordance with the law in accordance with the idle land. It is no longer suitable to reissue construction project planning permits. ——(2019) Supreme Court Enactment No. 8134
3. Collective land recovery
16. The main body for reclaiming collective land use rights is a rural collective economic organization, not a county-level people's government
[Judgement Rules] According to Article 65 of the Land Administration Law of the People's Republic of China, the main body for reclaiming collective land use rights is a rural collective economic organization, not a county-level people's government. The county-level people's government that originally approved the use of land only exercises supervision rights for the relevant reclaiming behaviors through the approval of reclaiming the land to prevent village collective economic organizations from illegally recovering the collective land use rights and infringing on the legitimate rights and interests of collective members. The county-level people's government directly decides to revoke the right to use the homestead in its own name, which lacks legal basis and should be illegal. ——(2018) Supreme Court Enactment No. 7562
17. Administrative organs have no right to decide to reclaim collective land in their own name
[Judgement Rules] The main body for reclaiming collective land use rights is rural collective economic organizations, not county-level people's governments. Unlike land acquisition, the reclaiming behavior does not change the nature of collective land. The county-level people's government that originally approved the use of land only performs its statutory powers through approval of the village collective, and exercises supervision rights for the relevant reclaiming of land, so as to prevent village collective economic organizations from illegally recovering collective land use rights and infringing on the legitimate rights of collective members. Some administrative agencies directly use village collectives and collective members as administrative counterparts, and decide to recover collective land use rights in their own name (such as recovering villagers' homestead use rights and canceling their use rights certificates), evading the expropriation procedures and lacking legal basis, which should be illegal. ——(2018) Supreme Court Implementation No. 7562
18. Rural collective economic organizations may recover land use rights in accordance with the law under specific circumstances
[Judgement Rules] Rural collective economic organizations may recover land use rights in accordance with the statutory procedures and give appropriate compensation to the land use rights holder for the recovery under specific circumstances. However, the recovery of land use rights in this situation is obviously different from the state's expropriation behavior and is an adjustment of land use rights within collective economic organizations. ——(2017) Supreme People's Court's Implementation No. 1167
19. Conditions for the retrieval of the right to use rural homesteads
[Judgement Rules] Article 62, paragraph 1 of the "Land Administration Law of the People's Republic of China" stipulates that a rural villager can only own one homestead, and the area of the homestead shall not exceed the standards stipulated by provinces, autonomous regions, or municipalities directly under the Central Government. Article 52 of the "Several Provisions on Determining Land Ownership and Use Rights" stipulates that land use rights are uncertain if idle or houses collapse or houses that have not been restored for more than two years have not been restored. If the right of use has been determined, the collective shall report to the county-level people's government for approval and cancel the land registration and the land shall be recovered by the collective. In other words, members of rural collective economic organizations enjoy the right to use the homestead, and each household can only enjoy the right to use one homestead. Homesteads that are idle or houses collapsed or have not been demolished for more than two years shall be collectively reclaimed. ——(2019) Supreme People's Court's Implementation No. 5530, (2019) Supreme People's Court's Implementation No. 8134
4. Related compensation issues
20. If an administrative entity needs to recover state-owned land use rights due to public interests, how to give the parties "appropriate compensation"
[Judgement Rules] According to Article 58, paragraph 2 of the Land Administration Law, if land needs to be used for public interests, or if old urban areas need to be renovated for urban planning, and the land use rights need to be reclaimed, the land use rights shall be appropriately compensated.At the same time, according to Article 20 of the "Urban Real Estate Administration Law of the People's Republic of China", according to the needs of social public interests, the land use rights obtained by land users in accordance with the law may be recovered in advance in accordance with legal procedures, and corresponding compensation may be given based on the actual years of land use by land users and the actual situation of the development of land; according to Article 8 of the "Opinions of the Central Committee of the Communist Party of China and the State Council on Improving the Property Rights Protection System and Protecting Property Rights in accordance with the Law", property expropriation and expropriation shall follow the principle of timely and reasonable compensation, and fair and reasonable compensation shall be given to the expropriated and expropriated persons. Therefore, in combination with the provisions of my country's land and urban real estate management laws and regulations and the national policy of protecting property rights in accordance with the law, the above-mentioned "appropriate compensation" should not be simply limited to the meaning of the provisions of the law. It cannot be interpreted statically, isolatedly or mechanically as corresponding compensation is given based on the price of the land acquired, but should be unified legal interpretation. That is, if the administrative entity needs to recover state-owned land use rights due to public interests, if the recovered land use rights are supplied by transfer, it shall be compensated after professional evaluation based on the land area, remaining land use life, original approved use, land development and utilization degree, urban planning restrictions, etc.; if the recovered land use rights are supplied by allocation, refer to the assessed allocated land use rights price, and the land user should be compensated after the land user has the right to be approved; in principle, the base date for determining the compensation standard shall be based on the date when the administrative entity makes the recovery decision or the date when the land is announced to the public on the recovery matter. Both parties in this case agree to give compensation based on the market value of the state-owned land use rights involved in the case, and both agreed to determine the objective and reasonable price of the state-owned land use rights involved in the case through evaluation. ——(2017) The Supreme People's Court's Implementation No. 1342
21. The determination standards and methods for determining the land "appropriate compensation to the land user right holder" are
[Judgement Rules] The appropriate compensation that should be given to the land user right as stipulated in Article 58, paragraph 2 of the Land Administration Law of the People's Republic of China cannot be understood as compensation only for land transfer fees, preliminary investment and corresponding interest. It is advisable to consider the reasons for the land reclaim and the specific use of the land, the remaining development period of the original land use right, the fault of the land user right holder and the actual investment, etc., and refer to the market price of the land involved in the case when the land was recovered, and ensure that the compensation amount is not less than the cost of the land user right to obtain the land, the fair and reasonable compensation amount should be comprehensively determined. ——(2020) The Supreme People's Court's No. 100
22. If the state-owned land use right is recovered, the party's prior investment losses shall be compensated fairly and reasonably
[Judgement Rules] If the administrative agency changes the land use plan due to public interest needs and recovers the state-owned land use rights that the party has already won, the party's prior investment losses shall be compensated fairly and reasonably . In order to reduce the losses of the parties and increase their interests, the administrative authority shall deduct them from the losses. The calculation errors in the effective judgment shall be corrected in accordance with the law and should not be retried or retried. ——(2015) Xingjian No. 352
23. Compensation standard for reclaiming state-owned agricultural land
[Judgement Rules] The standard for administrative compensation caused by illegal land expropriation and occupation should not be lower than the compensation standard for legal land expropriation and occupation. The compensation standards for recovering state-owned agricultural land are not clearly stipulated. The people's court may entrust an appraisal agency to conduct a value assessment as a reference. When determining the amount of compensation based on the conclusions of the appraisal report, it should still review the calculation basis and standards of the values or expenses that constitute the total price of the land in the appraisal report. If the calculation of sub-item valuation is incorrect or the basis is insufficient, it should be adjusted in accordance with the law. ——(2019) The Supreme People's Court's Compensation No. 1293
24. How to deal with the situation where idle land is recovered for a fee or free of charge?
[Judgement Rules] 1. After the administrative agency performs statutory investigation and identification in accordance with the relevant provisions of the "Regulations on Disposal of Idle Land", it can make a decision to recover idle land without obtaining the consent of the counterparty.2. If idle land is recovered for a fee or free of charge, the administrative authority may recover it for a fee in accordance with the law for the purpose of protecting the interests of the counterparty of the administrative act. ——(2015) Xingtizi No. 27
25. Administrative compensation for land rights impacted by planning adjustment
[Judgement Rules] 1. Whether changes in planning adjustments should be given to the land rights holder for corresponding compensation. In combination with the provisions of my country's land and urban real estate management laws and regulations and the national policy of protecting property rights in accordance with the law, administrative agencies adjust land use plans due to public interests, which makes it difficult for land rights holders to continue to use land, affecting the realization of the purpose of land rights holders. They should take timely remedial measures based on objective circumstances, recover the state-owned land use rights, and provide corresponding compensation to the right holders without any statutory reasons for hindering compensation. If an administrative agency needs to recover state-owned land use rights due to public interests, if the recovered land use rights are supplied by transfer, it shall be compensated after professional evaluation based on the land area, remaining land use life, original approved use, land development and utilization degree, urban planning restrictions, etc. 2. Whether compensation can be refused if the idle land is recovered without compensation is determined. Before reclaiming idle land, relevant departments must investigate and determine whether the land constitutes idleness and idle reasons (including whether it meets the conditions for start-up development, etc.) in accordance with the statutory procedures. If the relevant departments have not made a recognition of idle land, the people's court should not replace the administrative power with judicial power and directly make a recognition of idle land. Moreover, there are many ways to deal with idle land, and land recovery is only one of them, and land recovery is divided into free recovery and paid recovery. One of the conditions for free recovery is non-governmental reasons or force majeure, and not idle land should be recovered free of charge. The administrative agency cannot directly refuse to give corresponding compensation to the land rights holder on the grounds of idle land without reimbursement. ——(2019) Lu Xingzhong No. 1937
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