Abstract:
The construction of the rural collective land expropriation compensation system with Chinese characteristics should be centered around the basic national conditions, and the substantive resolution of relevant disputes should also be innovative based on reality. In the field of rural collective land expropriation and compensation within the framework of the old system, there are outstanding problems such as insufficient legal system provision, inconsistent expropriation and compensation procedures, and many conflicts and disputes. The " Land Management Law " revised in 2019 and the "Land Management Law Implementation Regulations" revised in 2021 have made major revisions to the land expropriation compensation system. Provinces (cities) such as Jiangsu, Zhejiang and Shanghai have also successively introduced local regulations. . In the new land expropriation and compensation procedures, actionable administrative actions can be given priority and concretely include: land expropriation announcement (expropriation act), compensation and resettlement agreement, compensation and resettlement decision, decision to order the handover of land, forced demolition, etc.; compensation standards and compensation and resettlement Plan disputes can be reviewed together with the judicial review of the above-mentioned administrative actions. The compensation and resettlement agreement can stipulate that the land expropriation application is approved or the land expropriation announcement is issued as a condition for taking effect. If the agreement does not take effect, the corresponding liability will be borne according to the fault of the contract. Compensation and resettlement decisions and ordered land transfer decisions are implemented without litigation . You can refer to Enforcement of State-owned Assets Review rules for decisions on compensation for expropriation of houses on land and their non-litigation enforcement.
Keywords: Litigable administrative action Compensation and resettlement plan Compensation and resettlement agreement Compensation and resettlement decision Order to hand over land decision
html For many years, there has been insufficient legal supply, inconsistent expropriation and compensation procedures, and many conflicts and disputes in the field of rural collective land expropriation and compensation. Highlight the problem. In the judicial field, the main problems include the large number and types of land acquisition and demolition cases, diverse litigation claims, high social attention, long dispute cycles, easy intensification of conflicts, and difficulty in settling lawsuits. In the trial of specific cases, there are common problems such as difficulty in determining actionable administrative actions, defendants and litigation claims, difficulty in reviewing compensation and resettlement plans, and difficulty in identifying defendants in forced demolition. The " Land Management Law of the People's Republic of China " revised in 2019 (hereinafter referred to as the new "Land Management Law") has made major revisions to the land expropriation compensation system, and the " Implementation Regulations of the Land Management Law of the People's Republic of China " revised in 2021 (hereinafter referred to as the new "Implementation Regulations") further improves the implementation details. This article takes the implementation of the new "Land Management Law" and the new "Implementation Regulations" (hereinafter collectively referred to as the new law) as the background to sort out the new changes in the land expropriation compensation system, and makes suggestions on the legal application and adjudication concepts of land expropriation compensation cases under the background of the new law.1. Background of the amendment: Difficulties in the implementation of the expropriation compensation system
(1) Legal system supply
Insufficient 2004 Land Management Law of the People's Republic of China (hereinafter referred to as the old "Land Management Law") and supporting 201 In the 4-year "Implementation Regulations of the Land Management Law of the People's Republic of China" (hereinafter referred to as the "Old Implementation Regulations"), "Land Acquisition Announcement Measures" and other laws and regulations, there are few provisions on the form, content, standards and procedures of land expropriation and compensation. It is clear that there is also a lack of provisions on whether expropriation decisions and compensation and resettlement decisions should be made, and the provisions on dispute resolution procedures are not uniform. Article 47 of the old Land Management Law only stipulates various compensation fees in principle, and relies more on standards and plans formulated by local and even township governments to determine compensation. After the compensation standard and compensation and resettlement plan are determined, the compensation subject, the reconsideration authority, and the people's court often only serve as a "measuring instrument" for the quantity and area of compensation for movable and immovable property, and a "calculator" for the compensation amount and compensation area. Most disputes in practice are superficially related to objections to the compensation amount, but more often they are objections to the compensation standards and compensation and resettlement plans. After a dispute arises over the compensation standard, Article 25 of the old "Implementation Regulations" stipulates that the government shall make the decision. However, the "Notice of the State Council Legislative Affairs Office on Completing the Administrative Review of Disputes over Land Acquisition, Compensation and Resettlement in accordance with the Law" (hereinafter referred to as Guofa [2011] No. 35) The provision is to apply for administrative reconsideration.The insufficient supply and conflict of legal systems have resulted in a vague understanding of the following issues in practice: What is the form of "compensation standard"? What is the relationship between "compensation standard" and "compensation and resettlement plan"? Is a government ruling on a dispute over compensation standards an administrative review? Which level of government will decide (reconsiderate) disputes over compensation standards? Is it necessary to file a lawsuit after reconsideration? When applying for reconsideration of the compensation and resettlement plan (initiating a lawsuit), should the approving agency (government at or above the city or county level) or the formulating agency (land administration department of the city or county government) be the respondent (defendant)? The imperfection of the legal system is not conducive to the protection of the legitimate rights and interests of farmers whose land has been expropriated, nor is it conducive to the smooth progress of expropriation and compensation. It can easily cause long-term land expropriation disputes, hinder the advancement of construction projects, and thus affect the realization of public interests.
(2) Expropriation and compensation procedures are not uniform
In practice, the expropriation and compensation policies of municipalities (unless otherwise specified below, all refer to cities with districts) and county governments frequently adjust the compensation standards, compensation content, and compensation procedures for different projects. unified. Municipal and county governments and relevant functional departments do not implement expropriation and compensation acts in a unified, standardized and legal manner, which also creates difficulties in identifying actionable administrative acts. For example, inconsistencies in the understanding of land acquisition decisions (land acquisition behaviors) not only cause obstacles to the determination of the scope of the case, but also cause problems in the determination of the legality review scope, review standards, plaintiff qualifications, and the scope of res judicata. However, the unclear legal regulations on the subject of compensation obligations have resulted in the diversity of compensation subjects in practice: there are city and county governments, natural resources authorities, local expropriation offices, township governments, and project legal persons; there are also "fake" villages in some areas Compensation is imposed at the hands of collective economic organizations. “If there is expropriation, there must be compensation”; expropriation is independent, individual and specific, and compensation should also be independent, individual and specific. The compensation content, compensation items and compensation amount of each expropriated farmer household are different, so the compensation and resettlement should be specified through a separate compensation and resettlement agreement or compensation and resettlement decision; if the expropriated person is not satisfied, only the compensation and resettlement agreement of the household will be Alternatively, it is enough to file a lawsuit (or review) on the compensation and resettlement decision, without raising objections to the entire expropriation and compensation act. However, on the important issue of who should compensate and in what form, due to unclear legislation, coupled with factors such as "lazy administration" and "fear of trouble", subjects with compensation obligations rarely sign compensation agreements or make compensation decisions on a household-by-household basis, and many simply The list of compensation items and amounts for each household will be announced and it will be deemed to have been compensated. If the expropriated people do not accept the announcement of the results on the list, it is rare to fix the content of compensation and resettlement in the form of compensation and resettlement decision. After a lawsuit occurs, although the subject of the compensation obligation will argue that the expropriated person's claims are not in compliance with the regulations, and that the compensation and resettlement funds have been retained in the village group's account and can be applied for at any time, etc., and use this to prove that compensation and resettlement have been carried out in accordance with the law, they are often unable to provide evidence. It proves that there are basic facts such as written notification of receipt, and it is rare to find a legally notarized method of withdrawing and depositing compensation. The judicial authorities are very likely to determine that compensation and resettlement have not been carried out in accordance with the law, and require that the amount of compensation and resettlement be determined based on the time of judgment. The lack of compensation and resettlement decisions will not only easily increase the cost of compensation and resettlement, but also may lead to the phenomenon of "suffering losses by cooperating with relocation and taking advantage of delaying relocation". It may also induce the emergence of a very few so-called "nail households".
(3) The channels for legal forced demolition are not smooth and the punitive measures for illegal forced demolition are lacking.
In practice, illegal forced demolition (also known as forced clearing, forced relocation, and forced land transfer) exists in large numbers. This is not only related to the low level of administrative law enforcement at the grassroots level and the tight deadlines for expropriation and demolition, but also to the lack of connection between administration and justice, and the lack of "separation of authority and enforcement". According to the provisions of Article 45 of the old "Implementation Regulations", legal forced demolition should be ordered by the land administration department to hand over the land and apply to the people's court for enforcement. However, the legislation is unclear on the conditions, form and time limit for ordering the handover of land. Due to the lack of compensation and resettlement decisions, applications for enforcement by the People's Court may also be rejected.The grassroots administrative agencies can only demolish the property even though they know it is illegal, thus turning the dispute over legal expropriation, compensation and resettlement into a dispute over compensation for illegal demolition, artificially exacerbating the conflict. Due to the lack of a punitive compensation mechanism, it is not uncommon for judicial authorities to "determine the amount of compensation based on compensation standards." Illegal forced demolition measures not only "save" time costs, but also do not increase (sometimes even reduce) economic compensation costs. A few grassroots administrative agencies also have the "motivation" to illegally demolish, and even imitate each other's demolition "experience", which not only affects The harmonious relationship between the government and the people further affects the image of a law-based government.
(4) Reconsideration and judicial substantive resolution of disputes have limited functions
The purpose of administrative litigation and administrative review is to substantively resolve administrative disputes. Constrained by the concepts of “one act, one review” and “one act, one litigation”, the actual effect of resolving disputes is not obvious. For example, judicial organs are limited to "one act, one lawsuit" and lack effective explanations and guidance for plaintiffs to file lawsuits. Expropriation and compensation lawsuits often involve plaintiffs' inaccurate representations of the administrative acts being sued, multiple lawsuits in one case, unspecific litigation claims, and incorrect selection of defendants. Correct, improper timing of prosecution, repeated prosecution, and idle procedures. In terms of handling results, the people's court confirmed more violations due to procedural issues than ruled that the administrative agency had made errors in determining facts and applying laws; it confirmed the illegality and retained the effectiveness of administrative actions more than revoking or requiring administrative agencies to perform their duties; the plaintiff nominally won the case but the entity received less compensation. , the proportion of compensation that can fully cover the losses is even lower; it is difficult to judge the legality of compensation standards and compensation and resettlement plans, and there are few cases of revoking land acquisition approvals and expropriation decisions. There is insufficient professionalization and specialization in administrative reconsideration, insufficient ability to substantively resolve disputes, and failure to demonstrate the main channel function.
2. System Evolution: Legal Revision of the Expropriation and Compensation System
(1) Major Adjustments to the Land Expropriation and Compensation Procedure
"Land expropriation and compensation are typical multi-stage, multi-step, and multi-procedure behaviors, with administrative subjects multiple administrative processes. Multiple levels and various forms of behavior.” Under the background of the old law, the land expropriation compensation procedures were roughly as follows: (1) Municipal and county people's governments (hereinafter referred to as city and county governments): submit ", one book, four plans " → (2) Governments at or above the provincial level: approve "one "Book Four Plan" → (3) Municipal and county governments: Announce land acquisition plan → (4) Municipal and county government land administration departments (hereinafter referred to as the soil management department): handle land acquisition compensation registration → (5) soil management department: formulate land acquisition compensation and resettlement plan, announce, listen to opinions, and report → (6) Municipal and county governments: approve land acquisition compensation and resettlement plan → (7) soil management department : Organize the implementation of land acquisition compensation and resettlement → (8) Land management department: Order the land to be handed over and apply to the People's Court for enforcement. The old law does not provide for how the land management department will specifically organize the implementation of expropriation and compensation and resettlement after the land acquisition, compensation and resettlement plan is approved.
The new law has made major adjustments to the expropriation and compensation procedures, adding systems such as pre-announcement of land expropriation, clarifying the hearing procedures for objections to the compensation and resettlement plan, placing the compensation and resettlement plan, signing of the compensation agreement, etc. before applying for land expropriation, and clarifying that the municipal and county governments are responsible for compensation. The obligatory subjects for resettlement and application for compulsory execution, in particular, clarify that the municipal and county governments organize relevant departments to sign land acquisition compensation and resettlement agreements. The land acquisition compensation and resettlement agreements shall be subject to the model text formulated by the provincial government. The municipal and county governments shall be responsible for individual cases where a compensation and resettlement agreement has not been reached. Make decisions on land acquisition compensation and resettlement.The new procedures are as follows: (1) City and county governments: issue pre-announcement of land expropriation → (2) city and county governments: conduct land status survey → (3) city and county governments: conduct social stability risk assessment → (4) city . The county government organizes relevant departments: draw up a compensation and resettlement plan and announce it; if the majority of people request a hearing, a hearing should be organized, and the compensation and resettlement plan should be revised and determined → (5) The city and county government organize relevant departments: handle compensation registration → (6) City, The county government organizes relevant departments: Sign a compensation and resettlement agreement → (7) Municipal and county governments: Submit a land expropriation application to the State Council or provincial government (and explain the individual cases where a compensation and resettlement agreement has not been reached) → (8) The State Council or provincial government: Approval of the land expropriation application → (9 ) City and county governments: issue land acquisition announcement → (10) City and county governments: make land acquisition compensation and resettlement decisions for individual cases where land acquisition compensation and resettlement agreements have not been reached → (11) City and county governments: order the handover of land and apply to the People’s Court Enforcement. What needs to be suggested is that considering that the expropriation of land and houses should be specific, specific, and individual, rather than overall, abstract, and general, it is recommended that when conditions are mature, it is stipulated that after the municipal and county people's governments make an expropriation decision, , combined with the actual situation of the land and house ownership of the expropriated person, a specific expropriation decision will be made and served accordingly, which will also be conducive to case-by-case policy implementation and judicial supervision .
(2) Limitation of the scope of land expropriation purposes
Article 2, paragraph 4, of the old Land Management Law stipulates that "for the needs of public interests, the state may expropriate or expropriate land in accordance with the law and provide compensation", but does not "public interests" ” define. Article 45 of the new Land Management Law stipulates "public interests" in an enumerated manner, clarifying that infrastructure construction, public utilities, poverty alleviation and relocation and affordable housing project construction, and land development and construction organized and implemented by the government for military and diplomatic purposes Five situations including necessity fall within the scope of public interest, and the power to regulate "other situations" is limited to legal provisions. This provision will help narrow the scope of expropriation and standardize land expropriation rights. In order to prevent the "land required for the implementation of land development and construction" from being arbitrarily expanded in practice, the standards for land development and construction must be clarified, and a democratic participation mechanism should be introduced into land development and construction to prevent the generalization of public interests and the abuse of expropriation rights. , city and county governments must identify "land development and construction" in accordance with the standards and procedures formulated by the "Land Acquisition and Development Standards (Trial)" issued by the Ministry of Natural Resources on November 5, 2020.
(3) Changes in the compensation and resettlement plan and its objection relief channels
The new law no longer distinguishes between the drafting body, the approval body, the announcement body and the implementation body for the compensation and resettlement plan. Instead, it is clearly formulated by the relevant departments organized by the municipal and county governments, and their Announcement, organizing hearings, determining plans, and then organizing implementation. The compensation and resettlement plan is formulated based on the results of social stability risk assessment and land status survey results, including the scope of expropriation, current land status, purpose of expropriation, compensation methods and standards, resettlement objects, resettlement methods, social security, methods and time limits for compensation registration wait. Regarding the issue of objection procedures to the compensation and resettlement plan, the new law stipulates that the objection feedback channel shall be specified when announcing the proposed land acquisition compensation and resettlement plan. The rural collective economic organizations whose land was expropriated and their members, village committees and other interested parties can promptly raise objections if they have any objections. It reflects that if the majority of members of the rural collective economic organizations whose land has been expropriated believe that the proposed land acquisition compensation and resettlement plan does not comply with the provisions of laws and regulations, the city and county governments should organize a hearing and modify the plan according to the provisions of laws and regulations and the results of the hearing. The old "Land Management Law" and its "Implementation Regulations" did not clearly stipulate the hearing procedures for the compensation and resettlement plan. The new law formally stipulates the hearing system of the compensation and resettlement plan in the form of law. During the hearing process, when reviewing whether the compensation and resettlement plan complies with laws and regulations, we must first look at whether the compensation is comprehensive, reasonable, and fair, and whether it ensures that the original living standards of the land-expropriated farmers will not be reduced and their long-term livelihood is guaranteed; secondly, it must look at the compensation and resettlement plan. Whether the formulation complies with legal procedures.The announcement and hearing procedures of the compensation and resettlement plan can better protect the expropriated people's right to know, participate and supervise the compensation and resettlement plan, prevent and reduce compensation and resettlement disputes from the source, and must be strictly observed and implemented. At the same time, the new "Implementation Regulations" delete the coordination and adjudication procedures for disputes over compensation standards, and "separate land acquisition approval from the determination of land acquisition compensation and resettlement plans. When governments at or above the provincial level make land acquisition approvals, they will no longer review specific land acquisition compensation and resettlement plans. The focus is to review the necessity and rationality of land acquisition, whether it complies with the circumstances where land acquisition is necessary for the public interest, and whether it complies with legal procedures." Such a reform will reasonably divide the main responsibilities in land acquisition and approval according to the power execution capabilities of governments at all levels. It will not only strengthen the main responsibilities of municipal and county governments for land acquisition compensation and resettlement, improve the efficiency of land acquisition approval by the State Council and provincial governments, but also benefit the judiciary. Review and identify the responsible parties, conduct precise supervision, and resolve conflicts and disputes caused by land acquisition in a timely and efficient manner.
(4) Establishment of the principle of fair compensation and improvement of compensation standards
The new Land Management Law has improved the compensation standards for land expropriation. First, in terms of compensation principles, it is clear that fair and reasonable compensation should be given for land expropriation and should be paid promptly and in full to ensure that "the original living standards of land-expropriated farmers are not reduced and their long-term livelihood is guaranteed." Second, in terms of compensation and resettlement projects, in addition to clarifying the land compensation fee, resettlement subsidy fee, and compensation fees for rural villagers' houses, other ground attachments, and young crops, a social security system for land-expropriated farmers will also be established as expropriators. Legal obligations, social security expenses are separately disbursed, mainly used for social insurance payment subsidies such as pension insurance for qualified land-expropriated farmers. Third, in terms of compensation standards, the calculation of land compensation fees and resettlement subsidies has changed from being calculated based on the original use and multiples of the annual output value to being determined by the provinces, autonomous regions, and municipalities through the formulation and publication of comprehensive land prices for the areas. The comprehensive land price of the area includes land compensation fee and resettlement subsidy fee, and these two fees will no longer be distinguished. When formulating comprehensive land prices for areas, in addition to considering the original use, factors such as land resource conditions, land output value, land location, land supply and demand, population, and economic and social development levels must also be comprehensively considered, and it must be made clear that adjustments or resets must be made at least every three years. announced. It should be noted that the number of tiles must be controlled within a reasonable range to avoid conflicts due to horizontal comparisons, and reasonable differences in compensation standards between tiles must be controlled. Fourth, specific provisions on villagers’ residential compensation have been added, and the principle of “compensation first, relocation, and improvement of living conditions” has been clearly stipulated. In terms of compensation and resettlement methods, it emphasizes respecting the wishes of rural villagers and adopting diverse and flexible methods, including Rearrange homesteads for house building, provide resettlement housing or monetary compensation. In terms of compensation items, it is clearly stipulated that relocation, temporary resettlement and other expenses caused by expropriation should also be compensated. Fifth, in order to ensure timely and full payment of compensation fees, it is clearly stipulated that municipal and county governments applying for land expropriation should promptly implement various compensation fees, ensure that the full amount is paid, and earmark the funds for their exclusive use; if the full amount is not paid, the land expropriation shall not be approved. Sixth, regarding the distribution of various compensation fees, Article 32 of the new "Implementation Regulations" stipulates that the compensation fees for ground attachments and young crops shall belong to their owners, giving provinces, autonomous regions, and municipalities directly under the Central Government the right to determine their own land compensation fees and resettlement subsidies. The power to allocate fees.
3. Local Practice: Local Legislation of Expropriation and Compensation System
(1) Authoritative subjects and administrative actions in each link of compensation and resettlement
The new law clearly stipulates that municipal and county governments are responsible for land expropriation and compensation and resettlement. However, the compensation and resettlement work is a huge project, involving multiple administrative actions in multiple links and stages. From an operational level, it cannot and should not all be made directly by the municipal and county governments. It needs to be authorized by regulations, administrative authorization or administrative delegation method transfers part of the power to other administrative agencies.For example, Articles 4 and 5 of the "Shanghai Municipal Compensation Regulations for the Expropriation of Collective Land and Houses" (hereinafter referred to as the "Shanghai Regulations") promulgated on September 29, 2021 stipulate: "The Municipal Planning and Resources Department is responsible for the city's land acquisition and housing compensation work. The competent department responsible for land acquisition and housing in this city Business guidance, supervision and management of compensation. Municipal and district development and reform, housing and urban-rural construction management, agriculture and rural, human resources and social security, housing management, finance, market supervision, auditing and other departments should coordinate the work of land acquisition and housing compensation. (Township) People’s Government, The district people's government shall be responsible for the land acquisition and housing compensation work in its own administrative area. The district people's government may designate the district planning resources and other departments to organize the implementation of the land acquisition and housing compensation work in its administrative area. The designated district land acquisition agency specifically implements the land acquisition and housing compensation work. If the district land acquisition agency entrusts the implementing unit to undertake the specific work of land acquisition and housing compensation, it shall supervise the land acquisition and housing compensation behavior implemented by the implementing unit within the scope of entrustment and determine the consequences of its actions. bear legal responsibility." The new law does not clearly stipulate which department shall handle compensation registration. Article 43 of the "Zhejiang Provincial Land Management Regulations" (hereinafter referred to as the "Zhejiang Provincial Regulations") passed on September 29, 2021 stipulates: "Registration to districted cities and counties The departments and institutions designated by the (municipal, district) people's government or the township people's government or sub-district offices handle compensation registration." For another example, in the process of signing a compensation and resettlement agreement, Article 29 of the new "Implementation Regulations" stipulates: Municipal and county governments should organize relevant departments to sign a land acquisition compensation and resettlement agreement with the owners and users of the land to be acquired. Article 44 of the "Zhejiang Provincial Regulations" stipulates: "Departments designated by the people's governments of cities and counties (cities, districts) or township people's governments shall sign land acquisition compensation and resettlement contracts with the owners and use rights holders of the land to be expropriated in accordance with the law. protocol". For another example, in the process of ordering the handover of land and applying for enforcement, Article 47 of the Zhejiang Provincial Regulations stipulates that the administrative agency that signed the land acquisition compensation and resettlement agreement may also make a written decision requiring the performance of the agreement and apply to the people's court for enforcement in accordance with the law.
(2) Conditions for applying for land expropriation
According to Article 47 of the new Land Management Law and Article 30 of the new Implementation Regulations, an application for land expropriation can only be made after the municipal and county governments have completed the preliminary work for land acquisition. Article 45 of the "Zhejiang Provincial Regulations" and Article 39 of the "Jiangsu Provincial Land Management Regulations" revised on January 15, 2021 (hereinafter referred to as the "Jiangsu Provincial Regulations") clearly stipulate that the announcement of proposed expropriation, land expropriation investigation and risks shall be completed in accordance with the law. An application for land acquisition can only be made after relevant preliminary work such as assessment, announcement and hearing of the land acquisition compensation and resettlement plan, land acquisition compensation registration and agreement signing. In the preliminary work of land acquisition, the following three aspects need to be paid attention to:
First, the registration of land acquisition compensation is comprehensively promoted. In past practice, it was common for expropriated persons to fail to cooperate with land acquisition and compensation registration within the announcement period due to dissatisfaction with the compensation standards and other reasons, which affected the advancement of expropriation and compensation work. Paragraph 3 of Article 43 of the "Zhejiang Provincial Regulations" solves this problem from an operational level, that is, "Relevant information is determined according to the results of the survey and public announcement of the current status of the land. The agency handling compensation registration can entrust a notary agency to conduct on-site notarization of the registration status."
The second is the determination of the proportion between the signing and conclusion of the compensation and resettlement agreement. In the new procedure, the signing of a compensation and resettlement agreement has been pre-empted before the application for land expropriation, but to what proportion or extent must the signing be reached before an application for land expropriation can be made? The law only uses the expression "individually it is really difficult to reach a land acquisition compensation and resettlement agreement." Issues of "individual" regulations are left to local decisions. Paragraph 2 of Article 44 of the "Zhejiang Provincial Regulations" stipulates that "individual specific standards shall be stipulated by the Provincial People's Government." Article 2, Item 6 of the "Opinions of the General Office of the People's Government of Shandong Province on Standardizing the Management of Land Acquisition" (Lu Zheng Ban Zi [2022] No. 13) stipulates that "the proportion of signed agreements should generally be no less than the total number of use rights holders. 95%". Judging from the legislative background information, the legislative intention of the new Land Management Law is to set a higher contract ratio.Some provinces and cities have clear regulations on the proportion of contract contracts for house expropriation and compensation on state-owned land. For example, Shanghai stipulates that the contract ratio for the reconstruction of old urban areas shall not be less than 80%.
Third, municipal and county governments should implement compensation fees, social security fees, etc. in a timely manner and ensure that they are paid in full and earmarked funds are used exclusively. If the relevant fees are not paid in full, the land expropriation shall not be approved. Jiangsu Province is also exploring the establishment of a pre-deposit system for land acquisition compensation fees and establishing special accounts for land acquisition compensation and social security funds.
(3) Procedures for making compensation and resettlement decisions
The new law does not stipulate the procedures for making compensation and resettlement decisions. The compensation and resettlement decision directly determines the compensation interests of the expropriated persons who have not signed the agreement, and is mandatory and must be made in accordance with the law.
First of all, before making a decision on compensation and resettlement, you must go through pre-approval notification, hearing and other procedures for land acquisition in accordance with the law, and you must also strengthen negotiation and reconciliation before making a decision. For example, Article 26, Paragraph 2 of the "Shanghai Municipal Regulations" stipulates the coordination procedure for land acquisition and housing compensation: "Before the district people's government makes a decision on land acquisition compensation and resettlement, the district land acquisition agency shall formulate specific compensation plans based on the approved land acquisition and housing compensation plan. The plan shall be provided to the person with the right to use the homestead or the owner of the house, and the specific compensation plan shall include the compensation standard and security within a specified period. The district people's government shall coordinate within the response period, including the location of the house to be purchased and the relocation period. "
Secondly, the main content of the compensation and resettlement decision includes: the basic information of the expropriated person, the negotiation process, the reasons for the disagreement, and the compensation and resettlement decision. The basis and reasons, the way to keep (deposit and receive) the compensation, the time limit and specific requirements for vacating the land (house), etc., and inform the rights of applying for reconsideration and prosecution.
Once again, compensation and resettlement decisions should follow the principles of timeliness, legality, reasonableness and fairness. When the compensation and resettlement requirements put forward by the expropriated people obviously do not comply with the legal provisions and cannot be met, the city and county governments should promptly make a written compensation and resettlement decision in accordance with the law and fix the content of compensation, instead of repeatedly negotiating or even waiting for changes. In practice, the compensation and resettlement plan should clearly specify the time node for making compensation and resettlement decisions. If the administrative body fails to make a decision on compensation and resettlement before this time point, if the real estate price increases significantly, it must be determined based on the actual time point in which the decision on compensation and resettlement is made.
Finally, the compensation and resettlement decision should also be delivered to the expropriated person in accordance with the law. Except for special circumstances such as unclear property rights, where an announcement can be used to serve , the evidence should generally be served directly and fixed.
(4) Conditions and procedures for ordering the surrender of land and enforcing it in accordance with the law
After the land expropriation application is approved, if the municipal or county government has fulfilled its obligations of compensation and resettlement, the expropriated person shall hand over the land in accordance with the agreement or the requirements of the compensation and resettlement decision. Expropriate the expropriated land (houses) and cooperate with the construction unit to enter the site. According to Article 62 of the "Implementation Regulations", "Those who obstruct the expropriation of land for national construction shall be ordered by the local people's government at or above the county level to hand over the land; if they refuse to hand over the land, they shall apply to the People's Court for compulsory execution in accordance with the law." Since the new law clearly stipulates the procedure for signing a compensation and resettlement agreement and making a decision on compensation and resettlement, the obligation of the expropriated person to hand over the land may be stipulated in the agreement or clarified by the decision. In practice, enforcement issues may be carried out according to the enforcement mode of administrative agreements or the enforcement mode of effective administrative decisions.
One way of thinking is that whether it is an agreement or a decision, the city and county governments must make a decision to order the land transfer according to the provisions of Article 62 of the new "Implementation Regulations" and apply to the People's Court for execution. Specifically, it must be implemented in accordance with the relevant provisions of Chapter 5 "Application for Compulsory Enforcement by the People's Court" of the " Administrative Enforcement Law of the People's Republic of China" (hereinafter referred to as " Administrative Enforcement Law"). That is: when a compensation and resettlement decision is made, the city or county government: (1) makes a decision to order land handover → (2) urges the implementation of the decision to order land handover → (3) applies to the People’s Court to enforce the decision to order land handover.In the case of signing a compensation and resettlement agreement, combined with the provisions of Article 24 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases" (hereinafter referred to as the "Interpretation of Administrative Agreements"), the municipal and county governments: (1) urge the performance of land acquisition compensation Obligations stipulated in the resettlement agreement → (2) Make a decision to order land handover → (3) Call for execution of the decision to order land handover → (4) Apply to the People’s Court to enforce the decision to order land handover.
Another way of thinking is that combined with the provisions of the " Supreme People's Court on Several Issues Concerning Applications for the People's Court to Enforce Enforcement of Housing Expropriation Compensation Decisions on State-owned Land" and "Judicial Interpretation of Administrative Agreements", municipal and county governments are making compensation. After a resettlement decision or a "written decision requesting performance of the agreement" is made, there is no need to make a decision to order land transfer. What is applied for is the compensation and resettlement decision or "written decision requesting performance of the agreement." As Article 47 of the "Zhejiang Provincial Regulations" stipulates, the enforcement procedures are as follows: The administrative agency that signed the agreement or the city, county (city, district) government with districts: (1) urge the performance of the obligations stipulated in the land acquisition compensation and resettlement agreement → ( 2) Make a “written decision requiring performance of the agreement” → (3) Apply to the People’s Court for enforcement.
4. Judicial response: substantive resolution of expropriation and compensation disputes
(1) Actionable administrative actions, determination of litigation claims and selection of adjudication methods
Land expropriation and compensation are typical multi-stage administrative actions, among which actionable administrative actions are Judgment is always a difficult problem in administrative litigation. In the practice of the old law, there are administrative actions with different manifestations and complex types of litigation claims, and the essence of the dispute is difficult to resolve. Under the background of the new law, the subject of compensation and resettlement obligations is in principle determined to be the municipal and county governments, and the municipal and county governments are clearly required to formulate compensation and resettlement plans, organize the signing of compensation and resettlement agreements, issue land acquisition announcements, make compensation and resettlement decisions, and order the handover of land. Therefore, the determination of actionable administrative actions and the determination of litigation claims are relatively clear. However, the following issues still require attention in practice:
. The relationship and actionability issues between the provincial government’s land acquisition approval and the municipal and county government’s land acquisition announcement
The old law failed to fully clarify the nature and relationship of the land acquisition approval and land acquisition announcement, and at the same time, it omitted The "land acquisition decision" that should exist has resulted in inconsistencies and different understandings of what "land acquisition (land) behavior" is in practice. As for whether the provincial government's land acquisition approval is actionable, the current mainstream view is that it is not actionable. The main reasons are as follows: First, it is believed that according to the provisions of Article 30, Paragraph 2 of the " Administrative Reconsideration Law", the "land acquisition approval" can be It is recognized as the "final ruling" of the provincial government; secondly, it is believed that the "land acquisition approval" can be recognized as an internal approval behavior between superior and subordinate levels. Specifically, land expropriation approval is generally submitted by the city or county government and reported to the provincial land department or the Ministry of Land and Resources. After the land and resources department reviews the application in accordance with the law, it is issued on behalf of the provincial government or the State Council, that is, The provincial government’s land acquisition approval is a response to requests for instructions from superior and subordinate agencies. , it is an internal review and approval act made by the superior authority to the lower authority. The content of the approval does not have direct legal effect on the administrative counterpart . The reply will neither be delivered to the person subject to the expropriation nor will the consequences of the expropriation directly occur. After the expropriation is approved, whether and When the expropriation will be implemented remains to be decided by the city and county governments. "Internal approval identification" has also been strengthened in the "Decision of the State Council on Cancellation of Non-Administrative Licensing Approval Matters" No. 27 of Guofa [2015]: This document has clearly defined the "Land Acquisition Review (40)" and "Agricultural Land Conversion "Review (39)" was adjusted to "Catalog of Matters for Internal Government Approval", and the "internal approval" attribute of "Land Acquisition Approval" was made clearer. If the provincial government's land acquisition approval is not actionable, then the only thing that can be appealed is the land acquisition announcement of the city or county government (which is regarded as a land acquisition decision and expropriation act). However, there are also opinions that the expropriation announcements of municipal and county governments are not actionable, because the expropriation announcements are only the externalization, delivery and notification procedures of the land acquisition approval.Regarding the above disputes, Articles 30 and 31 of the new "Implementation Regulations" stipulate that the right to "expropriate land" and the right to approve "applications for land expropriation" are distinguished. It has been made clear that this is a major institutional innovation. "When the State Council and provincial people's governments review and approve land, they will no longer review matters that have overall responsibility for municipal and county people's governments, and truly reflect the power execution capabilities of governments at all levels." Equivalence of powers and responsibilities.” This kind of "major institutional innovation" actually creates a secondary division of labor between the provincial government and the municipal and county governments that were traditionally considered "expropriation powers": Therefore, the provincial government's land acquisition approval can no longer be understood as "land expropriation behavior". "Expropriation behavior", and regarded as internal control of the "land expropriation behavior" and "expropriation behavior" of municipal and county governments, is no longer a permission expropriation, but an internal approval expropriation. This not only "creates" conditions for the provincial government's land acquisition approval to be regarded as internal approval for land acquisition, but also "creates" conditions to guide parties to sue the municipal and county government's land acquisition announcement (land acquisition) instead of directly suing the provincial government's land acquisition approval. condition. Of course, this view still needs to be unified by the legislative body, theoretical circles and practical departments. Before the understanding of all walks of life is not fully unified, the issue of the justiciability of the provincial government's land acquisition approval and the city and county government's land acquisition announcement may be solved in the following ways:
First, the plaintiff qualifications and review model of the provincial government's land acquisition approval should be innovated. . As mentioned above, the current mainstream view is that the provincial government's land acquisition approval is not actionable. Some people use the provisions of Article 30, paragraph 2, of the "Administrative Reconsideration Law of the People's Republic of China" as the argument, and some use the Guofa [2015] No. 27 The internal approval attributes determined in the "State Council's Decision on Cancellation of Non-Administrative Licensing Approval Matters" are the reasons for argumentation. To put it bluntly, the author believes that even if the mainstream view changes again and it is recognized that the provincial government's land acquisition approval is actionable, there will still be a need for special provisions on the scope of plaintiff qualifications and the review model. Because according to the provisions of Article 30, Paragraph 2 of the new "Implementation Regulations", the provincial government only reviews the necessity and rationality of land acquisition, whether it meets the needs of public interests, and whether it complies with legal procedures; applications from municipal and county governments Matters implemented before land acquisition and for which the overall responsibility is assumed (such as formulating compensation and resettlement plans, organizing hearings, etc.) "will no longer be reviewed." In principle, farmers who have signed a compensation and resettlement agreement should not be qualified as plaintiffs. The qualifications of plaintiffs are limited to "individually expropriated farmers who are really difficult to reach an agreement." The acceptance and review of such cases can be carried out through joint litigation or representative litigation to resolve the legality issue of land acquisition approval in one lawsuit. The main content of the people's court's review of the necessity of land acquisition is whether there is still existing land, idle land and land that has not been approved for use in the area; the main content of the rationality review is whether the amount and area of land acquisition are reasonable and comply with relevant regulations. Construction land standards, whether it meets economical and intensive land use, whether there is free-riding land acquisition, etc. The People's Court has made an effective ruling and in principle will restrain all individual expropriated farmers who participated or did not participate in the litigation and did not sign an agreement.
The second is to guide the expropriated farmers to directly sue the city and county governments for land expropriation announcements issued in accordance with Article 31 of the new "Implementation Regulations". In principle, farmers who have signed a compensation and resettlement agreement should not be qualified as plaintiffs. The qualifications of plaintiffs are limited to "individually expropriated farmers who are really difficult to reach an agreement." The acceptance and review of such cases can be carried out through joint litigation or representative litigation, and the legality of the land expropriation announcement can be resolved in one lawsuit. The legality review standards are in principle based on the provisions of Article 30, paragraph 2, of the new Implementation Regulations. The People's Court has made an effective ruling and in principle will restrain all individual expropriated farmers who participated or did not participate in the litigation and did not sign an agreement.
The third is to guide the expropriated farmers to sue, which is the administrative act that has the closest impact on their rights and obligations. If they have no objection to the land expropriation and only have objections to the compensation issue, the expropriated farmers should be guided to sue the city or county government for the land acquisition compensation and resettlement decision or compensation and resettlement agreement to directly resolve the compensation and resettlement dispute.
Compensation and resettlement plans and relief channels for approved actions have changed repeatedly in the old law era and are always inconsistent. Under the background of the new law, the agencies that formulate compensation and resettlement plans are municipal and county governments, so there is no approval behavior. Therefore, the issue of the justiciability of the approval behavior does not need to be discussed anymore. However, there are still different views on the litigability of the compensation and resettlement plans formulated by the city and county governments. Some people believe that Article 25 of the old "Implementation Regulations" stipulates the pre-adjudication procedure for the compensation and resettlement plan. The National Law [2011] No. 35 also stipulates that disputes over the compensation and resettlement plan should be submitted to the next higher level government in accordance with the provisions of administrative review laws and regulations. The application was made, "Since the reconsideration decision of an administrative action can be litigated, the administrative action itself should also be actionable, so the land acquisition compensation and resettlement plan is not unactionable." Some people believe that “Article 25 of the old Implementation Regulations and National Law [2011] No. 35 actually imply that administrative reconsideration should be conducted first and then enter administrative litigation, and disputes over compensation and resettlement plans are still relatively abstract and standardized administrative action disputes. , let the administrative agencies handle it first, which can unify standards in a timely manner and reduce disputes." The new Implementation Regulations delete the coordination and adjudication procedures for disputes over compensation standards. The mainstream view is that those who are dissatisfied with the land acquisition compensation and resettlement plan can apply for reconsideration to the higher-level government of the city or county government that drafted the plan. There are still some differences as to whether it should be clearly defined as a preliminary review or a final review, and whether it should be included in the scope of administrative litigation. The author believes that the resettlement compensation plan under the new law has more complete relief procedures such as objections and hearings. If the land-expropriated farmers do not agree with the plan, they do not need to sign a compensation agreement, thus "putting aside" the land acquisition process; some individuals are not satisfied with the resettlement compensation decision. If a reconsideration or lawsuit is filed, a review of the legality of the plan can also be initiated, and the plan will be treated as a similar normative document.
Of course, if the majority of opinions still maintain that the plan is a specific administrative act that can be reviewed and litigated, then, since the compensation and resettlement plan is determined by the local government, it is more conducive to resolve the dispute through administrative review first, so the review first should be adhered to. ; As for whether it is a review at the same level or a review at a higher level, special provisions can be made in legislation. Of course, the legality review standards and models should refer to the aforementioned land acquisition announcement review model and maintain judicial modesty.
In short, if the land-expropriated farmers or collective economic organizations have objections before the compensation and resettlement plan is determined, they can be resolved through soliciting opinions and hearing procedures; if they have objections after the plan is finalized and before signing the compensation and resettlement agreement, they can submit it to the city or city that formulated the plan. The county government's superior government applies for reconsideration, and only if you are dissatisfied with the reconsideration decision can you file a lawsuit; After signing a compensation and resettlement agreement or issuing a land acquisition announcement, making a compensation and resettlement decision, ordering land handover, or forced demolition, the expropriated person shall determine the compensation and resettlement plan, compensation standards, land type and area identification of the expropriated houses and land, and ground attachments. Any objections to the calculation of Qingmiao compensation fees can be reviewed together with the facts and basis in the following five types of litigation. In the joint review, compensation and resettlement plans that comply with laws, regulations and provincial government compensation and resettlement policies, meet fair and reasonable standards, do not reduce the original living standards of land-expropriated farmers, and ensure long-term livelihoods can be used as the basis for judgment; those that do not comply , directly determine the content of compensation and resettlement in accordance with laws, regulations and provincial government compensation and resettlement policies.
. Types of claims for compensation and resettlement disputes and their adjudication methods
If the expropriated person has no objection to the land expropriation, but is dissatisfied with the compensation and resettlement, the order to hand over the land or the forced demolition, he can sue the compensation and resettlement agreement and the compensation and resettlement decision respectively. , order the land to be handed over for decision or force demolition. In such disputes, most of the people being expropriated do not object to the expropriation and even hope to do so. The root cause of the dispute lies in whether they have been compensated legally, fairly, promptly and in full.Therefore, in the face of ordinary farmers with weak ability to safeguard their rights, the People's Court should act in accordance with Article 55 of the "Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China" (hereinafter referred to as the "Interpretation of the Administrative Procedure Law") at the first instance stage. It stipulates that guidance and explanations shall be provided, and based on the specific compensation progress of individual cases, reasons for differences in compensation and resettlement, etc., starting from responding to the substantive demands of the expropriated persons, the expropriated persons shall be guided to accurately determine the eligible defendants, the administrative acts complained of, and the substance of the dispute. Resolved litigation claims. The litigation claims can be categorized into five types:
The first is the compensation and resettlement agreement type. After a compensation and resettlement agreement has been signed, if the expropriated person believes that the compensation and resettlement agreement is invalid/illegal/misses statutory compensation and resettlement content, or believes that the subject of compensation and resettlement obligations has not performed the compensation and resettlement agreement as agreed, he may appeal to confirm the compensation and resettlement. The agreement is invalid, illegal/changed, revoked, terminated the compensation and resettlement agreement/fulfillment of the compensation and resettlement agreement.
The second category is the lawsuit for compensation and resettlement decisions. In the case where the subject of compensation and resettlement obligations has made a decision on compensation and resettlement, if the expropriated person believes that the decision on compensation and resettlement is illegal or omits statutory compensation and resettlement content, he may apply to revoke or change the decision on compensation and resettlement, or make a new decision on compensation and resettlement.
The third category is the category of litigation regarding the performance of compensation and resettlement responsibilities. In the absence of a compensation and resettlement agreement or a compensation and resettlement decision, regardless of whether the expropriated land has been forcibly handed over, if the expropriated person believes that the expropriator has not performed the compensation and resettlement duties in accordance with the law, he or she may petition the expropriator to perform the compensation and resettlement duties in accordance with the law. or make compensation and resettlement decisions. In terms of adjudication methods, if the expropriated person petitions the city or county government to perform compensation and resettlement duties, the People's Court should make a ruling and order the defendant to perform the compensation and resettlement duties in accordance with the law; if the expropriated person appeals to make a compensation and resettlement decision, the People's Court should make a ruling and order the defendant to perform the compensation and resettlement duty in accordance with the law. Make a decision on compensation and resettlement; if the expropriated person requests a specific amount of compensation, the compensation shall be based on the substance. From the perspective of resolving administrative disputes and reducing the burden of litigation on the parties, when the facts, evidence and basis of the compensation items and compensation content have been clear, the people's court can directly make a compensation judgment including specific compensation items and compensation amounts, and it is not appropriate to make further judgments Order administrative agencies to make compensation and resettlement decisions or perform compensation and resettlement responsibilities. Even if it is temporarily difficult to determine the specific content, items and amount of compensation, and the area, quantity or discretion needs to be determined by the administrative agency, the people's courts should vigorously promote interlocutory judgments (interim confirmation judgments) and first determine the basic principles and basic principles of compensation and resettlement in the judgment documents. The basic methods for requesting and determining the amount of compensation serve as the specific basis for administrative agencies to make compensation and resettlement decisions after the judgment, so as to substantively resolve disputes, reduce litigants' re-litigation, and reduce litigation burden and trial pressure.
The fourth is the lawsuit order to hand over the decision type. After a decision has been made to order the land to be handed over, if the expropriated person believes that the compensation and resettlement responsibilities have not been performed or the performance is not in place, or the procedure for making the decision to order the land to be handed over is illegal, they may appeal to confirm that the decision to order the land to be handed over is illegal.
The fifth lawsuit is administrative compulsory incidental compensation. In the absence of a compensation and resettlement agreement or a compensation and resettlement decision and the land has been forcibly handed over, if the expropriated person is dissatisfied with the forced demolition, he or she may apply to confirm that the forced demolition is illegal and compensate for losses to movable and immovable property. The people's court can make two judgments based on the circumstances of the expropriated person's claims: in general, it should directly judge the specific amount of compensation; in special circumstances, it should order the defendant to make a compensation decision. If the facts, evidence and basis for compensation that the administrative agency should pay are clear, the specific amount of compensation for the administrative agency should be directly adjudicated; if it is not clear yet, due to the lack of professionalism of the people's court, the administrative subject needs to make an administrative judgment first, and it is not appropriate to make a direct decision The judgment may order the defendant to make a compensation decision within a certain period of time. In terms of compensation standards, the punitive nature of compensation should be properly reflected on the premise of ensuring that the compensation standards should not be lower than the expropriation compensation that the expropriated people can obtain according to the compensation and resettlement plan.When determining the compensation items and the amount of compensation, the type of illegal behavior and the seriousness of the illegal circumstances should be combined with the compensation and resettlement plan, and the "State Compensation Law of the People's Republic of China" (hereinafter referred to as the "State Compensation Law") and the "Administrative Compensation Regulations" should be accurately applied "Compensation methods, compensation items, and compensation standards stipulated in ". The amount of compensation should include the value of the expropriated house, the loss of items caused by illegal forced demolition, and the loss of compensation and resettlement rights (that is, the relocation fee, temporary resettlement fee, incentive fee, subsidy fee, loss of production and business suspension, and property rights exchange that should be obtained according to the compensation and resettlement plan. room, etc.), etc.; compensation The loss of resettlement rights and interests can be regarded as a "direct loss" as stipulated in Article 36, Item 8 of the "State Compensation Law", in which "not less than" gives the People's Court a high degree of discretion, and the People's Court can determine based on the specific degree of violation of the law by the administrative agency. The amount of compensation reflects the punitive nature of the compensation.
(2) Validity and review of compensation and resettlement agreement
"No expropriation means no compensation, and no compensation means no expropriation." Compensation and expropriation are conditions and prerequisites for each other. Paragraphs 4 and 5 of Article 47 of the new Land Management Law, on the one hand, make the signing of a compensation and resettlement agreement a prerequisite and prerequisite for applying for land expropriation. Only when the compensation agreement reaches a certain proportion can the application for land expropriation be made. ; On the other hand, it is also clear that signing a compensation and resettlement agreement is only a necessary condition for approving and implementing expropriation, but not a sufficient condition; the effectiveness and implementation of the compensation and resettlement agreement depend on whether the land acquisition application is approved and whether the city and county governments finally implement the land expropriation. . If the land acquisition process is divided into three stages: pre-approval, review and approval, and post-approval, each stage still has multiple steps and procedures that need to be implemented: even if the pre-acquisition stage has reached the established contract signing rate, subsequent compensation fees and dossier application still need to be implemented. Submit for approval; even after approval is obtained, land acquisition announcements, notices of vacating and delivery, etc. are still required. Once the purpose of land acquisition changes, the city and county governments may suspend the expropriation work; and if the expropriation is not implemented after the two-year validity period of the land expropriation approval, You will need to reapply for approval or extend the validity period. When the contract signing rate is not reached, or the expropriation is not approved or is not implemented after approval, how is the validity of the compensation and resettlement agreement determined and does it need to be implemented? How should the resulting disputes be handled? It remains to be answered by practice.
According to the provisions of Article 502, paragraph 1, of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code"), a contract established in accordance with the law shall take effect from the time of its establishment, unless otherwise provided by law or otherwise agreed by the parties. The compensation and resettlement agreement shall be a contract that is established but has not yet taken effect and is attached with conditions for taking effect. The conditions for taking effect depend on the agreement of both parties to the agreement. There are two views on the effective conditions for the compensation and resettlement agreement: one is that it will take effect after reaching the contract ratio and obtaining land acquisition approval; [[22]] The second is that it will take effect after obtaining land acquisition approval and issuing a land acquisition announcement. [[23]] For example, Article 12 of the "Shanghai Municipal Regulations" stipulates: "After the application for collective land expropriation is approved and announced in accordance with the law, the relevant compensation agreement will take effect."
Contracts should be abided by, especially public law contracts. Before the resettlement compensation agreement takes effect, it does not mean that it is not binding. It should still be based on the principle of honesty and trustworthiness, actively promote the achievement of the contract conditions, and perform the "pre-obligations" before the contract takes effect. For example, city and county governments should actively apply for land expropriation and ensure that compensation fees are paid in full. After the land expropriation application is approved, they should actively make land expropriation announcements and organize implementation.In practice, if it is agreed that the approval of the land expropriation application is a condition for the effectiveness of the compensation and resettlement agreement, if the land expropriation application is approved before the conclusion of the first-instance court debate, the previously signed compensation and resettlement agreement can be deemed to be effective; if the signing ratio has not been reached, or the agreement has not yet been obtained If the land expropriation approval procedure is not possible and it is impossible to obtain the approval, it shall be confirmed according to the agreement that the agreement has not taken effect, and the liability for negligence in contract conclusion shall be handled in accordance with the agreement and the law; if the land expropriation application is If approval is obtained, but the city or county government does not implement the expropriation specifically within two years, resulting in the invalidation of the land expropriation approval issued by the competent department or the expropriation is not required due to public interests, the agreement will take effect at this time, but because the purpose of the agreement cannot be achieved, the counterparty to the agreement will have If the comprehensive land price of the area has been adjusted through re-application or extension of the validity period of the land acquisition approval, in order to reduce the losses of the expropriated person, a supplementary agreement can be signed.
If there is no evidence to prove that the compensation and resettlement agreement signed by the administrative agency and the expropriated person is invalid, the People's Court shall respect the expressions of intention of both parties. After the expropriated person has signed a compensation and resettlement agreement, received the corresponding compensation fees, and handed over the land, the owner's rights attached to the land will disappear. However, the compensation and resettlement agreement is subject to statutory invalidity conditions stipulated in Articles 144, 146, and 153 to 154 of the Civil Code and "the implementing entity does not have the qualifications as an administrative subject" stipulated in Article 75 of the Administrative Litigation Law of the People's Republic of China. Or there are serious and obvious illegal situations such as no basis." Regarding the implementation entity of the compensation and resettlement agreement, Article 47, paragraph 4, of the new Land Management Law and Article 29, paragraph 1, of the new Implementation Regulations stipulate that “the local people’s government at or above the county level shall organize relevant departments to contact the owners of the land to be expropriated. "The land acquisition compensation and resettlement agreement is signed by the person and the user right holder". From the perspective of literal interpretation, the administrative subject signing the compensation and resettlement agreement may be the municipal or county government, or the relevant departments of their organizations. Since some local laws and regulations stipulate that districted city and county governments can designate government departments or township governments to sign compensation and resettlement agreements, the people's courts should carefully determine and respect the qualifications of administrative subjects.
(3) Review of compensation and resettlement decisions
Review of the legality of compensation and resettlement decisions should focus on whether the compensation content is fair and reasonable.
First, a comprehensive review is conducted on whether the land acquisition, compensation and resettlement decision has factual and legal basis, including whether it is made in a timely manner and in accordance with the law, whether the expropriated land is within the scope of the land acquisition announcement, whether the land use project meets the needs of public interests, and whether the compensation and resettlement plan is legal.
The second is whether the compensation content is fair and reasonable. Fairness means that the same situation is treated with the same standards; reasonableness means that for legal houses, at least one should be demolished and one can be repaid or even higher; timely means that compensation must be made first before demolition; and sufficient compensation means that "living standards will not be reduced and long-term livelihoods will be guaranteed." Guarantee” and “improvement of living conditions”. To judge whether compensation and resettlement are fair and reasonable, we must not only strictly implement laws, regulations, and rules, but also consider local regulations that comply with higher-level laws, and comprehensively achieve "the standard of living will not be reduced, and long-term livelihoods will be guaranteed" and "the living conditions will be improved." Specifically, on the premise of confirming the legality of the land expropriation announcement and the land expropriation compensation and resettlement plan, the people's court shall determine and calculate the compensation content such as land compensation, resettlement subsidies, green crops, housing and social security in accordance with the new " The standards, contents and calculation methods determined by the Land Management Law, Implementation Regulations and the compensation and resettlement plan will be carried out. When reviewing the legality of compensation and resettlement decisions, we should adhere to fair and reasonable compensation and uphold judicial humility; we should review various compensation expenses in normative documents and compensation and resettlement plans that are based on local realities and do not violate the provisions of higher-level laws and provincial compensation and resettlement policies. Compensation standards, payment objects and payment methods can be supported. In practice, disputes often arise over whether the Regulations on Expropriation and Compensation of Houses on State-owned Land can be applied for compensation.In principle, the theories, scope and standards of compensation for expropriation of collective land and state-owned land are different. Therefore, the application of the compensation standard rules for houses on collective land with reference to the house on state-owned land should be strictly limited. The special provisions of Article 12, paragraph 2, of "Provisions on Several Issues in Cases" (hereinafter referred to as "Provisions on the Trial of Rural Collective Land Administrative Cases") must be understood comprehensively and accurately. Of course, since the compensation standard for house expropriation on state-owned land is generally higher than the compensation standard for collective land, the administrative body shall compensate the expropriated houses with reference to the house expropriation compensation standard on state-owned land. In order to fully protect the legitimate rights and interests of farmers whose land has been expropriated, the people The courts should respect it.
(4) Review and enforcement of the decision to order the surrender of land
According to the provisions of Articles 155 to 161 of the "Explanation of the Procedural Law" on non-litigation administrative enforcement and Article 14 of the "Regulations on the Trial of Rural Collective Land Administrative Cases", Drawing on the relevant provisions of the Supreme People's Court's "Provisions on Several Issues Concerning the Handling of Cases Applying to the People's Court for Compulsory Execution of Housing Expropriation and Compensation Decisions on State-owned Land", after the municipal and county governments make a decision to order the land to be handed over, they shall apply to the People's Court for enforcement. When submitting an application for compulsory execution, the following materials should also be submitted: (1) The decision to order land transfer and the relevant evidence for the decision (including the compensation and resettlement plan, the compensation and resettlement agreement, and the written decision or compensation and resettlement decision requiring the performance of the agreement) , land expropriation application approval documents, land expropriation announcements) and the regulatory documents on which they are based; (2) The delivery certificate of the land transfer decision, the reminder situation and the opinions of the expropriated person and direct interested parties; (3) Social stability risk assessment materials; (4) ) Land (housing) status for applying for enforcement. Non-litigation administrative enforcement cases are reviewed by the Administrative Tribunal of the People's Court. The scope of review includes: (1) Whether the applicant is the city or county government that made the decision to order the land to be handed over; (2) Whether the respondent is the person determined by the decision to order the land to be handed over. the obligor; (3) whether the applicant has fulfilled the compensation and resettlement obligations in the compensation and resettlement agreement or the compensation and resettlement decision, and whether the respondent has received compensation and resettlement in accordance with the law or has not received compensation and resettlement; Whether the refusal to accept compensation and resettlement for justifiable reasons and the failure to perform the obligation to hand over land and vacate houses has affected the normal progress of the expropriation work; (4) The applicant's reminder to the respondent to perform, that is, whether the respondent has not performed its obligations ten days after the reminder was served; (5) Whether the application for enforcement is made within the statutory time limit; (6) Whether it is under the jurisdiction of this court; (7) The court is ordered to decide whether it is legal and meets the conditions for enforcement. It should be noted that in the case of enforcement of a decision to order land transfer based on a written decision requiring the performance of a compensation and resettlement agreement, the substantive review of the legality of the decision focuses on the legality of the resettlement and compensation agreement.
Summary
The construction of the rural collective land expropriation compensation system with Chinese characteristics should be centered around the basic national conditions, and the substantive resolution of relevant disputes should also be innovative based on reality. The new "Land Management Law" and its "Implementing Regulations" have made major adjustments to the land expropriation and compensation procedures, solving the problem of difficulty in determining the expropriation subject and compensation subject in administrative litigation in the field of land expropriation and compensation, difficulty in distinguishing expropriation behavior and compensation behavior, and process behavior. , final acts are difficult to distinguish, and it is difficult to determine qualified defendants and actionable acts. This has limited the purpose and scope of land expropriation, changed the calculation method of land expropriation compensation, raised the compensation standard, and better protected the expropriated persons. legitimate rights and interests. At the same time, it also unblocks the legal channels for legal forced demolition, laying an institutional foundation for substantive resolution in the field of collective land expropriation and compensation. Good laws are the prerequisite for good governance. Within the general framework of central-level legislation, many operational details still need to be improved by local legislation. For things that are not stipulated in the new Land Management Law and its Implementing Regulations, due to the needs of legal implementation, local governments Legislation can also be actively explored based on local conditions. For example, the "Zhejiang Provincial Regulations" and "Jiangsu Provincial Regulations" have clearly stipulated the accountability mechanism for administrative violations of land expropriation.The expropriation compensation system, especially the new regulations on the dispute resolution model, also brings new problems and challenges to administrative trials. Judicial organs must deal with new situations in the fields of compensation and resettlement agreement disputes, compensation and resettlement decision disputes, land expropriation announcement disputes, and forced demolition disputes. Strengthen research on new issues and prepare for rainy days.
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Author: Geng Baojian (Member of the Party Committee of the First Circuit Court of the Supreme People's Court, Vice President, Senior Judge II); Cen Xiao (Second-level judge assistant of Nanning Railway Transportation Intermediate Court, sixth-term rotation training assistant of the First Circuit Court of the Supreme People's Court); Wang Xiaoqing (third-level judge assistant of the First Circuit Court of the Supreme People's Court)
Source: 2022 "Application of Laws" No. 6 Issue
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