[Judgement Key Points]
After the land acquisition plan is approved by the provincial people's government in accordance with the law, the municipal and county people's governments shall announce the approved land acquisition authority, approval document number, use, scope, area of the land acquisition, as well as land acquisition compensation standards, agricultural personnel resettlement methods and the period for handling land acquisition compensation, etc. at the location of the expropriated land. However, laws, administrative regulations, and local regulations in Guangdong Province do not clearly stipulate the specific methods of announcements. In practice, it is usually implemented by posting within the scope of collection, publishing it on paper media, and publishing it on official Internet government websites.
Article 49, Paragraph 3 of the Administrative Litigation Law of the People's Republic of China stipulates that there should be specific litigation requests and factual basis when filing a lawsuit. The key to the so-called specific litigation request is to have clear administrative acts in question. If the administrative acts of the prosecutor's lawsuit are unclear, the people's court shall provide guidance and explanation in accordance with Article 51, Paragraph 3 of the Administrative Litigation Law of the People's Republic of China. If the prosecutor still cannot clarify the administrative acts of the prosecutor, the people's court shall rule to refuse to file a case in accordance with Article 44, Paragraph 1, item 1, item 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Litigation Law of the People's Republic of China"; if the case has been accepted, the prosecution shall be rejected. However, if the prosecutor clearly states that the administrative acts indicted are accused, regardless of whether the administrative acts clearly filed by the prosecutor or several administrative acts, the people's court shall review whether the administrative acts indicted meet other prosecution conditions one by one, and shall not refuse to accept them on the grounds that multiple administrative acts are prosecuted.
Article 25, paragraph 1 of the Administrative Litigation Law of the People's Republic of China stipulates that the counterparty of an administrative act and other citizens, legal persons or other organizations that have a interest in the administrative act have the right to file a lawsuit. In a case of land expropriation, the expropriated person receives expropriation compensation and does not file a lawsuit for the expropriation decision exceeding the statutory prosecution period. From the date of expiration of the prosecution period, he will lose his rights to the expropriated house and the corresponding land. Later, an administrative lawsuit was filed against administrative actions made by the administrative agency for the houses and land involved in the case, which had no interest in the administrative acts being accused and did not have the qualifications of a plaintiff.
Usually, the land acquisition announcement made by the municipal and county people's governments based on the land acquisition approval approval of the provincial people's government is merely an informing of the content of the land acquisition approval approval, and is a procedural act that does not have an actual impact on the rights and obligations of the parties and does not fall within the scope of administrative litigation. However, if the expropriated person filed an administrative lawsuit against the expropriation announcement on the grounds that the scope of the expropriation announcement is inconsistent with the land acquisition approval and provided preliminary factual basis, the people's court cannot simply rule that the case will not be filed or the prosecution will be rejected for the aforementioned reasons.
[Judgement Document]
Supreme People's Court of the People's Republic of China
Executive Administrative ruling The applicant for retrial of the book
(2017) Supreme People's Court's No. 6918
retrial was dissatisfied with the administrative judgment of Guangdong Higher People's Court (2016) Guangdong Shangzhong No. 1586 for the case of land expropriation announcement and administrative compensation by the respondent of the People's Government of Conghua District, Guangzhou City, Guangdong Province (hereinafter referred to as Conghua District Government), and applied for retrial to this court. This court filed a case on September 5, 2017 and formed a collegial panel for review in accordance with the law. The case has now ended.
On February 24, 2005, with the approval of the Guangdong Provincial People's Government, the Guangdong Provincial Department of Land and Resources issued the "Approval on the Third Batch of Urban Construction Land in Conghua City in 2003" (hereinafter referred to as the Approval of No. 44) and agreed to the special and land acquisition plan for agricultural land reported by the Guangzhou Municipal People's Government, which will Conghua City Shengang, Jiangpu, Qi Gan, Liangkou, Conghua City. , the collective agricultural land of village committees under the village committees under the towns of Chengjiao, Aotou, Jiekou, Minle, Wenquan, Taoyuan, etc., and the state-owned agricultural land of the state-owned Minle Tea Farm, a total of 20.5783 hectares were converted into construction land, and the land requisition procedures were completed; the above-mentioned village committees' collective construction land was agreed to requisition 15.1362 hectares and 0.6842 hectares of unused land; the state-owned construction land of the state-owned Minle Tea Farm was agreed to recover and use 0.7915 hectares of state-owned Minle Tea Farm, and 0.033 hectares of unused land were agreed to reclaim and use 0.7915 hectares of state-owned Minle Tea Farm, and 0.033 hectares of unused land. The above-mentioned land is 37.2232 hectares. After the requisition and reclaiming procedures are improved, it is agreed to be used as urban construction land in Conghua City. On December 18, 2006, the Conghua District Government issued the "Land Requisition Notice" No. 75 of Congfu (hereinafter referred to as Announcement No. 75), announcing the No. 13 plot in the No. 44 approval online. The contents of the announcement include approval number, construction land project name, land acquisition location, expropriated village and area, land compensation and resettlement standards, etc. On December 20, 2006, the Conghua District Government delivered the "Announcement of Land Acquisition Compensation and Resettlement Plan" No. 1 (hereinafter referred to as Announcement No. 1) to the Jiekou Street Chengjiao Village Committee (hereinafter referred to as Chengjiao Village Committee) through direct delivery. On January 4, 2007, the Conghua District Government issued Announcement No. 1, announcing and soliciting opinions on the content of land acquisition compensation and resettlement, including the land acquisition unit, land type name, expropriation area, compensation category, compensation standard, compensation amount, payment object, and payment method. Cao Hanming's contracted land is within the scope of the expropriation of this announcement. On September 28 and August 6, 2011, the Jiekou Street Office of Conghua District (hereinafter referred to as Jiekou Street Office) and Chengjiao Village No. 18 Economic Cooperative respectively signed three "Land Requisition Agreements". On September 30, 2011, Jiekou Street Office and Chengjiao Village No. 17 Economic Cooperative (hereinafter referred to as the No. 17 Economic Cooperative) signed a "Land Requisition Agreement", which 85.1013 mu of land were expropriated. On December 12, 2012, the Chengjiao Village Committee and the economic cooperative involved issued written documents proof that the land acquisition compensation had been paid. On November 7, 2012, the Conghua Land and Resources Bureau made the "Announcement on the Registration of Land Acquisition Compensation within a Time" No. 59 of the Guofang Group (2012). The main contents are: 1. Those who have not yet completed the compensation registration of land acquisition (including houses, green seedlings and other land attachments) within the scope of land acquisition, please go through the compensation registration procedures with Jiekou Street Office within 7 days from the date of publication of this announcement.二、对逾期不办理征地补偿登记的，视为放弃办理登记，将实行证据登记保全，并按照从府（2010）51号《从化市征收集体土地暂行规定》标准核算补偿款，交由市公证处提存，视为已完成登记和落实补偿的手续。 After the rights holder to be investigated and registered is clear and there is no dispute, the rights holder can apply to Jiekou Street Office for the procedures for receiving the deposit compensation. 3. If the land acquisition compensation registration is not processed within the deadline, after notarization and deposit according to the above measures, the land acquisition and clearance work will be carried out in accordance with relevant laws and regulations after the above measures are notarized and deposited. On December 12, 2012, the Conghua Land and Resources Bureau issued the "Notice on the No. 75 of Congguofang Group Number (2012) "Notice on the Implementation of Evidence Preservation and Processing Compensation Deposit Procedures and Notification of Hearing Rights" to Cao Hanming, as well as the notice of delivery of compensation data and deposit notice. Cao Hanming did not apply for a hearing, and his compensation was notarized and deposited. On January 11, 2013, the Conghua Land and Resources Bureau made the "Decision on Ordering to Hand over the Land" No. 12 of the National House Group (2013), requiring Cao Hanming to cooperate with the completion of the work of cleaning up the above-ground buildings and ground attachments within seven days from the date of receipt of the decision, and to complete the procedures for receiving compensation. Cao Hanming was dissatisfied with the application for administrative reconsideration, and the Guangzhou Land and Resources Bureau accepted the case on January 29, 2013. On February 1, 2013, the green seedlings and other attachments on the ground contracted by Cao Hanming were forcibly removed.On May 27, 2013, the Conghua Land and Resources Bureau made the land acquisition procedure for the third batch of land use No. 13 (2013) based on the application of the Conghua Land Reserve Development Center, and agreed to terminate the land acquisition procedure for the third batch of land No. 13 in 2003. On May 26, 2014, the Guangzhou Land and Resources Bureau made the administrative reconsideration decision of Guangzhou Guofangxing Reply (2014) No. 7 (hereinafter referred to as the reconsideration decision), believing that the Conghua Land and Resources Bureau did not submit evidence materials within the time limit to prove that it performed the statutory duties of the proposed and announced the land acquisition compensation and resettlement plan. It should be deemed that the administrative act had no evidence or basis and decided to revoke the decision to hand over the land. Cao Hanming was still dissatisfied with the facts and opinions on the handling of the reconsideration decision No. 7, and filed an administrative lawsuit, requesting the revocation of the reconsideration decision No. 7. On January 30, 2015, the Guangzhou Intermediate People's Court made the administrative judgment (2014) No. 1546 of the Sui Zhong Fa Xingzhongzi, which believed that the handling result of the No. 7 reconsideration decision was correct and did not have an actual impact on Cao Hanming's legitimate rights and interests. The judgment rejected Cao Hanming's lawsuit. In June 2015, Cao Hanming filed an administrative lawsuit in this case, requesting to confirm that the Conghua District Government issued an announcement on land acquisition, approved the issuance of expropriation compensation and resettlement plans, and obstacle clearance activities, etc., and suspended illegal construction, restored the original state of the land, and compensated for economic losses of 60,500 yuan.
Administrative judgment No. 355 of Guangzhou Intermediate People's Court of Guangdong Province (2015) held that the Conghua District Government did not provide evidence of its collective announcement in the village where Cao Hanming is located, and it cannot be regarded as Cao Hanming already knew the content of the land acquisition. Cao Hanming filed this lawsuit in this case did not exceed the maximum protection period stipulated by law, and the lawsuit did not exceed the statutory period. Cao Hanming requested to confirm that the Conghua District Government issued a land acquisition announcement, approved and issued a land acquisition compensation and resettlement plan and obstacle clearance activities were illegal. The above litigation request includes multiple administrative actions. Although it was explained, Cao Hanming still insisted on all litigation requests and only reviewed the legality of the land acquisition announcement issued by the Conghua District Government in accordance with the law. According to Article 46 of the Land Administration Law of the People's Republic of China and Article 25 of the "Regulations on the Implementation of the Land Administration Law of the People's Republic of China", the Guangdong Provincial Department of Land and Resources made No. 44 to approve the expropriation of the land involved. The Conghua District Government made Announcement No. 75, announcing the approval number, construction land project name, land acquisition location, expropriated village and area, land compensation and resettlement standards and other matters approved by No. 44, which complies with the above laws and regulations. The Conghua District Government’s act of issuing an expropriation announcement is legal, and Cao Hanming’s request for administrative compensation lacks factual and legal basis. In accordance with Article 69 of the Administrative Litigation Law of the People's Republic of China, the judgment was made to reject Cao Hanming's lawsuit. Cao Hanming was dissatisfied and filed an appeal.
Administrative judgment No. 1586 of Guangdong Higher People's Court (2016) held that the first instance only reviews the legality of the land acquisition announcement of the Conghua District Government, and does not affect Cao Hanming's other relief channels for other administrative actions, and there is nothing wrong with it. The Conghua District Government made an announcement on the land acquisition compensation and resettlement plan directly delivered to the Urban Village Committee in accordance with the approval No. 44 and issued an announcement online. Although there is no evidence to prove that it posted an announcement within the scope of the expropriation and the procedures were not standardized, given that the expropriated collective economic organization has signed an expropriation agreement with the expropriation department and paid all the land acquisition compensation funds, this procedural issue is not enough to confirm that the land acquisition announcement is illegal. The land expropriation announcement is not illegal, and Cao Hanming's claim of administrative compensation cannot be established. In accordance with the provisions of Article 89, Paragraph 1 of the Administrative Litigation Law of the People's Republic of China, the judgment is rejected and the original judgment is upheld.
Cao Hanming applied for retrial and stated that in the land acquisition report information under No. 1.44, the land thirteen is close to the land involved in the case, but it is still impossible to prove that the land involved in the case falls within the scope of expropriation. Announcement No. 75 has land acquisition situations beyond the scope and area. 2. The first and second instances only examine the legality of the land acquisition announcement, the legality of the land acquisition approval and its subsequent actions, and the facts and requests for administrative compensation are not examined. It requested the revocation of the first and second instance judgments, confirm that the land acquisition behavior made by the Conghua District Government was illegal, and ordered it to stop construction, restore the original state of the land, return it to Cao Hanming to farm, and compensate Cao Hanming for economic losses of 60,500 yuan.
Conghua District Government responded that the appendix No. 44 stated that the 13th plot is 12.8251 hectares of Jiekou Village and Chengjiao Village. Announcement No. 75 stated that the land acquisition includes 12.8251 hectares of Jiekou Village, Chengjiao Village, Chengnan Village and Xiongfeng Village. The reason why Announcement No. 75 added Chengnan Village and Xiongfeng Village is that when the land ownership was carefully investigated, it was found that a few enclaves on the border of the plot involved involved the above two villages, but the scope and area were not increased. Request to reject Cao Hanming's application for retrial.
After review, this court held that Article 46, paragraph 1 of the Land Administration Law of the People's Republic of China stipulates that after the state approves land in accordance with statutory procedures, the local people's government at or above the county level shall announce and organize the implementation. Article 25, paragraph 1 of the "Regulations on the Implementation of the Land Administration Law of the People's Republic of China" stipulates that after the land expropriation plan is approved in accordance with the law, it shall be organized and implemented by the municipal and county people's governments of the place where the expropriated land is located, and the approval authority, approval document number, the purpose, scope, and area of the land expropriation, the land expropriation compensation standards, the resettlement methods for agricultural personnel and the period for handling land expropriation compensation, etc. shall be announced at the place where the land expropriation is located. Article 32, Paragraph 1 of the "Guangdong Province's Measures for the Implementation of the Land Administration Law of the People's Republic of China" stipulates that after the state's land expropriation is approved in accordance with the statutory procedures, the municipal and county people's governments shall issue land expropriation notices within the township (town) and village where the expropriated land is located. According to the above provisions, after the land acquisition plan for is approved by the provincial people's government in accordance with the law, the municipal and county people's governments shall announce the approval of the land acquisition authority, the approval document number, the purpose, scope, and area of the land acquisition, the land acquisition compensation standards, the resettlement methods for agricultural personnel and the period for handling land acquisition compensation, etc. at the location of the expropriated land. However, laws, administrative regulations, and local regulations in Guangdong Province do not clearly stipulate the specific methods of announcements. In practice, it is usually implemented by posting within the scope of collection, publishing it on paper media, and publishing it on official Internet government websites. In this case, after approval by the Guangdong Provincial People's Government and approval by the People's Government of China and approval by the Guangdong Provincial People's Government, the Conghua District Government issued Announcement No. 75 through the Internet, and announced the approval number, construction land project name, land acquisition location, expropriated village and area, land compensation and resettlement standards and other matters online. Afterwards, the draft land acquisition compensation plan was delivered directly to the suburban villagers' committee, and Announcement No. 1 was issued to solicit opinions from the expropriated persons. The procedures and contents of the Conghua District Government’s issuance of collection announcements do not violate the provisions of laws, administrative regulations and local regulations. The Conghua District Government did not provide evidence to prove that townships and villages within the scope of expropriation were posted. The procedures did not comply with the usual practices of land expropriation, but did not constitute procedural violations. The first and second instance judgments rejected Cao Hanming's request to confirm that the Conghua District Government issued an announcement was illegal and there was no improper situation. Cao Hanming argued that the land expropriated in Announcement No. 75 is not within the scope of the approval No. 44, and provided the appendix No. 44 as new evidence to submit it to this court. After review, the 12.8251 hectares of expropriated land referred to in Plot 13 in Approval No. 44, including Jiekou Village and Chengjiao Village, and have specific boundary point coordinates for surveying and determining boundaries. The content of the expropriation announcement of Announcement No. 75 is exactly the same as the expropriation area of the land approved by Plot Thirteen, and the expropriation scope is basically the same. Cao Hanming only used the appendix No. 44 as new evidence to deny the scope of land acquisition of Announcement No. 75 within the scope of land acquisition approved by the approval No. 44. The evidence is insufficient and this court will not accept it. Cao Hanming also argued that the first and second instances did not review the legality of the land acquisition approval and its subsequent actions, nor did he review the facts and requests for administrative compensation. First, the land acquisition approval is the final ruling made by the Guangdong Provincial Government, and it does not belong to the administrative acts in this case. There is no improper failure to review the first and second instances; second, the subsequent expropriation acts of the land acquisition approval include a series of administrative acts, and the object of the lawsuit is unclear, and there is no improper failure to review the first and second instances; third, the first and second instances have made clear responses to the administrative compensation request, believing that the land acquisition announcement is not illegal and administrative compensation cannot be established. Cao Hanming's claim has no factual basis.
It should be pointed out that Article 49, paragraph 3 of the Administrative Litigation Law of the People's Republic of China stipulates that there should be specific litigation requests and factual basis when filing a lawsuit. The key to the so-called specific litigation request is to have clear administrative acts in question. If the administrative acts of the prosecutor's lawsuit are unclear, the people's court shall provide guidance and explanation in accordance with Article 51, Paragraph 3 of the Administrative Litigation Law of the People's Republic of China. If the prosecutor still cannot clarify the administrative acts of the prosecutor, the people's court shall rule to refuse to file a case in accordance with Article 44, Paragraph 1, item 1, item 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Litigation Law of the People's Republic of China"; if the case has been accepted, the prosecution shall be rejected. However, if the prosecutor clearly states that the administrative acts indicted are accused, regardless of whether the administrative acts clearly filed by the prosecutor or several administrative acts, the people's court shall review whether the administrative acts indicted meet other prosecution conditions one by one, and shall not refuse to accept them on the grounds that multiple administrative acts are prosecuted. In this case, Cao Hanming's lawsuit request was to confirm that the land acquisition behavior of the Conghua District Government was illegal and the lawsuit request was unclear. After the first instance explanation, Cao Hanming further refined his lawsuit request to confirm that the Conghua District Government issued a land acquisition announcement, approved and issued a land acquisition compensation and resettlement plan, and the illegality of the obstacle clearance activities. Although the litigation request after the explanation includes multiple administrative acts, the administrative acts being accused have been specifically clarified. The first instance should have reviewed whether it meets the statutory prosecution conditions and make a judgment based on the three interrelated administrative acts proposed by Cao Hanming. However, the first instance asked Cao Hanming to further clarify on the grounds that Cao Hanming's lawsuit request included multiple administrative actions. When Cao Hanming still insisted on all his lawsuit requests, the first instance decided to only review the legality of the land acquisition announcement issued by the Conghua District Government. This practice has no legal basis and this court corrected it. Given that the approval and issuance of land acquisition compensation and resettlement plans is a procedural act within the administrative agency and it does not have an actual impact on the rights and obligations of the parties, and cannot be sued. The "stumbling activity" occurred on February 1, 2013, and Cao Hanming filed an administrative lawsuit in June 2015, exceeding the statutory prosecution period of 2 years. In this case, the case will be retried on the grounds of missed approval and issuance of land acquisition compensation and resettlement plans and "wake-clearing activities". There is no practical significance and this case will not be retried.
It should also be pointed out that The Administrative Litigation Law of the People's Republic of China stipulates that the counterparty of the administrative act and other citizens, legal persons or other organizations that have interests in the administrative act have the right to file a lawsuit. In a case of land expropriation, the expropriated person receives expropriation compensation and does not file a lawsuit for the expropriation decision exceeding the statutory prosecution period. From the date of expiration of the prosecution period, he will lose his rights to the expropriated house and the corresponding land. Later, an administrative lawsuit was filed against administrative actions made by the administrative agency for the houses and land involved in the case, which had no interest in the administrative acts being accused and did not have the qualifications of a plaintiff. In December 2012, the Conghua Land and Resources Bureau informed Cao Hanming of the amount of expropriation compensation and notarized the expropriation compensation. By the end of 2014, Cao Hanming had not filed an administrative lawsuit against the compensation decision and lost his rights to the land involved in the case. In June 2015, he filed an administrative lawsuit against Announcement No. 75, and had lost his qualifications as a plaintiff. At the same time, according to Article 9 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases in Rural Collective Land", if delivered by announcement, the prosecution period shall be calculated from the date of expiration of the deadline determined by the announcement. Announcement No. 75 was announced online in December 2006. In June 2015, Cao Hanming filed a lawsuit, which obviously exceeded the statutory two-year lawsuit period and had no legitimate reason. For this reason, it is inappropriate to accept Cao Hanming's lawsuit against Announcement No. 75 in the first and second instances, and this court also corrected it. In view of Cao Hanming's application for retrial, the People's Court should not make a judgment that is more unfavorable to the applicant for retrial, and this case will not be retrialed.
It should be noted that under normal circumstances, the land acquisition announcement made by municipal and county people's governments based on the land acquisition approval approval of provincial people's governments is only an informing of the content of the land acquisition approval, and is a procedural act that does not have an actual impact on the rights and obligations of the parties, and does not fall within the scope of administrative litigation. However, if the expropriated person filed an administrative lawsuit against the expropriation announcement on the grounds that the scope of the expropriation announcement is inconsistent with the land acquisition approval and provided preliminary factual basis, the people's court cannot simply rule that the case will not be filed or the prosecution will be rejected for the aforementioned reasons. Cao Hanming's reason for prosecution is that, so this case cannot be refused on the grounds that Announcement No. 75 is a procedural act that does not have an actual impact on the rights and obligations of the expropriated person.
In summary, Cao Hanming's application for retrial does not comply with the provisions of Article 91, Paragraphs 3 and 4 of the Administrative Litigation Law of the People's Republic of China. In accordance with Article 74 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Administrative Litigation Law of the People's Republic of China", this court ruled as follows:
rejected Cao Hanming's application for retrial.
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