SHA Mingbao et al. v. The People s Government of Huashan District, Ma anshan Municipality, CHINA GUIDING CASES PROJECT

Transcription

1 SHA Mingbao et al. v. The People s Government of Huashan District, Ma anshan Municipality, A Case of Administrative Compensation for Compulsory Demolition of Housing Guiding Case No. 91 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on November 15, 2017) CHINA GUIDING CASES PROJECT English Guiding Case (EGC91) January 22, 2018 Edition The citation of this translation of this Guiding Case is: 沙明保等诉马鞍山市花山区人民政府房屋强制拆除行政赔偿案 (SHA Mingbao et al. v. The People s Government of Huashan District, Ma anshan Municipality, A Case of Administrative Compensation for Compulsory Demolition of Housing), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC91), Jan. 22, 2018 Edition, The original, Chinese version of this case is available at 最高人民法院网 ( See also 最高人民法院关于发布第 17 批指导性案例的通知 (The Supreme People s Court s Notice Concerning the Release of the 17 th Batch of Guiding Cases), issued on and effective as of Nov. 15, 2017, This document was primarily prepared by Dr. Mei Gechlik, with research support from Zhaoyi Song; it was finalized by Peter Witherington, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court.

2 Keywords Administrative Administrative Compensation Compulsory Demolition Burden of Proof Reasonable Market Value Main Points of the Adjudication Where a plaintiff has already provided preliminary evidence in an administrative compensation case triggered by the compulsory demolition of housing, but the plaintiff, on account of the administrative organ, cannot adduce evidence on the loss of items inside the house, and the administrative organ, due to its failure to carry out, in accordance with law, measures such as the registration and notarization of the property, also cannot adduce evidence on the loss of items inside the house, a people s court should support the plaintiff s requests for compensation for [the loss of any] item inside the house [whose claimed value] does not exceed [its] market value and [whose existence in the house] is in line with common sense. Related Legal Rule(s) Article 38 Paragraph 2 of the Administrative Litigation Law of the People s Republic of China 1 Basic Facts of the Case On December 5, 2011, the People s Government of Anhui Province issued the Wan Zheng De 2011 No. 769 Reply to Ma anshan Municipality on the 35 th Batch of Land for Urban Construction in 2011, approving the expropriation of hectares of construction land collectively [owned by] peasants [and located] within the area of Huoli Street, Huashan District, Ma anshan Municipality, to use for urban construction. On December 23, 2011, the People s Government of Ma anshan Municipality issued the Announcement of the People s Government of Ma anshan Municipality on a Land Expropriation Plan (No. 37 in 2011) to announce the content of the [aforementioned] reply of the People s Government of Anhui Province and to clearly state that the land expropriation plan would be implemented by the People s Government of Huashan District. House B11-3[, which was in] Fengshou Villagers Group, Fengshou Village, Huoli Town, Huashan District, [and] which was [registered] under the name of SU Yuehua, was within the scope of this expropriation. SU Yuehua passed away on September 13, While still alive, 1 中华人民共和国行政诉讼法 (Administrative Litigation Law of the People s Republic of China), passed and issued on Apr. 4, 1989, effective as of Oct. 1, 1990, amended two times, most recently on June 27, 2017, effective as of July 1, 2017,

3 SU Yuehua disposed of the house [by conveyance] to the four plaintiffs. Plaintiff GU Hongying is SU Yuehua s daughter. The other [three] plaintiffs, SHA Mingbao, SHA Minghu, and SHA Mingli, are SU Yuehua s grandchildren. During the process of expropriation and relocation, the [work] units [in charge] of land expropriation separately prepared the Compensation Form of Ma anshan Municipality on the Payment for the Expropriation of Land for State Construction and the Payment for Relocation and the Registration Form of Ma anshan Municipality on the Monetization of Resettlement for Expropriation of Housing and Relocation (Exchange of Property Rights). The house of SU Yuehua s household and the attachments on the ground 2 were registered for compensation. Plaintiff GU Hongying s husband received the resettlement compensation. In early 2012, the defendant organized the relevant departments to demolish the house of SU Yuehua s household and the attachments on the ground. SHA Mingbao et al., the four plaintiffs, believed that the People s Government of Huashan District, Ma anshan Municipality, illegally demolished the above-mentioned house and infringed upon their legal property rights. Therefore, they brought suit, requesting that the people s court order the People s Government of Huashan District, Ma anshan Municipality, to pay [them] a total of RMB 2,827,680 as compensation for the loss of the house, the decorations, and the rent, as well as to pay [them] a total of RMB 100,000 as compensation for the loss of the items inside the house[, i.e., various items], primarily including clothing, furniture, home appliances, and mobile phones, amounting to RMB 50,000 and [also including] a solid wood carved bed worth RMB 50,000. The Intermediate People s Court of Ma anshan Municipality [rendered] a judgment rejecting the requests for compensation [made by] SHA Mingbao et al., the four plaintiffs. Unconvinced, SHA Mingbao et al., the four [plaintiffs], appealed, claiming: 2 The original text reads 地上附着物 ( attachments on the ground ), which is not defined in China s national laws and is defined quite differently in different localities. See, e.g., 北京市建设征地补偿安置办法 (Measures of Beijing Municipality for the Compensation and Resettlement for the Expropriation of Land for Construction), passed by the People s Government of Beijing Municipality on Apr. 29, 2004, issued on May 21, 2004, effective as of July 1, 2004, (the Measures ); 四川省人民政府关于同意成都市征地青苗和地上附着物补偿标准的批复 (Reply of the People s Government of Sichuan Province on Agreeing to Chengdu Municipality s Standards for the Compensation [for the Loss of] Seedlings and Attachments on the Ground of Expropriated Land), issued by the People s Government of Sichuan Province on and effective as of May 15, 2012, 2012, (the Reply ). According to Article 8 of the Measures, when land is expropriated for public construction, compensation should be paid to cover the loss of 青苗 ( seedlings ) and 其他土地附着物 ( other attachments on the ground ), which include houses, water wells, roads, pipelines, drains, and other buildings, structures, as well as trees and other economic crops ( 包括房屋 水井 道路 管线 水渠等建筑物 构筑物以及林木和其他经济作物等 ). The Reply, however, provides that attachments on the ground include walls, courtyards, septic tanks, water wells, graves, biogas pools, and fish pounds ( 围墙, 院坝, 粪池, 水井, 坟墓, 沼气池, 鱼塘 ).

4 1. In early 2012, the People s Government of Huashan District, Ma anshan Municipality, expropriated the peasants collectively[-owned] land involved in the case without seeking public opinions. The appellants also were not [made] aware of the standards by which they would be paid compensation [for their losses]. 2. The August 1, 2012, act of demolishing the appellants house by the People s Government of Huashan District, Ma anshan Municipality, violated the law. No agreement was reached in advance, and [the appellants] were not informed of the dates of demolition and relocation. [As a result,] the property inside the house was neither removed nor reckoned up [beforehand], and [therefore] the People s Government of Huashan District, Ma anshan Municipality, should bear the burden of proof regarding the resulting loss of property. 3. On August 27, 2012, SHA Kaijin, the father of appellants SHA Mingbao, SHA Minghu, and SHA Mingli, was coerced into signing the compensation form. However, SHA Kaijin did not have any rights to or interests in the house. Furthermore, the compensation form was signed after the demolition of the house. In summary, the appellants requested that the second-instance court revoke the firstinstance judgment and support their requests for compensation. The People s Government of Huashan District, Ma anshan Municipality, did not make any written reply. Results of the Adjudication On July 20, 2015, the Intermediate People s Court of Ma anshan Municipality rendered the (2015) Ma Xing Pei Chu Zi No Administrative Compensation Judgment: 3 [the court] rejects the requests for compensation of SHA Mingbao et al., the four [plaintiffs]. After the judgment was pronounced, SHA Mingbao et al., the four [plaintiffs], appealed. On November 24, 2015, the Higher People s Court of Anhui Province rendered the (2015) Wan Xing Pei Zhong Zi No Administrative Compensation Judgment: 4 [the court] revokes the (2015) Ma Xing Pei Chu Zi No Administrative Compensation Judgment [rendered by] the Intermediate People s Court of Ma anshan Municipality; [the court] orders the People s Government of Huashan District, Ma anshan Municipality, to pay SHA Mingbao et al., the four appellants, RMB 80,000 as compensation for the loss of the items inside the house. 3 The first-instance judgment has not been found and may have been excluded from publication. 4 沙明保 沙明虎 沙明莉 古宏英诉马鞍山市花山区人民政府行政赔偿二审行政判决书 (SHA Mingbao, SHA Minghu, SHA Mingli, and GU Hongying v. The People s Government of Huashan District, Ma anshan Municipality, The Second-Instance Administrative Judgment of an Administrative Compensation Case) (2015) 皖行赔终字第 号行政赔偿判决 ((2015) Wan Xing Pei Zhong Zi No Administrative Compensation Judgment), rendered by the Higher People s Court of Anhui Province on Nov. 24, 2015, full text available on the Stanford Law School China Guiding Cases Project s website, at wan-xing-pei-zhong-zi administrative-compensation-judgment.

5 Reasons for the Adjudication In the effective judgment, the court opined: 5 according to Article 45 of the Implementing Regulation on the Land Administration Law of the People s Republic of China, 6 a department in charge of land administration shall order the party subject to expropriation to hand over land within a time limit, and if the party refuses to do so, the department shall apply to a people s court for compulsory enforcement. The evidence provided by the People s Government of Huashan District, Ma anshan Municipality, could not prove that the plaintiffs had voluntarily handed over the house on the expropriated land. [The government s] act of organizing the demolition of the house of SHA Mingbao et al., the four [plaintiffs], when the department in charge of land administration had neither made a decision to order the handover of the land nor applied to a people s court for compulsory enforcement, was in violation of law. On the issue of the loss of the items inside the demolished house, Article 38 Paragraph 2 of the Administrative Litigation Law of the People s Republic of China provides: In a case of administrative compensation or indemnity, the plaintiff should provide evidence on the harm caused by the administrative act. Where, on account of the administrative organ, the plaintiff cannot adduce evidence, the defendant shall bear the burden of proof. When the People s Government of Huashan District, Ma anshan Municipality, organized the demolition of the appellants house, it did not register or preserve [a record of] the items inside the house in accordance with law, nor did it prepare a list of the items and give it to the appellants to confirm with [their] signatures. As a result, the appellants could not adduce evidence on the extent of the damage done to the items. Thus, the People s Government of Huashan District, Ma anshan Municipality, should bear, in accordance with law, the burden of proof as to whether there was a loss, the specifics of the loss, etc. The appellants claimed that the items inside the house [including] clothing, furniture, home appliances, and mobile phones, amounting to RMB 50,000 were necessities in daily life and were in line with the actual situation of an average family. Moreover, the appellee provided no evidence to prove that these items did not exist. Therefore, with respect to the type, quantity, and value of the items inside the house as claimed by the appellants, [the court] should recognize [the appellants claims]. 5 The Chinese text does not specify which court opined. Given the context, this should be the Higher People s Court of Anhui Province. 6 中华人民共和国土地管理法实施条例 (Implementing Regulation on the Land Administration Law of the People s Republic of China), passed by the State Council on and issued on Dec. 27, 1998, effective as of Jan. 1, 1999, amended two times, most recently on July 29, 2014, effective as of Jan. 1, 1999,

6 The appellants [further] claimed that the solid wood carved bed was worth RMB 50,000. [Given that this amount] exceeds the normal market value [of an ordinary solid wood carved bed] and [that the appellants] could not ascertain the bed s materials, when [the wood] was formed, or how this bed was different from an ordinary solid wood carved bed, the court did not support [this claim]. However, based on the consideration of protecting, to the greatest extent possible, the legal rights and interests of a party whose rights have been infringed upon and [the consideration of] the current market price of an ordinary solid wood carved bed, and in accordance with the principle of leaning toward the higher, rather than the lower, end, the court comprehensively and in its discretion determined that the solid wood carved bed was worth RMB 30,000. In summary, the court rendered the aforementioned judgment. (Adjudication personnel of the effective judgment: WANG Xinlin, SONG Xin, and RUAN Xiufang)