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Fifteenth Group of Guiding Cases Published by the Supreme People's Procuratorate [Effective]
最高人民检察院关于印发最高人民检察院第十五批指导性案例的通知 [现行有效]
【法宝引证码】

Notice by the Supreme People's Procuratorate of Issuing the Fifteenth Group of Guiding Cases Published by the Supreme People's Procuratorate 

最高人民检察院关于印发最高人民检察院第十五批指导性案例的通知

(No. 81 [2019] of the Supreme People's Procuratorate) (高检发办字〔2019〕81号)
The people's procuratorates of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Procuratorate of the People's Liberation Army; and the People's Procuratorate of Xinjiang Production and Construction Corps: 各省、自治区、直辖市人民检察院,解放军军事检察院,新疆生产建设兵团人民检察院:
As decided at the 22nd Meeting of the 13th Procuratorial Committee of the Supreme People's Procuratorate on July 29, 2019, the following three cases (Guiding Cases No. 57-59 of the Supreme People's Procuratorate), including __ Real Estate Company v. Housing and Urban-Rural Development Bureau of __ City (A protest case of dispute over determination of expropriation compensation), are hereby issued as the fifteenth group of guiding cases for reference purposes. 经2019年7月29日最高人民检察院第十三届检察委员会第二十二次会议决定,现将某实业公司诉某市住房和城乡建设局征收补偿认定纠纷抗诉案等三件指导性案例(检例第57-59号)作为第十五批指导性案例发布,供参照适用。
Supreme People's Procuratorate 

最高人民检察院

September 9, 2019 2019年9月9日

__ Real Estate Company v. Housing and Urban-Rural Development Bureau of __ City (A protest case of dispute over determination of expropriation compensation) 

某实业公司诉某市住房和城乡建设局征收补偿认定纠纷抗诉案

(Guiding Case No. 57 of the Supreme People's Procuratorate) (检例第57号)

[Keywords] 【关键词】
Administrative protest; expropriation compensation; supervision ex officio; investigation and verification 行政抗诉 征收补偿 依职权监督 调查核实
[Key Points] 【要旨】
When handling a case of administrative litigation supervision, the people's procuratorate should uphold an objective and fair position, so as to not only safeguard the lawful rights and interests of the administrative counterpart, but support the lawful administrative acts. The people's procuratorate should initiate the supervision procedures ex officio and not on the premise that the party has filed an application for retrial with the people's court. Where the people's procuratorate deems that there may be any error in the administrative judgment or ruling and it is difficult to determine such error through a written review, it should conduct investigation and verification. 人民检察院办理行政诉讼监督案件,应当秉持客观公正立场,既保护行政相对人的合法权益,又支持合法的行政行为。依职权启动监督程序,不以当事人向人民法院申请再审为前提。认为行政判决、裁定可能存在错误,通过书面审查难以认定的,应当进行调查核实。
[Basic Facts] 【基本案情】
In September 2015, the People's Government of __ City decided to expropriate housing in the shantytown renovation project in an area. According to the land and house registration card, the surveying and mapping report, and the detailed statement of floor areas by households, the Housing and Urban-Rural Development Bureau of __ City issued __ Real Estate Company made a reply on the areas to be compensated in the housing expropriation. It was determined in the reply that there was an area of 203.78 square meters that was additionally constructed by __ Real Estate Company on the fourth floor of the building involved, there was an area of 929.93 square meters that was additionally constructed by the Company on the fifth floor of the building involved, and __ Real Estate Company should be compensated according to the costs of construction and installation for the aforesaid areas additionally constructed by __ Real Estate Company. __ Real Estate Company refused to accept the reply. It deemed that the area of 203.78 square meters on the fourth floor and that of 187.26 square meters on the fifth floor were allowed to be constructed in the planning permit, the construction of such areas was complete with that of the building involved, and such areas were legally transferred via the ruling and judgment entered by the people's court. Therefore, __ Real Estate Company filed a lawsuit with the People's Court of __ District and claimed to confirm the illegality of the reply and abolish it; and confirm that the fourth and fifth floors of the building in dispute were lawful, and make compensation according to the value of non-residential housing. 2015年9月,某市政府决定对某片区实施棚户区改造项目房屋征收,市住房和城乡建设局(简称市住建局)依据土地房屋登记卡、测绘报告及房屋分户面积明细表,向某实业公司作出房屋征收补偿面积的复函,认定案涉大厦第四层存在自行加建面积为203.78平方米,第五层存在自行加建面积为929.93平方米,对自行加建部分按照建安成本给予某实业公司补偿。实业公司不服,认为第四层的203.78平方米和第五层的187.26平方米是规划许可允许建造且在案涉大厦建成时一并建造完成,并系经过法院裁定、判决而合法受让,遂向该市某区人民法院起诉,请求:确认复函违法并撤销;确认争议部分建筑合法并按非住宅房屋价值给予补偿。
On August 1, 2016, the People's Court of __ District entered an administrative judgment that the building involved has not obtained the housing ownership certificate and whether they were areas additionally constructed by __ Real Estate Company should be determined according to the floor area in the planning permit. The area recorded in the land and housing registration card and the areas of the fourth and fifth floors in dispute amounted to 5,560.55 square meters, which did not exceed 5,674.62 square meters indicated in the planning permit and it should be determined that the fourth and fifth floors of the building involved had legal effect. Entrusted by the People's Court of __ District, on November 13, 2011, a surveying and mapping company issued a report (2011) upon surveying and mapping of the building involved. On December 25, 2015, entrusted by the People's Government of __ City, the surveying and mapping company issued a report (2015) upon surveying and mapping of the building involved and the detailed statement of floor areas by households. The two reports were contradictory. The report (2011) was admitted in the judgment entered by the Intermediate People's Court of __ City for another case and its probative effect should be superior to that of the detailed statement of floor areas by households issued in 2015. Therefore, the People's Court of __ District did not admit the detailed statement of floor areas by households that served as the basis for the reply of the Housing and Urban-Rural Development Bureau of __ City. In the judgment, the People's Court of __ District also held that the civil judgment entered by the Intermediate People's Court of __ City that the building in dispute was divided as lawful property and owned by __ Real Estate Company was a decision on the creation of a real right that was legally effective and it should be determined that the areas in dispute were not areas additionally constructed. Therefore, the People's Court of __ District ruled that the reply of the Housing and Urban-Rural Development Bureau of __ City was illegal and ordered the Housing and Urban-Rural Development Bureau of __ City to offer resettlement compensation or monetary compensation to the fourth and fifth floors of the building in dispute according to the compensation standard for non-residential housing. 2016年8月1日,区人民法院作出行政判决,认为:案涉大厦目前尚未取得房屋所有权证,应当以规划许可的建筑面积来认定是否属于自行加建面积。土地房屋登记卡记载的面积,连同第四层和第五层的争议面积,共计5560.55平方米,未超过规划许可证件载明的面积5674.62平方米,应当认定争议建筑具有合法效力。某测绘公司2011年11月13日受法院委托,对案涉大厦进行测绘后出具了测绘报告,2015年12月25日该测绘公司受市政府委托对该大厦测绘后出具测绘报告及房屋分户面积明细表,二者相互矛盾,2011年测绘报告被市中级人民法院另案判决采信在先,其证明效力应当优于2015年出具的房屋分户面积明细表,因此对市住建局复函依据的房屋分户面积明细表不予采信。该判决还认为:该市中级人民法院另案民事判决将争议建筑作为合法财产分割归某实业公司所有,是发生法律效力的物权设立决定,应当认定争议的面积不是自行加建的面积。遂判决确认市住建局复函违法,责令其对争议部分建筑按非住宅房屋的补偿标准给予安置补偿或者货币补偿。
After the judgment of first instance was pronounced, no party appealed or applied for retrial. 一审判决后,双方当事人均未提起上诉,也未申请再审。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
Identification of clues. In April 2018, in the handling of a letter sent by the party involved, the People's Procuratorate of __ City found that there may be an error in the judgment of this case. There was a huge gap between the compensation standard of non-residential housing (about CNY30,000 per square meter) and the costs of construction and installation (about CNY2,000 per square meter). If compensation was made according to the judgment, it would indulge the acts of illegal construction and the People's Government of __ City would additionally pay over CNY10 million, seriously damaging the national interests. In accordance with the provisions of item (1) of Article 9 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation), the People's Court of __ District decided to initiate the supervision procedures ex officio. 线索发现 2018年4月,该市人民检察院在处理当事人来函信件中发现该案判决可能存在错误,非住宅补偿标准(每平方米约3万元)与建安成本(每平方米约2000元)差距巨大,如果按照判决进行补偿,不仅放纵违法建设行为,而且政府将多支付补偿款1000余万元,严重损害国家利益,根据《人民检察院行政诉讼监督规则(试行)》第九条第一项之规定,决定依职权启动监督程序。
Investigation and verification. In the examination of this case, the People's Procuratorate of __ City found that the photocopy of the planning permit of the building involved as provided by __ Real Estate Company in the trial of first instance was one of key evidence for the judgment and it was contradictory to other evidence. Therefore, it carried out the following investigation and verification: first, it requested the transfer of the case file from the People's Court of __ District; second, it requested the transfer of the planning permit and other relevant documents from the Planning Committee of __ City, the Real Estate Registration Center of __ City, and other entities; and third, it inquired and learned the sources of the photocopies of the planning permit and other documents from the Real Estate Registration Center of __ City and other entities and their personnel and the review situations. It was found upon review and comparison of the aforesaid materials that the area as recorded in the photocopies of the planning permit and other documents in the case file of the People's Court of __ District was inconsistent with that as recorded in the original copies of the planning permit and other documents preserved in the Planning Committee of __ City. It finally found that: the photocopies of the planning permit and other two documents provided by __ Real Estate Company to the People's Court of __ District were inquired and duplicated from the Real Estate Registration Center of __ City. The three documents preserved in the Real Estate Registration Center of __ City were photocopies provided by __ Real Estate Company in its application for obtaining the property ownership certificate. The Reply on Assisting in Explaining the Relevant Content of the Planning Permit issued by the Planning Committee of __ City to the People's Procuratorate of __ City on July 19, 2018 proved that the total floor area of the building involved in the planning permit was 5,074.62 square meters. It was thereby determined that the area of 5,674.62 square meters in the photocopies of the planning permit and other two documents provided by __ Real Estate Company has been altered; the floor area in the planning permit should be 5,074.62 square meters; and there was a gap of 600 square meters. 调查核实 市人民检察院在审查案件过程中,发现一审期间实业公司提供的案涉大厦规划许可证件复印件是判决的关键证据之一,与其他证据存在矛盾,遂开展了以下调查核实工作:一是向法院调取案件卷宗材料;二是向市规划委员会、市不动产登记中心等单位调取规划许可证件及相关文件;三是向市不动产登记中心等单位及工作人员询问了解规划许可证件等文件复印件的来源和审核情况。经对以上材料进行审查和比对,发现法院卷宗中的规划许可证件等文件复印件记载的面积与市规划委员会保存的规划许可证件等文件原件记载的面积不一致。最终查明:实业公司向法院提供的规划许可证件等三份文件复印件,是从市不动产登记中心查询复印的,而该中心保存的这三份材料又是实业公司在申请办理房证时提供的复印件。市规划委员会于2018年7月19日向人民检察院出具的《关于协助说明规划许可相关内容的复函》证明:案涉大厦建筑规划许可总建筑面积为5074.62平方米。据此认定,实业公司提供的规划许可证件等3份文件复印件中5674.62平方米的面积系经涂改,规划许可的建筑面积应为5074.62平方米,二者相差600平方米。
Supervision opinions. The People's Procuratorate of __ City held upon examination that the main evidence for the fact-finding in the administrative judgment entered by the People's Court of __ District was altered and both the fact-finding and application of law were erroneous. First, entrusted by the People's Government of __ City, the detailed statement of housing areas by households in the report (2015) was prepared for surveying and mapping the floor area of the entire building, including area legally constructed and area illegally and additionally constructed, for the purpose of expropriating houses in the shantytown innovation project in an area, and it should serve as the basis for determining whether the areas in dispute were legal floor areas. The report (2011) was prepared upon surveying and mapping for settling the civil dispute of the parties over the common property right of a hotel and it did not determine or differentiate whether the fourth and fifth floors of the building in dispute were legal. Therefore, it should not serve as the basis for determining whether the fourth and fifth floors were legal. Second, on the basis of the investigation and verification conducted by the procuratorial organ, the administrative judgment was erroneous in the determination of the area in the planning permit and the determination that the actual floor area did not exceed the area in the planning permit according to the aforesaid standard was also erroneous. Third, on the basis of such evidence as the land and housing registration card and the appendixes thereto and the detailed statement of housing areas by households in the report (2015), it should be determined that the fourth and fifth floors were additionally constructed without approval. Fourth, the civil judgment entered for another case was about division of the housing ownership and it should not serve as the basis for determining whether the building was legal or not. The administrative judgment was erroneous in determining that the fourth and fifth floors of the building in dispute were not additionally constructed by __ Real Estate Company on its own. On November 22, 2018, the People's Procuratorate of __ City filed a protest with the Intermediate People's Court of __ City according to the law. 监督意见 市人民检察院审查后,认为区人民法院行政判决认定事实的主要证据系变造,且事实认定和法律适用存在错误。第一,2015年测绘报告的房屋分户面积明细表是受市人民政府委托,为了征收某片区棚户区改造项目房屋,对整个大厦建筑面积包括合法、非法加建面积而进行的测绘,应当作为认定争议面积是否属于合法建筑面积的依据。而2011年测绘报告则是另案为了处理有关当事人关于某酒店共有产权民事纠纷而进行的测绘,未就争议建筑部分是否合法予以认定或区分,不应作为认定建筑是否合法的依据。第二,根据检察机关调查核实情况,判决认定规划许可面积错误,以此为标准认定实际建筑面积未超过规划许可面积也存在错误。第三,根据市国土局土地房屋登记卡及附件、2015年测绘报告的房屋分户面积明细表等证据,应当认定第四层、第五层存在擅自加建。第四,另案民事判决是对房屋权属进行的分割和划分,不应当作为认定建筑是否合法的依据。判决认定争议建筑不是自行加建,存在错误。市人民检察院遂于2018年11月22日依法向市中级人民法院提出抗诉。
Supervision results. Upon review, the Intermediate People's Court of __ City entered an administrative ruling on December 3, 2018 and instructed the People's Court of __ District to retry the case. On January 8, 2019, __ Real Estate Company filed an application with the People's Court of __ District for withdrawing the lawsuit. In accordance with the provisions of Article 62 of the Administrative Procedure Law of the People's Republic of China, the People's Court of __ District ruled to: (1) set aside the original administrative judgment entered by it; and (2) allow __ Real Estate Company's withdrawal of its appeal against the Housing and Urban-Rural Development Bureau of __ City. 监督结果 市中级人民法院经过审查,于2018年12月3日作出行政裁定书,指令某区人民法院再审。2019年1月8日,实业公司向某区人民法院提交撤诉申请。某区人民法院依照《中华人民共和国行政诉讼法》第六十二条之规定,裁定:(1)撤销本院原行政判决书;(2)准许实业公司撤回对市住建局的起诉。
On March 6, 2019, the Intermediate People's Court of __ City entered a final administrative judgment for another lawsuit filed by __ Real Estate Company regarding the illegality of the forcible demolition by the Housing and Urban-Rural Development Bureau of __ City and compensation dispute. The Intermediate People's Court of __ City determined that the area of 5,674.62 square meters in the planning permit of the building involved and other documents has been altered and the floor area in the planning permit should be 5,074.62 square meters. __ Real Estate Company raised no objection to the aforesaid facts as determined by the Intermediate People's Court of __ City. The claims of __ Real Estate Company were dismissed in the final judgment. The accountability in the alteration of evidence would be settled in another case. 2019年3月6日,市中级人民法院对实业公司另案起诉的市住建局强制拆除行为违法及赔偿纠纷案作出终审行政判决,认定实业公司提交的案涉大厦规划许可证件等文件中5674.62平方米是经涂改后的面积,规划许可建筑面积应为5074.62平方米。实业公司对法院认定的上述事实无异议。该案最终判决驳回实业公司的诉讼请求。对变造证据行为的责任追究,另案处理。
[Significance] 【指导意义】
1. When handling a case of administrative litigation supervision, the people's procuratorate should uphold an objective and fair position. It should not only protect the lawful rights and interests of citizens, legal persons, and other organizations, but give support to the lawful administrative act and safeguard the national interests and public interests. The main tasks of supervision over administrative litigation supervision by a people's procuratorate are to maintain social fairness and justice, supervise the trial and enforcement of a people's court according to the law, and advance the law-based administration by an administrative organ. As a national legal supervision organ, the people's procuratorate should be impartial in conducting supervision and legally review the factual basis and legal basis for any judgment or ruling entered by a people's court. When finding that an administrative judgment or ruling is actually erroneous or the statutory supervision conditions are met, the people's procuratorate should file a protest or raise a procuratorial proposal of retrial according to the law. In this case, by filing a protest, the people's procuratorate supervised the correction of an erroneous judgment entered by the people's court, which has safeguarded the national interests and maintained social fairness and justice. 1.人民检察院办理行政诉讼监督案件,应当秉持客观公正立场,既注重保护公民、法人和其他组织的合法权益,也注重支持合法的行政行为,保护国家利益和社会公共利益。人民检察院行政诉讼监督的重要任务是维护社会公平正义,监督人民法院依法审判和执行,促进行政机关依法行政。人民检察院是国家的法律监督机关,应当居中监督,不偏不倚,依法审查人民法院判决、裁定所基于的事实根据和法律依据,发现行政判决、裁定确有错误,符合法定监督条件的,依法提出抗诉或再审检察建议。本案中,人民检察院通过抗诉,监督人民法院纠正了错误判决,保护了国家利益,维护了社会公平正义。
2. The people's procuratorate should supervise the administrative judgment ex officio and not on the premise that the party has filed an application for retrial with the people's court. According to the division of case sources, there are supervision upon application by the parties and supervision ex officio in the supervision over administrative judgments. The law provides that a party should file an application for retrial with the court before applying for procuratorial proposals or filing a protest for the purpose of preventing the party from repeatedly filing applications for the same case and preventing the judicial organ from conducting approval through multiple channels. As a national organ of legal supervision, the people's procuratorate is the representative of public interests and it shoulders such important tasks as maintaining judicial justice, guaranteeing the uniform and correct implementation of laws, and safeguarding the national interests and public interests. With respect to an administrative litigation case that complies with the provisions of Article 9 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation), the people's procuratorate should, starting from the objectives of supervising the law-based trial by the people's court and promoting the law-based administration by the administrative organ, maximize the procuratorial supervision function, voluntarily conduct supervision ex officio, and be unconstrained by whether the party has applied for retrial. In this case, although the party did not appeal or file an application for retrial with the people's court, the people's procuratorate discovered circumstances of infringement upon national interests. Therefore, in accordance with the provisions of item (1) of Article 9 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation), the people's procuratorate initiated the supervision procedures ex officio. 2.人民检察院依职权对行政裁判结果进行监督,不以当事人申请法院再审为前提。按照案件来源划分,对行政裁判结果进行监督分为当事人申请监督和依职权监督两类。法律规定当事人在申请检察建议或抗诉之前应当向法院提出再审申请,目的是为了防止当事人就同一案件重复申请、司法机关多头审查。人民检察院是国家的法律监督机关,是公共利益的代表,担负着维护司法公正、保证法律统一正确实施、维护国家利益和社会公共利益的重要任务,对于符合《人民检察院行政诉讼监督规则(试行)》第九条规定的行政诉讼案件,应当从监督人民法院依法审判、促进行政机关依法行政的目的出发,充分发挥检察监督职能作用,依职权主动进行监督,不受当事人是否申请再审的限制。本案中,虽然当事人未上诉也未向法院申请再审,但人民检察院发现存在损害国家利益的情形,遂按照《人民检察院行政诉讼监督规则(试行)》第九条第一项的规定,依职权启动了监督程序。
3. When the people's procuratorate conducts administrative litigation supervision, where it is difficult to determine the relevant case facts through written review of the case file and materials provided by the parties, the people's procuratorate should conduct investigation and verification. The Organic Law of the People's Procuratorates provides that when exercising the right of legal supervision, the people's procuratorate may conduct investigation and verification. In the handling of a case of administrative litigation supervision, where, upon written review of the case file and the materials provided by the parties, it is still difficult to determine the relevant facts, for the purpose of finding case facts and ensuring accurate supervision, the people's procuratorate should conduct investigation and verification. In accordance with the relevant provisions of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation), the following measures may be adopted in the investigation and verification: (1) consulting, requesting the transfer of, and duplicating the relevant evidentiary materials; (2) inquiring the parties and persons not involved in the case; (3) seeking opinions of professionals, relevant departments, or industry associations on special issues; (4) entrusting identification, assessment, and audit; (5) investigating the physical evidence and the scene; and (6) other measures requiring to be taken for finding the case facts. The purposes of investigation and verification are to ascertain whether the administrative judgment or ruling entered by a people's court is erroneous and whether the trial and enforcement activities comply with legal provisions and to provide basis and reference for decision on whether to conduct supervision. In this case, the Housing and Urban-Rural Development Bureau of __ City has had factual basis and legal basis when issuing the reply and during litigation, it submitted such factual basis and legal basis to the court in a timely manner. However, since the court adopted the false evidence provided by the plaintiff, it entered an erroneous judgment. Through investigation and verification, the procuratorial organ requested the transfer of the case file from the original people's court and the original copies of the planning permit and other documents from the planning department, learned and inquired the forming process of photocopies of the planning permit and other documents, and thus found that the key evidence admitted in the original judgment was altered, which has provided a basis for the procuratorial organ to file a protest according to the law. 3.人民检察院进行行政诉讼监督,通过书面审查卷宗、当事人提供的材料等对有关案件事实难以认定的,应当进行调查核实。《人民检察院组织法》规定,人民检察院行使法律监督权,可以进行调查核实。办理行政诉讼监督案件,通过对卷宗、当事人提供的材料等进行书面审查后,对有关事实仍然难以认定的,为查清案件事实,确保精准监督,应当进行调查核实。根据《人民检察院行政诉讼监督规则(试行)》等相关规定,调查核实可以采取以下措施:(1)查询、调取、复制相关证据材料;(2)询问当事人或者案外人;(3)咨询专业人员、相关部门或者行业协会等对专门问题的意见;(4)委托鉴定、评估、审计;(5)勘验物证、现场;(6)查明案件事实所需要采取的其他措施。调查核实的目的在于查明人民法院的行政判决、裁定是否存在错误,审判和执行活动是否符合法律规定,为决定是否监督提供依据和参考。本案中,市住建局作出复函时已有事实根据和法律依据,并在诉讼中及时向法庭提交,但法院因采信原告提供的虚假证据作出了错误判决。检察机关通过调查核实,向原审人民法院调取案件卷宗,向规划部门调取规划许可证件等文件原件,向出具书证的不动产登记中心及工作人员了解询问规划许可证件等文件复印件的形成过程,进而查明原审判决采信的关键证据存在涂改,为检察机关依法提出抗诉提供了根据。
[Relevant Legislation] 【相关规定】
Articles 6 and 21 of the Organic Law of the People's Procuratorates of the People's Republic of China
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 中华人民共和国人民检察院组织法》第六条、第二十一条
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