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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

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 action. 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 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 adopted 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 adopt 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 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 review 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 learnt 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 review 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 legal area 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 Litigation Law of the People's Republic of China, the People's Court of __ District ruled to: (1) abolish 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 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 lawful administrative actions 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 legitimate trial and enforcement of a people's court, 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 stipulates 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 for that when exercising the right of legal supervision, the people's procuratorate may conduct investigation and verification. 3. 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 adopted 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 中华人民共和国人民检察院组织法》第六条、第二十一条
Articles 91, 93, and 101 of the Administrative Litigation Law of the People's Republic of China 中华人民共和国行政诉讼法》第九十一条、第九十三条、第一百零一条
Article 210 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百一十条
Articles 9, 13, and 36 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation) 人民检察院行政诉讼监督规则(试行)》第九条、第十三条、第三十六条我我我什么都没做
Article 66 of the Rules for Supervision over Civil Proceedings by the People's Procuratorates (for Trial Implementation) 人民检察院民事诉讼监督规则(试行)》第六十六条
Case of supervision over application for enforcement of a penalty decision against Du for his illegal land occupation filed by the Land and Resources Bureau of __ City, Zhejiang Province 浙江省某市国土资源局申请强制执行杜某非法占地处罚决定监督案
(Guiding Case No. 58 of the Supreme People's Procuratorate) (检例第58号)
[Keywords] 【关键词】
Supervision over non-litigation enforcement; omitted items in claims raised for illegal land occupation; special supervision 行政非诉执行监督 违法占地遗漏请求事项 专项监督
[Key Points] 【要旨】
The supervision over administrative non-litigation enforcement by a people's procuratorate should give play to the dual supervisory roles of supervising impartial justice by a people's court and advancing law-based administration by an administrative organ. Where the people's procuratorate finds any omitted claim items in the ruling entered by the people's court upon application for administrative non-litigation enforcement, it shall conduct supervision according to the law. With respect to universal problems in the administrative non-litigation enforcement, the people's procuratorate may launch a special supervisory campaign with an individual case as the starting point. 人民检察院行政非诉执行监督要发挥监督法院公正司法、促进行政机关依法行政的双重监督功能。发现人民法院对行政非诉执行申请裁定遗漏请求事项的,应当依法监督。对于行政非诉执行中的普遍性问题,可以以个案为切入点开展专项监督活动。
[Basic Facts] 【基本案情】
In May 2014, without approval, Du, a villager from __ Township, __ District, __ City, Zhejiang Province, occupied 681.46 square meters of land in the village, including 112.07 square meters for constructing prefabricated houses and 569.39 square meters for hardened cement floor. The Land and Resources Bureau of __ City held that the act of Du has violated the provisions of the Land Administration Law of the People's Republic of China and the Regulation on the Protection of Basic Farmlands. In accordance with the provisions of Article 76 of the Land Administration Law of the People's Republic of China, Article 42 of the Regulation on the Implementation of the Land Administration Law of the People's Republic of China, and the Executive Standards for Discretionary Powers in Land and Resources-Related Administrative Penalties in Zhejiang Province, it made an administrative penalty decision that (1) Du should be ordered to return the illegally occupied land of 681.46 square meters; (2) the buildings and facilities on the land of 45.46 square meters that conformed to the overall plan for land utilization should be confiscated; (3) the buildings and facilities on the land (basic farmland) of 636 square meters that did not conform to the overall plan for land utilization should be demolished; and (4) Du should be imposed on a fine of CNY11 per square meter for his act of illegally occupying the planned land of 45.46 square meters and a fine of CNY21 per square meter for his act of illegally occupying non-planned land of 636 square meters, CNY13,856.06 in total. Within the prescribed time limit, Du did perform items (3) and (4) of the penalty decision, nor did he apply for administrative reconsideration or file an administrative lawsuit. After being urged, he still failed to perform items (3) and (4). On July 21, 2017, the Land and Resources Bureau of __ City filed an application with the People's Court of __ District, __ City for enforcing items (3) and (4) of the administrative penalty decision for Du's illegal land occupation. After the People's Court of __ District docketed and accepted this case, on July 25, 2017, it entered an administrative ruling, where item (3) of the administrative penalty decision made by the Land and Resources Bureau of __ City was approved to be enforced and the People's Government of __ Township was responsible for organizing and implementing the demolition of buildings and facilities in item (3). The People's Government of __ Township failed to enforce the aforesaid ruling within the statutory time limit. 2014年5月,浙江省某市某区某镇村民杜某未经批准,擅自在该村占用土地681.46平方米,其中建造活动板房112.07平方米,硬化水泥地面569.39平方米。市国土资源局认为杜某的行为违反了《中华人民共和国土地管理法》和《基本农田保护条例》规定,根据《中华人民共和国土地管理法》第七十六条、《中华人民共和国土地管理法实施条例》第四十二条及《浙江省国土资源行政处罚裁量权执行标准》规定,作出行政处罚决定:(1)责令退还非法占用土地681.46平方米;(2)对其中符合土地利用总体规划的45.46平方米土地上的建筑物和设施,予以没收;(3)对不符合土地利用总体规划的636平方米土地(基本农田)上的建筑物和设施,予以拆除;(4)对非法占用规划内土地45.46平方米的行为处以每平方米11元的罚款,非法占用规划外土地636平方米的行为处以每平方米21元的罚款,共计人民币13856.06元。杜某在规定的期限内未履行该处罚决定第3项和第4项内容,亦未申请行政复议或提起行政诉讼,经催告仍未履行。市国土资源局遂于2017年7月21日向某市某区人民法院申请强制执行杜某违法占地行政处罚决定第3项和第4项内容。区人民法院立案受理后,于2017年7月25日作出行政裁定书,裁定准予执行市国土资源局行政处罚决定第3项内容,并由某镇政府组织实施。某镇政府未在法定期限内执行法院裁定。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
Identification of clues. The People's Procuratorate of __ District identified clues to this case in the handling of another case. Upon preliminary investigation, it learnt that the People's Government of __ Township failed to organize and implement the demolition according to the ruling entered by the People's Court of __ District, the land failed to be restored to meet the second ploughing conditions, and Du failed to perform the obligation of paying the fines. Therefore, it initiated the supervision procedures ex officio. 线索发现 区人民检察院在办理其他案件过程中发现该案线索。经初步调查了解,某镇政府未根据法院裁定书内容组织实施拆除,土地未恢复至复耕条件,杜某也未履行缴纳罚款的义务,遂依职权启动监督程序。
Investigation and verification. Based on the clues, the procuratorial organ mainly carried out the following investigation and verification work: first, it requested the consultation of the case file from the people's court; second, it learnt information on the enforcement of the administrative penalty decision involved and the application for enforcement to the people's court from personnel of the local land and resources administrative department; and third, the procuratorial personnel conducted an investigation on the scene of illegal land occupation. It finally found that the administrative penalty decision made by the Land and Resources Bureau of __ City had sufficient factual basis and its application for enforcement of such decision to the people's court complied with the legal provisions. The fines in the administrative penalty decision were still not paid and the above-ground buildings and facilities that were ruled by the people's court to be demolished were still not demolished at present. 调查核实 根据案件线索,检察机关重点开展了以下调查核实工作:一是向法院调阅了案件卷宗材料;二是向当地国土管理部门工作人员了解案涉行政处罚决定执行情况和申请法院强制执行的情况;三是检察人员到违法占地现场进行实地查看。最终查明:市国土资源局的行政处罚决定有充分的事实根据,申请法院强制执行符合法律规定,目前行政处罚决定中罚款仍未缴纳,法院裁定拆除的地上建筑物和设施亦未被拆除。
Supervision opinions. In May 2018, the People's Procuratorate of __ City separately issued procuratorial proposals to the People's Court of __ District and the People's Government of __ Township and proposed that the People's Court of __ District should ascertain the reason for not ruling fines in item (4) of the administrative penalty decision and handle it according to the law and that the People's Government of __ Township should ascertain the reason for not demolishing the illegal buildings and facilities and handle it according to the law. 监督意见 2018年5月,区人民检察院分别向区人民法院和某镇政府提出检察建议,建议区人民法院查明该案未就行政处罚决定第4项罚款作出裁定的原因,并依法处理,建议某镇政府查明违法建筑物和设施未拆除的原因,并依法处置。
Supervision results. Upon receipt of the procuratorial proposal, on May 30, 2018, the People's Court of __ District entered a supplementary ruling, where the fine of CNY13,856.06 in the decision made by the Land and Resources Bureau of __ City was allowed to be enforced, and such fine was paid in July 2018. Upon receipt of the procuratorial proposal, the People's Government of __ Township acted quickly and the illegal buildings and facilities involved were demolished in July 2018. 监督结果 区人民法院收到检察建议后于2018年5月30日作出补充裁定,准予强制执行市国土资源局作出的13856.06元罚款决定,7月该款执行到位。某镇政府收到检察建议后,迅速行动,案涉违法建筑物和设施于2018年7月被拆除。
Special supervision. In the handling of this case, the People's Procuratorate of __ District found that failure to enforce administrative penalties against illegal land occupation was prominent in rural areas. Therefore, it decided to launch a special supervisory campaign against administrative non-litigation enforcement in the field of land and resources. It has supervised 17 cases where the people's courts ruled omission of enforcement claim items and 18 cases where the villages, towns, and sub-districts failed to perform obligations as determined in the judgment documents entered by the people's courts. The People's Procuratorate of __ City found upon conscientious studies that there were many similar problems within its jurisdiction and in May 2018, the procuratorial organs in __ City all launched a special supervisory campaign. Up to February 2019 when the special campaign was ended, upon supervision by the procuratorial organs, various illegal buildings and facilities of 455,000 square meters in __ City have been regulated and demolished, the land of 230,000 square meters has been restored to the original state, and the illegally occupied land of 217,000 square meters has been returned. With respect to problems identified in the special supervisory campaigns launched by the procuratorial organs, the Intermediate People's Court of __ City carried out a special assessment and inspection in the court system in __ City, which has effectively regulated such activities as acceptance, review, and implementation of administrative non-litigation enforcement. 专项监督 区人民检察院在办理该案过程中,发现农村违法占地行政处罚未执行到位问题突出,遂决定就国土资源领域行政非诉执行开展专项监督活动,共监督法院裁定遗漏强制执行请求事项等案件17件,乡镇街道未执行法院裁判文书确定的义务案件18件。市人民检察院通过认真研究后发现辖区内类似问题较多,遂于2018年5月在全市检察机关开展专项监督活动。截至2019年2月专项活动结束时,通过检察机关监督,全市共整治拆除各类违法建筑物及设施45.5万平方米,恢复土地原状23万平方米,退还非法占用土地21.7万平方米。市中级人民法院针对检察机关专项监督活动中发现的问题,在全市法院系统开展专项评查,有效规范了行政非诉执行的受理、审查和实施等活动。
[Significance] 【指导意义】
1. When performing the function of administrative non-litigation enforcement supervision, the people's procuratorate should give play to the dual functions of supervising impartial justice by the people's courts and advancing the law-based administration by the administrative organs, so as to achieve win-win. The supervision over administrative non-litigation enforcement is of great significance in promoting the legal, impartial, and efficient performance of administrative non-litigation enforcement functions by people's courts, advancing administrative organs to legally perform their duties, maintaining public interests and social order, and safeguarding the lawful rights and interests of citizens, legal persons, and other organizations. The people's procuratorates should carry out supervision over all links in the acceptance, review, and implementation of administrative non-litigation enforcement and raise procuratorial proposals for existing illegal circumstances. It is conducive to promoting the legal review of administrative decisions and correct entering and implementation of rulings by the people's courts, preventing enforcement of illegal administrative decisions, and safeguarding the lawful rights and interests of administrative counterparts. When carrying out supervision over administrative non-litigation enforcement, the people's procuratorate should pay attention to reviewing the legality of the administrative action, including whether the administrative organ is a qualified administrative agency, whether there is an apparent lack of factual basis, whether there is an apparent lack of legal and regulatory basis, and whether the lawful rights and interests of the person subject to enforcement are infringed. Where the administrative action is obviously unlawful, but the people's court still rules to approve the enforcement, the people's procuratorate should raise procuratorial proposals to the people's court and the administrative organ for correcting such administrative action and preventing the lawful rights and interests of the person subject to enforcement from being infringed. Where the administrative action complies with the legal provisions, the people's procuratorate should guide the administrative counterpart in performing the statutory obligations according to the law and give support to the law-based administration by the administrative organ. 1.人民检察院履行行政非诉执行监督职能,应当发挥既监督人民法院公正司法又促进行政机关依法行政的双重功能,实现双赢多赢共赢。行政非诉执行监督对于促进人民法院依法、公正、高效履行行政非诉执行职能,促进行政机关依法履行职责,维护公共利益和社会秩序,保护公民、法人和其他组织的合法权益,具有重要作用。人民检察院对人民法院行政非诉执行的受理、审查和实施等各个环节开展监督,针对存在的违法情形提出检察建议,有利于促进人民法院依法审查行政决定、正确作出裁定并实施,防止对违法的行政决定予以强制执行,保护行政相对人的合法权益。开展行政非诉执行监督,应当注意审查行政行为的合法性,包括是否具备行政主体资格、是否明显缺乏事实根据、是否明显缺乏法律法规依据、是否损害被执行人合法权益等。对于行政行为明显违法,人民法院仍裁定准予执行的,应当向人民法院和行政机关提出检察建议予以纠正,防止被执行人合法权益受损。对于行政行为符合法律规定的,应当引导行政相对人依法履行法定义务,支持行政机关依法行政。
2. Where there is any omitted claim item in the ruling entered by the people's court against an application for administrative non-litigation enforcement, the people's procuratorate should raise a procuratorial proposal according to the law and conduct supervision. In accordance with the provisions of Article 57 and 58 of the Administrative Compulsion Law of the People's Republic of China, when the people's court conducts a written review after accepting the administrative organ's application for enforcement, it should enter a ruling on whether to approve the enforcement of claim items in the application for enforcement filed by the administrative organ. In this case, the items subject to enforcement in the application filed by the Land and Resources Bureau of __ City with the People's Court of __ City included the enforcement of a fine of CNY13,56.06, but the People's Court of __ District failed to rule such claim item, resulting in failure to collect the fines by means of enforcement and affecting the credibility of the administrative decision. With respect to the ruling omitting claim items as entered by the people's court, the people's procuratorate should raise a procuratorial proposal for making corrections. 2.人民法院对行政非诉执行申请裁定遗漏请求事项的,人民检察院应当依法提出检察建议予以监督。根据《中华人民共和国行政强制法》第五十七条和第五十八条的规定,人民法院受理行政机关强制执行申请后进行书面审查,应当对行政机关提出的强制执行申请请求事项作出是否准予执行的裁定。本案中,市国土资源局向区人民法院申请强制执行的项目中包括强制执行13856.06元罚款,但区人民法院却未对该请求事项予以裁定,致使罚款无法通过强制执行方式收缴,影响了行政决定的公信力。人民检察院应当对人民法院遗漏申请事项的裁定依法提出检察建议予以纠正。
3. The people's procuratorate should adhere to the concepts of conducting supervision in the case-handling and handling a case during supervision. In the handling of a case of supervision over administrative non-litigation enforcement, the people's procuratorate should pay attention to using an individual case as the breakthrough, positively launch special campaigns, and promote the resolution of a certain type of problems in the same region. When performing the duties of supervision over administrative non-litigation enforcement, the people's procuratorate should pay attention to drawing inferences about other cases from one instance, conduct in-depth investigation, promote the work in all regions by drawing upon the experience gained on key points, launch a special campaign against universal problems in such links as acceptance, review, and implementation of the administrative non-litigation enforcement of the people's court, and realize the supervision effects that “the handling of one case may affect a class of entities or people.” On the basis of the smooth handling of this case, the procuratorial organs of __ District and __ City launched special supervisory campaigns, which has effectively advanced the solution of problems including “difficult enforcement” in the land and resources field in __ City and promoted the realization of government administration objectives. With respect to problems identified in the special supervisory campaigns launched by the procuratorial organs, the Intermediate People's Court of __ City carried out a special assessment and inspection in the court system in __ City, which has regulated activities of administrative non-litigation enforcement. 3.人民检察院应当坚持在办案中监督、在监督中办案的理念,在办理行政非诉执行监督案件过程中,注重以个案为突破口,积极开展专项活动,促进一个区域内一类问题的解决。人民检察院履行行政非诉执行监督职责,要注重举一反三,深挖细查,以小见大,以点带面,针对人民法院行政非诉执行受理、审查和实施等各个环节存在的普遍性问题开展专项活动,实现办理一案、影响一片的监督效果。某市两级检察机关在成功办理本案的基础上,开展专项监督活动,有力推进了全市国土资源领域“执行难”等问题的解决,促进了行政管理目标的实现。市中级人民法院针对检察机关专项监督活动中发现的问题,在全市法院系统开展专项评查,规范了行政非诉执行活动。
[Relevant Legislation] 【相关规定】
Articles 11, 97, and 101 of the Administrative Litigation Law of the People's Republic of China 中华人民共和国行政诉讼法》第十一条、第九十七条、第一百零一条
Article 235 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百三十五条
Articles 53, 57, and 58 of the Administrative Compulsion of the People's Republic of China 中华人民共和国行政强制法》第五十三条、第五十七条、第五十八条
Article 29 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation) 人民检察院行政诉讼监督规则(试行)》第二十九条
Articles 1 and 21 of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning Legal Supervision over Civil Enforcement Activities 《最高人民法院 最高人民检察院关于民事执行活动法律监督若干问题的规定光宗耀祖支撑着我去教室》第一条、第二十一条
Article 11 of the Provisions on the Procuratorial Proposal Work of People's Procuratorates 人民检察院检察建议工作规定》第十一条
Case of supervision over application for enforcement of a penalty decision against Xiao for his illegal river course construction filed by the Water Affairs Bureau of __ County, Hubei Province 湖北省某县水利局申请强制执行肖某河道违法建设处罚决定监督案
(Guiding Case No. 59 of the Supreme People's Procuratorate) (检例第59号)
[Keywords] 【关键词】
Supervision over administrative non-litigation enforcement; illegal river course construction; forcible demolition 行政非诉执行监督 河道违法建设 强制拆除
[Key Points] 【要旨】
In the handling of a case of supervision over administrative non-litigation enforcement, whether the administrative organ has the right to directly enforce the relevant items should be identified. Where the administrative organ having the direct enforcement right files an application with the people's court for enforcement and the people's court accepts such application where it should not have done so, the people's procuratorate should conduct supervision according to the law. In the performance of duties of supervision over administrative non-litigation enforcement, the people's procuratorate finds that the administrative action of the administrative organ is illegal or falls under circumstance of inappropriate performance of functions, the people's procuratorate may raise a procuratorial proposal to the administrative organ. 办理行政非诉执行监督案件,应当查明行政机关对相关事项是否具有直接强制执行权,对具有直接强制执行权的行政机关向人民法院申请强制执行,人民法院不应当受理而受理的,应当依法进行监督。人民检察院在履行行政非诉执行监督职责中,发现行政机关的行政行为存在违法或不当履职情形的,可以向行政机关提出检察建议。
[Basic Facts] 【基本案情】
In September 2011, without approval, Xiao, a villager in __ County, Hubei Province, built five houses (foundations) under the ___ Bridge on the G316 within the management scope of the area (river course) of the __ Reservoir, occupying an area of 289.8 square meters. On November 3, 2011, in accordance with Article 65 of the Water Law of the People's Republic of China, the Water Affairs Bureau of __ County issued a Written Decision of Administrative Penalty, in which Xiao was required to immediately stop the illegal act of constructing houses under the bridge, demolish the houses within seven days, and restore the site to its original state; a fine of CNY50,000 should be imposed on him; and Xiao was notified of the time limit for filing an application for reconsideration or filing a lawsuit. It was indicated that if Xiao did not file an application for reconsideration or appeal and did not perform the administrative penalty decision within the prescribed time limit, the Water Affairs Bureau of __ County may file an application for enforcement with the People's Court of __ County according to the law. Xiao failed to perform the penalty decision within the prescribed time limit, nor did he apply for reconsideration or file an administrative lawsuit. On March 29, 2012, the Water Affairs Bureau of __ County filed an application for enforcement with the People's Court of __ County. On April 23, 2012, the People's Court of __ County entered an administrative ruling, ruled to approve the enforcement of the administrative penalty decision, and ordered Xiao to perform the obligations as determined in the written penalty decision. However, Xiao did not stop the illegal construction and up to April 2017, he has illegally constructed a four-floored house in the river course area, with the floor area of about 520 square meters. 2011年9月,湖北省某县村民肖某未经许可,擅自在某水库库区(河道)管理范围内316国道某大桥下建房(房基)5间,占地面积289.8平方米。2011年11月3日,某县水利局根据《中华人民共和国水法》第六十五条作出《行政处罚决定书》,要求肖某立即停止在桥下建房的违法行为,限7日内拆除所建房屋,恢复原貌;罚款5万元;并告知肖某不服处罚决定申请复议和提起诉讼的期限,注明期满不申请复议、不起诉又不履行处罚决定,将依法申请人民法院强制执行。肖某在规定的期限内未履行该处罚决定,亦未申请复议或提起行政诉讼。2012年3月29日,县水利局向法院申请强制执行。2012年4月23日,县人民法院作出行政裁定书,裁定准予执行行政处罚决定,责令肖某履行处罚决定书确定的义务。但肖某未停止违法建设,截至2017年4月,肖某已在河道区域违法建成四层房屋,建筑面积约520平方米。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
Identification of clues. In April 2017, the People's Procuratorate of __ County identified the clues to this case from the report “When does enforcement by “kicking the ball” end?” on a daily paper and it initiated the supervision procedures ex officio. Upon investigation, the procuratorial organ found that Xiao's illegal construction in the river course area has lasted for years, which violated the state provisions on river course management, and the illegal buildings have seriously affected the flood discharge and flood control safety. The Water Affairs Bureau of __ County and the People's Court of __ County had different opinions on the reason for the forcible demolition of the illegal buildings. The People's Court of __ County held that with respect to a building violating the Water Law, the Water Affairs Bureau of __ County was the administrative organ to which the law specially granted the enforcement authority and the people's court may not serve as the enforcement subject in this case. However, the Water Affairs Bureau of __ County held that it had no means of enforcement and the People's Court of __ County should enforce the demolition of the illegal buildings. 线索发现 县人民检察院于2017年4月通过某日报《“踢皮球”执法现象何时休?》的报道发现案件线索,依职权启动监督程序。检察机关经调查发现,肖某在河道内违法建设的行为持续多年,违反了国家河道管理规定,违法建筑物严重影响行洪、防洪安全。水利局和法院对违法建筑物未被强制拆除的原因则各执一词。法院认为,对违反水法的建筑物,水利局是法律明确授予强制执行权的行政机关,法院不能作为该案强制执行主体。但水利局认为,其没有强制执行手段,应当由法院强制执行。
Supervision opinions. The procuratorial organ held upon examination that: The law did not grant the water affairs bureau the authority of taking such enforcement measures as sealing up, seizing, freezing, and allocating property. In the case of non-payment of fines, the water affairs bureau may apply to the people's court for enforcement; however, in accordance with the Administrative Compulsion Law, the Water Law, and other relevant provisions, the water affairs bureau had the authority of forcible demolition of illegal buildings in water courses and it should not apply to the people's court for enforcement. Therefore, with respect to the water affairs bureau's claim for enforcing the demolition of the illegal buildings in the administrative penalty decision, the people's court accepted such claim while it should have not done so and ruled to approve the enforcement, which violated the legal provisions. In May 2017, the People's Procuratorate of __ County raised a procuratorial proposal to the Water Affairs Bureau of __ County and proposed that the latter should forcibly demolish the illegal buildings according to the law; in August of the same year, it raised a procuratorial proposal to the People's Court of __ City and proposed that the latter should legally perform duties and regulate the acceptance of administrative non-litigation enforcement cases. 监督意见 检察机关审查认为:法律没有赋予水利局采取查封、扣押、冻结、划拨财产等强制执行措施的权力,对于不缴纳罚款的,水利局可以向法院申请强制执行;但根据行政强制法水法等相关规定,水利局对于河道违法建筑物具有强行拆除的权力,不应当向法院申请强制执行。因此,水利局向法院申请执行行政处罚决定中的拆除违法建筑物部分,法院不应当受理而受理并裁定准予执行,违反法律规定。县人民检察院于2017年5月向县水利局提出检察建议,建议其依法强制拆除违法建筑物;同年8月向县人民法院提出检察建议,建议其依法履职、规范行政非诉执行案件受理等工作。
Supervision results. Upon receipt of the procuratorial proposal, the Water Affairs Bureau of __ County immediately reported to the local Party committee and government. With vigorous support of the Party Committee and Government of __ County, the illegal buildings in the river course have been legally demolished. Upon receipt of the procuratorial proposal, the People's Court of __ County replied that it would strengthen case review in the future and rule to not accept a case where the administrative organ had the enforcement authority, but it applied for enforcement to the people's court. 监督结果 县水利局收到检察建议后,立即向当地党委政府报告。在县委、县政府的大力支持下,河道违法建筑物被依法拆除。县人民法院收到检察建议后,回复表示今后要加强案件审查,对行政机关具有强制执行权而向法院申请强制执行的案件裁定不予受理。
[Significance] 【指导意义】
1. In the handling of a case of supervision over administrative non-litigation enforcement, the people's procuratorate should legally ascertain whether the administrative organ has the direct enforcement authority over the relevant matters. The administrative enforcement as prescribed in the Administrative Compulsion Law of the People's Republic of China includes direct enforcement by an administrative organ and enforcement by a people's court upon application of an administrative organ. The law grants direct enforcement authority to some administrative organs mainly for the purpose of enhancing the administrative efficiency and enforcing the administrative decision in a timely manner. If an administrative organ having the direct enforcement authority applies to a people's court for enforcement, it will not only waste judicial resources, but may easily cause mutual excuses and reduction of administrative efficiency. In the handling of a case of supervision over administrative non-litigation enforcement, the people's procuratorate should ascertain whether the administrative organ has the direct enforcement authority. Where an administrative organ having the direct enforcement authority files an application with the people's court for enforcement and the people's court accepts such application while it should have not done so, the people's procuratorate should conduct supervision according to the law. Paragraph 1 of Article 65 of the Water Law of the People's Republic of China provides for that “whoever constructs any building or structure that blocks the passage of flood water within the scope of river course administration, or engages in any activity that affects the river flow, endangers the safety of banks and dikes, or any other activity that blocks the passage of flood water in a river course, shall be ordered by the water administrative department of the people's government at or above the county level or the watershed authority, according to their powers, to stop the illegal act, to demolish the illegal building or structure within a prescribed time limit, and to restore the site to its original state. If the offender fails to demolish the building and restore the site to its original state within the prescribed time limit, demolition shall be enforced....” In accordance with the aforesaid provisions, the competent water administrative department has the authority of directly enforcing the demolition of the building or structure that blocks the passage of flood water within the scope of river course administration. In this case, the Water Affairs Bureau of __ County should have directly enforce the demolition of the illegal buildings, but it filed an application with the People's Court of __ County for enforcement of such demolition; and the People's Court of __ County accepted such application and ruled to approve the enforcement while it should have not done so, causing the mutual excuses of the two entities and the long-term failure to eliminate the river course safety risks. The People's Procuratorate of __ County raised procuratorial proposals, which has promoted the solution to the problem. 1.人民检察院办理行政非诉执行监督案件,应当依法查明行政机关对相关事项是否具有直接强制执行权。我国行政强制法规定的行政强制执行,包括行政机关直接强制执行和行政机关申请人民法院强制执行两种类型。法律赋予某些行政机关以直接强制执行权的主要目的是提高行政效率,及时执行行政决定。如果行政机关有直接强制执行权,又向人民法院申请执行,不但浪费司法资源,而且容易引起相互推诿,降低行政效率。人民检察院办理行政非诉执行监督案件,应当查明行政机关是否具有直接强制执行权,对具有直接强制执行权的行政机关向人民法院申请强制执行,人民法院不应当受理而受理的,应当依法进行监督。《中华人民共和国水法》第六十五条第一款规定,“在河道管理范围内建设妨碍行洪的建筑物、构筑物,或者从事影响河势稳定、危害河岸堤防安全和其他妨碍河道行洪的活动的,由县级以上人民政府水行政主管部门或者流域管理机构依据职权,责令停止违法行为,限期拆除违法建筑物、构筑物,恢复原状;逾期不拆除、不恢复原状的,强行拆除……”根据上述规定,对河道管理范围内妨碍行洪的建筑物、构筑物,水行政主管部门具有直接强行拆除的权力。但在本案中,水利局本应直接强制执行,却向人民法院申请执行,人民法院不应当受理而受理、不应当裁定准予执行而裁定准予执行,致使两个单位相互推诿,河道安全隐患长期得不到消除,人民检察院依法提出检察建议,促进了问题的解决。
2. Where, in the performance of duties of supervision over administrative non-litigation enforcement, a people's procuratorate finds that the administrative action of an administrative organ is illegal or falls under circumstance of inappropriate performance of functions, the people's procuratorate may raise a procuratorial proposal to the administrative organ. Article 11 of the Provisions on the Procuratorial Proposal Work of People's Procuratorates provides for that “a people's procuratorate finding in handling of a case that social governance falls under any of the following circumstances may raise procuratorial proposals for improvement and perfection of governance to the relevant entities and departments: ... (4) failure of a relevant entity or department to perform duties in a timely manner according to the law damages the rights and interests of an individual or organization or has risk of damage, which needs to be rectified and eliminated; ....” In accordance with the aforesaid provisions, where the procuratorial organ finds that the application for enforcement filed by an administrative organ with the people's court is inappropriate or the people's court is negligent in performing its statutory duties, the procuratorial organ should raise a procuratorial proposal to the administrative organ. Where the illegal act of the administrative organ results in the persistent existence and even continuous expansion of the damage, the procuratorial organ should attach more importance, give priority to rapid handling, promote the enhancement of administrative enforcement efficiency, and safeguard the lawful rights and interests of the people. In this case, with respect to the negligence in the performance of duties of the Water Affairs Bureau of __ County, the People's Procuratorate of __ County raised a procuratorial proposal according to the law and promoted the demolition of the illegal buildings in the river course, which has guaranteed safety in the passage of flood water and flood discharge and protected the safety of local people's lives and property. 2.人民检察院在履行行政非诉执行监督职责中,发现行政机关的行政行为存在违法或不当履职情形的,可以向行政机关提出检察建议。《人民检察院检察建议工作规定》第十一条规定,“人民检察院在办理案件中发现社会治理工作存在下列情形之一的,可以向有关单位和部门提出改进工作、完善治理的检察建议:……(四)相关单位或者部门不依法及时履行职责,致使个人或者组织合法权益受到损害或者存在损害危险,需要及时整改消除的;……”根据上述规定,检察机关发现行政机关向人民法院提出强制执行申请存在不当,怠于履行法定职责的,应当向行政机关提出检察建议。对由于行政机关违法行为致使损害持续存在甚至继续扩大的,应当更加重视,优先快速办理,促进行政执行效率提高,及时消除损害、减少损失,维护人民群众的合法权益。本案中,检察机关针对水利局怠于履职行为,依法提出检察建议,促使河道违法建筑物被拆除,保障了行洪、泄洪安全,保护了当地人民群众的生命财产安全。
[Relevant Legislation] 【相关规定】
Articles 25, 97, and 101 of the Administrative Litigation Law of the People's Republic of China 中华人民共和国行政诉讼法》第二十五条、第九十七条、第一百零一条
Article 235 of the Civil Procedure Law of the People's Republic of China 中华人民共和国民事诉讼法》第二百三十五条
Articles 4, 13, 34, 44, and 53 of the Administrative Compulsion Law of the People's Republic of China 中华人民共和国行政强制法》第四条、第十三条、第三十四条、第四十四条、第五十三条
Articles 37 and 65 of the Water Law of the People's Republic of China 中华人民共和国水法》第三十七条、第六十五条
Article 29 of the Rules for Supervision over Administrative Proceedings by the People's Procuratorates (for Trial Implementation) 人民检察院行政诉讼监督规则(试行)》第二十九条
Article 11 of the Provisions on the Procuratorial Proposal Work of People's Procuratorates 人民检察院检察建议工作规定》第十一条
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