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| Ten Cases concerning Administrative Nonfeasance Published by the Supreme People's Court | | 最高人民法院发布人民法院关于行政不作为十大案例 |
| (January 15, 2015) | | （2015年1月15日） |
| Case No. 1 | | 案例1 |
| Zhang Enqi v. Human Resources and Social Security Bureau of Tianjin Municipality and Social Insurance Fund Management Center of Tianjin Municipality (a case concerning administrative nonfeasance) | | 张恩琪诉天津市人力资源和社会保障局、天津市社会保险基金管理中心行政不作为案 |
| (1) Basic Facts | | （一）基本案情 |
| Zhang Enqi sent letters by mail to the Human Resources and Social Security Bureau of Tianjin Municipality (hereinafter referred to as the “Municipal Social Security Bureau”) on March 13 and October 16, 2013 and to the Social Insurance Fund Management Center of Tianjin Municipality (hereinafter referred to as the “Municipal Social Insurance Fund Center”) on September 25, 2013, with the main contents that the Municipal Social Security Bureau and the Municipal Social Insurance Fund Center should perform their statutory duties and conduct compulsory collection for such issues as low payment base of social insurance premiums and insufficient payment or nonpayment of social insurance premiums. After receiving the letter on October 26, 2013, the Municipal Social Security Bureau held that the aforesaid issues as stated by Zhang Enqi were not within the scope of its duties and they were within the scope of duties of the Municipal Social Insurance Fund Center. Therefore, it transferred the letter to the Municipal Social Insurance Fund Center for handling. On November 29, 2013, the Municipal Social Insurance Fund Center issued to Zhang Enqi a Reply on Issues Reported by Zhang Enqi in His Complaint Letter, with the main contents as follows: It has gone through retirement formalities for Zhang Enqi, the retirement benefits were determined upon approval by the social security bureau at the place where Zhang Enqi purchased insurance, Zhang Enqi has confirmed such matters as the payment base and payment years before approval, and the Municipal Social Insurance Fund Center, as a social insurance agency, was responsible for issuing retirement benefits in full amount on schedule according to the approval results of the social security bureau at the district or county level and the relevant policies. Zhang Enqi originally filed lawsuits against the Municipal Social Security Bureau and the Municipal Social Insurance Fund Center, respectively, and applied for withdrawal of such lawsuits because both entities contended that they did not have corresponding duties. Afterwards, Zhang Enqi filed another lawsuit in the court against both entities and requested the court to confirm that the act of the Municipal Social Security Bureau transferring his letter to the Municipal Social Insurance Fund Center was illegal, to set aside the aforesaid reply of the Municipal Social Insurance Fund Center, and to order that both defendants should perform their statutory duties and reply to his claim. | | 张恩琪于2013年3月13日、10月16日向天津市人力资源和社会保障局（以下简称市社保局），9月25日向天津市社会保险基金管理中心（以下简称市社保基金中心）邮寄信函，主要内容为要求履行法定职责，对其社会保险缴费基数偏低和少缴、漏缴问题进行强制征缴。市社保局于2013年10月26日收到信函后，认为其所述问题不属于该局职责，属于市社保基金中心职责，遂将信件转至该中心办理。该中心于2013年11月29日向张恩琪出具《关于张恩琪信访反映问题的答复》，主要内容为其已经办理退休手续，退休待遇均由其参保所在区的社保局审批确定，且在审批之前已经本人对缴费基数、缴费年限等事项进行了确认，该中心作为社保经办机构，负责依据区县社保局审批结果及有关政策规定按时足额发放退休待遇。张恩琪先是针对市社保局、市社保基金中心分别提起诉讼，因各自答辩不具备相应职责而申请撤诉，后将两单位作为共同被告诉至法院，请求确认市社保局向市社保基金中心转交信件行为违法，撤销市社保基金中心上述答复，判令二被告履行法定职责，对其诉求予以答复。 |
| (2) Judgment | | （二）裁判结果 |
| After a trial, the People's Court of Heping District, Tianjin Municipality held that: In accordance with the provisions of Article 5 of the Interim Regulation on the Collection and Payment of Social Insurance Premiums, the Municipal Social Security Bureau had the administrative functions of conducting administration, supervision, and inspection of the collection and payment of social insurance premiums in this Municipality. Item (2) of the Notice on the Division of Duties for the Acceptance, Investigation, and Handling of Cases concerning Social Insurance Reports and Complaints that was issued on October 19, 2011 by the Municipal Social Security Bureau to the Municipal Social Insurance Fund Center which was affiliated with it specified that “a report or complaint about an employer's failure to pay social insurance premiums in full amount on schedule shall be accepted, investigated, and handled by a social insurance agency. Where the employer fails to pay such social insurance premiums within a prescribed time limit, the social insurance agency shall request the labor supervision authority having jurisdiction to impose an administrative penalty, and the specific procedures shall be jointly set by the municipal labor supervision authority and the municipal social insurance agency.” Therefore, it was not inappropriate for the Municipal Social Security Bureau to transfer the letter to the Municipal Social Insurance Fund Center for handling. The Municipal Social Insurance Fund Center should explicitly handle the matters as requested by plaintiff in the letter; however, it failed to make a reply within 60 days and in the previous lawsuit filed by plaintiff against the Municipal Social Insurance Fund Center for its failure to perform statutory duties, it concealed the aforesaid Notice issued by the Municipal Social Security Bureau and denied that it had the corresponding duties in the written statement of defense, which made plaintiff believe that the action against defendant was erroneous in subject and apply for withdrawal of the lawsuit. The Municipal Social Insurance Fund Center did not perform its statutory duty and shifted its duty onto others. The Reply on Issues Reported by Zhang Enqi in His Complaint Letter it issued to plaintiff did not explicitly deal with the claims of plaintiff and the reply that was made directly in the form of complaint letter was obviously inappropriate. Therefore, the Court rendered a judgment that: (1) The Municipal Social Insurance Fund Center should, within 30 days after the Judgment came into force, deal with the claims of plaintiff and inform plaintiff of the results in writing. Where the Municipal Social Insurance Fund Center failed to satisfy the judgment within the prescribed time limit, a fine of 70 yuan per day from the expiration date should be imposed on it; and (2) other claims of plaintiff should be dismissed. After the judgment of first instance was pronounced, no party appealed. | | 天津市和平区人民法院一审认为，根据《社会保险费征缴暂行条例》第五条规定，市社保局具有负责全市社会保险费征缴管理和监督检查工作的行政职能，其于2011年10月19日向与其存在隶属关系的市社保基金中心下达文件《关于社会保险举报投诉案件受理查处职责分工的通知》，第二项明确规定“对用人单位未按时足额缴纳社会保险费的举报、投诉，由社会保险经办机构受理查处，逾期仍不缴纳的，由社会保险经办机构提请有管辖权的劳动监察机构实施行政处罚，具体程序由市劳动监察机构与市社会保险经办机构制定”。故市社保局将信件转至市社保基金中心办理并无不当。市社保基金中心应对原告信函要求事宜作出明确处理，但其未在60天内作出答复，且在此前原告起诉该中心不履行法定职责一案中，隐瞒了市社保局下达上述文件的情况，在答辩状中否认其具备相应职责，导致原告认为起诉被告主体有误而申请撤诉，系未履行法定职责并进行推诿。其给原告出具的《关于张恩琪信访反映问题的答复》，在未对原告提出的请求作出明确处理的情况下，直接以信访形式答复显系不妥。遂判决：一、市社保基金中心于本判决生效之日起三十日内对原告请求作出处理并将结果书面告知原告，在规定期限内不履行的，从期满之日起按日处70元罚款；二、驳回原告其他诉讼请求。一审宣判后，各方当事人均未上诉。 |
| (3) Significance | | （三）典型意义 |
| The people's court has specified the corresponding duties of an administrative subject in the aspect of social insurance management by means of an administrative judgment. Based on the complexity of administrative management and the uncertainty of legal provisions, in case of unclear power boundary, administrative organs should voluntarily communicate with each other and jointly coordinate to solve a problem, and may not mutually make excuses or even play “hide and seek” with the ordinary people. Social insurance benefits are related to thousands of households and concern the lives, sickness, and deaths of individuals. Both social security authorities and social insurance agencies should actively perform their duties, which is an indispensable requirement for a responsible government. Where an administrative subject conceals the relevant document regarding the division of functions and powers between it and the relevant departments, the people's court should legally impose a sanction on the administrative subject and when necessary, the people's court may report to the disciplinary inspection and supervision department; where administrative subjects mutually make excuses and deny their corresponding statutory duties, the people's court may legally list the corresponding administrative subjects as defendants to jointly participate in the litigation and finally determine the party that should assume liabilities through evidence production, cross-examination, and argument in the court trial. At the same time, to guarantee the timely satisfaction of the judgment on the performance of duties, the statutory consequences arising from the non-satisfaction of the judgment may be concurrently specified in the judgment, which not only urges the administrative subject to waste no time in performing its duties, but is conducive to ensuring the rapid satisfaction of the effective judgment. This judgment is of guiding and demonstrative significance in the handling of similar cases; and this is the significance of this case. | | 本案典型意义在于：人民法院以行政裁判方式明确了行政主体在社保管理方面的相关职责。基于行政管理复杂性和法律规定不明确，在职权界线不清晰的情况下，行政机关之间应当主动沟通联系，共同协调解决，不能互相推诿，甚至和老百姓“捉迷藏”。社会保险待遇涉及千家万户，关乎个人生老病死，无论是社保机关还是经办机构都必须积极履责，方为责任政府应有之义。人民法院对于行政主体在诉讼中隐瞒其与有关单位之间关于职权划分的相关文件的，应依法制裁，必要时可向纪检监察部门通报反映；在行政主体相互推诿，均否认具有相应法定职责的情况下，可依法将相关行政主体都列为被告，共同参加诉讼，通过庭审举证、质证和辩论，最终确定履责主体。同时，为保证履责判决的及时履行，可以在判决时一并明确不履行判决的法定后果，既督促行政主体尽快履责，也有利于保障生效裁判的迅速执行。本案裁判对类似案件的处理具有指导、示范意义。 |
| Case No. 2 | | 案例2 |
| Zhang Fengzhu v. Land and Resources Bureau of Puyang City (a case concerning administrative nonfeasance) | | 张风竹诉濮阳市国土资源局行政不作为案 |
| (1) Basic Facts | | （一）基本案情 |
| On October 16, 2013, Zhang Fengzhu filed an application with the Land and Resources Bureau of Puyang City, Henan Province (hereinafter referred to as the “Land and Resources Bureau of the City”), requested the Land and Resources Bureau of the City to legally investigate the forcible occupation of the cultivated land of his village by the relevant construction project in violation of law, and sent the written application to the Land and Resources Bureau of the City by mail. After receiving the application on October 17, 2013, the Land and Resources Bureau of the City did not accept it, place it on file, or handle it, nor did the Land and Resources Bureau of the City notify Zhang Fengzhu. Therefore, Zhang Fengzhu filed a lawsuit in the court on the ground that the Land and Resources Bureau of the City did not perform its statutory duties and requested the court to confirm that defendant's specific administrative act of failing to perform statutory duties was illegal and to investigate and punish defendant's violation of land law. | | 2013年10月16日，张风竹向河南省濮阳市国土资源局（以下简称市国土局）书面提出申请，请求该局依法查处其所在村的耕地被有关工程项目违法强行占用的行为，并向该局寄送了申请书。市国土局于2013年10月17日收到申请后，没有受理、立案、处理，也未告知张风竹，张风竹遂以市国土局不履行法定职责为由诉至法院，请求确认被告不履行法定职责的具体行政行为违法，并要求被告对土地违法行为进行查处。 |
| (2) Judgment | | （二）裁判结果 |
| After a trial, the People's Court of Hualong District, Puyang City held that: The land administrative department should accept a case concerning violation of land law that was assigned by its superior department, transferred to it by other department, and reported by the people. After accepting the case concerning violation of land law, the land administrative department should examine the case. Where the case met the conditions for putting it on file, the case shall be placed on file for investigation in a timely manner; and where the case did not meet such conditions, the land administrative department should notify the entity that assigned or transferred the case or the informant. In this case, after plaintiff, Zhang Fengzhu, filed an application for investigating the illegal land occupation with defendant, Land and Resources Bureau of the City, defendant should accept it; however, defendant did not accept it or notify plaintiff of whether to place it on file. Therefore, the claim of plaintiff that the court should confirm the illegality of defendant's failure to perform statutory duties and request defendant to perform statutory duties within a prescribed time limit had legal basis and factual basis and should be supported by the court. Therefore, the court rendered a judgment that: (1) Defendant's failure to accept plaintiff's application for investigating the illegal land occupation should be confirmed illegal. (2) Defendant should perform its statutory duties in accordance with the provisions of the Measures for the Investigation and Handling of Land-Related Illegal Cases as of the date when the Judgment came into force. | | 濮阳市华龙区人民法院一审认为，土地管理部门对上级交办、其他部门移送和群众举报的土地违法案件，应当受理。土地管理部门受理土地违法案件后，应当进行审查，凡符合立案条件的，应当及时立案查处；不符合立案条件的，应当告知交办、移送案件的单位或者举报人。本案原告张风竹向被告市国土局提出查处违法占地申请后，被告应当受理，被告既没有受理，也没有告知原告是否立案，故原告要求确认被告不履行法定职责违法，并限期履行法定职责的请求，有事实根据和法律依据，本院予以支持。遂判决：一、确认被告对原告要求查处违法占地申请未予受理的行为违法。二、限被告于本判决生效之日起按《土地违法案件查处办法》的规定履行法定职责。 |
| The Land and Resources Bureau of the City refused to accept the Judgment and appealed. After a second instance review, the Intermediate People's Court of Puyang City held that: In accordance with the provisions of the Measures for the Investigation and Handling of Land-Related Illegal Cases, the competent land administrative department of the people's government at or above the county level should conduct supervision and inspection on violations of land management laws and regulations. Appellant, the Land and Resources Bureau of the City, contended that: After receiving an application for supervising the violation of land law on October 17, 2013, the appellant has accepted and examined such application, but it failed to notify the applicant of the examination result in a timely manner. The act of appellant was failure to fully perform work functions and violated the provisions of Article 16 of the Measures for the Investigation and Handling of Land-Related Illegal Cases. The court rendered a judgment of second instance to dismiss the appeal and affirm the original judgment. | | 市国土局不服，提出上诉，濮阳市中级人民法院二审认为，根据《土地违法案件查处办法》规定，县级以上地方人民政府土地行政主管部门对违反土地管理法律、法规的行为进行监督检查。上诉人市国土局上诉称2013年10月17日收到对土地违法行为监督的申请后，已进行了受理核查，但上诉人未及时将审查结果告知申请人，上诉人的行为未完全履行工作职责，违反了《土地违法案件查处办法》第十六条的规定。二审判决驳回上诉，维持原判。 |
| (3) Significance | | （三）典型意义 |
| By giving play to the functions of administrative adjudication, the land administrative department is urged to handle the report of the people in a timely manner and effectively perform corresponding statutory duties of investigating and punishing illegal land occupation, so as to respond to the people's concerns and guarantee the legitimate use of land resources. The current situations of scarce land resources and a large population with relatively little arable land in China have determined that China must implement the strictest land management systems; however, land resources have been seriously wasted for a long term and the use of land in violation of laws and regulations is emerging due to lack of land management protection and difficulty for the people to effectively participate in the protection. Public participation is an important channel for identifying and correcting violations of land law in a timely manner and an effective means for ensuring the implementation of the strictest land management systems. It is not only the authority, but the duty of a land administrative department to legally accept and timely investigate and punish violations of land law reported by the people. Article 13 of the Measures for the Investigation and Handling of Land-Related Illegal Cases provides that “the land administrative department shall accept cases concerning land law violations as assigned by the superior department, transferred by other department, and reported by the people.” Article 16 thereof also explicitly provides procedures for case filing and investigation upon case acceptance. It is learnt that the Land and Resources Bureau of the City lost the lawsuit in the judgment of the court because it not only failed to perform its duties for Zhang Fengzhu's application in this case, but it had the same problem in the handling of applications of the other nine persons. The judgment of this case is of positive significance in ensuring the proper implementation of the strictest land management systems and the public participation; and this is the significance of this case. | | 本案典型意义在于：通过行政审判职能的发挥，督促土地管理部门及时处理群众举报，切实履行查处违法占地相关法定职责，以回应群众关切、保障土地资源的合法利用。土地资源稀缺、人多地少的现状决定了我国必须实行最严格的土地管理制度，但长期以来土地资源浪费严重，违法违规用地层出不穷，既有土地管理保护不力的原因，也有人民群众难以有效参与保护的因素。公众参与，是及时发现和纠正土地违法行为的重要渠道，也是确保最严格的土地管理制度得以实施的有效手段。依法受理并及时查处人民群众对违法用地行为的举报，是土地管理部门的权力更是义务。《土地违法案件查处办法》第十三条规定了“土地管理部门对上级交办、其他部门移送和群众举报的土地违法案件，应当受理。”第十六条又对受理后的立案查处等程序作出明确规定。经了解，市国土局不仅在本案中对张风竹的申请未依法履行职责，对另外九人的申请也存在同样问题而被法院判决败诉。本案的裁决对确保最严格的土地管理制度的正确实施和公众参与具有积极意义。 |
| Case No. 3 | | 案例3 |
| Peng v. Planning Land Inspection Team of Nanshan District of Shenzhen City (a case concerning administrative nonfeasance) | | 彭某诉深圳市南山区规划土地监察大队行政不作为案 |
| (1) Basic Facts | | （一）基本案情 |
| Peng and Lu were the owners of Room 902 and Room 901, Building A of a community in Nanshan District, Shenzhen City, respectively. On September 1, 2011, the Planning Land Inspection Team of Nanshan District (hereinafter referred to as the “Inspection Team of the District”) received a call from the general public who reported that the resident of Room 901 had an illegal act of construction expansion. Upon investigation and evidence-taking, it was found that Lu had an act of illegally setting up a steel-work glass curtain wall in the open balcony of Room 901. Therefore, on September 4, 2011, the Inspection Team of the District issued a Written Notice on Ordering the Cessation (Correction) of the Illegal Act and ordered Lu to immediately cease his illegal act and to clean and remove the glass curtain wall before 12:00 a.m. September 7, 2011. On October 25, 2011, the Inspection Team of the District also issued a Written Decision on Administrative Penalty (No. 07017 [2011], Nanshan), which determined that Lu's act of illegally setting up a glass curtain wall violated the relevant provisions of the Regulations of Shenzhen City on Urban Planning, decided to legally remove the glass curtain wall, and notified Lu that he should voluntarily satisfy the aforesaid Written Decision on Administrative Penalty within 15 days as of the day when such Decision was served upon him; and if he failed to do so within the prescribed time limit, the Inspection Team of the District was to conduct enforcement according to the law. On January 9, 2012, the Inspection Team of the District proposed the Shenzhen Real Estate Ownership Registration Center to suspend the property registration of Room 901. On January 28, 2013, the Inspection Team of the District issued an Exigent Notice and required Lu to dismantle the glass curtain wall set up in the balcony and to resume the balcony to its original state. Within the statutory time limit, Lu did not file an administrative lawsuit against the Written Notice on Ordering the Cessation (Correction) of the Illegal Act and the Written Decision on Administrative Penalty, nor did he apply for administrative reconsideration. Up to the date of court trial, the aforesaid glass curtain wall that was illegally set up has not been dismantled. Peng, owner of Room 902, held that after issuing the Written Notice on Ordering the Cessation (Correction) of the Illegal Act, the Inspection Team of the District turned a blind eye to the subsequent execution of the Notice, which was an administrative nonfeasance. Therefore, Peng filed a lawsuit in the court against the Inspection Team of the District and requested the court to confirm that defendant's act of failing to conduct mandatory dismantling was illegal, to order defendant to immediately act according to the law, and to conduct mandatory dismantling of the illegal building. | | 彭某、陆某分别是深圳市南山区某小区A座902房和901房业主。2011年9月1日，南山区规划土地监察大队（以下简称区监察大队）接到群众来电反映901房住户存在违法加建行为，经调查取证，查明陆某在901房的开放式阳台上有违法搭建钢结构玻璃幕墙的行为，遂于2011年9月4日作出《责令停止（改正）违法行为通知书》，责令其立即停止违法行为并在2011年9月7日12时前清理并自行拆除。2011年10月25日，区监察大队又作出深南规土行罚字（2011）第07017号《行政处罚决定书》，认定陆某违法搭建玻璃幕墙行为违反《深圳市城市规划条例》有关规定，决定依法拆除玻璃幕墙，并书面告知其应自上述处罚决定书送达之日起十五日内自动履行该决定，逾期不履行的，将依法强制执行。该《行政处罚决定书》于当日送达陆某。2012年1月9日，区监察大队向深圳市房地产权登记中心建议对901房产实施产权暂缓登记。2013年1月28日，区监察大队作出《催告书》，要求陆某拆除阳台搭建玻璃幕墙，恢复阳台原状。针对涉案《责令停止（改正）违法行为通知书》和《行政处罚决定书》，陆某在法定期限内未提起行政诉讼，亦未申请行政复议。截至案件开庭审理之日，上述违法搭建的玻璃幕墙尚未拆除。902房业主彭某认为区监察大队在发出《责令停止（改正）违法行为通知书》后，对后续执行情况不管不问，是一种行政不作为，故以区监察大队为被告诉至法院，请求确认被告未履行强制拆除的行为违法，责令被告立即依法作为，强制拆除违建部分。 |
| (2) Judgment | | （二）裁判结果 |
| After a trial, the People's Court of Nanshan District, Shenzhen City held that: As a planning land supervisory organ, the Inspection Team of the District had the duties of conducting investigation, evidence-taking, and determination of illegal land use and illegal building within its administrative region, imposing an administrative penalty according to the law, and conducting compulsory execution. Where, after the Inspection Team of the District made an administrative decision on dismantling the illegal building within a prescribed time limit, the party concerned did not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, the Inspection Team of the District should handle it according to the enforcement procedure as prescribed in the Administrative Compulsion Law of the People's Republic of China, the Regulations of Shenzhen Special Economic Zone on Supervision of Planning Land, and other relevant laws and regulations. There was no specific provision on the time limit that the competent authority should make a decision on enforcement and implement the forcible dismantling according to the law; however, the competent authority should perform its statutory duty within a reasonable time limit. In this case, where, after defendant made an administrative decision on dismantling within the prescribed time limit, the administrative counterpart did not apply for administrative reconsideration, did not file an administrative lawsuit, and refused to satisfy the administrative decision, during the period up to over one year till the day of court trial, defendant only issued an Exigent Notice without further handling the case and failed to provide any evidence proving that it had corresponding legitimate and reasonable ground. The act of defendant was obviously inappropriate and has constituted failure to perform statutory duties, and should be corrected. Considering that issuance of a decision on enforcement and implementation of compulsory dismantling was under the administrative authority of an administrative organ and there was a strict statutory procedure for the implementation of compulsory dismantling, it was inappropriate to directly order the Inspection Team of the District to conduct the compulsory dismantling of the illegal building. Therefore, the Court rendered a judgment that the Inspection Team of the District should, within three months after the judgment took effect, continue to handle the issue of illegal building in Room 901, Building A of a community in Nanshan District. Both Peng and the Inspection Team of the District refused to accept the judgment and appealed. The Intermediate People's Court of Shenzhen City rendered a second instance judgment to dismiss the appeal and affirm the original judgment on the same grounds. | | 深圳市南山区人民法院一审认为，区监察大队作为区规划土地监察机构，具有对本行政区域内违法用地和违法建筑行为进行调查取证、认定，依法实施行政处罚以及强制执行的职责。在依法作出限期拆除违法建筑的行政决定后，当事人在法定期限内不申请行政复议或者提起行政诉讼的，应当依照《中华人民共和国行政强制法》《深圳经济特区规划土地监察条例》等法律、法规规定的强制执行程序作出处理。至于有权机关须在何期限内作出强制执行的决定并依法实施强制拆除，法律法规并无明确规定，但应在合理期限内履行其法定职责。本案中，被告作出限期依法拆除的行政决定后，在行政相对人未申请行政复议亦未提起行政诉讼、且拒不履行的情况下，至开庭审理之日止，在长达一年多的时间里，其仅作出催告而未对案件作进一步处理，且未提供证据证明有相关合法、合理的事由，其行为显然不当，已构成怠于履行法定职责，应予纠正。鉴于作出强制执行决定和实施强制拆除属于行政机关的行政职权，且实施行政强制拆除具有严格的法定程序，故不宜直接责令区监察大队强制拆除违法建筑，遂判决区监察大队于判决生效之日起三个月内对南山区某小区A座901房的违法建设问题依法继续作出处理。彭某及区监察大队均不服一审判决，提起上诉。深圳市中级人民法院二审以相同理由判决驳回上诉、维持原判。 |
| (3) Significance | | （三）典型意义 |
The people's court makes clear to the public that a legal and effective administrative decision must be executed through a judgment. A penalty decision without the support of legal enforcement is like flameless fire and non-bright light and will finally damage the public's faith in rule by law or even induce group violations of law. The investigation, punishment, and dismantling of illegal buildings are always difficulties in urban management and also law enforcement priorities of departments of planning, land management, and city appearance management. To investigate illegal buildings, the relevant administrative law enforcement authority should not only issue a penalty decision, but adopt effective measures in accordance with the provisions of the Administrative Compulsion Law of the People's Republic of China so as to ensure the execution of the penalty decision, and this is the full performance of statutory duties. Although it is difficult to dismantle illegal buildings, it cannot be an excuse of an administrative organ for its failure to perform statutory duties. Article 68 of the Urban and Rural Planning Law of the People's Republic of China provides that “If, after the competent department of urban and rural planning orders to stop building or dismantle the building or structure within a prescribed time limit, the party concerned refuses to stop building or fails to dismantle within the time limit, the local people's government at or above the county level of the place where the construction project is located may order the relevant department to take measures such as closing down the construction site and mandatory dismantling.” Of course, laws and regulations generally do not prescribe the time limit for the mandatory dismantling by an administrative organ after a penalty decision is made due to the diversity of administrative management; however, it is still necessary to execute the penalty decision within a reasonable time limit. In this case, the people's court determined that the Inspection Team of the District has not conducted mandatory dismantling of the illegal building for more than one year after it issued the Written Decision on Administrative Penalty, which obviously exceeded the reasonable time limit and was failure to perform its statutory duties. In its judgment, the people's court ordered the Inspection Team of the District to continue the handling, which complies with the spirit of legal provisions, is conducive to guaranteeing the execution of the penalty decision by persuasion education other than compulsory measures as far as possible, and is of demonstration significance to some extent; and this is the significance of this case.
．．．．．． | | 本案典型意义在于：人民法院以裁判方式昭示了合法生效的行政决定必须得到执行。不以法律强制作为后盾的处罚决定，就像无焰的火，不亮的光，最终会损害公众对法治的信仰，甚至诱导群体性违法。对违法建筑的查处和拆除，始终是城市管理的难点，也是规划部门和土地管理、市容管理部门的执法重点。相关行政执法机关对违法建筑的查处，不能仅仅止于作出处罚决定，而应当依据《中华人民共和国行政强制法》的规定，采取有效措施，确保处罚决定的执行，才是完全履行法定职责。拆违虽难，但不能成为行政机关怠于履行法定职责的借口。《中华人民共和国城乡规划法》第六十八条规定，城乡规划主管部门作出责令停止建设或者限期拆除的决定后，当事人不停止建设或者逾期不拆除的，建设工程所在地县级以上地方人民政府可以责成有关部门采取查封施工现场、强制拆除等措施。当然，由于行政管理的多样性，法律法规一般不会规定作出处罚决定后行政机关强制拆除的期限，但仍需要在合理期限内履行。本案中，人民法院认定区监察大队在作出《行政处罚决定书》长达一年多的时间里一直未强制执行，已明显超过合理期限，属于怠于履行法定职责，在判决方式上责令其继续处理，既符合法律规定精神，也有利于尽可能通过教育说服而不是强制手段保证处罚决定的实施，具有一定示范意义。
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