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Seven Model Cases Involving Giving Full Play to the Functional Roles of Trials and Safeguarding the Property Rights and Lawful Rights and Interests of Entrepreneurs Issued by the Supreme People's Court [Effective]
最高人民法院发布7起充分发挥审判职能作用保护产权和企业家合法权益典型案例 [现行有效]
【法宝引证码】

Seven Model Cases Involving Giving Full Play to the Functional Roles of Trials and Safeguarding the Property Rights and Lawful Rights and Interests of Entrepreneurs Issued by the Supreme People's Court 

最高人民法院发布7起充分发挥审判职能作用保护产权和企业家合法权益典型案例

(Supreme People's Court, January 30, 2018) (最高人民法院 2018年1月30日)

Table of Contents 目录
1. Case of Application for Compensation for Losses Arising from Illegal Criminal Seizure Filed by Beipeng Company 1. 北鹏公司申请刑事违法扣押赔偿案
2. Case of Administrative Compulsion and Administrative Compensation Filed by Xu against People's Government of Wucheng District, Jinhua City 2. 许某某诉金华市婺城区人民政府行政强制及行政赔偿案
3. Case of Dispute over a Series of Contracts between Chongqing __ Investment (Group) Co., Ltd. and People's Government of __ District, Luzhou City et al. 3. 重庆某某投资(集团)有限公司与泸州市某某区人民政府等合同纠纷案
4. Case of Property Preservation of Jinan __ Properties Co., Ltd. 4. 济南某置业有限公司财产保全案
5. Case of Infringement upon Trademark Right and Unfair Competition between __ Bath & Kitchen Products (China) Co., Ltd. and Suzhou __ Technology Development Co., Ltd., Tu, et al. 5. 某某卫厨(中国)股份有限公司诉苏州某某科技发展有限公司、屠某某等侵犯商标权及不正当竞争纠纷案
6. Case of Crime of Infringing Trade Secrets by Peng 6. 彭某侵犯商业秘密罪案
7. Case of Dispute over Land Registration between __ Group Co., Ltd. v. Land and Resources, and Housing Administration Bureau of __ City 7. 某集团有限公司与某市国土资源、房屋管理局土地登记纠纷案
Case of Application for Compensation for Losses Arising from Illegal Criminal Seizure Filed by Beipeng Company 北鹏公司申请刑事违法扣押赔偿案
I. Basic Facts (一)基本案情
In 2008, according to reported clues, the Public Security Department of Liaoning Province formed a special investigation team to place the case involving Huang Bo, cadre of Lanshengtai Village, Yuhong District, Shenyang City, and other persons who were suspected of committing a gangland-related crime on file for investigation. During the period of investigation, besides Huang Bo and other persons' criminal acts, the special investigation team found that Beipeng Real Estate Development Co., Ltd. (hereinafter referred to as “Beipeng Company”) engaging in the joint village reconstruction with Lanshengtai Village was suspected of destroying financial documents, illegally occupying agricultural land, and committing other criminal acts. Therefore, the Public Security Department of Liaoning Province seized and took over 100 financial documents of Beipeng Company and seized CNY20 million of the Company. This case was tried by the Intermediate People's Court of Benxi City, Liaoning Province. Huang Bo and other persons were separately convicted and punished for the crime of corruption, the crime of illegal transfer of land use rights, and the crime of intentional destruction of property; two financial staff of Beipeng Company were convicted and punished for the crime of concealing accounting vouchers; and Beipeng Company and its actual controller and former legal representative were convicted and punished for the crime of illegal occupation of agricultural land. With respect to the aforesaid seized property, there was no determination or handling in the criminal judgment. 2008年,辽宁省公安厅根据举报线索,组成专案组对沈阳市于洪区兰胜台村村干部黄波等人涉黑犯罪立案侦查。侦查期间,除发现黄波等人犯罪行为外,还发现与该村联合进行村屯改造的北鹏房地产开发有限公司(以下简称北鹏公司)涉嫌毁损财务文件、非法占用农用地等犯罪行为,辽宁省公安厅遂扣押、调取了北鹏公司100余册财务文件,并扣押其人民币2000万元。此案经辽宁省本溪市中级人民法院审理,黄波等人分别被以贪污罪、非法转让土地使用权罪、故意毁坏财物罪定罪处罚,北鹏公司2名财务人员被以隐匿会计凭证罪定罪处罚,北鹏公司及其实际控制人、原法定代表人被以非法占用农用地罪定罪免刑。对前述扣押财物,刑事判决未作出认定和处理。
After the criminal judgment took effect, Beipeng Company filed an application with the Public Security Department of Liaoning Province for the release of seizure, returning the property, and compensating for its losses. The Public Security Department of Liaoning Province failed to make a handling decision within a prescribed time limit and Beipeng Company thus filed an application for reconsideration with the Ministry of Public Security. The Ministry of Public Security held upon reconsideration that the claims of Beipeng Company fell under statutory compensation circumstances and thus it ordered the Public Security Department of Liaoning Province to make a compensation decision within a prescribed time limit. The Public Security Department of Liaoning Province failed to make such decision. Therefore, Beipeng Company filed an application with the Compensation Committee of the Supreme People's Court and claimed that the Public Security Department of Liaoning Province should release seizure, return the official documents and the fund of CNY20 million, and pay over CNY8.69 million as compensation for loss of interest. 刑事判决生效后,北鹏公司申请辽宁省公安厅解除扣押、返还财物并赔偿损失。辽宁省公安厅逾期未作出处理决定,北鹏公司向公安部申请复议。公安部复议认为,北鹏公司的请求符合法定赔偿情形,遂责令辽宁省公安厅限期作出赔偿决定。辽宁省公安厅没有履行该决定。北鹏公司遂向我院赔偿委员会提出申请,请求:由辽宁省公安厅解除扣押,返还财务文件和2000万元,赔偿利息损失869万余元。
II. Adjudication (二)裁判结果
The land involving the compensation claimant Beipeng Company was land polluted by cadmium and Beipeng Company has later supplemented the relevant formalities. It was found in the criminal judgment entered by the Intermediate People's Court of Benxi City that Beipeng Company and its responsible person were guilty of illegal occupation of agricultural land, but they were exempted from a criminal punishment. Afterwards, the Public Security Department of Liaoning Province continued the seizure of the relevant fund and financial documents of Beipeng Company, which lacked legal basis. 本案赔偿请求人沈阳北鹏公司涉案土地属于镉污染地且后期已补办相关手续,本溪市中级人民法院刑事判决认定北鹏公司及其责任人员构成非法占用农用地罪,但免于刑事处罚,此后,辽宁省公安厅继续扣押北鹏公司有关款项及财务账册,就丧失了法律依据。
Upon negotiation presided over by the collegiate bench, the compensation claimant Beipeng Company and the organ liable for compensation Public Security Department of Liaoning Province reached an agreement on the return of the financial documents involved and such agreement has been actually performed on December 1, 2015; afterwards, they reached another agreement that the Public Security Department of Liaoning Province should, within 30 days, return the fund of CNY20 million seized during the period of investigation and pay CNY830,000 as compensation for the corresponding loss of interest. The Compensation Committee of the Supreme People's Court held upon review that the aforesaid agreements did not violate legal provisions. Therefore, in accordance with Article 11 of the Provisions of the Supreme People's Court on the Procedures for the Compensation Committees of People's Courts for Trying State Compensation Cases, the Compensation Committee of the Supreme People's Court made the following decision: (1) The Public Security Department of Liaoning Province should return to Beipeng Company the financial documents of this Company seized and taken during the period of investigation; (2) the Public Security Department of Liaoning Province should, within 30 days after this decision took effect, return to Beipeng Company the fund of CNY20 million seized during the period of investigation and pay CNY830,000 as compensation for the corresponding loss of interest. 经合议庭主持协商,赔偿请求人北鹏公司与赔偿义务机关辽宁省公安厅先就返还案涉财务文件达成协议,并于2015年12月1日实际履行完毕;此后又达成协议由辽宁省公安厅于30日内返还侦查期间扣押的2000万元,并支付相应的利息损失83万元。最高人民法院赔偿委员会审查认为,上述协议不违反法律规定,遂依照《最高人民法院关于人民法院赔偿委员会审理国家赔偿案件程序的规定》第十一条的规定,决定:一、辽宁省公安厅向沈阳北鹏房地产开发有限公司返还侦查期间扣押、调取的该公司财务文件;二、辽宁省公安厅于本决定生效后30日内向沈阳北鹏房地产开发有限公司返还侦查期间扣押的2000万元人民币,并支付相应的利息损失83万元。
III. Typical Significance: The property rights of private enterprises should be equally protected and a justice tried this case in a circuit court and conducted public cross-examination. (三)典型意义:平等保护民营企业产权 大法官巡回办案公开质证
Unswervingly encouraging, giving support to, and guiding the development of non-public sector of the economy, guaranteeing that various sectors of the economy be legally and equally protected by law, giving support to the development of private enterprises, and stimulating the vitality of various market players are important content of the Reports of the 18th National Congress of the CPC and the 19th National Congress of the CPC on accelerating the improvement of the socialist market economy system. For the purpose of legally protecting property rights, irregular acts of enterprises, especially private enterprises, should be viewed historically and dialectically, the legal procedure for disposing of property involved should be strictly regulated, and cases concerning property rights formed in history should be properly handled. The successful closure of the case involving Beipeng Company has vividly displayed the people's court's steadfast determination and clear-cut attitude in legally protecting property rights and equally treating various market players, and highlighted the positive roles of state compensation in overseeing and forcing the judicial organ to legally perform functions, resume and improve its credibility. In the future, we will exert more efforts to the trial of state compensation cases and try to make the people feel fairness and justice in each state compensation case. 毫不动摇鼓励、支持、引导非公有制经济发展,保证各种所有制经济依法同等受到法律保护,支持民营企业发展,激发各类市场主体活力,是党的十八大和十九大报告提出的关于加快完善社会主义市场经济体制的重要内容。依法保护产权,应当历史、辩证地看待企业特别是民营企业发展中的不规范行为,严格规范涉案财产处置的法律程序,妥善处理历史形成的产权案件。北鹏案的圆满审结,生动展示了人民法院依法保护产权、平等对待各类市场主体的坚定决心和鲜明态度,突出展示了国家赔偿在监督和倒逼司法机关依法行使职权、恢复和提升司法机关公信方面的积极作用。今后,我们将进一步加大国家赔偿审判工作力度,努力让人民群众在每一个国家赔偿案件中感受到公平正义。
Besides, the procedure for trying this case has highlighted significance. Since this case was very complex, both the compensation claimant and the organ liable for compensation were located in Shenyang City, and main evidence was also in Shenyang City, for the convenience of the parties, Yao Kaiyuan, vice president of the Supreme People's Court and justice of the second rank, decided to serve as the presiding judge and together with all members of the collegiate bench, he went to the No. 2 Circuit Court of the Supreme People's Court in Shenyang City to conduct the public cross-examination and organize coordination. The Ministry of Public Security attached great importance to this case. At the stage of reconsideration of criminal compensation, it clearly determined that the criminal seizure of the Public Security Department of Liaoning Province was illegal, which has provided the Supreme People's Court with strong support in the subsequent trial and fully reflected the consensus of the Ministry of Public Security and the Supreme People's Court on the implementation of polices for the protection of property rights. In addition, the parties reached a compensation agreement in court. By means of remote video, the Compensation Committee of the Supreme People's Court organized discussions and made a decision, and the collegiate bench pronounced such decision in court, which guaranteed the timely return of over 100 financial documents and the principal and interest of the seized fund of over CNY20 million and solved Beipeng Company's pressing needs. The operation of Beipeng Company gradually became normal, its actual controller presented a thank-you calligrapher “Justice Speaks” to the Supreme People's Court, and its attorney also wrote an article to praise the Supreme People's Court for its impartial trial of this case. It should be said that the successful closure of the case involving Beipeng Company was a result of joint efforts of the people's court, the public security organ, and the compensation claimant. It has highlighted the impartiality, high efficiency, and authority of the case-handling by the Supreme People's Court in a circuit manner and is conducive to building a more open, dynamic, transparent, and facilitative judicial mechanism and enhancing the public's comprehension, trust, and supervision of justice. 另外,本案的程序意义也很突出。本案案情重大复杂,赔偿请求人和赔偿义务机关均在沈阳,主要证据也在沈阳,为方便当事人活动,最高人民法院副院长、二级大法官陶凯元决定亲自担任审判长并与合议庭全体成员远赴设在沈阳的最高人民法院第二巡回法庭公开质证、组织协商。公安部对本案高度重视,在刑事赔偿复议阶段即明确认定辽宁省公安厅的刑事扣押行为违法,为最高人民法院后续审理提供了有力支持,充分体现了公安部与最高人民法院在落实产权保护政策上的共识。此外,本案当事人当庭达成赔偿协议,最高人民法院赔偿委员会运用远程视频手段组织讨论、作出决定并由合议庭当庭宣布决定,保证了上百本账册及2000余万元扣押款本息得以及时返还,解决了北鹏公司的燃眉之急,公司经营逐步回到正常轨道,该公司实际控制人向最高人民法院赠送了“青天有鉴”等感谢字幅,代理律师亦专门撰文赞扬最高人民法院对本案的公正审理。北鹏案圆满审结,应该说是人民法院、公安机关、赔偿请求人通力合作的结果,突出体现了最高人民法院巡回办案的公正性、高效性和权威性,有助于构建开放、动态、透明、便民的阳光司法机制,增进公众对司法的了解、信赖和监督。
Case of Administrative Compulsion and Administrative Compensation Filed by Xu against People's Government of Wucheng District, Jinhua City 许某某诉金华市婺城区人民政府行政强制及行政赔偿案
I. Basic Facts (一)基本案情
In July 2001, for the needs of reconstruction of the western plot located in Houxi Street, Wucheng District, Jinhua City, Zhejiang Province and integration of “two streets” and plot reconstruction, the former Real Estate Bureau of Jinhua City granted Jinhua Urban Construction and Development Co., Ltd. (hereinafter referred to as “Urban Construction and Development Company”) a building demolition permit and Xu's building located in No. 8 and 9, Yingbin Lane, Wuyi Road, Wucheng District, Jinhua City was included in the range of the demolition red lines as specified in the aforesaid demolition permit. However, Urban Construction and Development Company failed to implement the demolition within the time limit as specified in the demolition permit. On August 31, 2014, the Wucheng District Government issued the Announcement of the People's Government of Wucheng District on the Range of Building Expropriation for Urban Reconstruction in the Erqi Plot, which specified the implementation of reconstruction of the Erqi Plot and published the range chart of building expropriation, and the Yingbin Lane plot where Xu's building was located was within the range of building expropriation. On October 26, 2014, the Wucheng District Government issued a decision on building expropriation and the building invovled was included in the range as specified in the aforesaid decision. However, Xu's building was demolished on September 26, 2014, which was earlier than the date when the Wucheng District Government issued the decision. Xu filed an administrative lawsuit and requested the court to confirm that the administrative act of the Wucheng District Government of demolishing his building was illegal. In the meantime, Xu raised three claims for administrative compensation for building losses, losses arising from suspension of production and operation, and articles losses. 2001年7月,因浙江省金华市婺城区后溪街西区地块改造及“两街”整合区块改造项目建设需要,原金华市房地产管理局向金华市城建开发有限公司颁发了房屋拆迁许可证,许某某位于金华市婺城区五一路迎宾巷8号、9号的房屋被纳入上述拆迁许可证的拆迁红线范围。但拆迁人在拆迁许可证规定的期限内一直未实施拆迁。2014年8月31日,婺城区政府发布《婺城区人民政府关于二七区块旧城改造房屋征收范围的公告》,明确对二七区块范围实施改造,公布了房屋征收范围图,许某某房屋所在的迎宾巷区块位于征收范围内。2014年10月26日,婺城区政府发布了房屋征收决定, 案涉房屋被纳入征收决定范围。但该房屋于婺城区政府作出征收决定前的2014年9月26日即被折除。许某某提起行政诉讼,请求确认婺城区政府强制拆除其房屋的行政行为违法,同时提出包括房屋损失、停产停业损失、物品损失在内的三项行政赔偿请求。
II. Adjudication (二)裁判结果
In the trial of first instance, the Intermediate People's Court of Jinhua City, Zhejiang Province held that: Xu neither reached a compensation agreement with the building expropriation department nor expressly consented to vacate the building and deliver it for demolition. Under such circumstance, the Wucheng District Government should first issue a compensation decision to Xu according to the law and force Xu to relocate by applying for the people's court's enforcement rather than directly demolish the building invovled. The claim of the Wucheng District Government that the building invovled was “mistakenly demolished” by a party not invovled lacked evidence and was contrary to the fact. Considering that the building invovled has been included in the range of building expropriation and there was no possibility and necessity to restore the building to the original condition, it was appropriate that the Wucheng District Government should make compensation with reference to the scheme for expropriation compensation and resettlement. Therefore, the Intermediate People's Court of Jinhua City entered a judgment that the administrative act of the Wucheng District Government of forcible building demolition was illegal and the Wucheng District Government should be ordered to compensate Xu within 60 days with reference to the Scheme for Building Expropriation and Compensation in the Urban Reconstruction of the Erqi Plot in Wucheng District. 浙江省金华市中级人民法院一审认为:许某某未与房屋征收部门达成补偿协议,也未明确同意将案涉房屋腾空并交付拆除。在此情形下,婺城区政府依法应对许某某作出补偿决定后,通过申请人民法院强制执行的方式强制搬迁,而不能直接将案涉房屋拆除。婺城区政府主张案涉房屋系案外人“误拆”证据不足且与事实不符。鉴于案涉房屋已纳入征收范围内,房屋已无恢复原状的可能性和必要性,宜由婺城区政府参照征收补偿安置方案作出赔偿。遂判决确认婺城区政府强制拆除房屋行政行为违法,责令婺城区政府于判决生效之日起60日内参照《婺城区二七区块旧城改造房屋征收补偿方案》对许某某作出赔偿。
In the trial of second instance, the Higher People's Court of Zhejiang Province held that: Although the building involved was illegally demolished by the Wucheng District Government, after the building involved was included in the range of building expropriation, the owner of the building invovled still could be compensated under the building expropriation compensation procedure. The resolution of Xu's losses arising from the illegal demolition of the building invovled under the state compensation procedure lacked legal basis. Xu's claim for a monthly compensation of CNY20,000 for losses arising from suspension of production and operation was within the range of compensation for building expropriation and such claim may be resolved under the expropriation compensation procedure. With respect to Xu's claim of CNY60,000 for property damage should not be supported since Xu provided no evidence on property damage. Therefore, the Higher People's Court of Zhejiang Province rendered a judgment that the item on confirming the illegality of the administrative act of the Wucheng District Government in the judgment of first instance should be affirmed, the item on ordering compensation in the judgment of first instance should be set aside, and other claims of Xu should be dismissed. 浙江省高级人民法院二审认为:案涉房屋虽被婺城区政府违法拆除,但该房屋被纳入征收范围后,仍可通过征收补偿程序获得补偿,许某某通过国家赔偿程序解决案涉房屋被违法拆除损失,缺乏法律依据。许某某提出要求赔偿每月2万元停产停业损失的请求,属于房屋征收补偿范围,可以通过征收补偿程序解决。至于许某某提出的赔偿财产损失 6万元,因其没有提供相关财产损失的证据,不予支持。遂判决维持一审有关确认违法判项,撤销一审有关责令赔偿判项,驳回许某某的其他诉讼请求。
In the retrial, the Supreme People's Court held that: In this case, although Wucheng Construction Company admitted the demolition of the building involved as a “mistaken demolition,” site photos and other evidence produced by Xu could prove that the forcible demolition was conducted under the government leadership. The grounds of the Wucheng District Government that the forcible demolition was a civil infringement were untenable and the Wucheng District Government should assume the corresponding compensation liability. The people's court should make a decision on compensation items and compensation amount in a legal and scientific manner by comprehensively and harmoniously applying the relevant provisions of the State Compensation Law of the People's Republic of China and the Regulation on the Expropriation of Buildings on State-owned Land and Compensation and ensure that the compensation obtained by the person whose building was expropriated should not be lower than the compensation for building expropriation that he or she should or may obtain according to the building expropriation compensation scheme. However, the same items in the state compensation and administrative compensation may not be repeatedly paid. To be more specific, with respect to the ways of compensation for building losses and the compensation standards, the Wucheng District Government may provide a similar building in the rebuilt area or a nearby area as compensation or calculate the amount of compensation according to the effective real estate market evaluation price at the timepoint when the compensation decision was made. Considering that the building involved has been demolished, the real estate evaluation agency should issue an evaluation report in a legal, independent, objective, and impartial manner on the basis of the original materials produced by the Wucheng District Government and Xu and by following the principle that the benefit of the doubt was owed by the property owner. With respect to the compensation standards for suspension of production and operation, if the business license, tax certificate, and other evidence produced by Xu could prove that Xu's building satisfied the operation building conditions as determined in the laws and regulations, and local regulatory documents, the Wucheng District Government should reasonably determine the amount of losses arising from suspension of production and operation according to the law and make the compensation. With respect to the way of determination of the amount of compensation for losses to items in the building invovled, the Wucheng District Government may, according to the market quotation and in light of the actual operation conditions of Xu as well as the site photos and the list of articles losses produced by Xu, determine the amount of compensation according to the principle of being beneficial to Xu depending on the actual circumstances. Therefore, the Supreme People's Court entered a judgment that the item of judgment on confirming the illegality of the administrative act of the Wucheng District Government of forcible demolition of Xu's building in the judgment of first instance should be affirmed; the item of judgment on ordering the compensation of the Wucheng District Government for Xu with reference to the Compensation Scheme in the judgment of first instance should be set aside; the item of judgment on dismissing Xu's claim for compensation in the judgment of second instance should be set aside; and the judgments of first instance and second instance should be amended to order the Wucheng District Government to make administrative compensation to Xu according to this judgment within 90 days after this judgment came into force. 最高人民法院再审认为:本案虽然有婺城建筑公司主动承认“误拆”,但许某某提供的现场照片等证据均能证实强制拆除系政府主导下进行,婺城区政府主张强拆系民事侵权的理由不能成立,其应承担相应的赔偿责任。人民法院应当综合协调适用《中华人民共和国国家赔偿法》《国有土地上房屋征收与补偿条例》的相关规定,依法、科学决定赔偿项目和赔偿数额,让被征收人得到的赔偿不低于其依照征收补偿方案应当获得、也可以获得的征收补偿,但国家赔偿与行政补偿相同的项目不得重复计付。具体而言,对于房屋损失的赔偿方式与赔偿标准问题,婺城区政府既可以用在改建地段或者就近地段提供类似房屋的方式予以赔偿,也可以根据作出赔偿决定时点有效的房地产市场评估价格计付赔偿款。鉴于案涉房屋已被拆除,房地产评估机构应当根据婺城区政府与许某某提供的原始资料,本着疑点利益归于产权人的原则,依法独立、客观、公正地出具评估报告。对于停产停业损失赔偿标准问题,如果许某某提供的营业执照、纳税证明等证据,能够证明其符合法律法规和当地规范性文件所确定的经营用房条件,则婺城区政府应当依法合理确定停产停业损失的金额并予以赔偿。对于屋内物品损失赔偿金额确定方式问题,婺城区政府可以根据市场行情,结合许某某经营的实际情况以及其所提供的现场照片、物品损失清单等,按照有利于许某某的原则酌情确定赔偿数额。遂判决维持原审关于确认婺城区政府强制拆除许某某房屋行政行为违法的判项;撤销一审责令婺城区政府参照《补偿方案》对许某某作出赔偿的判项;撤销二审驳回赔偿请求的判项;改判责令婺城区政府在本判决生效之日起九十日内按照本判决对许某某依法予以行政赔偿。
III. Typical Significance: The property rights of persons whose buildings are expropriated should be protected and the law-based administration of governments should be promoted. (三)典型意义:保护被征收人产权 促进政府依法行政
The issuance and implementation of the Regulation on the Expropriation of Buildings on State-owned Land and Compensation has provided a good legal basis for settling administrative disputes arising from building expropriation and demolition and realizing “good governance” in the field of expropriation of buildings on state-owned land and compensation. It has become normal practice that the person whose building is expropriated voluntarily relocates after he or she reaches an agreement on compensation with the people's government at the city or county level through equal negotiation and the necessity of forcible demolition is on the decrease. In the payment of compensation for expropriation of buildings in the Erqi Plot by the Wucheng District Government by stages and in batches, a majority of persons whose houses were expropriated voluntarily relocated upon receipt of fair and reasonable compensation and relocation rewards and their dwelling conditions have been greatly improved. Under the circumstances where the buildings of 1,184 square meters owned by Xu and other 21 households in the plot involved needed to be expropriated for the construction of Bus Rapid Transit (BRT) and other public interests, and a few households were unsatisfied with the compensation scheme and failed to voluntarily relocate, the Wucheng District Government should have separately made a decision on expropriation and a decision on compensation, observed the principle of compensation before relocation, and legally filed an application for enforcement with the people's court for the purpose of realizing forcible relocation. However, where neither the decision on expropriation nor the decision on compensation was legally made, the Reconstruction Engineering Headquarters for the Erqi Plot in Wucheng District commissioned Wucheng Construction Company to demolish Xu's building in the demolition of neighboring buildings for which compensation agreements have been signed, which has infringed upon the property rights of Xu's building. Such cases have certain universality, , which have exposed some basic-level governments' poor sense of the rule of law and weakness in solution of problems with the thinking and ways of rules of law and legal means; and showed that some basic-level governments failed to achieve the unity of efficiency and rule of law in the expropriation and compensation and they considered more about administrative efficiency and ignored the procedural justice. The Wucheng District Government made a decision on expropriation one month after the building involved was demolished and it neither has made a decision on compensation so far nor given Xu any compensation, which seriously violated the statutory procedure. Since the Reconstruction Engineering Headquarters for the Erqi Plot in Wucheng District was formed and granted administrative functions by the Wucheng District Government and it was a temporary agency incapable of independently assuming legal liability, the liability of its infringement should be assumed by the Wucheng District Government. Since Xu always claimed for compensation by means of providing a house in the rebuilt area in the trial by the people's court, the Supreme People's Court entered a judgment that the Wucheng District Government should make compensation by providing a similar house in the rebuilt area or a nearby area, or calculate the amount of compensation according to the real estate market evaluation price when the compensation decision was made; and pay Xu compensation for acquirable interest that he should or may obtain under the legal expropriation compensation procedure. 国有土地上房屋征收与补偿条例》的颁布实施,为解决征收拆迁中的行政纠纷,实现国有土地上房屋征收补偿领域的“善治”,提供了良好的法律基础。被征收人与市、县级政府通过平等协商达成补偿协议后自愿搬迁已经成为常态,需要强制搬迁的越来越少。在婺城区政府分期分批对二七区块房屋进行征收补偿中,绝大多数被征收人在得到公平合理补偿及搬迁奖励后自愿搬迁,居住条件得到显著改善。在因建设快速公交等公共利益需要征收案涉区块包括许某某等22户1184平方米房屋,少数住户对补偿不满未自愿搬迁的情况下,婺城区政府本应依法分别作出征收决定、补偿决定,遵循先补偿、后搬迁原则,依法申请人民法院强制执行以实现强制搬迁。但在征收决定和补偿决定均未依法作出的情况下,婺城区二七区块改造工程指挥部即委托婺城建筑公司在拆除已签订补偿协议的邻居房屋时一并拆除了许某某房屋,侵犯了许某某的房屋产权。这样的事例具有一定普遍性,暴露了一些基层政府的法治意识不强,不善于用法治思维、法治方式和法律手段解决问题;同时也说明一些基层政府在征收补偿中未能做到效率与法治的统一,更多考虑行政效能,而忽视程序正义。婺城区政府在案涉房屋被拆除一个月之后才作出征收决定,至今未作出补偿决定,未给予许某某任何补偿,严重违反法定程序。由于婺城区二七区块改造工程指挥部是婺城区政府组建并赋予行政管理职能但不具有独立承担法律责任能力的临时机构,其违法侵权的责任应由婺城区政府承担。由于许某某在人民法院审理中始终主张应以在改建地段提供房屋的方式赔偿损失,故最高人民法院判决责令婺城区政府用在改建地段或者就近地段提供类似房屋的方式予以赔偿,或者以作出赔偿决定时的房地产市场评估价格为基准计付赔偿款;同时对许某某在合法的征收补偿程序中应当获得、也可以获得的可得利益损失一并予以赔偿。
The retrial judgment of this case has fully implemented the spirit of the principles of timely compensation, reasonable compensation, and impartial compensation as prescribed in the Opinions of the CPC Central Committee and the State Council on Improving the Property Rights Protection System and Lawfully Protecting Property Rights, embodied such concepts of rule of law that those having power are responsible, those violating the law should shoulder duties, those committing infringement should make compensation, and the compensation should be comprehensive, and expressly declared that the compensation the property owner obtains cannot be lower than that he or she should obtain under the legal expropriation procedure. In the meantime, the retrial judgment of this case has given full play to the evaluating and guiding functions of justice. In particular, the people's court should make more efforts to supervise over the acts of infringement upon property rights and prevent the people's government at the city or county level from evading the state compensation liability by utilizing the compensation procedure after the forcible demolition, so as to promote the administrative organ's voluntary law-based administration and the decrease of administrative disputes from the source. In this way, the public interest construction is smoothly advanced and the building owner's access to impartial and reasonable compensation is guaranteed. 本案再审判决,充分贯彻《中共中央国务院关于完善产权保护制度依法保护产权的意见》所规定的及时补偿、合理补偿和公平补偿的原则精神,体现有权必有责、违法须担责、侵权要赔偿、赔偿应全面的法治理念,明确宣示产权人因行政机关侵权所得到的赔偿不能低于依合法征收程序应得到的补偿。与此同时,本案再审判决充分发挥司法的评价、引导功能,加大对侵犯产权行为的监督力度,防范市、县级政府在违法强拆后利用补偿程序回避国家赔偿责任,从而促进行政机关自觉依法行政,从源头上减少行政争议,既顺利推进公共利益建设,也确保房屋产权人得到公平合理补偿。
Annex: Relevant Legal Provisions 附:相关法律条文
1. Regulation on the Expropriation of Buildings on State-owned Land and Compensation 1.《国有土地上房屋征收征收与补偿条例》
Article 4 The people's government at the city or county level shall be responsible for the building expropriation and compensation within its administrative region. 第四条 市、县级人民政府负责本行政区域的房屋征收与补偿工作。
The building expropriation department as determined by the people's government at the city or county level (hereinafter referred to as the “building expropriation department”) shall organize and implement the building expropriation and compensation within its administrative region. 市、县级人民政府确定的房屋征收部门(以下称房屋征收部门)组织实施本行政区域的房屋征收与补偿工作。
The relevant departments of the people's government at the city or county level shall, in accordance with the provisions of this Regulation and the division of duties as prescribed by the people's government at the corresponding level, cooperate with each other to ensure smooth building expropriation and compensation. 市、县级人民政府有关部门应当依照本条例的规定和本级人民政府规定的职责分工,互相配合,保障房屋征收与补偿工作的顺利进行。
Article 5 The building expropriation department may designate a building expropriation implementing entity to undertake the specific work on building expropriation and compensation. A building expropriation implementing entity shall not operate for profits. 第五条 房屋征收部门可以委托房屋征收实施单位,承担房屋征收与补偿的具体工作。房屋征收实施单位不得以营利为目的。
The building expropriation department shall oversee the building expropriation and compensation activities of a building expropriation implementing entity within the authorized scope, and assume the legal liabilities for the consequences of such activities.
......
 房屋征收部门对房屋征收实施单位在委托范围内实施的房屋征收与补偿行为负责监督,并对其行为后果承担法律责任。
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