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Six Model Administrative Procuratorial Cases Published by the Supreme People's Procuratorate @#
[Effective]
最高人民检察院发布6起行政检察典型案例 [现行有效]
【法宝引证码】

Six Model Administrative Procuratorial Cases Published by the Supreme People's Procuratorate 

最高人民检察院发布6起行政检察典型案例

(September 25, 2019) (2019年9月25日)

Case No. 1 案例一
Series of cases of non-litigation enforcement supervision for illegal land occupation in A County, Henan Province 河南省甲县违法占地非诉执行监督系列案
--Supervising the legal acceptance of administrative non-litigation enforcement and jointly holding the red line for cultivated land protection --监督行政非诉执行依法受理,共同守住耕地保护红线
[Basic Facts] 【基本案情】
Since August 2017, the Land and Resources Bureau of A County, Henan Province identified in the patrol that some driver training schools and sand yards occupied cultivated land without approval. After the complaints were docketed according to the law, the corresponding administrative penalties have been imposed. The administrative counterparts did not file lawsuits or perform such administrative penalties within the statutory time limit. In accordance with the legal provisions, the Land and Resources Bureau of A County applied cases of land and resources violations requiring application for enforcement at the expiration of the prescribed time limit to the People's Court of A County for enforcement. Up to April 12, 2018, the Land and Resources Bureau of A County has applied to the People's Court of A County for enforcement of administrative penalties of 96 administrative non-litigation cases, involving the illegal occupation of cultivated land of 154.8 mu, basic farmland of 66.8 mu, and other land of 2.76 mu for driver training schools, sand excavation, tourism development, agricultural development, and illegal construction by farmer households, and the total amount of administrative fines reached over CNY3 million. 2017年8月份以来,河南省甲县国土资源局在巡查中发现一些驾校、砂场等未经批准擅自占用耕地,经依法立案后作出相应行政处罚。行政相对人在法定期限内不提起诉讼又不履行,甲县国土资源局依照法律规定,将到期需要申请强制执行的国土资源违法案件申请甲县人民法院强制执行。截至2018年4月12日,甲县国土资源局共向甲县人民法院申请强制执行行政非诉案件96件,涉及驾校、采砂、旅游开发、农业开发、农户违建等非法占用耕地154.8亩、基本农田66.8亩,其他土地2.76亩,行政罚款总额300余万元。
The People's Court of A County accepted no application for enforcement of administrative penalties of administrative non-litigation cases filed by the Land and Resources Bureau of A County, nor did it enter a ruling on not accepting such applications and state the reasons therefor. 甲县人民法院对县国土资源局行政非诉案件强制执行申请均不予受理,也未作出不予受理裁定和说明不予受理理由。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
On April 12, 2018, the People's Procuratorate of A County legally accepted 21 administrative non-litigation enforcement cases where the national interests and public interests have been seriously damaged. Simultaneously, it reported the situations of special campaigns on civil and administrative non-litigation enforcement supervision by the procuratorial organs across the country launched by the Supreme People's Procuratorate to the People's Court of A County. 2018年4月12日,甲县人民检察院对其中严重损害国家利益和社会公共利益的21起行政非诉执行案件依法予以受理。同时,将最高人民检察院在全国检察机关开展民事行政非诉执行监督专项活动情况向甲县人民法院作了通报。
In the view of the People's Procuratorate of A County, the People's Court of A County neither accepted the applications for enforcement filed by the Land and Resources Bureau of A County and nor entered rulings on not accepting such applications, which has violated the provisions of paragraph 1 of Article 56 of the Administrative Litigation Law of the People's Republic of China that “The people's court shall accept an application of an administrative organ for enforcement within 5 days after receiving it,” the provisions of paragraph 3 of Article 155 of the Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law of the People's Republic of China that “If the application meets the prescribed conditions, the people's court shall grant acceptance and docket the application within five days and notify the applicant; otherwise, it shall enter a ruling not to grant acceptance” as well as the provisions of Articles 2, 8, and 9 of the Provisions of the Supreme People's Court on Several Issues concerning the Registration and Docketing of Cases by People's Courts, resulting in failure of effective administrative penalty decisions to enter statutory procedures. On April 26, the People's Procuratorate of A County issued the following procuratorial proposal to the People's Court of A County that the People's Court of A County should (1) handle the administrative non-litigation enforcement cases applied by the Land and Resources Bureau of A County; and (2) should improve the mechanism for accepting administrative non-litigation enforcement cases, so as to guarantee the accurate exercise of administrative penalty authority. 甲县人民检察院认为,甲县人民法院对县国土资源局强制执行申请不予受理又不依法作出不予受理裁定,违反了《中华人民共和国行政强制法》第五十六条第一款“人民法院接到行政机关强制执行的申请,应当在五日内受理”的规定,违反了《最高人民法院关于适用〈中华人民共和国行政诉讼法〉的解释》第一百五十五条第三款“人民法院对符合条件的申请,应当在五日内立案受理,并通知申请人;对不符合条件的申请,应当裁定不予受理”的规定,以及《最高人民法院关于人民法院登记立案若干问题的规定好饿但是不想动》第二条、第八条、第九条的规定,致使生效的行政处罚决定无法进入法定程序。4月26日,甲县人民检察院向甲县人民法院发出检察建议:(1)依法办理甲县国土资源局申请的行政非诉执行案件;(2)完善行政非诉案件受理机制,以保障行政处罚权的正确行使。
On May 3, 2018, the People's Court of A County made a reply, where it gave support to the procuratorial organ in launching a special campaign on civil and administrative non-litigation enforcement supervision, adopted the procuratorial proposal, and accepted 21 cases and other 75 administrative non-litigation cases. Simultaneously, the People's Court of A County improved the procedures for acceptance of administrative non-litigation cases and conducted speedy docketing and trial of cases involving national interests and public interests. 2018年5月3日,甲县人民法院回复,支持检察机关开展民事行政非诉执行监督专项活动,采纳检察建议,对建议的21起及其他75起行政非诉案件全部予以受理。同时,完善非诉行政案件受理程序,对涉及国家利益和社会公共利益的,快立快审。
During the period from issuance of the procuratorial proposal to January 15, 2019, the Land and Resources Bureau of A County has successively applied 286 cases to the People's Court of A County for enforcement, the People's Court of A County docketed all of them and approved the enforcement of 244 cases, and a majority of such cases have been enforced. At the same time, with respect to whether the administrative organ was negligent in enforcement or application for enforcement after the administrative penalties were imposed, the People's Procuratorate of A County strengthened communication with the administrative organ, solicited understanding, cooperation, and even voluntary correction, intensified coordination and cooperation with the people's court, and jointly safeguarded the national interests and public interests. 自发出检察建议至2019年1月15日,甲县国土资源局陆续向甲县人民法院申请强制执行286件,法院均予以立案,目前已准予执行244件,大部分已经执行;同时,检察机关针对行政机关是否存在行政处罚后怠于执行或怠于申请执行等问题加强与行政机关沟通,争取理解、配合进而主动纠正,并加强与人民法院的协作配合,共同维护国家利益和社会公共利益。
[Warning and Significance] 【警示与指导意义】
The protection of cultivated land concerns the food issue of over a billion people in China and the food security and ecological safety of China. The State insists on implementing the strictest protection system for cultivated land. Holding the red line for protection of cultivated land is not only the responsibility of governments at various levels, but the joint responsibility of judicial organs. The illegal acts of occupying and damaging cultivated land, basic farmland in particular, must be resolutely frustrated and punished. This case involved the illegal occupation of cultivated land of 154.8 mu and basic farmland of 66.8 mu. The people's court did not grant acceptance of cases the administrative organ legally applied for administrative non-litigation enforcement while it should have granted acceptance, resulting in continuous infringement of national interests and public interests. Under this circumstance, the procuratorial organ should conduct supervision according to the law. In this case, through supervision over 21 administrative non-litigation enforcement cases, the procuratorial organ urged the people's court to legally docket subsequent cases, approve enforcement, and enforce such cases, thus producing a virtuous circle. The practice of the procuratorial organ not only promoted standardized law enforcement and law-based administration, but effectively accelerated the protection of cultivated land and basic farmland by the State and achieved win-win. 保护耕地,关系到中国十几亿人口的粮食问题,关系到我国的粮食安全、生态安全问题。对于耕地,国家坚持实行最严格的保护制度。守住耕地保护红线,不仅是各级政府的责任,也是司法机关共同的责任。违法占用、破坏耕地特别是基本农田的违法行为,必须坚决制止和惩处。本案涉及非法占用耕地154.8亩、基本农田66.8亩,人民法院对行政机关依法申请行政非诉执行的案件,应当受理而不予受理,使国家利益和社会公共利益处于持续受侵害状态,检察机关应依法予以监督。本案中,通过对21起行政非诉执行案件进行监督,促使人民法院对后续案件依法立案、准予执行,并依法执行,进入良性循环,不仅促进了规范执法、依法行政,还有力地促进了对国家耕地、基本农田的保护,达到双赢多赢共赢。
Case No. 2 案例二
Case of non-litigation enforcement supervision for illegal land occupation by __ Company in Jilin Province 吉林省某公司违法占地非诉执行监督案
--Supervising the legal examination of administrative non-litigation enforcement and safeguarding the national and public interests and lawful rights and interests of citizens --监督行政非诉执行依法审查,维护国家、社会公共利益和公民合法权益
[Basic Facts] 【基本案情】
On June 17, 2016, the Land and Resources Bureau of A City, Jilin Province issued to __ Company (hereinafter referred to as the “Company”) a decision on administrative penalty that (1) the Company was ordered to return the illegally occupied land, demolish new buildings and other facilities on the illegally occupied land, restore the site to the original state; (2) the Company was imposed on a fine of CNY5,000 for its illegal occupation of forest land of 1,000 square meters; and (3) the Company should be transferred to the local judicial organ. The Company paid the fine during the statutory time limit for performance, but it did not return the illegally occupied land, demolish new buildings and other facilities on such illegally occupied land, and restore the site to its original state. 2016年6月17日,吉林省甲市国土资源局对某有限公司作出行政处罚决定书,内容为:(1)责令退还非法占用的土地,拆除非法占用的土地上新建的建筑物和其他设施,恢复原貌;(2)对非法占用林地1000平方米处以罚款5000元;(3)移送当地司法机关。某有限公司在法定履行期限内缴纳了罚款,但未退还非法占用的土地,未拆除非法占用土地上新建的建筑物和其他设施,未恢复土地原状。
On April 19, 2017, the Land and Resources Bureau of A City filed an application with the People's Court of B District, A City for enforcing the administrative penalty of “returning the illegally occupied land, demolishing the illegal buildings, and restoring the site to the original state” in the aforesaid decisions on administrative penalty. 2017年4月19日,甲市国土资源局向甲市乙区人民法院申请强制执行上述行政处罚决定书中“退还非法占用的土地,拆除非法建筑物,恢复原貌”的行政处罚。
After granting acceptance, the People's Court of B District legally formed the collegial bench and conducted the legality review. On May 11, 2017, it entered an administrative ruling that (1) the enforcement of the decision on administrative penalty made by the Land and Resources Bureau of A City should be approved; (2) the payment of the fine (1,000 square meters of forest land x CNY5 per square meter = CNY5,000) in the decision on administrative penalty should be enforced by the People's Court of B District; and (3) the Company should be ordered to return the illegally occupied land and the Land and Resources Bureau of A City was responsible for organizing and implementing the confiscation of new buildings and other facilities on the illegally occupied land and the restoration of the site to the original state. 乙区人民法院受理后,依法组成合议庭进行了合法性审查,并于2017年5月11日作出行政裁定书,裁定:(1)准予强制执行甲市国土资源局行政处罚决定书;(2)行政处罚决定书中的罚款部分即林地1000平方米×5元/平方米=5000元,由乙区法院强制执行;(3)责令退还非法占用的土地,没收非法占用的土地上新建的建筑物和其他设施,恢复土地原状,由甲市国土资源局组织实施。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
The People's Procuratorate of B District held upon examination that the content of the administrative ruling entered by the People's Court of B District exceeded the scope of application for enforcement by the Land and Resources Bureau of A City and was inconsistent with that of the decision on administrative penalty. After the Land and Resources Bureau of A City made the decision on administrative penalty and before the expiration of the statutory time limit for performance, the Company has performed the obligation of paying the fine and it did not perform the administrative penalty of “returning the illegally occupied land, demolishing the illegal buildings, and restoring the site to the original state.” The Land and Resources Bureau of A City filed an application with the People's Court of B District for only enforcing the administrative penalty that has not been performed. The ruling entered by the People's Court of B District included the administrative penalty that has not been performed and the fine that has been paid. The ruling exceeded the scope of enforcement application filed by the enforcement applicant and did not conform to the true circumstances of the case. In addition, the content approved to be enforced in the ruling that “the illegal buildings should be confiscated and the site should be restored to the original state” was inconsistent with that of the administrative penalty that “the illegal buildings should be demolished and the site should be restored to the original state.” 乙区人民检察院审查认为,乙区人民法院作出的行政裁定书的裁定内容超出了甲市国土资源局申请强制执行的范围,且与行政处罚决定书的内容不符。甲市国土资源局行政处罚决定作出后,某有限公司在法定履行期限届满之时,已履行缴纳罚款的义务,未履行“退还非法占用的土地,拆除非法建筑物,恢复原貌”的行政处罚,甲市国土资源局也仅就未履行的该项行政处罚申请乙区人民法院强制执行。乙区人民法院作出的裁定内容既包括未履行的行政处罚,也包括已经履行的罚款,超出了申请执行人申请强制执行的范围,不符合案件的真实情况,且裁定准予执行“没收非法建筑物,恢复原貌”的内容与行政处罚“拆除非法建筑物,恢复原貌”不符。
In accordance with the provisions of Article 93 of the Administrative Litigation Law of the People's Republic of China, the People's Procuratorate of B District put forward a procuratorial proposal and proposed that the People's Court of B District should make corrections according to the law, strictly conduct examination in the future handling of non-litigation enforcement cases, enter a ruling according to the law, and ensure that the content approved to be enforced in the ruling is consistent with the content of the administrative penalty. Upon receipt of the procuratorial proposal, the People's Court of B District made a written reply that it would conduct examination in accordance with the relevant provisions of the Administrative Compulsion law of the People's Republic of China, conscientiously make rectification, and put an end to the occurrence of similar situations in the future work. 乙区人民检察院根据《中华人民共和国行政诉讼法》第九十三条的规定,提出检察建议,建议乙区人民法院依法纠正,并在今后办理非诉执行案件过程中严格进行审查,依法作出裁定,裁定准予执行的内容应与行政处罚的内容相符。乙区人民法院收到检察建议后,书面回复表示,依照《中华人民共和国行政强制法你怀了我的猴子》的相关规定进行审查,认真整改,在今后的工作中杜绝类似情况的发生。
[Warning and Significance] 【警示与指导意义】
The administrative organ should investigate and punish acts of illegal land occupation in a timely manner, impose the corresponding administrative penalties, and legally apply for administrative non-litigation enforcement. The decision on administrative penalty made by an administrative organ must be implemented in an accurate, comprehensive, and timely manner. Otherwise the national and public interests would be damaged, the lawful rights and interests of citizens, legal persons, or other organizations would be infringed, the administrative order may be disrupted, and the impartiality and authority of law enforcement may be impaired. In this case, the people's procuratorate issued a procuratorial proposal in a timely manner for such violations of law that the ruling on enforcement entered by the people's court did not conform to the actual situations and was inconsistent with the content of the decision on administrative penalty made by the administrative organ and the content of the application for enforcement filed by the administrative organ, and urged the people's court to rectify prominent problems in the administrative non-litigation enforcement. The practice of the people's procuratorate has not only safeguarded the national and public interests, but protected the lawful rights and interests of the party, regulated the enforcement, and enhanced the supervision effects. 对于违法占地行为,行政机关应当及时查处,作出相应行政处罚,并依法申请行政非诉执行。行政机关的行政处罚决定,必须准确、全面、及时执行,否则不仅损害国家和社会公共利益,损害公民、法人或其他组织的合法权益,还可能破坏行政管理秩序,减损执法的公正性和权威性。本案中,人民检察院针对法院作出的强制执行裁定内容与实际情况不符、与行政机关作出的行政处罚决定内容和申请执行内容不一致等违法情形及时发出检察建议,促使法院对行政非诉执行工作中存在的突出问题进行整改,既维护了国家和社会公共利益,又保护了当事人的合法权益,规范了执行行为,增强了监督效果。
Case No. 3 案例三
Six cases of non-litigation enforcement supervision for illegal land occupation by the Villagers' Committee of __ Village in Beijing Municipality, et al. 北京市某村委会等六起违法占地非诉执行监督案
--Supervising the legal application of termination of the enforcement procedure and promoting the solution of difficulties in the demolition of “buildings constructed on the illegally-used land in violation of law” --监督终结本次执行程序依法适用,推动破解“两违”拆除难题
[Basic Facts] 【基本案情】
With respect to the construction acts on the illegally occupied land by the Villagers' Committee of __ Village in A Township, A District, Beijing Municipality, __ Power Technology Company, __ Cultural Communications Company, __ Bioengineering Technology Company, and __ Agricultural Development Company, the former Land and Resources Bureau of Beijing Municipality separately made six administrative penalty decisions of “demolishing the illegal buildings and restoring the sites to the original state” against the aforesaid entities. However, the aforesaid entities did not perform such penalty decisions, nor did they apply for reconsideration or file administrative lawsuits. Therefore, the former Land and Resources Bureau of Beijing Municipality filed applications with the People's Court of A District, Beijing Municipality for enforcing the aforesaid six administrative penalty decisions under the statutory procedures. 原北京市国土资源局针对北京市甲区A镇某村村委会、某动力科技公司、某文化传播公司、某生物工程技术公司、某农业发展公司非法占地进行建设的行为,依据土地管理法对上述单位分别作出共计6份“拆除违法建设、恢复土地原状”的行政处罚决定,但上述单位既未履行处罚决定,又没有申请复议和提起行政诉讼,原北京市国土资源局遂按照法定程序将上述6起行政处罚决定向北京市甲区人民法院申请强制执行。
The People's Court of A District separately entered administrative rulings on approving the enforcement of the aforesaid non-litigation enforcement applications. However, at the subsequent enforcement stage, without actual enforcement, it entered a ruling on terminating the enforcement procedure on the grounds that “the subject matter of enforcement in this case, namely, the illegal buildings, covered a large area, it was difficult to forcibly demolish them, and sufficient manpower and material resources were required. The Court does not have the necessary funds, equipment, and personnel for forcible demolition. The enforcement applicant, the Land and Resources Bureau of Beijing Municipality, fails to provide the essential conditions for forcible demolition, either. Therefore, the Court temporarily fails to demolish the subject matter of enforcement by taking the enforcement measures.” 甲区人民法院针对上述非诉执行申请分别作出准予执行的行政裁定书,但在随后的强制执行阶段又在未实际执行的情况下以“本案执行标的违法建筑物占地规模较大,强制拆除有一定难度,需具备足够的人力和物力。现本院无强制拆除所必须的资金、设备和人员,申请执行人北京市国土资源局亦无法提供强制拆除必备的条件,故本院暂无法采取强制执行措施对本案执行标的予以拆除”为由,作出终结本次执行程序的裁定。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
The People's Procuratorate of A District initiated the supervision procedures for the aforesaid six non-litigation enforcement cases. It was found upon examination that in accordance with the relevant provisions of the Supreme People's Court, the termination of the enforcement procedure may apply where the subject matter of enforcement was property and there was no enforceable property or there was enforceable property but it was insufficient to make full payment. The termination of the enforcement procedure should not apply to the aforesaid six cases. At the same time, for the purposes of advancing the Beijing-Tianjin-Hebei coordinated development in an in-depth manner, making efforts to relocate non-capital functions from Beijing, and optimizing and improving capital functions, a special campaign of “Making Improvements through Relocation and Rectification” was being carried out in Beijing Municipality. The demolition of illegal buildings was one of key tasks in such campaign. This was a model case of illegal construction activities caused by illegal land occupation and such activities should be strictly investigated and punished according to the law. Therefore, on January 2, 2018, the People's Procuratorate of A District served a procuratorial proposal on the People's Court of A District. It proposed that the People's Court of A District should (1) further strictly regulate the termination of the enforcement procedure and put an end to the abuse of “termination of the enforcement procedure” for the excessive pursuit of high case closure rates and (2) resume the case enforcement procedure in a timely manner and promote the complete enforcement of the cases soon. 甲区人民检察院依职权启动了对上述6起非诉执行案件的监督程序。经审查,根据最高人民法院有关规定,终结本次执行程序的适用范围,是执行标的以财产为内容,且无财产可供执行或有财产但不足以全部清偿的,上述6起案件均不应适用终结本次执行程序。同时,北京市为深入推进京津冀协同发展、着力疏解非首都功能、优化提升首都功能,正在开展“疏解整治促提升”专项行动,拆除违法建设是“疏解整治促提升”的重要任务之一。本案系典型的非法占地行为引发的违法建设活动,依法应予严格查处。对此,甲区人民检察院于2018年1月2日向甲区人民法院送达检察建议书,建议:(1)进一步严格规范终结本次执行程序,杜绝因片面追求高结案率而滥用“终结本次执行程序”;(2)及时恢复案件执行程序,促使案件早日执行完毕。
On March 21, 2018, the People's Procuratorate of A District received the reply of the People's Court of A District on the six procuratorial proposals. The People's Court of A District said that enforcement of the six cases was not simply a legal issue; the interest relationship in such cases was complicated and the parties had great confrontational feelings; the blind enforcement was bound to give rise to unstable issues; and the enforcement should be conducted by overall planning and coordination of all forces on the premise of respecting the history and facing the reality. 2018年3月21日,甲区人民检察院收到甲区人民法院针对6份检察建议的回复。甲区人民法院表示该案的执行问题不是简单的法律问题,此类案件利益关系错综复杂,当事人对立情绪极端严重,盲目强制执行必然引发不稳定事件,需要在尊重历史、正视现实的前提下,统筹协调各方力量协力解决。
Regarding enforcement risks and practical difficulties as mentioned in the reply by the people's court, the People's Procuratorate of A District wrote a research report in light of the handling of the aforesaid six cases of non-litigation enforcement supervision and upon in-depth research, made detailed analysis on the status quo and reasons for difficulties in forcible demolition of illegal buildings due to illegal land occupations in A District, put forward countermeasures and suggestions for solving the problems from multiple angles, and reported to the people's governments at the district and city level. The problem has drawn the governments' attention. The Supervision Office of the People's Government of Beijing Municipality delivered the letter of notice on supervision to the Beijing Municipal Commission of Planning and Land and Resources Administration and required the Commission to conscientiously conduct implementation. At present, the six cases have been partially enforced and the follow-up work was being promoted step by step. 针对法院在回复中提到的执行风险和现实难题,甲区人民检察院结合上述6起非诉执行监督案件的办理,经深入调研,撰写了调研报告,详细分析了该区因非法占地形成违法建设难以强制拆除的现状、原因,并从多角度提出解决问题的对策建议,报告市、区两级政府并得到关注。北京市人民政府督查室向市规划国土委下发督查通知单,要求该委认真落实。目前,该6起案件已部分执行到位,其他后续相关工作正在逐步推进。
[Warning and Significance] 【警示与指导意义】
Illegal land occupation is the commonest type of violations of law related to land and resources. The occupation of limited land resources by illegal construction projects infringes the national and public interests and damages the living environment of the general public. Illegal construction on the illegally occupied land without approval is a common form of illegal land occupation. Due to great social concerns and frequent and probable contradictions, it is quite difficult to demolish illegal buildings on the illegally occupied land. For this type of cases, the procuratorial organ should not only issue procuratorial proposals and supervise the law-based enforcement by the people's court, but strengthen the follow-up supervision and fundamentally promote the solution of difficulties in enforcement. In this case, through supervision over the violation of law of the people's court for its application of the termination of the enforcement procedure and by relying on model individual cases, the people's procuratorate promoted the solution of problems in similar cases and urged the people's court to make enforcement according to the law in the form of procuratorial proposal. At the same time, it analyzed the causes and put forward countermeasures and suggestions in the form of research reports, promoted the solution of difficulties in the demolition of “buildings that were constructed on the illegally-used land in violation of law” in terms of systems and mechanisms, and attracted the concerns and attention of the government. The practice of the people's procuratorate has demonstrated the positive significance of administrative procuratorial work in maintaining judicial fairness, promoting law-based administration, and serving social governance. 违法占地是国土资源违法行为中最常见的一种类型,违法建设项目侵占有限的土地资源,损害国家和社会公共利益,破坏广大人民群众赖以生存的生态环境。未经批准违法占用土地进行违法建设,是违法占地中常见的表现形式。拆除违法占地上的违法建设,因群众关注度高、矛盾多发易发,强制执行难度很大。对于这类案件,不仅要制发检察建议监督法院依法执行,还要加强跟进监督,从根本上推动解决这一执行难题。本案中,人民检察院通过对法院适用终结本次执行存在违法情形的监督,依托典型个案,促进类案问题解决,在以检察建议形式督促法院依法执行的同时,以调研报告的形式分析原因、提出对策建议,推动从体制、机制上破解“两违”拆除难题,引起政府的关注和重视,彰显了行政检察维护司法公正、促进依法行政、服务社会治理的积极意义。
Case No. 4 案例四
Case of non-litigation enforcement supervision for illegal land occupation by Xu in Zhejiang Province 浙江省徐某违法占地非诉执行监督案
--Supervising legal enforcement by the court and the administrative organ in the mode of “separation of discretion” and protecting the basic farmland from being illegally occupied --监督“裁执分离”模式下法院和行政机关依法执行,保护基本农田不被侵占
[Basic Facts] 【基本案情】
Xu illegally occupied the basic farmland of 2,253 square meters and farming land of 3,753 square meters and illegally built houses and other facilities in __ Village, A Township, A City, Zhejiang Province. In 2015, the Land and Resources Bureau of A City issued a written decision on administrative penalty and ordered Xu to return the illegally occupied land of 6,006 square meters; and demolish new houses and other facilities on the illegally occupied land; imposed a fine of CNY67,590 (CNY30 per square meter of the illegally occupied basic farmland) and a fine of CNY75,060 (CNY20 per square meter of the illegally occupied farming land (including forest land, field, and water area), CNY142,650 in total. 徐某非法占用2253平方米基本农田和3753平方米农用地,在浙江省甲市A镇某村违法建造房屋及其他建筑设施。2015年,甲市国土资源局作出行政处罚决定书,责令徐某退还非法占用的土地6006平方米;拆除在非法占用土地上新建的房屋及其他建筑设施;对非法占用的基本农田按每平方米30元处以罚款计人民币67590元,对非法占用农用地(林地、园地、水域)按每平方米20元处以罚款计人民币75060元,两项合计人民币142650元。
On July 22, 2016, the Land and Resources Bureau of A City filed an application for enforcement with the People's Court of A City on the ground that the person subject to enforcement surnamed Xu refused to perform the written decision on administrative penalty. 2016年7月22日,甲市国土资源局以被执行人徐某拒不履行行政处罚决定书为由,向甲市人民法院申请强制执行。
Zhejiang Province is one of regions for advancing the reform and pilot program of “separation of discretion,” where the people's court enters a judgment and the administrative organ organizes the execution of such judgment. On August 1, 2016, the People's Court of A City entered an administrative ruling by adopting the “separation of discretion” and ruled to approve the forcible demolition of houses and other facilities illegally built on the land of 6,006 square meters illegally occupied by Xu in __ Village, A Township, A City. The People's Government of A Township, A City and the Land and Resources Bureau of A City were responsible for organizing the execution of such ruling; and the forcible collection of the fine of CNY142,650 owed by Xu was approved and it would be enforced by the People's Court of A City. 由法院作出裁判、由行政机关组织实施的“裁执分离”改革,浙江省是推进改革和试点地区之一。2016年8月1日,甲市人民法院采取“裁执分离”模式,作出行政裁定书,裁定准予对徐某在甲市A镇某村非法占用的6006平方米土地上违法建造的房屋及其他建筑设施予以强制拆除,由甲市A镇人民政府、甲市国土资源局组织实施;准予对徐某欠缴的罚款人民币142650元强制收缴,由甲市人民法院执行。
On December 19, 2016, the People's Court of A City entered a ruling on enforcement that in the process of enforcement, the Court did not find that the person subject to enforcement surnamed Xu had any actual enforceable property, nor did the enforcement applicant provide any clue to enforceable property. Therefore, the administrative ruling failed to be enforced temporarily. In accordance with the provisions of item (6) of Article 257 of the Civil Procedure Law, it ruled to terminate the enforcement procedure for this case. 2016年12月19日,甲市人民法院作出执行裁定书:因在执行过程中,未发现被执行人徐某有实际可供执行的财产,申请执行人亦未提供可供执行的财产线索,故暂不能得到执行,依照民事诉讼法二百五十七条第六项之规定,裁定终结本案本次执行程序。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
On August 23, 2017, the People's Procuratorate of A City accepted this case and launched an investigation. It was found upon investigation that Xu had two accounts in the Rural Commercial Bank of A City. From January 2016 to October 2017, there were records of large amounts of inward remittances and transfers between one of the aforesaid accounts of Xu and other accounts and the bank statements reflected that Xu also had multiple accounts of other banks. In June 2017, a loan was granted to another account of Xu over the counter and by this time, Xu has been included by the People's Court of A City in the list of dishonest persons subject to enforcement. It was also found upon investigation that Xu had a minicar, which was registered in 2011. 2017年8月23日,甲市人民检察院受理该案并展开调查。经调查,徐某在甲市农村商业银行有两个账户。其中一个账户从2016年1月至2017年10月间与其他账户有大量大额汇入、转入记录,且对账单反映徐某在其他银行还有多个账号。另一个账户在2017年6月获得柜面放款,而此时徐某已被甲市人民法院纳入失信被执行人名单。调查还发现徐某名下有小型汽车一辆,登记于2011年。
In addition, upon field survey, the People's Procuratorate of A City found that the illegally built houses and other facilities on the land of 6,006 square meters illegally occupied by the person subject to enforcement surnamed Xu in __ Village, A Township, A City have not been demolished yet. 此外,经甲市人民检察院实地勘察,发现被执行人徐某在甲市A镇某村非法占用的6006平方米土地上违法建造的房屋及其他建筑设施未被拆除。
In the view of the People's Procuratorate of A City, the person subject to enforcement surnamed Xu actually had enforceable property. The People's Court of A City failed to exhaust property investigation measures in the enforcement process and it was inappropriate for it to terminate the enforcement procedure on the ground of failing to identify any actual enforceable property of the person subject to enforcement surnamed Xu; although Xu was included in the list of dishonest persons subject to enforcement, due to the erroneous entry of his ID card number, he was still granted a loan by the Rural Commercial Bank of A City. 甲市人民检察院认为,被执行人徐某有实际可供执行的财产,甲市人民法院在执行过程中未穷尽财产调查措施,以未发现被执行人徐某有实际可供执行的财产等为由裁定终结本案本次执行程序不当;且徐某虽被纳入失信被执行人名单,但因录入的身份证号码有误,导致其仍从甲市农村商业银行获取银行贷款。
On account of the aforesaid circumstances, the People's Procuratorate of A City issued procuratorial proposals to the People's Court of A City, the Land and Resources Bureau of A City, and the People's Government of A Township, A city on November 10 and 23, 2017 in accordance with the provisions of Articles 11 and 101 of the Administrative Litigation Law of the People's Republic of China and Article 235 of the Civil Procedure Law of the People's Republic of China. The People's Procuratorate of A City proposed that the People's Court of A City should (1) docket this case according to the law, resume the enforcement, and exhaust the property investigation measures, verify the property of the person surnamed Xu and adopt the enforcement implementation measures in a timely manner, and enforce the payment of the fine that has not been paid; (2) correct the erroneous information of Xu in the list of dishonest persons subject to enforcement; and (3) pay attention to problems in its relevant inquiry systems. The People's Procuratorate of A City proposed that the Land and Resources Bureau of A City and the People's Government of A Township, A City should forcibly demolish houses and other facilities illegally built by Xu on the illegally occupied land of 6,006 square meters in __ Village, A Township, A City. 针对以上情况,甲市人民检察院根据《中华人民共和国行政诉讼法》第十一条、第一百零一条、《中华人民共和国民事诉讼法》第二百三十五条之规定,分别于2017年11月10日、11月23日向甲市人民法院、甲市国土资源局和甲市A镇人民政府发出检察建议。建议甲市人民法院:(1)对本案依法立案,恢复执行,穷尽财产调查措施,对被执行人徐某的财产情况及时予以核实并采取执行实施措施,执行尚未缴纳的罚款;(2)对失信被执行人名单中徐某的错误信息予以改正;(3)关注法院相关查询系统存在的问题。建议甲市国土资源局和甲市A镇人民政府:对徐某在甲市A镇某村非法占用的6006平方米土地上违法建造的房屋及其他建筑设施予以强制拆除。
After the aforesaid procuratorial proposals were issued, the People's Court of A City, the Land and Resources Bureau of A City, and the People's Government of A Township, A City all adopted such procuratorial proposals and made written replies. On November 27, 2017, the Land and Resources Bureau of A City dispatched personnel to conduct a field inspection on the scene and connected with the relevant persons-in-charge of the People's Government of A Township. The People's Government of A Township took the lead in effectively conducting the demolition and the inspection team and the land and resources management station under the Land and Resources Bureau of A City provided positive teamwork. On December 20, 2017, the People's Government of A Township organized personnel and forces in a centralized manner and forcibly demolished all houses and other facilities illegally built by the person subject to enforcement surnamed Xu on the illegally occupied land of 6,006 square meters in __ Village, A Township, A City. On February 1, 2018, the People's Court of A City resumed enforcement of the administrative penalty in this case, reported the erroneous information of Xu in the list of dishonest persons subject to enforcement to the people's court at a higher level for modification, and gave feedback on existing problems in the unified inquiry system. On May 9, 2018, the People's Court of A City made a second written reply that the entire fine of CNY142,650 has been paid. 检察建议发出后,甲市人民法院、甲市国土资源局和甲市A镇人民政府均予以采纳,并书面回复。2017年11月27日,甲市国土资源局派员到违法现场进行实地核查,并与A镇人民政府相关负责人进行对接,由A镇人民政府牵头做好拆除工作,该局监察大队、国土所积极配合。2017年12月20日,A镇人民政府集中组织人员和力量,对被执行人徐某在甲市A镇某村非法占用的6006平方米土地上违法建造的房屋及其他建筑设施全部强制拆除。2018年2月1日,甲市人民法院恢复执行该案,对失信被执行人名单中徐某的错误信息已报上级法院修改,并已对统一查询系统存在的问题进行了反映。2018年5月9日,甲市人民法院第二次书面回复,表示该案全部罚款142650元已执行到位。
[Warning and Significance] 【警示与指导意义】
Cherishing and rationally utilizing land and effectively protecting the cultivated land is a basic state policy in China. The basic farmland is the essence of cultivated land and the guarantee for food security. The State adopts strict special protection of basic farmland and no entity or individual may alter the nature and purpose of basic farmland. Whoever illegally occupies basic farmland should return such farmland according to the law, demolish new buildings and other facilities on the illegally occupied land, and restore the land to the original state; if a crime is constituted, the person should be subject to criminal liability according to the law. The supervision over administrative non-litigation enforcement is whole-process supervision over the docketing, examination, and enforcement of administrative non-litigation enforcement cases. After an administrative organ applies for enforcement and a people's court enters a ruling, no matter whether the ruling is enforced by the enforcement agency of the people's court, the administrative organ organizes the execution of the ruling in the mode of “separation of discretion,” or a part of the ruling is enforced by the enforcement agency of the people's court and the administrative organ organizes the execution of the other part of the ruling, the aforesaid circumstances are within the scope of administrative non-litigation enforcement supervision. Where the people's court or administrative organ illegally commits an act of enforcement or is negligent in performing duties, the procuratorial organ has the right to conduct supervision. In this case, Xu's illegal acts of occupying the basic farmland of 2,253 square meters and the farming land of 3,753 square meters and building houses and other facilities should be corrected. Through administrative non-litigation enforcement supervision, the procuratorial organ not only promoted the court's recovery of the entire fine of CNY142,650, but urged the administrative organ to forcibly demolish all illegal buildings on the illegally occupied land of 6,006 square meters, and the occupied basic farmland was restored. The practice of the procuratorial organ has achieved good effects. 十分珍惜、合理利用土地和切实保护耕地是我国的基本国策。而基本农田是耕地的精华,是粮食安全的保障,国家对基本农田实行严格的特殊保护,任何单位和个人不得改变其性质用途。非法占用基本农田应依法退还,拆除在非法占用的土地上新建的建筑物和其他设施,恢复土地原状;构成犯罪的,依法追究刑事责任。行政非诉执行监督,是对行政非诉执行立案、审查和执行活动的全过程监督。行政机关申请强制执行,人民法院作出裁定后,无论是交由本院执行机构执行,还是采取“裁执分离”模式交由行政机关组织实施,或部分交由本院执行机构执行、部分交由行政机关组织实施,都属于行政非诉执行监督范围。人民法院、行政机关违法实施执行行为,或怠于履行职责的,检察机关有权予以监督。本案中,徐某非法占用2253平方米基本农田和3753平方米农用地,违法建造房屋及其他建筑设施的违法行为应当予以纠正。检察机关通过行政非诉执行监督,不仅推动法院追回了全部罚款142650元,而且促使行政机关强制拆除非法占用的6006平方米土地上的全部违章建筑,被占用基本农田得以恢复,取得了良好的效果。
Case No. 5 案例五
Case of non-litigation enforcement supervision for illegal land occupation by __ Mining Company in Guangxi Zhuang Autonomous Region 广西壮族自治区某矿业公司违法占地非诉执行监督案
--Supervising “non-enforcement of a judgment” in non-litigation enforcement upon application and protecting the land resources from being infringed. --依申请监督行政非诉执行“裁而不执”,保护国土资源不被侵害
[Basic Facts] 【基本案情】
In June 2008, without approval of the competent administrative department of land and resources, __ Mining Company in Guangxi Zhuang Autonomous Region illegally occupied land and constructed a plant in __ Village, A Township, A County, covering an area of 10,829.44 square meters. On March 6, 2013, the Land and Resources Bureau of A County issued a decision on administrative penalty and required __ Mining Company to demolish new buildings and structures on the illegally occupied land, return the illegally occupied land, and pay a fine of CNY108,294.4 in total (CNY10 per square meter of the illegally occupied land). Since __ Mining Company refused to execute the decision on administrative penalty, on July 8, 2013, the Land and Resources Bureau of A County applied to the People's Court of A County for enforcement of such decision and required that __ Mining Company should demolish new buildings and structures on the illegally occupied land and returned the illegally occupied land. On August 28, 2013, the People's Court of A County entered an administrative ruling to approve the enforcement. 2008年6月,广西壮族自治区甲县某矿业公司未经甲县国土资源行政主管部门批准,非法占用土地,擅自在甲县A镇某村违法建厂,面积达10829.44平方米。2013年3月6日,甲县国土资源局依法作出行政处罚决定,要求某矿业公司拆除在非法占用土地上新建建筑物和构筑物并退还非法占用的土地,对非法占用的土地处以每平方米10元的罚款共计108294.4元。由于某矿业公司拒不执行处罚决定,甲县国土资源局于2013年7月8日向甲县人民法院申请强制执行,要求某矿业公司拆除在非法占用土地上新建建筑物和构筑物并退还非法占用的土地。2013年8月28日,甲县人民法院作出行政裁定,准予执行。
On October 14, 2016, since the Land and Resources Bureau of A County and __ Mining Company reached an agreement on enforcement reconciliation and the People's Court of A County ruled to terminate the enforcement procedure. Afterwards, the People's Court of A County did not enforce the agreement. 2016年10月14日,因甲县国土资源局与某矿业公司达成执行和解书,甲县人民法院裁定终结本次执行程序。其后,甲县人民法院一直没有执行。
In addition, with respect to the fine of CNY108,294.4 imposed on __ Mining Company, the Land and Resources Bureau of A County did not apply to the People's Court of A County for enforcement. 此外,对某矿业公司的罚款108294.4元,甲县国土资源局没有向甲县人民法院申请强制执行。
[Supervision by the Procuratorial Organ] 【检察机关监督情况】
On March 19, 2018, the Land and Resources Bureau of A County filed an application with the People's Procuratorate of A County and requested that the People's Procuratorate of A County should supervise the execution of the aforesaid administrative ruling by the People's Court of A County. 2018年3月19日,甲县国土资源局向甲县人民检察院提出申请,请求监督甲县人民法院执行上述行政裁定。
The People's Procuratorate of A County held upon examination that the People's Court of A County was indeed at fault for its ruling on the termination of the enforcement procedure without conducting the legality review of the agreement on enforcement reconciliation reached by both parties; the Land and Resources Bureau of A County was indeed at fault for its failure to file an application for enforcement with the People's Court of A County in strict accordance with the entire content of the decision on administrative penalty. Therefore, the People's Procuratorate of A County successively issued procuratorial proposals to the People's Court of A County and the Land and Resources Bureau of A County: It proposed that the People's Court of A County should correct the illegal act according to the law and demolish new buildings and structures built by __ Mining Company on the illegally occupied land; and that the Land and Resources Bureau of A County should file an application with the People's Court of A County for enforcing the payment of the fine of CNY108,294.4 imposed for the illegal land occupation. 甲县人民检察院经审查认为,甲县人民法院没有对双方当事人达成的执行和解书进行合法性审查,即裁定终结本次执行程序,确有错误;甲县国土资源局没有严格按照行政处罚决定全部内容向甲县人民法院申请强制执行,确有错误。因此,先后向法院和国土资源局发出检察建议:建议法院对违法行为依法予以纠正,拆除某矿业公司在非法占用的土地上新建的建筑物和其他设施;建议县国土资源局向甲县人民法院申请强制执行对非法占用土地的罚款共计108294.4元。
Upon receipt of the procuratorial proposal, the People's Court of A County has repeatedly done ideological work with the legal representative of __ Mining Company. In September 2018, __ Mining Company voluntarily demolished new buildings and other facilities built by it on the illegally occupied land. 甲县人民法院收到检察建议后,多次做某矿业公司法定代表人的思想工作。2018年9月,某矿业公司自动拆除了其在非法占用的土地上新建的建筑物和其他设施。
Upon receipt of the procuratorial proposal, the Land and Resources Bureau of A County filed an application with the People's Court of A County in a timely manner for enforcing the payment of the fine of CNY108,294.4 in total (CNY10 per square meter of the illegally occupied land). 县国土资源局收到检察建议后,及时向甲县人民法院提出申请,强制执行对非法占用的土地处以每平方米10元的罚款共计108294.4元。
[Warning and Significance] 【警示与指导意义】
If illegal land occupation cannot be investigated and punished in a timely, effective, and comprehensive manner, it will inevitably cause serious negative effects, impair the seriousness and authority of laws, and affect the executive force and credibility of governments. In this case, after the People's Court of A County ruled to approve the execution, the Land and Resources Bureau of A County and __ Mining Company reached an agreement on execution reconciliation. Without reviewing whether there was any violation of law in such agreement, the People's Court of A County ruled to terminate the execution procedure on the ground of such agreement on execution reconciliation and it did not adopt any effective measure to close the case in the subsequent four years, resulting in the long-term encroachment of the state-owned land; the administrative organ failed to file an application with the court for enforcement in strict accordance with the entire content as determined in the decision on administrative penalty, which was incomplete performance of duties. Through non-litigation enforcement supervision, the procuratorial organ has not only promoted standardized and impartial justice, but advanced law-based administration and realized win-win. 违法占地如不能得到及时、有效、全面查处,必将造成严重的负面影响,损害法律的严肃性和权威性,影响政府的执行力和公信力。本案中,甲县人民法院裁定准予执行后,甲县国土资源局与某矿业公司达成执行和解书,法院未对该和解书是否存在违法情形进行审查,即以此为由裁定终结本次执行程序,且在之后长达四年多的时间内,未采取有效措施执结案件,导致国有土地长期处于受侵害状态;行政机关未严格按照行政处罚决定确定的全部内容申请法院强制执行,属于不完全履行职责。检察机关通过行政非诉执行监督,既促进规范、公正司法,又促进依法行政,实现了双赢多赢共赢。
Case No. 6 案例六
Ji v. People's Government of __ Township (Case of supervision over illegal administrative action) 姬某诉某乡政府确认行政行为违法监督案
--The procuratorial organ won credibility through a hearing, strengthened investigation and verification of an illegal administrative action, positively guided the parties in reaching a settlement, and effectively resolved an administrative dispute. --检察机关以听证赢公信,加强行政违法行为调查核实,积极引导当事人和解,有效化解行政争议
[Basic Facts] 【基本案情】
A series of disputes were triggered by a land contract concluded by and between Ji and the Villagers' Committee of __ Village, Henan Province and both parties have successively filed five administrative lawsuits and two civil lawsuits. On October 2, 2016, at the request of the Villagers' Committee of __ Village, the People's Government of __ Township assigned dozens of personnel to forcibly measure the land involved. The land measurement failed after being held back by Ji and his family members. On March 23, 2017, Ji filed this administrative lawsuit with the People's Court of __ County and requested that the Court should confirm the illegality of the forcible measurement of the land Ji contracted by the People's Government of __ Township. The People's Court of __ County held upon trial that the land measurement by the People's Government of __ Township was an act of investigation and evidence collection in the process of mediating in the dispute between both parties and a staged act for settling the dispute between both parties, and such act did not infringe the lawful rights and interests of the plaintiff. Therefore, the People's Court of __ County ruled to dismiss the claims of plaintiff Ji. 姬某与河南省某村委会因一土地承包合同引发系列纠纷,双方先后提起行政诉讼案件5件和民事诉讼案件2件。其中,2016年10月2日,乡政府应村委会要求,指派数十名工作人员强行丈量案涉土地,后因姬某及家人阻止,量地未果。2017年3月23日,姬某向县人民法院提起本案行政诉讼,请求确认乡政府强行丈量其承包土地的行为违法。县人民法院经审理认为,乡政府丈量土地的行为是调解双方纠纷过程中调查取证行为,属于处理双方纠纷的阶段性行为,且该行为并未侵害原告的合法权益,遂判决驳回原告姬某的诉讼请求。
Ji refused to accept the judgment of first instance and appealed. On March 28, 2018, the Intermediate People's Court of __ City entered an administrative ruling of second instance. It held that the administrative action of the People's Government of __ Township of measuring land did not affect the rights and obligations of the appellant and was within the acceptance scope of administrative lawsuits. It ruled to revoke the judgment of first instance and dismiss Ji's appeal. 姬某不服一审判决,提出上诉。市中级人民法院于2018年3月28日作出二审行政裁定,认为乡政府丈量土地的行为未对上诉人权利义务产生影响,不属于行政诉讼受案范围,裁定撤销一审判决,驳回姬某起诉。
Ji refused to accept the ruling of second instance and applied for retrial. On April 16, 2019, the Higher People's Court of Henan Province entered an administrative ruling upon retrial and dismissed Ji's application for retrial. 姬某不服二审裁定,申请再审。省高级人民法院于2019年4月16日作出再审行政裁定,驳回姬某的再审申请。
On June 26, 2019, Ji filed an application for supervision with the People's Procuratorate of __ City. 2019年6月26日,姬某向市人民检察院申请监督。
[Public Hearing] 【公开听证情况】
For the purposes of learning the case facts in an in-depth manner, comprehensively listening to the opinions of the relevant entities and persons, and ensuring accurate supervision, the People's Procuratorate of __ City decided to hold a public hearing. 为深入了解案件情况,全面听取相关单位和人士意见,确保监督精准,某市人民检察院决定对该案进行公开听证。
Preparations for the hearing. First, legal counseling was provided before the hearing. Before the hearing, the parties were interpreted the hearing procedures and the validity of the hearing conclusions in details, so as to ensure that the parties comprehensively understand the hearing procedures and effects and legally and fully exercise the rights of defense and cross-examination. Second, nine hearing officers were determined, including two leaders of the legislative affairs department under the people's government, two administrative law professors from institutions of higher learning, three lawyers in the field of administrative litigation, one former administrative judge, and one entrepreneur in the real estate field. Third, the relevant persons were invited to participate in the hearing. NPC members, CPPCC members, people's supervisors, and personnel from the People's Procuratorate of Henan Province, the Justice Department of Henan Province, the Justice Bureau of __ City, and other relevant functional departments participated in the hearing and over 20 representatives of administrative procuratorial police officers in __ City were arranged to observe the hearing. 听证准备。一是开展听证前法律辅导。听证前,向当事人详细解读听证程序和听证结论的效力,保障当事人全面了解听证的程序和作用,依法充分行使申辩、质证等权利。二是确定9名听证员。包括政府法制部门干部和高校行政法学教授各2名、行政诉讼领域律师3名、原行政审判法官和地产领域企业家各1名。三是邀请相关人员参加。邀请人大代表、政协委员、人民监督员和省检察院、省司法厅、市司法局等有关职能部门人员参加听证会,安排全市行政检察干警代表20余人进行旁听。
Hearing process. On August 8, 2019, the hearing was held in the People's Procuratorate of __ City. In the five links including fact investigation, cross-examination debate, inquiries of hearing officers, hearing deliberation, and summarization and commenting, this hearing was held in the following sequence: (1) the undertaker introduced the basic facts and topic for discussion; (2) the applicant stated the claim for supervision, the facts, and the ground; (3) the respondent delivered defense opinions; (4) the applicant and the respondent produced new evidence and specified the source and content of such evidence; (5) the people's procuratorate produced evidence obtained upon investigation ex officio; (6) the parties to the case cross-examined the legality, authenticity, and relevance of evidence produced in the hearing and delivered opinions; (7) the hearing officers inquired the case facts and evidence; (8) the parties delivered their final opinions; (9) the hearing officers published the hearing opinions on the spot; and (10) the host made final summarization. 听证过程。2019年8月8日,听证会在某市人民检察院召开。本次听证经过事实调查、质证辩论、听证员提问、听证评议、总结讲评等5个环节,并按照下列顺序进行:(1)承办人介绍基本案情和议题;(2)申请人陈述申请监督请求、事实和理由;(3)被申请人发表辩驳意见;(4)申请人和被申请人出示新证据,并说明证据的来源及证明内容;(5)检察院出示依职权调查核实取得的证据;(6)案件各方当事人就听证中所出示证据的合法性、真实性和关联性进行质证并发表意见;(7)听证员对案件事实和证据进行提问;(8)当事人发表最后意见;(9)听证员当场公开发表听证意见;(10)主持人进行归纳总结。
Hearing results. Through the hearing, including the multimedia presentation of evidence and on-site broadcasting of the video shot by Ji on that day when the People's Government of __ Township measured the land, and in light of the statements of the parties, the cause and effect of the dispute between both parties has been identified and the following relevant case facts have been found: (1) the People's Government of __ Township had no evidence that the parties consented to resolve the dispute by means of mediation and its action of land measurement could not be determined as investigation and evidence collection in administrative mediation; (2) without the consent of both parties, the intervention of the People's Government of __ Township in civil dispute and forcible measurement of land had no legal basis; and (3) the People's Government of __ Township failed to make any administrative decision on the dispute and land involved and its action of land measurement did not give rise to the setup, alteration, or elimination of the administrative legal relation. Therefore, it was not a specific administrative action. On the basis of the facts found in the hearing, the nine hearing officers made analysis from various perspectives and reached a consensus that this case was not within the acceptance scope of administrative lawsuits, it was not inappropriate for the court of second instance to rule to dismiss the appeal, and the procuratorial organ should make a decision on not supporting the application for supervision; concurrently, the intervention of the People's Government of __ Township in the civil dispute lacked legal basis and such intervention did not solve the problem, but intensified the conflicts. The procuratorial organ should issue a procuratorial proposal to the People's Government of __ Township. 听证结果。通过听证,包括通过多媒体示证,现场播放姬某拍摄的乡政府丈量土地当天的视频,结合当事人陈述,查清了双方纠纷的来龙去脉,查明了相关案件事实:(1)乡政府没有当事人同意采取调解方式解决纠纷的证据,其丈量土地的行为不能定性为行政调解中的调查取证行为。(2)未经双方当事人同意,乡政府介入民事纠纷并强行丈量土地没有法律依据。(3)乡政府未就案涉纠纷及土地作出任何行政决定,其丈量土地的行为亦没有引起行政法律关系的设立、变更或消灭,不属于具体行政行为。根据听证查明的事实,9名听证员从不同角度进行分析,形成一致意见:该案不属于法院行政诉讼的受案范围,二审法院裁定驳回起诉并无不当,检察机关应作不支持监督申请决定;同时,乡政府介入本案的民事纠纷没有法律依据,不但没有解决问题,反而激化了矛盾,检察机关应向乡政府提出检察建议。
[Supervision Opinions] 【监督意见】
The People's Procuratorate of __ City comprehensively examined the case file and hearing facilitated the settlement of the case upon soliciting consent of both parties. Ji said that the People's Procuratorate of __ Township would no longer be held accountable and the People's Government of __ Township said that it would assist in solving the relevant issues involved as soon as possible. The procuratorial organ adopted the hearing opinions and on August 26, 2019, it made a decision on not supporting the application for supervision. On August 22, 2019, the People's Procuratorate of __ City severed the procuratorial proposal on the People's Government of __ Township on the spot, indicated that the People's Government of __ Township had such problems as weak consciousness of law-based administration, illegal administrative action procedures, and incomplete resolution of social conflicts in the handling of the dispute, analyzed the causes and consequences, and raised specific proposals on improving the work in terms of intensifying the legal consciousness, regulating administrative actions, and improving the law enforcement quality and efficiency to the People's Government of __ Township. 市人民检察院综合审查案卷和听证情况,在征求双方当事人同意后,促成对案件进行和解,姬某表示不再追究乡政府,乡政府表示会尽快依法协助解决案涉相关问题。检察机关采纳了听证意见,于2019年8月26日依法作出不支持监督申请决定。8月22日,市检察院向乡政府现场送达检察建议,指出乡政府在处理本案纠纷中存在依法行政意识不够强、行政行为程序不合法、化解社会矛盾不彻底等问题,并分析了原因和后果,从强化法律意识、规范行政行为、提升执法质效等三个方面向乡政府提出了改进工作的具体建议。
[Warning and Significance] 【警示与指导意义】
Hearing is an important measure for realizing openness, impartiality, and fairness in the procuratorial organs' handling of legal supervision cases and a new attempt for advancing open, transparent, and sunshine justice by procuratorial organs. The administrative litigation supervision cases directly concern people's vital interests. In some cases, the parties have strong appeals and it is difficult for the parties to accept judgments. The adoption of a public hearing by the procuratorial organ is conducive to realizing accurate supervision and promoting substantial resolution of administrative disputes. 听证是实现检察机关办理法律监督案件公开、公正、公平的一项重要举措,也是检察机关推进开放、透明、阳光司法的一种新尝试。行政诉讼监督案件直接涉及人民群众切身利益,一些案件当事人诉求强烈,服判息诉难,检察机关采取公开听证方式,有利于实现精准监督,推动行政争议的实质性化解。
1. Promoting equality and winning credibility by openness. In the handling of an administrative litigation supervision case, holding a hearing, disclosing the case facts, and fully soliciting opinions of the persons concerned are conducive to improving the case examination transparency and enhancing the judicial credibility. In this case, on account of professional legal relation involved and by giving consideration to broad representation and highlighting legal professionalism, nine hearing officers were selected from various industries and public figures, entities at higher levels, relevant functional departments, and procuratorial police officers were widely invited to observe the hearing, which has enhanced the credibility of the hearing results. After the case-handling personnel introduced the case facts, the parties fully gave their opinions, cross-examined the relevant evidence, and answered inquires of the hearing officers, making the case circumstances be open and transparent. The nine hearing officers publicly delivered their hearing opinions on the spot, set forth their views on the case from various angles and the parties listened to the authentic opinions of the hearing officers, which has further enhanced the impartiality and convincement of the hearing results. 1.以公开促进公正,赢取公信。办理行政诉讼监督案件时进行听证,将案件事实公开,充分听取相关人士的意见,有利于提高案件审查透明度、提升司法公信力。本案针对案涉法律关系专业性强的特点,在兼顾广泛代表性的同时,突出法律专业性,从不同行业选取9名听证员,并广泛邀请社会人士、上级单位、相关职能部门及检察干警参与旁听,提高了听证结果的可信度。通过办案人员介绍案情、当事人充分发表意见、对相关证据进行质证、听证员提问等,使案件情况公开透明。9名听证员当场公开发表听证意见,从不同角度阐释自己对案件的看法,当事人原汁原味听取听证员的意见,进一步增强了听证的公正性和说服力。
2. Strengthening investigation and verification and ensuring accurate supervision. With respect to whether an administrative action is illegal and other facts that have not been found yet, in the hearing, investigation and verification should be conducted by fully utilizing the advantages of face-to-face cross-examination and debates by and between both parties. In the hearing in this case, after both parties gave their opinions, produced the relevant evidence, and conducted cross-examination and debates and the hearing officers asked questions on the case facts and evidence, it was found that the action of the People's Government of __ Township of measuring the land in dispute produced no administrative legal effect and it was not within the acceptance scope of administrative lawsuits. However, the forcible intervention in the civil dispute between the applicant and the Villagers' Committee lacked legal basis. The aforesaid fact-finding provided factual basis for the procuratorial organ to realize accurate supervision. 2.加强调查核实,确保精准监督。对于行政行为是否违法等尚未查清的事实,在听证中,应当充分利用双方当事人当面质证辩论的优势,进行调查核实。本案听证过程中,通过双方当事人发表意见、出示相关证据、质证及论辩、听证员对案件事实和证据进行提问等,查明乡政府丈量争议土地的行为并不产生行政法律效果,不属于行政诉讼受案范围,但其强行介入申请人与村委会之间的民事纠纷,缺乏法律依据,为检察机关实现精准监督提供了事实根据。
3. Promoting settlement on the spot and realizing substantial resolution of the administrative dispute. Resolving administrative disputes, promoting social governance, and maintaining social harmony and stability are important tasks in supervision over administrative lawsuits. The organic connection of public hearings and administrative settlement procedures is conducive to promoting resolution of conflicts and close of cases. In this case, the forcible intervention of the People's Government of __ Township in the civil dispute resulted in the applicant's dissatisfaction with the state organ and the applicant's repeated institution of lawsuits and litigation burdens. Through the public hearing, the procuratorial organ gained the trust of both parties. The settlement reached on the spot and the elimination of grievances promoted the substantial resolution of the administrative dispute and reflected the people-centered case-handling concept. 3.促成现场和解,实质性化解行政争议。解决行政争议、促进社会治理、维护社会和谐稳定是行政诉讼监督的重要任务,通过公开听证与行政和解程序的有机衔接,有利于推动矛盾化解,实现案结事了。本案因乡政府强行介入民事纠纷,导致申请人对国家机关不满,一再提起诉讼,陷入诉累。检察机关通过公开听证,取得双方当事人的信任,当场和解,消除积怨,促进行政争议的实质性化解,体现了以人民为中心的办案理念。
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