| 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 found 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 for enforcement of 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. 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 did not accept the 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, nor entered rulings on not accepting such applications, which has violated the provisions of paragraph 1 of Article 56 of the Administrative Procedure 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 Procedure 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 power. | | 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》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 the issuance of the procuratorial proposal to January 15, 2019, the Land and Resources Bureau of A County has successively applied to the People's Court of A County for enforcement in 286 cases, 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 stopped 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) a fine of CNY5,000 was imposed on the Company for its illegal occupation of forest land of 1,000 square meters; and (3) the case should be removed 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 Procedure 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 | | 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》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, and other five entities. | | 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。
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