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| Ten Cases regarding Substantial Resolution of Administrative Disputes in 2018 Published by the Higher People's Court of Shanghai Municipality | | 上海高院发布2018年行政争议实质性解决十大案例 |
| (May 29, 2019) | | （2019年5月29日） |
| Ten Cases regarding Substantial Resolution of Administrative Disputes | | 行政争议实质解决十大案例 |
| Case No. 1 | | 案例一 |
| Yang v. People's Government of Putuo District, Shanghai Municipality (An appeal case of a decision on housing expropriation compensation) | | 杨某诉上海市普陀区人民政府房屋征收补偿决定上诉案 |
| I. Basic Facts | | 一、基本案情 |
| The person subject to expropriation Yang had a house property certificate for the expropriated house he owned, but there were two pieces of information marked in the house property certificate: 9.61 square meters of the southern room on the ground floor in building No. 1 and 11.88 square meters of the building No. 2. In a written reply made to Yang on his consultation on purchase restriction, the Housing Security and Housing Administration Bureau of Putuo District once stated that although the houses owned by Yang were recorded in one house property certificate, but there were two ownership units (namely, two houses) in the register book and Yang was an object subject to purchase restriction. In the housing expropriation, Yang claimed expropriation compensation for two houses according to the prescribed requirements, but the expropriation department claimed that the expropriation compensation should be made as one house on the basis of the house property certificate, thus generating the disputes involved. Both parties to expropriation failed to reach an agreement on the expropriation compensation. On August 10, 2016, the People's Government of Putuo District made a decision on housing expropriation compensation to Yang as one house. Yang refused to accept the decision, filed an administrative lawsuit with the court of first instance, and claimed that the decision involved in the case on housing expropriation compensation should be set aside. The court of first instance organized mediation of the parties, but the mediation failed. Afterwards, it ruled to reject Yang's claims on the ground that expropriation by the building expropriation department according to “one certificate for one household” complied with the expropriation policy. Yang refused to accept the judgment of first instance and appealed to the Higher People's Court of Shanghai Municipality. Upon mediation by the court of second instance, both parties reached a mediation agreement and the court of second instance prepared an administrative mediation agreement, which has contributed to the synchronous resolution of disputes over expropriation compensation and reply to purchase restriction. | | 被征收人杨某所有的被征收房屋有一本产权证，但该产权证标注有两条房屋信息，分别是：幢号1底层南间9.61平方米、幢号2全幢11.88平方米。该区住房保障和房屋管理局曾在书面答复杨某关于限购问题的咨询时，指出其所有的房屋虽记载在一本产权证内，但登记簿中为两个权属单元（两套房），杨某属于被限购对象。在此次房屋征收中，杨某以此为依据要求按照两套住房进行征收补偿，征收部门则主张以产证为依据按照一套房进行征收补偿，遂产生争议。征收双方未能就征收补偿达成协议，2016年8月10日该区政府对杨某按照一套房的标准，作出房屋征收补偿决定，杨某不服，向法院提起行政诉讼，请求撤销被诉征补决定。一审法院组织当事人进行调解但没有成功，后以房屋征收部门按照“一证一户”进行征收符合征收政策为由，判决驳回杨某的诉讼请求。杨某不服，向上海高院提起上诉，经二审法院再次调解，征收双方达成调解协议，二审法院制作行政调解书，促成征收补偿和限购答复争议同步化解。 |
| II. Main Practices for Resolution of Disputes through Coordination | | 二、协调化解的主要作法 |
| 1. The Higher People's Court of Shanghai Municipality studied and judged the necessity and possibility of promoting settlement through coordination. In this case, the housing expropriation department made the alleged expropriation compensation decision according to the standard of “one certificate for one household,” which complied with the expropriation policy, but was in conflict with the reply on purchase restriction. During the trial of first instance, the government department explicitly stated that the reply on purchase restriction was inappropriate. The two independent and correlative disputes, expropriation compensation and purchase restriction, were intertwined in this case. If the court only rendered a judgment on the issue of expropriation compensation, the dispute would still exist and may give rise to new litigation. Upon study, the collegial bench held that mediation was necessary and possible in this case. | | （一）先行研判促进协调和解的必要与可能。在本案中，房屋征收部门按照“一证一户”的标准作出被诉征补决定符合征收政策，但与限购答复内容相冲突。一审期间政府部门明确表示限购答复存有不当。本案交织着征收补偿与限购答复两个既独立又关联的争议，仅就征收补偿问题作出判决，争议将依然存在并可能引发新的诉讼，合议庭经研判认为本案具有调解的必要和可能。 |
| 2. The Higher People's Court of Shanghai Municipality communicated with the court of first instance and prepared a new mediation plan on the basis of the trial of first instance. The court of second instance positively communicated with the court of first instance and learnt the progress and difficulties of mediation made by the court of first instance. It organized the parties to communicate their real claims. In the mediation plan it prepared, the legality baseline of “one certificate for one household” was adhered to and the possible losses of Yang caused by the erroneous reply on purchase restriction may be given due consideration; by making legal reasoning, the court of second instance persuaded the person subject to expropriation into accepting the new plan and issued to the expropriation department the Letter of Proposal for Assisting in the Substantial Resolution of the Administrative Dispute over Expropriation Compensation to Yang, which elaborated the grounds, specific plan, and work steps for substantial resolution of the administrative dispute involving this household and was used by the expropriation department as the means for adjusting the resettlement and compensation plan. | | （二）与一审法院沟通，在一审的基础上拟定新的调解方案。二审法院与一审法院积极沟通，了解一审法院调解的进度和难点。多次组织当事人沟通真实需求，拟定的调解方案在坚持“一证一户”合法性底线的同时，适当考虑弥补杨某因错误限购答复可能造成的损失；二审法院通过辩法析理，说服被征收人接受新方案的同时向征收部门制发《关于协助实质化解杨某户征收补偿行政争议的建议函》，阐释实质化解该户行政争议的理由、具体方案以及工作步骤，供征收部门作为调整安置补偿方案的抓手。 |
| 3. The Higher People's Court of Shanghai Municipality timely organized both parties to sign an agreement and ensured the implementation of the mediation plan. After both parties reached a consensus, the judges handling the case organized both parties to sign the mediation transcripts as soon as possible. To avoid such circumstances that the parties went back on their words, which may affect the later implementation, the court specially selected the place of mediation in the expropriation base and specified that the mediation transcripts had legal effect with the signatures of the parties. After the signing of the mediation transcripts, the court immediately organized the parties to expropriation to sign a new expropriation compensation and resettlement agreement and completed the formalities for the delivery of the original houses. Considering that the mediation content involving the resolution of the dispute over reply on purchase restriction was not reflected in the resettlement and compensation agreement, as required by both parties, the court of second instance prepared an administrative mediation agreement in accordance with the provisions of Article 60 of the Administrative Procedure Law, which has guaranteed the enforceability and executability of the mediation content. The judges handling the case continuously tracked the performance of the agreement and the expropriation department accelerated the work pace so as to ensure that Yang should receive the price difference before the Lunar New Year. | | （三）及时组织双方签约，确保调解方案落地。待双方达成共识以后，承办法官在第一时间组织双方签订调解笔录。为避免出现当事人反悔等影响后期执行的情况，特地将调解地点选在征收基地，并明确调解笔录内容因各方当事人签字即具有法律效力。调解笔录签订后，即就地组织征收双方签订新的征收补偿安置协议，并且将原有住房的交房手续一并完成。鉴于部分涉及化解限购答复争议的调解内容未在安置补偿协议中体现，二审法院根据双方当事人的要求，按照行政诉讼法第六十条的规定制作了行政调解书，确保了调解内容的强制力和执行性。承办法官持续跟踪协议履行情况，征收部门加快工作节奏，确保杨某在农历新年前提前拿到差价款。 |
| 4. Major work achievements. In this case, the administrative dispute was substantially resolved, which achieved the good effects of synchronous completion of “mediation, signing of a contract, and house delivery” and synchronous resolution of the disputes over expropriation compensation and reply on purchase restriction. In the mediation transcripts, the expropriation department spoke highly of the people's courts for their efforts in connecting with the basic-level entities, serving the big picture, and resolving expropriation compensation disputes. Yang, the person whose houses were expropriated, spoke highly of the people's courts' work style of “care for the people and justice for the people” and specially sent a silk banner “professional dedication, integrity, and relieving of worries for the people” as a token of his appreciation. | | （四）主要工作成效。本案行政争议得到实质性化解，达到了“调解、签约、交房”同步完成，征收补偿和限购答复争议同步化解的良好效果。征收部门在调解笔录中高度评价法院深入基层，服务大局，为化解征收补偿争议所付出的努力。被征收人杨某为赞扬法院心系百姓、司法为民的工作作风，特意送来“敬业正直、为民解忧”的锦旗，以示感谢。 |
| III. Significance | | 三、典型意义 |
| The court of second instance should pay full attention to the mediation work conducted by the court of first instance. The superior and subordinate courts should fully communicate with each other, maintain the linkage, learn the actual claims of all parties, and prepare a reasonable mediation plan. The court issued a letter of proposal for assisting in the substantial resolution of the administrative dispute to the government department as the circumstance may require and interpreted the grounds on the substantial resolution of the administrative dispute and the proposed plan, and such letter of proposal may serve as an important means for the government department to accept the mediation plan. The signing of an expropriation compensation agreement requires the use of a special software system. In this case, the court chose to sign the mediation transcripts in the expropriation base. In this way, at the same time of signing the mediation transcripts, the court may organize both parties to expropriation to sign a new agreement on expropriation compensation and resettlement, which has promoted the synchronous completion of “agreement-signing and house delivery” and avoided the possible new dispute arising from the performance of the agreement to the maximum extent. By preparing an administrative mediation agreement, the court endowed the mediation agreement the equal legal effect, which has fully safeguarded the effect of substantial resolution of the administrative dispute. | | 二审法院要充分重视一审的调解工作，上下级法院要充分沟通、保持联动，了解各方当事人的真实诉求，拟定合理的调解方案。法院根据情况向政府部门发送协助实质化解行政争议建议函，阐明实质化解行政争议的理由和建议方案，可为政府部门接受调解方案提供重要抓手。征收补偿协议的签订需要利用专门的软件系统，本案中，法院将调解笔录的签订地点选在征收基地，可以调解笔录签订的同时即组织征收双方签订新的征收补偿安置协议，促成“签约、交房”同步完成，最大限度避免了协议履行过程中可能发生的新争议。本案通过制作行政调解书，赋予调解内同予法律效力，充分保障了行政争议实质性解决的效果。 |
| Case No. 2 | | 案例二 |
| Chen v. Market Supervision and Administration Bureau of Pudong New Area, Shanghai Municipality (A case of an application for retrial arising from a complaint) | | 陈某诉上海市浦东新区市场监督管理局投诉举报申请再审案 |
| I. Basic Facts | | 一、基本案情 |
| In July 2016, the Market Supervision and Administration Bureau of Pudong New Area received a complaint from Chen. According to Chen, in June 2015, he bought a mobile phone of a certain model produced by A Company. After entering the serial number of the mobile phone on its official website, it was displayed that this mobile phone “has been replaced.” Therefore, he believed that the mobile phone he bought was a refurbished equipment and A Company's act was a fraud, which violated the provisions of Article 55 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests. Chen filed a complaint, requested the Market Supervision and Administration Bureau of Pudong New Area to verify the situation, and ordered A Company to increase compensation for Chen's losses, and the increased compensation should be three times of the price of the product paid by Chen. In August 2016, the Market Supervision and Administration Bureau of Pudong New Area organized mediation between Chen and A Company and the mediation was terminated since both parties failed to reach a consensus. During the period, A Company provided a Statement, production information, product delivery information, and other materials to the Market Supervision and Administration Bureau of Pudong New Area and alleged that the information displayed upon inquiry by Chen was caused by an error in the internal system of A Company and upon restoration, correct information was displayed and the mobile phone bought by Chen was a new one. On August 9, 2016, the Market Supervision and Administration Bureau of Pudong New Area made the alleged reply and it held that there was no evidence proving that A Company's sale of the aforesaid mobile phone was suspected of violating any law. Therefore, it decided to not docket this case. The relevant reply was served on Chen according to the law, but Chen refused to accept it and appealed to the court. After the court of first instance ruled to dismiss Chen's claim and the court of second instance ruled to dismiss the appeal and uphold the original judgment, Chen filed an application for retrial with the Higher People's Court of Shanghai Municipality. Upon resolution of this administrative appeal through coordination, Chen and A Company reached a settlement on matters concerning compensation for the mobile phone involved, Chen filed an application with the Court for withdrawing the application for retrial, and the dispute has been properly resolved. | | 浦东市场监管局于2016年7月收到陈某投诉，反映其于2015年6月购买了A公司某型号手机，后经该品牌手机官方网站查询，发现输入序列号后显示该手机“已更换过”，故认为自己买到的是翻新设备，A公司的行为存在欺诈，违反了《中华人民共和国消费者权益保护法》第五十五条的规定，陈某就此投诉举报，请求浦东市场监管局对此情况予以核实，并责令A公司增加赔偿陈某受到的损失，增加赔偿的金额为消费者购买商品的价款的三倍。2016年8月，浦东市场监管局组织陈某与A公司进行调解，因双方未达成一致而终止调解。期间，A公司向浦东市场监管局提供了《情况说明》、产品信息、产品运送信息等材料，称陈某查询到的信息显示系A公司内部系统错误导致，经过修复后已可以显示正确的信息，陈某购买的是全新手机。2016年8月9日，浦东市场监管局作出被诉答复，认为现无证据证明A公司销售手机的行为涉嫌违法，故决定不予立案。相关答复书依法送达陈某，陈某不服诉至法院。在一审法院判决驳回陈某的诉讼请求，二审法院判决驳回上诉，维持原判之后，陈某向上海高院提出再审申请。该行政申诉案件经法院协调化解，陈某与A公司就手机赔偿事宜达成和解，陈某向法院申请撤回再审申请，争议得到妥善解决。 |
| II. Main Practices for Resolution of Disputes through Coordination | | 二、协调化解的主要做法 |
| I. The cruxes of the problem were sought and the substantial disputes were specified. The party involved filed this lawsuit since he refused to accept the decision made by the Market Supervision and Administration Bureau on the handling of the complaint. However, after careful analysis of this type of appeals, it may be found that the objection raised by the party involved to the decision on the handling of the complaint was substantially a dispute further arising from his failure to reach a compensation solution with the merchant after filing a complaint as a consumer. As long as the civil dispute of safeguarding the consumer's rights and interests as the substantial issue was resolved, the administrative dispute may be readily resolved. In the trial of this case, the judges handling the case found upon consultation of the case files that the administrative dispute between Chen and A Company was not resolved since there may be still civil dispute being handled. They immediately searched in the “Judicial Case Inquiry System” whether there was a civil action between the parties. Upon search, the judges handling the case found that there was indeed the relevant civil compensation dispute between Chen and A Company under the trial of the People's Court of Pudong New Area. The judges handling the case immediately contacted the civil judge of the People's Court of Pudong New Area and learned the relevant case facts. They not only identified the cruxes for the problem, but sought the starting point for coordination in this case and preliminarily determined the case handling plan of “using coordination as the policy and jointly linking the administrative litigation and the civil litigation.” | | （一）找寻问题症结，明确实质争议。本案当事人因对区市场监管局的投诉处理决定不服而提起诉讼，但仔细分析这类诉求，可以发现当事人对行政机关投诉处理决定的异议，实质上是其作为消费者在投诉举报之后因与商家无法达成赔偿解决方案而进一步产生的争议。只要作为实质性问题的消费者权益保护民事争议得到解决，行政争议便可迎刃而解。在该案的审理过程中，承办法官在阅卷之后察觉到陈某与A公司并未得到解决，可能尚有民事争议在处理过程中，随即通过“审判案件查询系统”检索当事人之间是否存在民事诉讼。经检索发现，陈某与A公司确实正有相关民事赔偿纠纷在浦东法院审理中。承办人当即与浦东法院民事法官进行联系，了解相关案情，不仅发现了问题的症结，而且找到了案件协调的突破口，初步确立了“以调为策、行民联动”的案件处理方案。 |
| 2. Mutual leveraging between an administrative action and a civil action was applied and the disputes were resolved through vertical cooperation. Under normal circumstances, in a cross case of administrative litigation and civil litigation, the substantial resolution of the administrative dispute often depends on the advanced resolution of the civil dispute. However, in administrative cases of complaints, the resolution of these administrative disputes through coordination may instead further promote the resolution of disputes over safeguarding of consumers' rights and interests. As a result, in the handling of cross cases of administrative litigation and civil litigation, the administrative litigation and civil litigation may “depend on each other, skillfully exert forces, and form joint forces,” so as to achieve the effect of “accomplishing a great task with little effort by clever maneuvers.” After contacting the civil judges of the People's Court of Pudong New Area, the judges handling the case learnt that although mediation was the best handling plan for the civil action between Chen and A Company, after conducting mediation three times, both parties failed to reach a mediation intention and the mediation came to a deadlock. It was urgent to adjust the thinking and depend on a third party to promote the resolution of contradictions. Upon researches and repeated consultations, the judges handling the administrative case and the civil case determined the dispute resolution plan of “depending on each other and resolving the disputes through vertical cooperation.” Finally, under the relevant coordination work of the Higher People's Court of Shanghai Municipality, these two cases achieved expected effects. | | （二）行民相互借力，上下联动化解。一般情况下，行民交叉案件中行政争议的实质性解决往往有赖于民事争议的先行解决。但在投诉举报类行政案件中，这类行政争议的协调化解反而可以进一步推动消费者权益保护争议的解决。因此，在处理这类行民交叉案件时，行政诉讼和民事诉讼可以“相互借力、巧妙发力、形成合力”，从而达到四两拨千斤的效果。承办法官在与浦东法院民事法官取得联系后得知，陈某与A公司的民事诉讼，虽然调解是最佳的处理方案，但该民事案件经过三次调解，双方始终无法达成调解意向，调解工作陷入僵局，迫切需要调整思路，借助第三方力量促成矛盾化解。行政案件和民事案件的承办法官经过多次研究、反复协商，确定了“相互借力、上下联动”的化解方案。两案最终在高院进行了相关协调工作，取得了预期的效果。 |
| 3. The court knew the real thoughts and prepared a plan for coordination. After multiple heart-to-heart talks with the party involved in advance, the judges handling the case learnt that Chen filed several civil and administrative lawsuits for the following real reasons: In their honeymoon trip, he and his wife took a large number of photographs with the mobile phone involved. After finding that the mobile phone was damaged and failed to be switched on, he immediately went to A Company and required maintenance and repair, but he was replied that the mobile phone “has been replaced” and it could not be repaired. Afterwards, A Company admitted that the information display that “(the mobile phone) has been replaced” was caused by an error in its internal system. Under this circumstance, Chen was ashamed into anger and then constantly filed complaints and filed several lawsuits. After learning the aforesaid background information, the judges handling the case consciously persuaded Chen from his stand, point of view, and mood in the work of dispute resolution and relieved his intense emotion. Finally, the party involved expressed that his ultimate purpose was to restore the precious photographs saved in the mobile phone and he was willing to accept mediation and withdraw the lawsuit as long as the mobile phone could be repaired. Where the photographs fail to be restored, he wished that A Company should compensate him and enable him to keep the mobile phone with the hope to conduct data recovery after the development of technologies in future. After communication with Chen, the judges handling the case knew the real and reasonable substantial claim and immediately stated the situation to A Company through the civil judges, interpreted the gains and losses, and prepared a feasible dispute resolution plan and a detailed work plan before formally carrying out the resolution work. | | （三）掌握真实想法，拟定协调预案。承办法官通过事先多次与当事人推心置腹的谈话，了解到陈某提起民事、行政等多个诉讼的真实原因其实是：其与妻子新婚蜜月旅行时用涉案的手机拍摄了大量珍贵的照片，在发现手机损坏无法开机之后，随即前往A公司要求维修，但得到的回复却是该手机“已更换过”，无法维修。事后，A公司承认“已更换过”的信息显示系A公司内部系统错误导致。在此情况下，陈某恼羞成怒，继而不断投诉举报，并提起多个诉讼。了解了这一背景情况，承办法官在做化解工作时有意识地从当事人的立场、角度、心情出发进行劝说，缓解其激烈情绪。最终，当事人表达了其最终目的还是想恢复手机里珍贵的照片，只要能修复其手机，其愿意调解并撤诉。在无法恢复照片的情况下，其希望A公司在对其进行赔偿的同时能够让其保留该手机，待今后技术发展后再进行数据恢复。通过沟通，承办法官掌握了当事人这一真实且较为合理的实质性诉请后，随即通过民事法官向A公司反映情况，释明利弊关系，在正式展开化解工作前拟定了可行的化解方案和详细的工作预案。 |
| 4. The leader of the administrative organ appeared in court and urged the dispute resolution. The appearance of the person-in-charge of an administrative organ in court to respond to lawsuits is not only a legal obligation, but an effective method for resolving administrative disputes. When preparing the plan for resolution of disputes through coordination in this case, the judges handling the case raised a claim to the respondent, the Market Supervision and Administration Bureau of Pudong New Area, that they hoped the person-in-charge of the subordinate market supervision and administration institution under the Market Supervision and Administration Bureau of Pudong New Area handling the dispute over the complaint filed by the consumer should appear in court and participate in the mediation. On the day of mediation, under the circumstance where the mediation intention was basically reached, but the mediation may not be carried forwards due to a small link, the person-in-charge of the market supervision and administration institution decided on the spot to optimize the mediation plan. The dispute involved was finally successfully resolved through coordination under the positive participation of the person-in-charge of the administrative organ. The specific mediation plan was as follows: (1) The mobile phone involved was owned by Chen; (2) A Company voluntarily compensated Chen half of the value of the mobile phone; and (3) Chen withdrew the civil lawsuit filed with the People's Court of Pudong New Area and the application for retrial filed with the Higher People's Court of Shanghai Municipality. | | （四）行政领导出庭，力促争议解决。行政机关负责人出庭应诉不仅是法定义务，更是化解行政争议的有效方法。在拟定该案协调化解方案时，承办法官向被申请人浦东新区市场监管局提出了希望处理该起消费者投诉举报纠纷的该局下属的市场监管所负责人到法院参加调解的要求。调解当日，在已经基本达成调解意向却因一小环节而可能无法进行下去的情况下，市场监管所负责人当场决定优化调解方案，该案纠纷最终在行政机关负责人的积极参与下，得以圆满的协调化解，具体调解方案是：1、涉案手机一个归陈某所有；2、A公司自愿补偿陈某手机价值的一半金额；3、陈某向浦东法院撤回民事案件的起诉、向高院撤回再审申诉申请。 |
| III. Significance | | 三、典型意义 |
| This is a model administrative case of market supervision and administration involving complaints. In conducting the work of dispute resolution through coordination, the judges have better grasped the characteristics of such cases, namely, the objection raised by the party to the handling decision made by an administrative organ was often the dispute further arising from the party's failure to reach a compensation solution with the merchant as a consumer. As long as the civil dispute of safeguarding the rights and interests of consumers was resolved, the administrative dispute may be readily solved, and the coordination and resolution of the administrative dispute may also be conducive to promoting the resolution of dispute over safeguarding the rights and interests of consumers. Before the work of dispute resolution through coordination was carried out, the real appeal of the party involved was known. By “depending on each other, skillfully exerting forces, and forming joint forces” between the administrative litigation and the civil litigation in the dispute resolution through coordination and “assisting” by the appearance in court of the person-in-charge of the administrative organ, the final handling result has realized the unity of legal effects and social effects. | | 该案为一起典型的涉及投诉举报的市场监督管理行政案件。法官在开展协调化解工作时较好地把握了这类案件的特点，即当事人对行政机关投诉处理决定的异议，其实质往往是其作为消费者因与商家无法达成赔偿解决方案而进一步产生的争议。只要消费者权益保护民事争议得到解决，行政争议便可迎刃而解，反之，行政争议的协调化解也有利于推动消费者权益保护纠纷的解决。该案在开展协调化解工作之前，掌握了当事人的真实诉求，在协调化解中行政诉讼和民事诉讼“相互借力、巧妙发力、形成合力”，再加上行政机关负责人出庭“助力”，最终的处理结果实现了法律效果和社会效果的双统一。 |
| Case No. 3 | | 案例三 |
| Ye et al. v. People's Government of Sijing Township, Songjiang District, Shanghai Municipality (An appeal case of administrative compulsion) | | 叶某等诉上海市松江区泗泾镇人民政府行政强制上诉案 |
| I. Basic Facts | | 一、基本案情 |
| In March 2017, in the name of the Office of the Leading Group for Comprehensive Treatment of Ecological Environment in Sijing Township, Songjiang District, the People's Government of Sijing Township issued the Notification on Enterprises in the Industrial Park and all enterprises in the Park were notified that any enterprise illegally discharging pollutants or failing to pass the environmental impact assessment should immediately cease production according to the requirements for comprehensive treatment of the ecological environment at the municipality level and the relevant provisions on the administration of the Sijing Industrial Park, such enterprise should be completely shut down and removed before March 31, 2017. For proprietors and tenants that failed to remove within the prescribed time limit or persisted in doing wrong despite repeated advices, the People's Government of Sijing Township should conduct joint law enforcement with the relevant functional departments and adopt compulsory measures, with such proprietors and tenants taking sole responsibility for the consequences. Ye and other persons were proprietors of the aforesaid plants within the industrial park that were notified and they refused to accept the aforesaid Notification, separately filed lawsuits with the People's Court of Songjiang District, and requested the Court to rule to confirm the illegality of the Notification. After the trial of first instance, the People's Court of Songjiang District held that the objects of the alleged Notification were enterprises in the Sijing Industrial Park in Songjiang District other than only several proprietors and such notification did not obviously produce actual impacts on the lawful rights and interests of the relevant proprietors. Therefore, the Court ruled to dismiss the lawsuits filed by Ye and other persons. Ye and other persons refused to accept the judgment of first instance and appealed to the First Intermediate People's Court of Shanghai Municipality. The First Intermediate People's Court of Shanghai Municipality held upon trial that the alleged Notification was an act with explicit obligations for specific objects committed by the People's Government of Sijing Township based on specific administrative purpose and it had the features of an administrative act and produced actual impacts on the rights and obligations of the counterpart. In addition, the aforesaid Notification has been enforced as a matter of fact and the original ruling was actually inappropriate to dismiss the lawsuits. Therefore, the original ruling was set aside and the court of first instance was ordered to continue the trial of this case. In the trial on the merits of this case, the People's Court of Songjiang District determined that the alleged Notification was substantially an administrative order, which exceeded the statutory functions of the People's Government of Sijing Township. In addition, the ascertained facts were unclear, the People's Court of Songjiang District failed to legally apply the law, and the procedures were illegal. Therefore, the First Intermediate People's Court of Shanghai Municipality ruled to confirm the illegality of the alleged Notification. The court of second instance affirmed the original judgment. | | 2017年3月，泗泾镇政府以松江区泗泾镇生态环境综合整治领导小组办公室名义发布《工业园区各企业告知书》，告知园区内各企业，根据市级生态环境综合整治要求及泗泾镇工业区管理有关规定，所有存在违法排污或未做环评的企业，即日起一律停止生产，并于2017年3月31日前彻底关闭搬离，对逾期不搬并屡劝不改的业主及租客将联合相关职能部门共同执法，并采取强制措施，后果自负。叶某等系前述告知所针对园区内的厂房业主，其对上述告知书不服，遂分别诉至松江法院，请求判决确认该告知违法。松江法院一审审理后认为，被诉告知的对象是松江区泗泾镇工业园区各企业，并不仅针对几位业主，且该告知书对相关业主的合法权益明显不产生实际影响，遂裁定驳回起诉。叶某等不服，上诉至上海一中院。上海一中院审理后认为，被诉告知系泗泾镇政府基于特定行政管理目的，对特定对象作出的具有明确义务内容的行为，具有行政行为特征，对相对人的权利义务产生实际影响，且事实上该告知已经得到执行，原审裁定驳回起诉确有不当，遂予撤销，指令原审法院继续审理。该案实体审理中，松江法院认定被诉告知属于实质意义上的行政命令，该命令超越了泗泾镇政府的法定职权，且认定事实不清，未依法适用法律，程序违法，遂判决确认违法。二审法院维持原判。 |
| II. Main Practices for Resolution of Disputes through Coordination | | 二、协调化解的主要做法 |
| 1. Basing on the case facts, the court of second instance accurately defined the nature of the alleged Notification. In the trial and adjudication of the appeal case, the First Intermediate People's Court of Shanghai Municipality first based on the finding of case facts. Upon review of this case, the collegial bench formed opinions different from those of the court of first instance. For the purpose of further confirming the nature and actual effect of the alleged Notification, the collegial bench also paid a field visit and the results of the filed visit further consolidated the opinions of the collegial bench. By this time, the collegial bench has known fairly well the nature of this case. | | （一）立足案件事实，准确界定被诉告知性质。上海一中院在审理裁定上诉案件的过程中，首先立足于查清案件事实。合议庭对案件进行审查后，形成了与一审法院不同的意见。为进一步确认被诉告知的性质及实际效力，合议庭还实地走访了现场，而现场走访的结果也进一步巩固了合议庭的意见。此时，合议庭对案件定性已经做到心中有数。 |
| 2. By taking the impacts of this case into consideration, the court of second instance made efforts to build a communication and coordination platform. Since the alleged Notification covered a wide range, although the case facts have been found, for the purposes of reducing litigation burdens of all parties as much as possible and working out an overall solution to problems, the collegial bench still organized both parties to conduct communication and coordination for several times in the trial and it has fully interpreted the nature of the case and other issues to both parties. However, due to differences in the claims of both parties, they failed to reach a consensus. | | （二）考虑案件影响，努力搭建沟通协调平台。因被诉告知涉及面较广，虽然案件事实已经查清，但为尽可能减少各方讼累，并找到整体问题的解决方案，合议庭在审理过程中仍多次组织双方进行沟通协调，在协调过程中，也对案件性质等问题对双方进行了充分释明。但因双方各自主张存在差距，未能达成一致。 |
| 3. To avoid prolonged resolution of disputes, the court of second instance decisively promoted communication by adjudication. There was a deadlock in the talks of both parties. Upon deliberation, the collegial bench held it necessary to decisively render a ruling based on the ascertained facts, fully state reasons in the ruling, waste no time in making clear of the attitude of the people's court to all parties, use the ruling as an example, and promote settlement by the ruling. | | （三）避免久拖不决，果断以裁判促沟通。双方谈判出现僵局，合议庭评议后认为有必要根据已查明事实，果断作出裁定，并在裁定中充分说明理由，及时向争议各方明确人民法院的态度，以裁定作示范，以裁定促和解。 |
| The subsequent development of this case showed that such decisive handling of “letting the other boot fall to the ground” has made the expected goal be achieved. On the one hand, by incorporating the aforesaid individual case into the trial on the merits and rendering a judgment, it directly produced demonstrative effect on the handling of subsequent problems of other proprietors, in which way litigation burdens were avoided. On the other hand, in the trial on the merits of the alleged Notification, the court recognized the opinions in the effective ruling, made all parties further specify their litigation expectations, which reduced confrontations, and started a new round of negotiations with mutual understanding and pragmatic attitudes. The government made clear that it would subsequently promote the treatment according to the law, it was willing to actively negotiate with proprietors on the disputes arising therefrom, and it hoped that a package arrangement be worked out to solve the overall problems by taking this opportunity; and the proprietors expressed their understanding and were willing to cooperate with the treatment by the government. | | 案件的后续发展表明，这种果断“让靴子落地”的处理，实现了预期目的。一方面，通过将上述个案纳入实体审理并作出判决，对后续其他业主问题的处理会直接产生示范效应，避免了讼累。另一方面，法院在对被诉告知进行实体审理过程中，认同本案生效裁定的意见，使各方进一步明确了诉讼预期，降低了对抗，并开始本着相互理解及务实的态度开展了新一轮协商。政府方面明确表示后续将依法推进整治工作，并愿意就产生的纠纷积极与业主进行协商，同时也希望能够借此契机找到解决整体问题的一揽子方案；而业主方面则表示理解并愿意配合政府的整治工作。 |
| III. Significance | | 三、典型意义 |
| Under normal circumstances, the communication and coordination of both parties to an administrative dispute and the final resolution of such dispute occur in the trial of the case. However, constrained by expectations of both parties for their own interests and different views on possible litigation risks, the work of coordination often cannot make advances for a long time. Finally, the case could only be closed with the rendering of a judgment while the dispute could not be substantially resolved. By this time, if we decisively promote coordination by adjudication, it would instead be conducive to leading the case out of “a dead end,” which was exactly the significance of this case. In cases where both parties hold different opinions, but there are a number of similar disputes that have not been in action, as long as the case facts are clear and there is no objection to the application of law, the court may transform ideas, render a judgment in a timely manner, and strengthen reasoning in the judgment, which can fundamentally distinguish right from wrong, provide clear guidance for the subsequent work of the administrative organ, and enable the counterparts to specify the boundaries of their lawful rights and interests and promote their understanding of the work of the administrative organ. By this time, the rendering of a judgment does not eliminate the space for both parties to communicate and coordinate, but will make both parties be more practical, produce stronger communication intentions, and enhance the communication effects. The solution formed thereby will produce obvious demonstration effects on the parties to similar disputes. At the same time of avoiding their litigation burdens, it will promote the resolution of disputes in a wider range. | | 一般情况下，对行政争议双方的沟通协调，以及争议的最终化解都发生在案件审理过程中。然而，囿于争议双方对自身利益的期许及可能的诉讼风险存在不同认知，协调工作经常久久不能取得进展，最终只能以判决结案，而争议并不能获得实质化解。此时，如能果断地以裁判促协调，反而会有利于将案件带出“死胡同”，这正是本案的典型意义所在。对于讼争双方各执己见，但同时又有大量同类争议尚未进入诉讼的案件，只要案件事实清楚，法律适用并无异议，可以转换思路，及时作出裁判，并在裁判中加强说理，这样做能够从根本上分清是非，为行政机关的后续工作提供明确导向，也使相对人明确自身合法权益的边界，增进对行政机关工作的理解。此时，裁判的作出，不但不会消除双方沟通协调的空间，反而会使双方更为务实，产生更强的沟通意愿，并增强沟通效果。所形成的解决方案则会对类似争议的当事人产生显著的示范效应，在避免其讼累的同时，也能促进更大范围内争议的化解。 |
| Case No. 4 | | 案例四 |
| Shanghai Weitai Hotel Supplies Co., Ltd. v. Development and Reform Commission and Economic Committee of Baoshan District, Shanghai Municipality et al. (An appeal case of administrative payment) | | 上海卫泰酒店用品有限公司诉上海市宝山区发改委、经济委员会等行政给付上诉案 |
I. Basic Facts
．．．．．． | | 一、基本案情
．．．．．． |
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