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No.9 of the 9 Model Cases Involving Examination of Regulatory Documents Incidental to Administrative Litigation Issued by the Supreme People's Court: Mao Aimei and Zhu Hongxing v. People's Government of Hecun Township, Jiangshan City, Zhejiang Province (administrative compulsion and administrative compensation)
最高人民法院发布9起行政诉讼附带审查规范性文件典型案例之九:毛爱梅、祝洪兴诉浙江省江山市贺村镇人民政府行政强制及行政赔偿案
【法宝引证码】
  • Type of Dispute: State Compensation
  • Legal document: Judgment
  • Procedural status: Trial at First Instance

No.9 of the 9 Model Cases Involving Examination of Regulatory Documents Incidental to Administrative Litigation Issued by the Supreme People's Court: Mao Aimei and Zhu Hongxing v. People's Government of Hecun Township, Jiangshan City, Zhejiang Province (administrative compulsion and administrative compensation)
(administrative compulsion and administrative compensation)
最高人民法院发布9起行政诉讼附带审查规范性文件典型案例之九:毛爱梅、祝洪兴诉浙江省江山市贺村镇人民政府行政强制及行政赔偿案
No.9 of the 9 Model Cases Involving Examination of Regulatory Documents Incidental to Administrative Litigation Issued by the Supreme People's Court: Mao Aimei and Zhu Hongxing v. People's Government of Hecun Township, Jiangshan City, Zhejiang Province (administrative compulsion and administrative compensation) 最高人民法院发布9起行政诉讼附带审查规范性文件典型案例之九:毛爱梅、祝洪兴诉浙江省江山市贺村镇人民政府行政强制及行政赔偿案
1. Basic facts (一)基本案情
Mao Aimei and her husband Zhu Hongxing were pig farmers in Hecun Township, Jiangshan City, Zhejiang Province. On May 31, 2015, the People's Government of Hecun Township, Jiangshan City, Zhejiang Province (hereinafter referred to as the “Hecun Government”) entered into the Pig Farm Shutdown and Farming Withdrawal Agreement with Zhu Hongxing, stipulating that Zhu Hongxing should shut down his pig farm, might not engage in pig farming in the original site, and should completely demolish the farming facilities covering an area of 374.3 square meters and that the township government should award him 10 yuan/square meter. The Hecun Government completed the acceptance of the demolition of the farming facilities that same day and credited 3,473 yuan farming withdrawal subsidies to Zhu Hongxing's individual account on July 23, 2015. On August 30, 2015, the Hecun Government discovered that Zhu Hongxing and his wife performed the act of restoring pig farming and delivered them a Notice of Ordering Shutdown and Farming Withdrawal, ordering them to shut down the farm, withdraw from farming and demolish the pigpen without compensation that same day. The Hecun Government discovered that the circumstances of pig farming remained on the morning of September 1, 2015, and organized forced demolition of the buildings in the pig farm on the afternoon of the same day. Zhu Hongxing and his wife was dissatisfied with the forced demolition by the Hecun Government and filed administrative litigation, requesting the court to confirm that the forced demolition by the Hecun Government was illegal and award him compensation for various losses of CNY408,230, in addition to applying for an incidental examination of the Notice on Advancing in Depth Pollution Remediation and Standardized Administration of Pig Farming (No. 29 [2014], General Office of the People's Government of Jiangshan City) as issued by the People's Government of Jiangshan City. 毛爱梅与其夫祝洪兴系浙江省江山市贺村镇生猪养殖户。2015年5月31日,浙江省江山市贺村镇人民政府(以下简称贺村镇政府)与祝洪兴签订《生猪养殖场关停退养协议》,约定祝洪兴关停其生猪养殖场,不得在原址上再从事生猪养殖,彻底拆除占地374.3㎡的养殖设施,由镇政府给予其10元/平方米奖励。当日,贺村镇政府对拆除养殖设施完成验收,并于2015年7月23日将退养补助款3473元转账支付至祝洪兴个人账户。2015年8月30日,贺村镇政府发现祝洪兴夫妇存在恢复生猪养殖的行为,向其发送《责令关停退养通知书》,责令其于当日无偿关停退养,并拆除栏舍。2015年9月1日上午,贺村镇政府发现仍存在生猪养殖情形,遂于当日下午组织对养猪场建筑进行强制拆除。祝洪兴夫妇因对贺村镇政府实施的强制拆除行为不服,提起行政诉讼,请求法院确认贺村镇政府的强制拆除行为违法,赔偿其各项损失408230元,并申请对江山市人民政府《关于深入推进生猪养殖污染整治和规范管理的通知》(江政办发[2014]29号)进行附带审查。
2. Adjudication (二)裁判结果
The People's Court of Kecheng District, Quzhou City, Zhejiang Province, as the court of first instance, held that because the Pig Farm Shutdown and Farming Withdrawal Agreement between Zhu Hongxing and the Hecun Government stipulated the obligations of both parties only with respect to the demolition of farm facilities, instead of the buildings in the pig farm, and the obligations of both parties had been performed, the forced demolition by the Hecun Government on September 1, 2015 was not the performance of the agreement. In the process of implementing the forced demolition, the Hecun Government failed to complete the procedures such as request for performance, notification, and making an enforcement decision in accordance with the provisions of the Administrative Compulsion Law我反正不洗碗,我可以做饭 and violated the legal procedures. However, because there was no causal connection between the loss claimed by Zhu Hongxing or illegal property and the forced demolition, and the compensation circumstances as provided for by the State Compensation Law and other relevant laws and regulations were not met, compensation was denied. Zhu Hongxing requested concurrent examination of the regulatory document, No. 29 [2014], General Office of the People's Government of Jiangshan City and specified before court his belief that paragraph 3, Article 3 of the document was illegal. As the content of the article was a policy for subsidies for withdrawal from pig farming, not a legal basis for the forced demolition by the Hecun Government in this case, the court decided to deny examination. After the judgment, neither party appealed. 浙江省衢州市柯城区人民法院一审认为,祝洪兴与贺村镇政府签订的《生猪养殖场关停退养协议》中仅就拆除养殖场设施约定双方义务,并未就养猪场建筑的拆除进行约定,且随后双方义务均已履行完毕,故贺村镇政府在2015年9月1日实施的强制拆除行为并非履行协议内容。贺村镇政府在实施强制拆除过程中,未依照行政强制法的规定履行催告、告知、作出强制执行决定书等程序,属程序违法。但祝洪兴所主张的损失或非合法财产、或与强制拆除行为之间缺乏因果关系,不符合国家赔偿法等相关法律法规规定的赔偿情形,故不予赔偿。另,祝洪兴请求一并审查的江政办发[2014]29号规范性文件,经其当庭明确系认为该文件第三条第三款不合法,而该条款内容系对生猪退养相关补助的政策规定,非本案贺村镇政府实施强制拆除行为的法律依据,故决定不予审查。判决后,双方均未上诉。
3. Significance谨防骗子 (三)典型意义
This case once again specified the incidental nature of the objects of examination in the incidental examination system of regulatory documents, to wit: only a regulatory document that serves as the basis of the alleged administrative action may become the object of examination by the people's court. If a regulatory document is not the legal basis for an administrative agency to take administrative actions, the people's court shall deny examination. The campaigns such as “three-sphere changes and one-sphere demolition” and “water-related common governance” conducted with the core aim of promoting economic and social transformation and upgrading are the important embodiment of the five major development concepts including innovation, coordination, greenness, openness and sharing, which were proposed at the Fifth Plenary Session of the 18th CPC Central Committee. The regulation and improvement of the pig farming industry that seriously affects the ecology and environment is an important part of the construction of ecological civilization, in which environmental protection authorities and township governments play a major role. When trying such administrative cases, people's courts shall: first, examine the basis of authority, legal basis and law enforcement procedures of administrative agencies and strictly examine the legality of actions such as forced demolition; and second, in respect of the contents involving compensation, strictly conduct examination according to the elements such as “lawful rights and interests,” direct loss, and causality between action and loss in the State Compensation Law, the Provisions of the Supreme People's Court on Certain Issues Concerning Trial of Administrative Compensation Cases, and other laws and judicial interpretations. The regulatory document in this case was not the basis for the administrative action, and the people's court denied examination according to the provisions of the Administrative Procedure Law, specifying the legal boundaries of the regulatory documents susceptible to incidental examination. 本案再次明确了规范性文件附带审查制度中审查对象的附带性,即作为被诉行政行为依据的规范性文件才可能成为人民法院的审查对象。如果规范性文件不是行政机关实施行政行为的法律依据,那么人民法院将不予审查。以促进经济社会转型升级为核心目标开展的“三改一拆”“五水共治”等活动,是贯彻党的十八届五中全会提出“创新、协调、绿色、开放、共享”五大发展理念的重要体现。对于严重影响生态环境的生猪养殖业开展整治提升,是生态文明建设的重要环节,环保部门和乡镇政府在其中发挥着主要作用。人民法院在审理此类行政案件中,一方面要依法审查行政主体的职权依据、法律依据和执法程序,对强制拆除等行为应严格审查其合法性;另一方面对于涉及赔偿的内容要依照国家赔偿法以及《最高人民法院关于审理行政赔偿案件若干问题的规定
感觉黑人都特别团结
》等法律、司法解释中“合法权益”、直接损失、行为与损失之间因果关系等要素进行严格审查。本案中规范性文件并非行政行为作出依据,人民法院根据行政诉讼法的规定不予审查,明确了可以附带审查的规范性文件的法律界限。
     
     
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