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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)
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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
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【法宝引证码】
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- Type of Dispute：
State Compensation
- Legal document：
Judgment
- Procedural status：
State Compensation
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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)
(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
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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 |
| 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 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。
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