Supreme Court case: compensation for illegal construction should distinguish between legal property and illegal property


The respondent shall compensate the applicant for the economic loss of 9935337 yuan caused by the illegal demolition of the applicant’s house.

Request rejection of the applicant’s application for retrial.

Entrusted agent: Wu Dongji.

Paragraph 2 of Article 38 of the administrative procedure law of the people’s Republic of China stipulates that in cases of administrative compensation and compensation, the plaintiff shall provide evidence for the damage caused by the administrative act.

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Entrusted agents Zhou Tao and Chen Chen are lawyers of Beijing Chenglue law firm.

In the retrial of the administrative compensation case between the applicant Jin jingzeng and the respondent Nanning high tech Industrial Development Zone Management Committee of Guangxi Zhuang Autonomous Region (hereinafter referred to as Nanning high tech Zone Management Committee), Jin jingzeng applied to the court for retrial against the administrative judgment of (2018) GUI Xing Bao Zhong No.

The original trial found that Jin jingzeng had the right to obtain state compensation for the loss of the residual value of his reusable building materials; The machinery and equipment, raw materials and living articles in the buildings involved belong to legal property, and the losses suffered shall also be compensated.

The case has now been examined and concluded.

3.

Nanning high tech Zone Management Committee replied: 1 The retrial applicant has no new evidence, and the reason for his retrial application is also the repeated reason repeatedly put forward in the original trial.

According to the second paragraph of article 116 of the interpretation of the Supreme People’s Court on the application of the administrative procedure law of the people’s Republic of China, the ruling is as follows: Jin jingzeng’s application for retrial is rejected…

Based on the principle of fairness, the inversion of the burden of proof stipulated in the above laws should be applied to the determination of the loss of movable property involved in the case and the amount of compensation, that is, the administrative committee of Nanning high tech Zone should bear the adverse consequences of failure to provide evidence and bear the corresponding liability for compensation.

According to Article 54 of the provisions of the Supreme People’s Court on several issues of evidence in administrative litigation, the court shall examine the evidence that has been cross examined in court and the evidence that does not need cross examination one by one and comprehensively examine all the evidence, follow the professional ethics of judges, and make a comprehensive, objective and fair analysis and judgment by using logical reasoning and life experience, Determine the evidential relationship between evidence materials and case facts, exclude irrelevant evidence materials, and accurately identify case facts.

The amount of compensation borne by the respondent in the judgment of first instance and second instance lacks factual and legal basis.

873 retrial applicant (plaintiff of first instance and appellant of second instance) Jin jingzeng, male, born on January 28, 1966, Han nationality.

27 made by the higher people’s Court of Guangxi Zhuang Autonomous Region.

His retrial application should not be supported according to law.

The demolished factories and other buildings involved in this case have been recognized as illegal buildings because they have not gone through the relevant approval procedures such as planning permit, which do not belong to legal property and should not be compensated.

In conclusion, Jin jingzeng’s retrial application does not comply with the provisions of Article 91 of the administrative procedure law of the people’s Republic of China.

The demolished factories and other buildings involved in this case have been recognized as illegal buildings because they have not gone through the relevant approval procedures such as planning permit, which do not belong to legal property and should not be compensated.

Request to revoke the judgment of the first and second instance and change the judgment.

According to the situation of the buildings involved, the possible damage to machinery and equipment caused by the forcible demolition of the buildings involved, the damage degree of raw materials and the fact of partial recovery, as well as general life experience, and in combination with Jin jingzeng’s lawsuit request, the Management Committee of Nanning high tech Zone decided to compensate Jin jingzeng for all losses suffered in the process of forcible demolition, totaling 389600 yuan, It is in line with the reality of the case and reasonable, and the court supports it.

[judgment document] administrative compensation ruling of the Supreme People’s Court of the people’s Republic of China (2019) supreme law, bank and compensation No.

However, the available building materials and machinery and equipment, raw materials and living articles in the factories should belong to legal property and should be compensated according to law.

The scope of compensation determined in the original trial complies with the law and is not improper, which is supported by the court.

There is no factual or legal basis for the applicant to ask the respondent to compensate for the economic loss of 9935337 yuan.

Legal representative: Li Geng.

2.

Entrusted agent: Wang Dezhen, lawyer of Guangxi chuangxiang law firm.

2.

Due to the illegal and compulsory demolition of the Management Committee of Nanning high tech Zone, Jin jingzeng can only provide relevant on-site photos and relevant bills and materials, and has exhausted the means of proof to prove the existence of movable property loss.

However, the available building materials and machinery and equipment, raw materials and living articles in the factories should belong to legal property and should be compensated according to law.

[gist of judgment] the premise of obtaining state compensation is that the legitimate rights and interests of citizens, legal persons and other organizations are infringed and losses are caused.

In other words, the premise of obtaining state compensation is that the legitimate rights and interests of citizens, legal persons and other organizations are infringed and cause losses.

Retrial respondent (defendant of first instance and appellee of second instance) Nanning high tech Industrial Development Zone Management Committee.

The judgment of the second instance is inconsistent with the principle and spirit of administrative compensation established by the guiding jurisprudence of the Supreme People’s court.

The house involved in this case is an illegal building without planning permission and should be demolished, which is not legal property.

Jin jingzeng applied for retrial and said: 1 The applicant’s house involved in the case is legal property, and the respondent shall compensate the applicant for the illegal demolition of the house involved.

In this case, the administrative committee of Nanning high tech Zone should properly dispose of and preserve the evidence according to law in the process of forced demolition, but the administrative committee of Nanning high tech Zone failed to provide any relevant evidence and failed to fulfill the burden of proof.

3.

After examination, the court held that the first paragraph of Article 2 of the State Compensation Law of the people’s Republic of China stipulates that if a state organ or its staff infringes upon the legitimate rights and interests of citizens, legal persons and other organizations in the exercise of their functions and powers, resulting in damage, the victim has the right to obtain state compensation in accordance with this law.

If the plaintiff is unable to provide evidence due to the defendant, the defendant shall bear the burden of proof.

The court shall form a collegial panel for examination according to law.

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