Mr. Liu, who lives in a town in Xianyang, Shaanxi Province, cooperated with the town government in 2009 to replace the old homestead with a new homestead land that was not suitable for cultivation during the construction of the railway. Later, due to geological reasons, the homestead underwent geological subsidence, and the house appeared cracks, making it impossible to continue to live, and Mr. Liu renovated and strengthened the house on the original site of the homestead in 2023.
However, Mr. Liu, who thought he was foolproof, encountered a crisis, and the administrative penalty (handling) decision issued by the town government on April 19, 2024 erroneously identified the act as illegal and required it to be demolished within a time limit. Mr. Liu couldn't understand that it was obviously agreed by the town government to replace it at that time, but it was an illegal act to repair the house, and it was required to be demolished. In desperation, Mr. Liu approached Beijing Jingkang Law Firm for help. Shi Xining, the director of Jingkang Law Firm, appointed lawyer Zhang Lu to undertake Mr. Liu's case.
Jingkang lawyer's demeanor
After listening patiently to Mr. Liu's affairs, lawyer Zhang Lu popularized the illegal points of the town government's actions and relevant laws and regulations to Mr. Chen, and proposed a set of targeted plans. Hearing that there was no factual and legal basis for the actions made by the town government, and that the administrative penalty (handling) decision could be revoked, Mr. Liu's hanging heart was on the ground, and he immediately entrusted lawyer Zhang to represent the case, and under the guidance of lawyer Zhang, he mailed an application for administrative reconsideration to the town government.
In the application for administrative reconsideration, Mr. Zhang wrote:
1. From the perspective of the subject of punishment, the respondent is not a qualified subject of punishment. According to Article 74 of the Land Management Law of the People's Republic of China, the competent department of natural resources of the people's government at or above the county level shall be in charge of the illegal facts, and the respondent is not a qualified entity.
2. From a procedural point of view, the respondent did not inform the applicant of the applicant's right to make a statement or defense before making the administrative penalty (disposition) decision. Although the respondent made the Notice of Administrative Penalty Hearing, the notice was not served on the applicant in accordance with the legal procedures, and the applicant did not have the right to make a statement or defense, so the administrative penalty (handling) decision made by the respondent was procedurally illegal.
3. Judging from the determination of facts, the land used for the construction of the houses involved in the case was lawfully examined and approved by the village committee and the town government. The applicant's construction of a house on the homestead in the area complies with the provisions of the corresponding laws and regulations, and with the consent of the village committee and the town government, there is no illegal occupation of land. Therefore, the respondent's act of making the administrative penalty (handling) decision was an error in the determination of facts.
4. From the perspective of the application of law, the respondent's decision to impose an administrative penalty (disposition) on the application of law was wrong. Articles 2, 37, 44 and 77 of the Land Management Law of the People's Republic of China are all applied on the premise that the land occupied is illegally gained, but the land used by the applicant to build the house has been legally approved by the village committee and the town government, so there is no legal basis for the administrative penalty (handling) decision made by the respondent.
5. From the perspective of evidence, the administrative penalty (disposition) decision made by the respondent is not sufficiently evidenced. The respondent determined that the applicant had illegally occupied land to build a house without approval, but did not provide corresponding evidence of the applicant's illegal occupation of land, and could not draw the conclusion of "illegal occupation of land".
Case outcome
The content of the reconsideration application was analyzed in detail, and the town government really could not find a reason to refute it, so it made a report on the revocation of the administrative penalty decision, indicating that the "Administrative Penalty (Handling) Decision" had certain problems after self-examination, and revoked the administrative penalty decision on its own.
Director Shi reminded
Demolition and relocation is a long-term struggle that requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and updating, so that he can calmly analyze and make correct judgments in a case. And for non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.