How to relieve the contracted mountain farm from being deforested due to being classified as a nature reserve?

【Judicial Case】How to remedy the contracted mountain farm that cannot be harvested due to the fact that it is classified as a nature reserve?

Fujian Provincial High People's Court

Administrative Judgments

(2019) Min Xing Zhong No. 88

The appellant (plaintiff in the original trial) Zhong Jiantong, male, born on January 23, 1936, Han nationality, farmer, lives in Wuping County, Fujian Province.

Entrusted agent Zhong Zhizhong, male, born on September 3, 1968, Han nationality, farmer, living in Wuping County, Fujian Province, is the son of the appellant Zhong Jiantong.

Entrusted agent: Lan Guowang, lawyer of Fujian Tinghang Law Firm.

The appellant (plaintiff in the original trial) Qiu Wanlong, male, born on August 9, 1963, is of Han nationality, a farmer, and lives in Wuping County, Fujian Province.

Entrusted agent: Lan Guowang, lawyer of Fujian Tinghang Law Firm.

Entrusted agent: Xia Chengcheng, trainee lawyer of Fujian Tinghang Law Firm.

The appellee (defendant in the original trial) is the People's Government of Wuping County, with its domicile at No. 51, Government Road, Pingchuan Town, Wuping County, Fujian Province.

The legal representative is Liao Zhuowen, the county magistrate.

Entrusted agent Fang Bin, staff of Wuping County People's Government.

Entrusted agent Luo Yousheng, a staff member of Fujian Liangyeshan National Nature Reserve Administration.

The third person in the original trial, the Yunli Village Committee of Chengxiang Town, Wuping County, is domiciled in Yunli Village, Chengxiang Town, Wuping County, Fujian Province.

The legal representative is Qiu Guozhong, the village director.

Appellants Zhong Jiantong and Qiu Wanlong appealed to this court against the administrative judgment of the Longyan Intermediate People's Court (2018) Min 08 Xingchu No. 61 for suing the appellee, Wuping County People's Government, for the illegal administrative act of failing to provide administrative compensation or compensation. This court formed a collegial panel in accordance with the law and tried the case, and the trial has now been concluded.

The court of first instance ascertained that on May 1, 1988, the plaintiffs Zhong Jiantong and Qiu Wanlong signed the Forestry Production Contract with the third party, the Yunli Village Committee of Chengxiang Town, Wuping County, which stipulated the main contents of the contract such as the scope of the contracted mountain farm, the contract period and the sharing of economic benefits. The contract was notarized by the Wuping County Notary Office. After the contract was signed, the two plaintiffs operated and managed the contracted mountain farm. On August 26, 1996, the defendant Wuping County People's Government submitted to the former Longyan District Administrative Office the "Instructions of the Wuping County People's Government on the Establishment of the Liangye Mountain Nature Reserve in Wuping County" (Wu Zheng [1996] No. 62), requesting the Longyan District Administrative Office to approve the establishment of the Liangye Mountain Nature Reserve in Wuping County. On November 3, 1997, the People's Government of Wuping County issued the Circular of the People's Government of Wuping County on the Demarcation of the Liangye Mountain Nature Reserve (Wu Zheng [1997] Wen No. 406), which issued a notice on the demarcation of the protection scope of the Liangye Mountain Nature Reserve, and the scope of the mountain farm contracted by the two plaintiffs was within the scope of the demarcated nature reserve. On January 24, 1997, the Longyan District Administrative Office submitted to the Fujian Provincial People's Government the Instructions of the Longyan District Administrative Office on Requesting the Establishment of Wuping Liangye Mountain Nature Reserve (Yan Shu [1997] Zong No. 22), requesting the Fujian Provincial People's Government to approve the establishment of the Liangye Mountain Nature Reserve in Wuping County, and on February 9, 1999, the Fujian Provincial People's Government issued the Notice of the Fujian Provincial People's Government on Announcing the List of Provincial Nature Reserves such as Nanjing Hu Boliao (Min Zheng [1999] Wen No. 31). The establishment of Wuping Liangyeshan Provincial Nature Reserve was approved, and the Longyan Municipal People's Government forwarded it for this purpose. On May 15, 2001, the People's Government of Wuping County issued the Circular of the People's Government of Wuping County on Demarcating the Boundary Site of the Liangye Mountain Nature Reserve, delineating the boundary site of the provincial-level Liangye Mountain Nature Reserve, and the scope of the mountain farm contracted by the two plaintiffs was within the scope of the demarcated nature reserve. On February 20, 2001, the People's Government of Wuping County submitted to the People's Government of Longyan Municipality the Instructions of the People's Government of Wuping County on Requesting the Establishment of Liangyeshan National Nature Reserve (Wu Zheng [2001] Wen No. 23), requesting the higher-level government to approve the establishment of Liangyeshan National Nature Reserve. To this end, the Longyan Municipal People's Government submitted to the Fujian Provincial People's Government the Instructions of the Longyan Municipal People's Government on Requesting the Establishment of Liangyeshan National Nature Reserve (Long Zheng [2001] Zong No. 50), requesting the Provincial People's Government to report to the State Council for approval of the establishment of Liangyeshan National Nature Reserve. On June 6, 2003, the General Office of the State Council issued the Notice of the General Office of the State Council on Issuing 29 New National Nature Reserves including Hengshui Lake in Hebei Province (Guo Ban Fa [2003] No. 54), approving the establishment of Liangyeshan National Nature Reserve in Fujian Province. The two plaintiffs claimed compensation for the serious economic losses suffered by the contracted mountain farms since the establishment of the Liangyeshan National Nature Reserve, and demanded compensation.

The court of first instance held that the fact that the mountain farm contracted by the plaintiffs, Zhong Jiantong and Qiu Wanlong, was included in the scope of the nature reserve in 1996 after the defendant Wuping County People's Government applied for the establishment of a county-level nature reserve and was approved, and the parties had no objection and could confirm that the defendant's administrative act of establishing a nature reserve had an interest in the plaintiff, so Zhong Jiantong and Qiu Wanlong had the qualifications to be the plaintiffs in this case. In accordance with the provisions of Article 10, Article 12, Paragraph 2, Article 14, Paragraph 1 of the Regulations of the People's Republic of China on Nature Reserves (implemented in 1994), and Article 11, Paragraph 4 of the Regulations of Fujian Province on the Management of Forest and Wildlife Nature Reserves, the defendant performed the relevant procedures for the establishment of nature reserves in accordance with the law, and its administrative act of establishing nature reserves was lawful. Article 31 (3) of the Forest Law of the People's Republic of China stipulates that felling is strictly prohibited in the forests of places of interest and historical sites and revolutionary memorial sites in special purpose forests, and forests in nature reserves. The fact that the mountain farm contracted by the plaintiff cannot be harvested because it is classified as a nature reserve can be confirmed. In the lawsuit, the plaintiff also made it clear that it had no objection to the defendant's administrative act of establishing a nature reserve, but held that after the establishment of the nature reserve, the plaintiff's contracted management of the forest was prohibited from mining and logging, and the defendant's administrative act of not making compensation or compensation was illegal, so the plaintiff essentially claimed that the defendant should perform the statutory duty of giving compensation or compensation but failed to do so, but it did not submit evidence to prove that it had applied to the defendant for compensation or compensation. Nor did it submit evidence to prove that the defendant had to perform its statutory duty to compensate or compensate the plaintiff for the losses caused by the ban on logging and logging, and the legal and regulatory basis provided by the defendant did not stipulate that it had a statutory duty to compensate or compensate for the plaintiff's claim. Therefore, the plaintiff's claim has no factual and legal basis and is not supported. In accordance with Article 69 of the Administrative Litigation Law of the People's Republic of China, the judgment rejected the litigation claims of plaintiffs Zhong Jiantong and Qiu Wanlong. The first-instance case acceptance fee of 50 yuan is to be jointly borne by plaintiffs Zhong Jiantong and Qiu Wanlong.

Zhong Jiantong and Qiu Wanlong were not satisfied and appealed to this court, claiming that: (1) the court of first instance erred in finding that the second appellant had not submitted evidence to prove that it had filed an application for compensation or compensation with the appellee, the Wuping County People's Government. The Appellant had repeatedly submitted oral and written applications to the Appellee and its functional departments, and submitted evidence such as the Report, the Notice of Acceptance of Letter-or-Visit Matters, the Notice of Inadmissibility of Letter-or-Visit Matters, and the Explanation on Letter-or-Visit Matters Contracted by Zhong Jiantong and Qiu Wanlong on Forest Land during the first instance trial period, which were sufficient to confirm the above facts. (2) The first-instance judgment misallocates the burden of proof, violating the basic principles of administrative litigation. 1. The court of first instance found that the second appellant had not submitted evidence to prove that it had filed an application for compensation or compensation with the appellee, the People's Government of Wuping County, and that the burden of proof was wrongly allocated. According to the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation, the appellee in this case should take the initiative to give compensation or compensation, and the appellant does not need to bear the burden of proof on whether to file an application. 2. The court of first instance found that the second appellant "failed to submit evidence to prove that the defendant must fulfill its statutory duty to the plaintiff to compensate or compensate for the losses caused by the ban on logging". The Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation have already enumerated the scope of evidence to be presented by the administrative counterpart, and the court of first instance required the second appellant to additionally prove the statutory scope of the appellee's statutory duties, which violated the legislative intent of the system of allocating the burden of proof in administrative litigation. (3) The first-instance judgment erroneously applied the law and selectively applied the provisions favorable to the Appellee. The first-instance judgment found that "the laws and regulations provided by the defendant do not stipulate that the defendant has a statutory duty to compensate or compensate for the plaintiff's claim", and accordingly found that the appellee did not have a statutory duty to compensate or compensate, and that Article 5 of the Regulations on the Administration of Nature Reserves stipulates that "the relationship with local economic construction and the production and life of residents shall be properly handled", which is a macro overview of the appellee's statutory duties; The second paragraph of Article 7 of the Forest Law of the People's Republic of China stipulates that "the State shall protect the legitimate interests of the contracted afforestation collectives and individuals, and no unit or individual shall infringe upon the forest ownership and other legitimate rights and interests enjoyed by the contracted afforestation collectives and individuals in accordance with the law". This prohibition proves that the appellee's statutory duties were not improperly applied by the court of first instance. In summary, it is requested to revoke the (2018) Min 08 Xingchu No. 61 Administrative Judgment in accordance with the law, and change the judgment to support the litigation claims of the second appellant.

The appellee, the People's Government of Wuping County, replied: (1) The facts found in the first-instance judgment were clear. 1. In accordance with the provisions of the Regulations of the People's Republic of China on Nature Reserves, the Measures for the Management of Nature Reserves of Forest and Wild Animals, the Regulations on the Management of Nature Reserves of Forest and Wild Animals in Fujian Province, and the Measures for the Management of Nature Reserves of Fujian Province, the Appellee established a county-level nature reserve with the approval of the respondent in 1997, a provincial-level nature reserve with the approval of the provincial government in 1999, and a national nature reserve with the approval of the State Council in 2003. The Appellee approved the establishment of the Wuping Liangyeshan County-level Nature Reserve, and the upward declaration of the provincial and national nature reserves complied with the relevant regulations, and the administrative entity was qualified and the procedures were lawful. 2. The court of first instance found that "the fact that "the plaintiff did not submit evidence to prove that it had applied to the defendant for compensation or compensation, nor did it submit evidence to prove that the defendant had to perform the statutory duty of compensation or compensation to the plaintiff for the losses caused by the ban on logging and logging". 2. The Appellant only reported the problem to the Yunlui Villagers Committee and the relevant departments, and the relevant departments have replied in accordance with the law, and he has not submitted an application for compensation or compensation to the Appellee, and there is no administrative inaction; The forestry department at the county level is the competent authority of the protected area, and the appellee is not the administrative entity managing the protected area; Article 31 of the Forest Law of the People's Republic of China stipulates that felling of trees in nature reserves is prohibited, and the county forestry authorities have issued compensation for ecological public welfare forests in accordance with national standards, and the second appellant has also received the corresponding compensation for ecological public welfare forests. 3. The second appellant argued that the Appellee's classification of the mountain farm involved in the case as an ecological public welfare forest was a deprivation of the rights of the forest right holder and the expropriation of the forest right was lacking in facts, and that the management of the mountain farm involved in the case as an ecological public welfare forest did not change the ownership of the forest right holder, although it constituted a certain restriction on the rights of the forest right holder. (2) Article 38 of the "Administrative Litigation Law of the People's Republic of China" stipulates that in cases of administrative omission and administrative compensation and compensation, the plaintiff shall provide evidence. The Appellant did not submit evidence to prove that it had applied to the Appellee, nor did it provide evidence to prove that the damage caused by the Appellee was caused by the Appellee, and failed to submit evidence to prove that compensation or compensation for the ecological public welfare forest was the statutory duty of the Appellee. In summary, the court of first instance found that the facts were clear, the law was correctly applied, and the appellant's grounds for appeal could not be sustained, and requested that the appellant's appeal request be rejected in accordance with law.

After trial, it was ascertained that the evidence transferred by the original trial court with the case was relevant, authentic, and legal, and the basic facts ascertained in the original judgment were confirmed by this court.

This court believes that there are two focuses in this case: first, whether the appellant has ever filed an application for compensation or compensation against the appellee; The second is whether the Appellee has the statutory duty to compensate or compensate the Second Appellant.

About the first focus. The "Report", "Notice of Acceptance of Letter-or-Visit Matters", "Notice of Inadmissibility of Letter-or-Visit Matters", "Explanation of Letter-or-Visit Matters Contracted by Zhong Jiantong and Qiu Wanlong" and other evidence can only prove that the second appellant requested the superior leaders to resolve the problem because the mountain farm involved in the case could not be logged, or the petition requested the third party of the original trial to renew the contract with him or give him an assessment. 2. The Appellant did not provide evidence to prove that it had filed an application for compensation or compensation with the Appellee, the People's Government of Wuping County, so the trial court's determination of this issue was not improper.

About the second focus. The relevant provisions of the Forest Law of the People's Republic of China and the Regulations on the Administration of Nature Reserves only stipulate that the legitimate interests of collectives and individuals contracted for afforestation shall be protected by the state in accordance with the law, but do not specify that the people's governments at the county level shall bear the responsibility of compensation or compensation for the mountain farms in the nature reserves that are classified as ecological public welfare forests. 2. The Appellant's request that the Appellee should take the initiative to perform the statutory duty of compensation or compensation ex officio lacks relevant legal basis.

In summary, the facts found in the original judgment were clear, the law was correctly applied, and the trial procedures were lawful. The appellant's grounds of appeal could not be sustained and were dismissed. In accordance with the provisions of Article 89, Paragraph 1 (1) of the Administrative Litigation Law of the People's Republic of China, the judgment is as follows:

The appeal was dismissed and the original judgment was affirmed.

The second-instance case acceptance fee of RMB 50 shall be borne by the appellants Zhong Jiantong and Qiu Wanlong.

This judgment is final.

Presiding Judge Qin Chuanxi

Judge Zhang Ting

Acting Judge: Zhou Xiaofang

March 8, 2019

Clerk: Wu Xiaoyan