[Case Summary]This case involves an administrative lawsuit over land expropriation and demolition. The plaintiff, Hu *, legally owns a house and homestead in a certain county of Liaoning Province, and holds a "Business Operation Right Certificate" and a "Real Estate Property Certificate". On August 28, 2022, the County Transportation Bureau and the Town Government issued a "Notice" requiring demolition within a specified time limit; on November 11, 2022, without the plaintiff signing an agreement or receiving compensation, the two authorities forcibly demolished the plaintiff's fence, weighbridge, and other ancillary facilities and occupied the land for road construction. The plaintiff entrusted Beijing Henglu Law Firm to handle the case.Qiu JuanThe lawyer defended the rights and interests of the client, and the first-instance court confirmed that the forced demolition was illegal. After the two authorities appealed, the second-instance court rejected the appeal and maintained the original judgment in accordance with Article 89 of the Administrative Procedure Law. The core disputes are whether the administrative authorities have the power to forcibly demolish, whether the facts and legal basis of the forced demolition are sufficient, and whether the procedures are legal. The applicable legal provisions are Article 34 and Article 89 Paragraph 1 Item 1 of the Administrative Procedure Law, and the provisions of the Administrative Enforcement Law on the decision on urging and enforcement.

I. Review of the case

What should you do if your residential land is forcibly demolished and the compensation has not been implemented? This is a frequently searched question in the field of land expropriation and demolition. The plaintiff, Hu *, legally owned a house in a certain county of Liaoning Province. On August 28, 2022, the XX County Transportation Bureau and the XX Town People's Government issued a "Notice", stating that part of the plaintiff's residential land was identified as state-owned road land and requiring the plaintiff to remove the illegal buildings on the highway land within a specified period. The plaintiff disagreed with the decision and entrusted Henglu Law Firm to handle the case.\nQiu JuanThe lawyer represented the plaintiff to protect their rights and file a lawsuit to confirm that the actions in the "Notice" were illegal. The court ruled that the plaintiff's house was a legal building and was not within the scope of the demolition in the "Notice", so it did not need to be demolished. However, on November 11, 2022, the county transportation bureau and the town government failed to sign a land agreement with the plaintiff and did not implement the compensation payment. They forcibly demolished the plaintiff's fence, weighbridge and other ancillary facilities and occupied the land for road construction, resulting in the plaintiff's safety being unable to be guaranteed and their normal operation being disrupted.

II. The focus of the case

  • Focus 1: Does the appellant have the power to carry out administrative forced demolitions?Whether the two authorities submitted evidence to prove that the plaintiff built buildings and ground structures within the highway construction control area is a prerequisite for them to carry out forced demolition.
  • Focus II: Whether the factual basis and legal application of the forced demolition are correct.Is the demolished wall within the scope of the residential land, and is the legal basis for the appellant's forced demolition clear and specific?
  • Focus 3: Is the forced demolition procedure legal?Did the appellant issue a "Notice" to inform the parties of their right to seek relief? Did the appellant make an administrative decision before the forced demolition, fulfill its obligation to give a reminder, and issue a decision on forced execution?

III. The professional intervention of Hengluo Law Firm

The plaintiff (the person being relocated) alleged that:The plaintiff owns a legal residential plot and house in the village and has legally obtained the "Right to Operate and Manage Certificate" and the "Certificate of Real Estate Ownership". The defendant's forced demolition of the illegally occupied administrative act is illegal in both procedure and substance, infringing on his legitimate rights and interests. The plaintiff requests that the forced demolition be confirmed as illegal and that the defendant bear the litigation costs.

The defendant's (administrative organ's) position:The two authorities appealed, claiming that the plaintiff illegally used the highway land for a courtyard and refused to withdraw, and that the forced removal was based on legal authority and was lawful. They also argued that the house involved in the case had been subject to expropriation and compensation beforehand, and should not be considered a legal building or subject to further compensation. They requested the revocation of the first-instance judgment.

Hengluo Lawyer's Agency Opinion:The appellee legally obtained the immovable property certificate for his house, and the land map, the house, and the residential land all have markings. The demolished fence is also within the scope of the residential land. The appellant forcibly demolished the house for highway expansion without providing resettlement and compensation to the appellee or completing the expropriation procedures. The forced demolition should be confirmed as illegal. The lawyer systematically defended the case from three aspects: the legal basis of authority, factual evidence, and procedural legality, and requested that the appeal be dismissed and the original judgment be maintained.

  • It is pointed out that the appellant failed to submit evidence showing that the plaintiff built structures in the highway construction control area, and therefore does not have the right to forcibly demolish them
  • It is pointed out that the appellant's factual evidence cannot prove that the courtyard is within the jurisdiction of the highway control zone, and the factual evidence for forced demolition is insufficient
  • It is pointed out that the "Notice" fails to inform of the right to seek relief, and the government did not make a decision before the forced demolition, did not fulfill the obligation of giving a reminder, and did not make a decision on compulsory execution, which violates the "Administrative Enforcement Law".

IV. Outcome of the case

The first-instance court ruled that the defendant County Transportation Bureau and the town government's forced demolition of the plaintiff Hu's courtyard wall and weighbridge on November 11, 2022, was illegal, and the case acceptance fee was borne by the defendant. The second-instance court, in accordance with Article 89 (1) of the Administrative Litigation Law of the People's Republic of China, ruled to dismiss the appeal and maintain the original judgment, and the second-instance case acceptance fee of 50 yuan was borne by the appellant. The court held that: the appellant failed to submit evidence to prove that the plaintiff had built buildings within the highway construction control zone, so the appellant's argument that it had the right to forcibly demolish the buildings was not accepted; the factual evidence provided by the appellant could not prove that the courtyard was within the highway construction control zone under its jurisdiction, and the factual evidence of the forced demolition was insufficient and the legal basis was not clear and specific; the appellant jointly issued the "Notice" without informing the plaintiff of their right to seek remedies, failed to make an administrative decision, failed to fulfill the obligation of giving a reminder, and carried out the forced demolition without making a decision on enforcement, which violated the relevant provisions of the Administrative Enforcement Law of the People's Republic of China and constituted a serious procedural violation.

5. Hengluo Law Firm's Advice

This case is handled by Beijing Henglu Law Firm.Qiu JuanAttorney (Practice License No.: 11101201811026953, subject to the document issued by the judicial administrative organ): Agent. Attorney's Reminder: In the process of land expropriation and demolition, the administrative organ must have statutory authority, sufficient factual evidence, and clear legal basis to implement forced demolition, and strictly follow the procedures of making administrative decisions, issuing notices, and making decisions on forced execution; forced demolition without signing an agreement or implementing compensation usually constitutes a procedural violation. If the homestead or house is forcibly demolished illegally, it is necessary to promptly entrust a professional lawyer to obtain evidence such as the real estate ownership certificate and the land parcel map, and confirm the illegality of the act through administrative litigation, so as to gain room for subsequent state compensation and negotiation of compensation.

VI. Common Questions and Answers about Land Acquisition and Demolition Cases

  1. Q: The house was forcibly demolished without signing a compensation agreement. Is that illegal?
    A:It is generally illegal. Before forced demolition, an administrative decision must be made, a notice must be served, and a decision on forced execution must be made. If no agreement has been signed and the compensation has not been implemented before the forced demolition, it is usually a procedural violation and can be sued to confirm the illegality.
  2. Q: The government has issued a notice requiring us to demolish the building within a specified timeframe. What should I do?
    A:First, verify whether the house is indeed an illegal building and whether the notice informs the right to seek remedies. For legal buildings, we should collect evidence such as the real estate ownership certificate in time and entrust a lawyer to initiate an administrative lawsuit.
  3. Q: Can I still demand compensation after the forced demolition is deemed illegal?
    A:Yes. The prerequisite is to confirm that the forced demolition is illegal. Subsequently, you can claim administrative compensation or negotiate compensation with the acquisition party for property losses and the value of ancillary facilities, etc.
  4. Q: Do both the township government and the transportation bureau have the right to conduct forced demolitions?
    A:There must be a legal basis for the authority. The administrative organ must provide evidence to prove that the building is within the highway construction control zone under its jurisdiction. Otherwise, the authority and actions of forced demolition may be deemed illegal.
  5. Q: After winning a lawsuit against forced demolition, who will bear the litigation costs?
    A:It is confirmed that in cases of illegal forced demolition, the case acceptance fees are usually borne by the losing administrative organ. For example, in this case, both the first-instance and second-instance litigation fees were borne by the administrative organ.