[Case Summary]This case is an administrative review case. In 2005, Zhang * leased 5.5 mu of collective land from the village and registered a printing factory to operate it according to law. In June 2023, the town government issued a "Limit-Time Demolition Decision", a "Notice of Urgent Demolition", and a "Forced Demolition Decision" on the grounds that the building was an illegal construction, and planned to forcibly demolish it on July 1. Zhang * entrusted Beijing Henglu Law Firm to handle the case.\nQiu Juan,Chen PingThe lawyer applied for administrative reconsideration and requested the revocation of the "Forced Demolition Decision". The core dispute is whether the building involved in the case is an illegal construction, and whether the content and procedures of the demolition restriction decision are legal. The applicable laws are Article 64 of the "Urban and Rural Planning Law of the People's Republic of China", Article 4 of the "Administrative Punishment Law of the People's Republic of China", and the "Administrative Reconsideration Law of the People's Republic of China". The reconsideration organ determined that the historical background was not fully investigated, the facts were unclear, and the evidence was insufficient, and revoked the "Forced Demolition Decision".

I. Review of the Case

What should one do if their own factory building is identified as an unauthorized construction and is subject to forced demolition? The parties often search for terms such as "Is an unlicensed house necessarily an unauthorized construction?", "How to revoke a demolition order?", and "What should one do if the demolition procedure of the township government is illegal?". On August 1, 2005, Zhang * signed a "XX Village Land Lease Agreement" with a villagers' committee in XX District of Beijing, leasing 5.5 mu of land for a term of 20 years and legally registering the Beijing XX Public Security Anti-Counterfeiting Printing Factory. For years, he has operated the business honestly to support his family. In June 2023, the XX Town People's Government launched an investigation into the buildings on the contracted land as unauthorized constructions. On June 28, it posted a "Demolition Order" on the gate; on June 29, it issued a "Notice of Urgent Demolition" and a "Moving Notice"; and on June 30, it issued a "Demolition Decision", stating that the demolition would be carried out on July 1. Zhang * attempted to negotiate and submit materials to explain the situation, but the town government ignored him and directly identified the building as an unauthorized construction. After consulting various sources, Zhang * hired a lawyer to handle the case.\nQiu Juan、Chen PingThe lawyer handled the case and concluded that the content and procedures of the "Forced Demolition Decision" were all illegal, so he initiated a request for revocation through the reconsideration process.

II. The focus of the case

  • Focus 1: Whether the building involved in the case is an illegal construction.The lease agreement was approved by the villagers' representative conference and submitted to the town for approval. After that, the factory was registered and taxes were paid. So, is operating a factory without a license the same as building an unauthorized structure?
  • Focus Two: Whether the content of the decision is legal.Should we consider factors such as the construction history, source, and usage of a building in a comprehensive manner, rather than simply determining its legality based on the lack of planning permits?
  • Focus Three: Is the procedure legal?Did the failure to hear the opinions, investigate and prepare the transcripts, and serve the documents in detention deprive the defendant of the right to make statements, defend himself, and attend the hearing?

III. Professional intervention by Hengluo Law Firm

The applicant (the applicant for reconsideration) alleges that:Zhang claimed that the lease agreement he signed with the village committee was approved by the villagers' representative conference and reported to the town for approval. The old house was sold to the applicant, and the registered printing factory paid taxes. The land use and the house were legal and not illegal buildings. The town government failed to listen to his opinions or investigate before determining that it was an illegal building, so he requested the revocation of the "Decision on Forced Demolition".

The respondent (the town government) argued that:The town government has the statutory duty to investigate and deal with illegal construction in its administrative area. The "Forced Demolition Decision" made by it is based on clear facts, legal procedures, sufficient evidence, and correct application of laws, with appropriate content. There is no reason to revoke it.

Hengluo Lawyer's Representation Opinion:\nQiu Juan、Chen PingThe lawyer pointed out that, firstly, the content is illegal: the lease agreement was approved by the villagers' representative conference and submitted to the town for approval. The applicant registered the printing factory in accordance with the agreement and paid the urban land use tax and property tax. The land use and house acquisition are legal and have been approved by the town, so they do not constitute illegal construction. According to Article 64 of the Urban and Rural Planning Law and Article 4 of the Administrative Punishment Law, rural "unlicensed houses" do not equal illegal buildings. They should be identified based on the construction history, source, use situation, living interests, and legislative status at that time. Secondly, the procedure is illegal: the respondent did not hear the opinions of the applicant when issuing the "Notice of Urgent Removal" and "Decision on Forced Demolition", depriving the applicant of the right to make statements, defend himself, and participate in the hearing; the respondent failed to investigate and inspect before imposing the punishment and make a record; the respondent failed to notify the applicant to pick up the documents, and there were no circumstances of refusing to accept or being unable to deliver the documents, but still left the documents to be served. The service of the documents is illegal.

IV. Outcome of the case

The review organ recognized the review reasons put forward by Hengluo Law Firm and made a review decision to revoke the "Enforcement Decision on Demolition". The review decision stated: "In this case, the respondent failed to conduct a comprehensive investigation and verification of the historical background, construction period, land use right holders, and builders of the buildings involved, and simply determined that the buildings involved were illegal constructions without obtaining a construction planning permit. This constitutes a lack of clear facts and insufficient evidence."

5. Henglu Law Firm's Reminder

This case is represented by Lawyer Qiu Juan of Beijing Henglu Law Firm (practice license number: 11101201811026953, subject to the document issued by the judicial administrative organ); and Lawyer Chen Ping of Beijing Henglu Law Firm (practice license number: 11101201411619680, subject to the document issued by the judicial administrative organ). In the process of "demolishing illegal buildings", when the administrative authority makes a decision to demolish the house on the grounds that it is an illegal building and carries out the demolition, it is necessary to promptly review the applicable laws, the substantive determination, and the legality of the procedure, preserve evidence, and consult the attorney in time when considering infringement, so as not to miss the best opportunity for relief. "No certificate" does not equal "illegal building". The historical causes and the fact of legal use are key defense points.

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

  1. Q: Are unlicensed houses necessarily illegal buildings?
    A:Not necessarily. For undocumented houses in rural areas caused by historical and customary factors and inadequate property rights management, their status should be determined based on their construction history, source, and usage, rather than simply labeling them as illegal buildings solely because they lack planning permits.
  2. Q: How to revoke the demolition restriction notice?
    A:The review can be conducted from two aspects: content and procedure. On the substantive level, we can refute the fact that it is not a violation of construction regulations. On the procedural level, we can point out that the review authority failed to hear opinions, conduct investigations, or deliver notifications of violations, and request the review authority to revoke the decision.
  3. Q: What should I do if the township government's forced demolition process is illegal?
    A:Collect the materials related to demolition, including the demolition notice, the decision on forced demolition, and the materials for service, and apply for a reconsideration or file a lawsuit within the statutory time limit to claim that the demolition decision is illegal and should be revoked.
  4. Q: Who is responsible if renting land to build a factory is deemed an illegal construction?
    A:If the lease is legally approved, the factory pays taxes, and the building has a legal foundation, it can be defended against the accusation of being an illegal construction. Before the forced demolition, it is necessary to first verify the approval process and historical background of the building.
  5. Q: Within how long can I seek relief after receiving the decision on forced demolition?
    A:You should assert your rights within the statutory time limit (usually 60 days for reconsideration or 6 months for litigation). If the time limit is exceeded, you may lose the opportunity to revoke the contract. Therefore, it is essential to hire a lawyer as soon as possible.