[Case Summary]This case involves a second-instance enforcement of demolition in an administrative litigation against illegal demolition. The plaintiff, Liu Gang, built a parking lot on 4.5 mu of non-farmland in B City and operated it during the 2003 SARS outbreak. In 2006, the land administration department fined the village committee 82,763.9 yuan. In December 2023, the urban government carried out a special rectification campaign. On February 5, 2024, the government issued a demolition notice, followed by a reminder on March 8 and a forced demolition on March 27. Liu Gang entrusted Beijing Henglu Law Firm to handle the case.Qiu JuanThe lawyer filed a lawsuit, and the first-instance court confirmed that the forced demolition was illegal. The two appellants appealed against the judgment and were not satisfied with it.Qiu JuanThe lawyer argued his case vigorously, but the second-instance court dismissed the appeal and upheld the original judgment. The core disputes include the legal status of the plaintiff and the defendant, and the legality of the forced demolition process. The applicable laws include the "Administrative Enforcement Law", the "Urban and Rural Planning Law", the "Land Management Law", and the "Administrative Litigation Law".

I. Review of the Case

"What should I do if the demolition is confirmed to be illegal after the forced demolition, but the other party still appeals?" and "If I win the first instance, will the second instance change the verdict?" are the biggest concerns of the parties involved. In 2003, when the SARS epidemic was raging, Liu Gang's B City H Trading Co., Ltd. had 36 trucks and drivers needing to be quarantined. After negotiating with Chenguang Village Committee, the company built a parking lot on about 4.5 mu of non-arable land in the east of the village. In 2006, the Urban Branch of the B City Land and Resources Bureau initiated a case and fined Chenguang Village Committee 82,763.9 yuan. Despite this, Liu Gang continued to build houses for business operations without completing the necessary approval procedures.

On December 23, 2023, the urban government of B City issued a "Special Rectification Notice", with Shuguang Subdistrict Office and other three offices and one town serving as the implementing units; on February 5, 2024, the Urban Management Bureau issued a "Notice Ordering Demolition within a Limited Time"; and on March 8, a "Notice Urging Demolition within a Limited Time". On March 27, 2024, the buildings involved in the case were forcibly demolished with the on-site participation of urban management law enforcement personnel and the main responsible persons of Shuguang Subdistrict Office. Liu Gang entrusted Beijing Henglu Law Firm to handle the case.\nQiu JuanThe lawyer sued Shuguang Subdistrict Office and the Urban Construction Bureau (whose functions were merged into the former Urban Management Bureau) in court. The first-instance court confirmed that the forced demolition was illegal, but the two appellants appealed against the judgment.

II. The focus of the case

  • Focus 1: Whether Liu Gang is a qualified plaintiff.The appellant claimed that he/she did not have the qualification to operate a parking lot and did not enjoy any legal rights to the building.
  • Focus Two: Whether the two appellants, the defendants, are qualified as the subject of the lawsuit.The street office said it was not involved in the forced demolition, and the Housing and Urban-Rural Development Bureau said that the original Urban Management Bureau did not carry out the forced demolition.
  • Focus Three: Is the forced demolition act legal?Have the statutory procedures such as the deadline for demolition, the government's order, the notice of urgency, and the statement of defense been carried out?

III. Professional intervention by Hengluo Lawyers

The appellant claimed that:The Shuguang Sub-district Office argued that Liu Gang lacked the qualifications to be a party to the case and had not participated in the forced demolition. The Urban Construction Bureau claimed that Liu Gang did not enjoy legal rights and that the original Urban Management Bureau had not carried out the forced demolition, and the first-instance judgment was incorrect.

The appellee's (the plaintiff in the original trial) position:Liu Gang needs to safeguard his legitimate property rights and interests, and insist that the forced demolition be confirmed as illegal.

Hengluo Lawyer's Agency Opinion:Qiu JuanThe lawyer refuted from the factual and legal perspectives: Regarding Liu Gang's subject qualification, he provided the lease contract with Chenguang Village Committee and the payment receipts. The original Urban Management Bureau's documents also identified him as the counterparty. His son, Liu Jinghua, admitted that he signed the agreement and made the payment on behalf of him, so he is qualified as the subject. Regarding the subject qualification of the two appellants, Shuguang Sub-district Office is the implementing unit specified in the notice, so it should be presumed to organize and implement the demolition. The original Urban Management Bureau's issued documents should be presumed to implement the demolition. Now that it has been merged into the Housing and Urban-Rural Development Bureau, it is a qualified defendant. Regarding the legality of the forced demolition, the two appellants violated the Urban and Rural Planning Law and the Land Management Law and failed to perform the statutory procedures in accordance with the Administrative Enforcement Law, making the forced demolition illegal.

IV. Outcome of the case

The Second Intermediate People's Court of the city held that the facts established in the second trial were consistent with those in the original trial, and approved of the original judgment.Qiu JuanThe lawyer's defense opinion held that the facts determined in the original trial were clear and the applicable laws were correct, and that the two appellants' appeals lacked factual and legal basis. The judgment dismissed the appeals and upheld the original verdict. The second-instance case acceptance fee of 50 yuan shall be borne jointly by the two appellants. At this point, the judgment confirming that the forced demolition of Liu Gang's house by Shuguang Sub-district Office and Chengcheng Urban Construction Bureau was illegal in the first instance has taken effect.

5. Henglu Law Firm's Advice

Legal forced demolitions must go through the process of investigation and evidence collection, ordering demolition within a specified time limit, and giving the parties concerned the opportunity to make statements and defenses. Only after the parties do not appeal or file lawsuits and following a public announcement can the forced demolition be implemented. In this case, however, the demolition was carried out without following the above-mentioned legal procedures, which violates the law and infringes on the legitimate rights and interests of the parties concerned.\nQiu JuanAttorney (Practice License No.: 11101201811026953, subject to the document issued by the judicial administrative organ): Note: If the forced demolition is carried out without prior notice or by skipping the statutory procedures, it constitutes an illegal forced demolition. The parties concerned may report the case to the police, sue the implementing units in court, and apply for state compensation according to the "State Compensation Law". It is crucial to promptly entrust professional lawyers to fix the evidence.

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

  1. Q: If the first-instance court confirms that the forced demolition is illegal and the other party appeals, what should they do?
    A: The second-instance trial focuses on reviewing the evidence in the original trial and the application of the law. If the facts are clear and the procedural violations are obvious, the appeal will usually be dismissed and the original judgment will be upheld. You can continue to entrust a lawyer to defend against the lawsuit.
  2. Q: What procedures must be followed before forced demolition?
    A: It is necessary to have a decision on demolition issued by an authorized authority within a specified time limit, or an order from the county-level government. After being summoned, announced, and guaranteed the right to make statements and defend themselves, if the parties do not appeal or file a lawsuit, the enforcement can be carried out by force.
  3. Q: Who should be responsible for the forced demolition, the sub-district office or the housing and urban-rural development bureau?
    A: The implementation units specified in the special rectification notice and the agencies that issued the documents and participated in the on-site operations can all be identified as the organizers and implementers of the forced demolition and be listed as co-defendants.
  4. Q: Can we protect our rights if the historical legacy factories are forcibly demolished?
    A: Yes. Even if the construction procedures are not complete, forced demolition still requires legal procedures. If the procedures are illegal, you can file a lawsuit to confirm the illegality and claim compensation.
  5. Q: How to apply for compensation after illegal forced demolition?
    A: After confirming that the illegal judgment has taken effect, you can file an application to the compensation obligation organ in accordance with the State Compensation Law. If no agreement can be reached through negotiation, you can file a lawsuit.