[Direct answer]In the Beijing area, before identifying an illegal construction, the party concerned has the right to make statements and defend themselves, which is a statutory procedural requirement. According to the spirit of the Law of the People's Republic of China on Administrative Punishment (amended in 2021 and implemented on July 15, 2021) and the relevant provisions of the Law of the People's Republic of China on Urban and Rural Planning (amended in 2019), before making a decision that affects the rights and obligations of the parties, the administrative organ shall inform the parties of the proposed facts, reasons, and basis for the identification, and listen to their statements and defenses. In practice, the identification process usually includes: investigating and verifying and forming evidence, informing the parties in writing of the proposed facts and basis, hearing the opinions of the parties, organizing hearings or on-site inspections when necessary, making the identification and explaining the reasons, and serving the decision and informing the parties of the remedies. If the administrative organ fails to fulfill its obligation to inform, fails to record or actually consider the opinions of the parties, or informs them only after the identification, the procedure will be flawed. In practice, such procedural flaws often determine the outcome more than substantive disputes, and they are less costly and can be raised in parallel with substantive claims. Both the Law of the People's Republic of China on Administrative Review (amended in 2023 and implemented on January 1, 2024) and the Law of the People's Republic of China on Administrative Litigation (amended in 2017) regard violations of statutory procedures as grounds for revocation or confirmation of illegality.Land expropriation and demolition, and administrative litigationThe column provides specific explanations about the program review and relief pathways.

1. Problem background and typical scenarios

When consulting on such issues, the parties involved often find themselves in two situations: first, they have received a "Notice to Stop Illegal Activities" or an investigation notice, but have not yet received a formal determination, yet have heard that they will be dealt with; second, they have already received a document determining the illegal construction, but when reviewing the process, they find that they were never informed of the basis for the determination, nor were they interviewed. There are four common confusions: how to exercise the right to make a statement and defend oneself, what to do if the other party refuses to listen, whether a written submission is effective, and whether it's still possible to claim rights afterwards if they didn't raise them at the time. In practice, common problems include parties not paying attention to the early stages of the process, thinking they can wait until the formal determination to speak up, only to miss the most effective intervention opportunity; another problem is that they express their opinions orally on-site but don't request written records, ultimately failing to prove that they have raised their concerns. Another common misconception is equating making a statement and defending oneself with useless formalities. In reality, the administrative authorities' failure to fulfill their obligation to inform often directly affects the legal consequences. For specific practices of evidence fixation and document retention, please refer to the relevant materials.Special services and other casesColumn; for the verification approach of housing ownership and registration status, you can refer to it for reference.Real estate transactions and construction projectsColumn.

II. Key points of dispute

First, the specific content of the obligation to inform, including the facts, basis, and proposed handling measures. Second, the substantive requirements for hearing opinions, whether it's just a signature without actual hearing. Third, the standardization of on-site inspections and investigation procedures. Fourth, whether the identification document clearly states the facts, reasons, and legal basis. Fifth, the formal requirements and evidence preservation methods for statement and defense materials. Sixth, the remedial path and timing for procedural defects. Seventh, the allocation of the burden of proof for substantive facts and procedural claims. Eighth, the connection with follow-up measures such as limited-time demolition and forced demolition. The above-mentioned specific rules shall be subject to the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Law Firm

From the perspective of administrative case practice, the value of statements and defenses mainly lies in three aspects. Firstly, it helps to form a record favorable to oneself: the materials on the construction time, policy basis, and usage instructions submitted by the parties in the process may affect the way of final identification and the level of handling. Even if they are not fully adopted, they will leave favorable traces in the case file. Secondly, it helps to identify procedural flaws: in practice, many identifications have problems such as incomplete notification content, unverified evidence, and unclear reasons, which are often only included in the review scope after the parties actively raise them. Thirdly, it forms the basis for subsequent remedies: if the administrative organ really fails to perform the statutory procedures, when claiming afterwards, the persuasiveness of the written submission records as evidence will be significantly stronger than that of oral recollections alone. Effective practices in practice include: immediately copying and retaining the documents related to housing handling after receiving them and recording the time; actively requesting an explanation of the purpose and basis of the on-site inspection or inquiry; submitting statements and defenses in writing and retaining the receipt certificate; and applying for on-site audio and video recording or asking neighbors to witness at key junctures. When handling such matters, our firm usually makes a procedural timeline, listing every contact, every submission, and every response item by item, and then judging which links have flaws and which claims are most persuasive, so as to avoid wasting energy on unfounded issues.

IV. Practical suggestions and legal basis

Action suggestions: 1. Immediately make copies of any documents related to housing disposal and keep them, recording the time and delivery method; 2. Submit a written statement of defense and request a written response; 3. Organize and submit materials related to the construction time, policy basis, and usage instructions; 4. Apply for verification of investigation evidence or participate in on-site inspections; 5. Require that the identification document specify the facts, reasons, and legal basis; 6. Retain receipt certificates, mailing certificates, and communication records; 7. Verify the procedural time limits and subsequent remedies; 8. Evaluate appeal and litigation options before the deadline expires. Legal basis: - The *Administrative Punishment Law of the People's Republic of China* (revised in 2021, effective July 15, 2021) regarding the provisions on notification and hearing opinions; - The *Urban and Rural Planning Law of the People's Republic of China* (amended in 2019); - The *Administrative Review Law of the People's Republic of China* (revised in 2023, effective January 1, 2024); - The *Administrative Litigation Law of the People's Republic of China* (amended in 2017); - Specific identification procedures shall follow the currently effective regulations and local practices.

5. Henglu Law Firm's Reminder

Firstly, the statement of defense should be exercised at the early stage of the procedure, and it will obviously lose its effectiveness afterwards. Secondly, it is necessary to submit and keep the evidence in writing, as oral expressions are difficult to prove. Thirdly, do not refuse to sign for the documents, as refusal may lead to the inability to proceed with the subsequent procedures. Fourthly, the administrative organ's failure to fulfill its obligation to inform is an important ground for relief, and it needs to be checked within the time limit. Fifthly, the procedural claims and substantive claims should proceed in parallel, and do not just focus on one of them. Sixthly, avoid taking an adversarial attitude in communication, which will affect future cooperation. Seventhly, pay attention to distinguishing the identification procedure from the subsequent forced demolition procedure, as the latter has other avenues for relief. Eighthly, timely hire a professional lawyer to avoid irreversible consequences caused by incorrect procedural choices. For the supporting arrangements of enterprise legal risk prevention and control, you can refer to it.Intellectual property protection and corporate lawColumn.

VI. Frequently Asked Questions

Q1: Do I have the right to request an explanation of the basis for identifying the unauthorized construction before it is determined as such?

There is a right to be informed. Before making a decision that affects rights and obligations, the administrative organ shall inform the proposed facts, reasons, and basis, and listen to the statements and defenses. If this is not carried out, the procedure will be flawed, and this can be used as a reason in the review or litigation. It is recommended to submit and keep the evidence in writing at the same time, to avoid relying solely on oral communication.

Q2: They said it's just a routine check. Can I refuse to cooperate with it?

It is recommended to cooperate with the inspection, but retain the right to verify and record the inspection results. Cooperation does not mean giving up rights. You can explain the construction status of the house on site, present the materials and request a record; if necessary, you can request two staff members to be present, explain the purpose and basis of the inspection, and videotape the whole process or ask neighbors to witness it. After that, you can provide a written statement to supplement the information.

Q3: Even if the statement of defense is useless, is it still necessary to submit it?

It's necessary. Even if the opinion is not adopted, the written submission will be included in the case file and can be used as evidence in subsequent reviews and litigations; it may also affect the determination of the expression and the level of handling. The key is to submit it in writing, explain the reasons and attach evidence, while keeping the receipt as a verifiable record.

Q4: If they only tell me after the determination that they didn't inform me at that time, is it still useful?

It can still be claimed. If the administrative organ fails to fulfill its obligation to inform and hear opinions in accordance with the law, it constitutes a procedural flaw and can be used as one of the reasons for applying for reconsideration or initiating litigation. It is recommended to collect relevant evidence as soon as possible, such as the service records, the investigation materials in the files, and the clues of the lack of notification, and to submit them within the statutory time limit.

Q5: Are the punishment and determination of guilt the same procedure?

They are not exactly the same. The determination of illegal construction is the confirmation of facts and nature, while the fine is an independent administrative punishment. The procedures and remedies for the two are different. In practice, there may be a continuous process of first determination and then punishment, and there are also situations where they are dealt with together. It is recommended to check the respective notifications, time limits, and remedies separately to avoid only claiming rights against one of them.

The above answer is based on the judicial practice in the Beijing area. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Land expropriation and demolition legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If a dispute arises, please consult a practicing lawyer in time.