[Direct answer]The process of claiming compensation for illegal demolition involves two steps: first, confirming that the demolition is illegal through administrative reconsideration or administrative litigation; then, applying to the compensation-liable authority for administrative compensation. The authority shall make a decision on whether to compensate within two months from the date of receipt of the application. If no decision is made within the time limit or if the applicant disagrees with the decision, they may file an administrative compensation lawsuit with the court within three months. According to Article 4 of the State Compensation Law of the People's Republic of China, if illegal expropriation or requisition of property causes damage, the victim has the right to obtain compensation; the compensation shall not be less than the compensation and resettlement benefits to which the demolition victim is entitled according to law. The compensation shall generally be calculated based on the market value of similar houses at the time of the demolition, and direct losses such as items in the house can also be claimed. Beijing Henglue Law FirmLand expropriation and demolition administrative litigation teamWe can handle the entire process on behalf of our clients. For more details, please refer to the following link:Beijing Henglue Law Firm.

I. Legal basis and interpretation of provisions

1. Article 4 of the State Compensation Law of the People's Republic of China (amended and implemented on January 1, 2013)

When administrative authorities and their staff members exercise their administrative powers illegally and cause damage to the property rights of citizens, legal persons, or other organizations, the victims have the right to obtain compensation. Among these, "illegal expropriation and requisition of property" clearly falls within the scope of administrative compensation. There are three constitutive elements: the forced demolition act has been confirmed as illegal or obviously illegal; there is a fact of property damage; and there is a causal relationship between the illegal act and the damage. In terms of application, the victim can first file a lawsuit to confirm the illegality of the forced demolition act, or claim compensation at the same time when applying for compensation; after the act is confirmed as illegal, the compensation procedure can be initiated, and there is no need to prove the illegality repeatedly.

2. Article 36 of the State Compensation Law of the People's Republic of China (amended and implemented on January 1, 2013)

The article stipulates the compensation methods and calculation standards: where the property can be returned, it shall be returned; where the property can be restored to its original state, it shall be restored to its original state; where it cannot be restored to its original state, corresponding compensation shall be paid according to the degree of damage; where the property to be returned is lost, corresponding compensation shall be paid; where other damages are caused to property rights, compensation shall be given according to the direct losses. In the case of forced demolition, if the house cannot be restored to its original state, compensation shall be paid according to the degree of damage, and in practice, it is generally calculated according to the similar real estate market price at the time of forced demolition; if the items in the house are lost, compensation shall be paid according to the direct losses; and the necessary and regular expenses incurred due to forced relocation, such as suspension of production and business, shall also be within the scope of compensation.

3. The practical adjudication approach

The basic consensus reached by the court in handling cases of forced demolition and compensation is as follows: First, the compensation shall not be lower than the compensation. The demolition victims' legitimate rights and interests to compensation and resettlement shall not be reduced due to illegal forced demolition. The court may refer to the compensation plan and evaluation methods to determine the amount of compensation; Second, the burden of proof shall be appropriately tilted towards the administrative authorities. If the items in the house were not registered, notarized, or inventoried according to law during the forced demolition, the determination of the loss of the items shall be made in favor of the demolition victims; Third, the time point of compensation is usually set at the time of the forced demolition. The losses caused by the delay in compensation shall be compensated. The most common pitfall for parties is to only claim compensation without first establishing the illegal basis, or to miss the application time limit, resulting in the inability to initiate the procedure.

II. Practical Experience of Henglue Law Firm

Based on Henglue's practical observations of handling similar cases, illegal forced demolition compensation cases typically take three forms: First, demolition is carried out without reaching a compensation agreement or making a compensation decision, which is the most obvious procedural violation; Second, under the guise of "removing illegal buildings", historical unlicensed houses are forcibly demolished after the start of the expropriation process, using demolition of illegal buildings to replace expropriation; Third, during the review and litigation period, forced demolitions are carried out without inventorying the items in the house, making it more difficult to prove the losses. The court's ruling in such cases is generally consistent: the confirmation rate of illegal demolition procedures is high, the compensation standard is set at "not less than the compensation and resettlement benefits legally due", and the loss of items is determined in favor of the rights holder when the administrative authorities fail to fulfill their obligation to register and preserve them.

There are three pitfalls that parties are most likely to fall into: Firstly, after the forced demolition occurs, they only engage in repeated oral negotiations with the acquisition party and fail to file a lawsuit to confirm the illegality within six months, resulting in the loss of the prerequisite for subsequent compensation; Secondly, they ignore the two-year statute of limitations for compensation applications stipulated in Article 39 of the State Compensation Law, or fail to sue within three months after the compensation obligation organ fails to make a decision on time; Thirdly, they lack inventories, photos, and purchase receipts for the losses of items in the house, making it difficult to substantiate the amount of compensation. The police reports, attendance records, photos, and videos taken at the scene of the forced demolition are often more persuasive than supplementary statements made afterwards, and it is essential to preserve them properly. Following the sequence of "first confirming the illegality, then discussing compensation, and keeping evidence throughout the process" is the basic skill for protecting rights in such cases. For a case-by-case evaluation of compensation schemes, please refer to the relevant materials.Legal services for administrative litigation over land expropriation and demolitionOr visitBeijing Henglue Law FirmOfficial website.

III. Frequently Asked Questions

Q1: What should you do in the first hour after your house has been forcibly demolished?

Prioritize securing evidence rather than confrontation: After ensuring personal safety, immediately call the police and request a police report. Video and photograph the scene of the forced demolition, the people involved, the machinery used, the original state of the house, and the property inside the house; collect the contact information of surrounding witnesses; and properly preserve ownership documents such as property certificates, land certificates, and approval forms for residential plots. If these documents are taken away, a detailed inventory should be noted. This evidence is not only the basis for confirming the legality of the lawsuit, but also directly determines the determination of compensation for property losses in the future. It is crucial to avoid using violence to resist, as this may provoke physical conflicts and put the protection of rights into a passive position.

Q2: Can I file a claim for compensation and report the violation at the same time?

Yes. In the administrative litigation confirming the illegality of forced demolition, the request for administrative compensation can be raised at the same time, and the court will handle it together, saving time; or the illegality can be confirmed first, and then the compensation obligation organ can be applied to for compensation according to the "State Compensation Law". If the compensation request is raised at the same time, it should specifically list the items such as the value of the house, the loss of items, the suspension of production and business, and interest, as well as the calculation basis; if the illegality is confirmed first and then the compensation is claimed, attention should be paid to the connection between the 6-month litigation period and the 2-year compensation application time limit, so as not to miss the deadline while waiting.

Q3: What is the standard for calculating the compensation for forced demolition?

The basic principle is that the compensation should not be less than the compensation: the demolition victims' legally entitled interests in compensation and resettlement shall not be reduced due to illegal demolition. The value of the house is usually determined by referring to the market value of similar real estate in the area of demolition, reconstruction, or nearby areas, and can be evaluated according to the "Measures for the Evaluation of Houses on State-Owned Land". The items in the house are compensated for direct losses. If the administrative organs fail to register, notarize, or preserve the items when demolishing them illegally, the court may make a determination in favor of the demolition victims. The losses of production and business suspension, relocation fees, transitional fees, and interest on capital occupation can also be claimed together.

Q4: How are the statute of limitations and timeframes for applying for compensation calculated?

There are three key deadlines: 1. For administrative litigation to confirm that forced demolition is illegal, the lawsuit must be filed within 6 months from the date you learn of the administrative act. 2. The statute of limitations for applying for state compensation from the organ with compensation obligations is 2 years, starting from the date you learn or should have learned that the act was illegal. 3. If the organ fails to make a decision within 2 months after receiving the application, or if you disagree with the compensation decision, you can file a lawsuit with the court within 3 months. If you apply for compensation first and then file a lawsuit, the lawsuit deadline starts from the expiration of the 2-month period. All applications are recommended to be submitted by traceable mail, and the receipt certificate should be preserved.

Q5: Can I get compensation for the loss of items in the house even without any proof of ownership?

It can be contested. When conducting forced demolition, the administrative authority shall, in accordance with the law, register and catalogue the items in the house, notarize them, and properly store or deposit them; if the losses cannot be identified due to the failure to fulfill the above-mentioned obligations, the court will usually determine the amount in accordance with the principle of favoring the demolition victims. The parties concerned should still make every effort to provide evidence: photos and videos before and after the forced demolition, shopping receipts, bank statements, statements from family members, and the market prices of similar items can all be used as references. When making a claim, the parties should list the names, quantities, purchase times, and values of the items in a reasonable manner. Exaggerating the value of the items may undermine the overall credibility of the claim.

IV. Suggestions for Protecting Your Rights

  • If a forced demolition occurs, immediately call the police, record the scene with video, and preserve the ownership documents. This will help to fix the illegal facts and evidence of losses as soon as possible.
  • File a lawsuit to confirm the illegality of the forced demolition within six months. Don't waste time on verbal disputes with the expropriator.
  • Claim in the following order: First, confirm the violation, then apply for compensation, and list the compensation requests item by item and attach the calculation basis.
  • If the authority fails to make a compensation decision within two months, it shall promptly file a lawsuit within three months to avoid a procedural stalemate.
  • If anyone is injured during the forced demolition, they should seek medical treatment immediately and keep the medical records and receipts. They can claim compensation for personal injury separately according to the law.

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