[Direct answer]When the identification procedure for illegal construction is illegal, the identified party has the right to appeal for correction. According to Article 44 of the "Administrative Enforcement Law of the People's Republic of China" (effective from January 1, 2012) and Article 64 of the "Urban and Rural Planning Law of the People's Republic of China" (amended on April 23, 2019), the administrative organ shall perform statutory procedures such as filing a case, investigation, notification, and hearing before making a decision to demolish within a specified time limit; the identification of procedural deficiencies and subsequent forced demolition can be revoked through administrative reconsideration or litigation. It is recommended to first apply for information disclosure to obtain the identification documents and approval materials, and fix the evidence of procedural violations. Then, in accordance with Article 9 of the "Administrative Reconsideration Law of the People's Republic of China", apply for reconsideration within 60 days, or in accordance with Article 46 of the "Administrative Litigation Law of the People's Republic of China" (amended on July 1, 2017), file a lawsuit within six months. For more details, please refer to the following link:Legal services for land expropriation and demolition, and administrative litigationAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

In practice, some parties only realize after receiving the "Order for Demolition within a Time Limit" that there are flaws in the identification process: failure to file a case according to law, failure to conduct on-site inspections and make records, failure to inform them of their right to make statements and defenses, failure to organize hearings, and even failure to deliver the document to them personally. Such procedural violations are particularly common in urban-rural fringe areas, historically inherited self-built houses, and ancillary facilities of rural residential plots. Many parties mistakenly believe that once they are labeled as illegal buildings, they can only accept demolition, thus missing the opportunity for relief. In fact, procedural legitimacy is a prerequisite for the effectiveness of administrative acts, and procedural omissions are sufficient to lead to the revocation of the identification, which is inconsistent with the "Administrative Procedure Law of the People's Republic of China".Legal services for real estate transactions and construction projectsThe planning permission review involved in this case follows the same principles as before.

II. Key points of contention

  • Is the procedural requirements complete? Whether the filing, investigation, on-site inspection, notification, hearing, and service of documents are completed in accordance with the law is the core of determining the effectiveness of the case. Any missing link may constitute a major and obvious violation of the law.
  • Determine whether the identifying entity is qualified: The responsibilities of township-level governments and departments of natural resources and urban and rural planning are different. Identifying entities beyond their authority is itself illegal, and this can be addressed in conjunction with other relevant departments.Legal services for corporate commercial and contract disputesThe comparison of the subject qualification review approach in China and abroad.
  • Is the factual determination clear? Basic facts such as the building area, the construction year, and whether it affects the planning must be supported by evidence. Determinations based on unclear facts can also be revoked.

III. Professional analysis by Henglue Law Firm

Henglue Lawyers observed in handling cross-disputes between planning and expropriation that the key to defending against procedural violations is the completeness of the evidence chain. The typical approach is to first retrieve materials such as the Construction Land Use Planning Permit, the Construction Project Planning Permit, the case filing and approval form, the survey record, and the service receipt through government information disclosure, and then compare each item with the statutory procedures. Once it is proven that there was no hearing, no notification, or no service delivery, it can be pointed out in the review or litigation that the determination violates the statutory procedures. For historical buildings, it is also necessary to distinguish between the planning requirements at the time of construction and the current standards, to avoid retroactively applying new laws to old constructions. For disputes over losses after demolition, reference can be made to the relevant provisions.Legal services for creditor-debtor relations and enforcement casesThe method of property preservation in China is to fix the evidence.

IV. Practical suggestions and legal basis

At the legal basis level: Article 64 of the Law of the People's Republic of China on Urban and Rural Planning (amended on April 23, 2019) stipulates that those who fail to obtain a construction project planning permit or fail to construct according to the permit shall be ordered to stop construction, make corrections within a specified time limit, pay fines, and even be demolished within a specified time limit; Articles 35 to 44 of the Law of the People's Republic of China on Administrative Enforcement (implemented on January 1, 2012) set out the procedures for urging, statement and defense, public announcement, and forced demolition. Article 44 stipulates that for illegal buildings, only after urging, public announcement, and the party not appealing, suing, or demolishing within the statutory time limit can the demolition be carried out according to law. Practical suggestions: Immediately copy and keep the documents after receiving them and check the time of delivery; Apply for information disclosure to retrieve the full set of approval and identification materials within 60 days; File for reconsideration or litigation against procedural deficiencies and apply for suspension of enforcement; Never demolish on your own or exacerbate conflicts. Keep photos, videos, and communication records as evidence.

5. Henglu Law Firm's Reminder

The procedural violations are the weakest link that is most easily exploited in the determination of illegal construction, but the statute of limitations for remedies is extremely short. Delays often lead to the determination taking effect and the demolition of the existing structure. After receiving the documents, the parties concerned should immediately fix the date of service, check the procedural steps item by item, and initiate appeals immediately if they find situations such as non-notification, non-hearing, and non-service. For historical buildings, it is more appropriate to apply the norms at the time of construction to avoid being subject to a one-size-fits-all approach by the new standards. In the event of complex situations, professional lawyers can be consulted about evidence collection and time limit arrangements to reduce the risk of losing rights due to procedural errors.

VI. Frequently Asked Questions

Q1: If I receive a notice of illegal construction but the procedure is not legal, can I directly refuse to demolish the structure?

You cannot directly resist forced demolition by refusing to cooperate, but you can legally suspend its execution and initiate remedies. For a decision on demolition that violates procedural laws, you can apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and apply for a suspension of execution in accordance with Article 56 of the Administrative Litigation Law of the People's Republic of China; if the administrative organ carries out forced demolition directly, you can claim compensation for its procedural violations. Simply refusing to cooperate without going through legal procedures may instead be regarded as obstructing law enforcement. Therefore, a more secure approach is to file an appeal while collecting evidence and, if necessary, apply for property and evidence preservation.

Q2: What legal procedures must be followed to legally determine an unauthorized construction as illegal?

Legal identification generally includes the following steps: First, filing a case and initiating legal procedures after discovering suspected illegal construction; Second, investigating and collecting evidence, conducting on-site inspections, taking inspection notes, and gathering planning permits and other materials; Third, notifying the parties of the proposed identification conclusions, the factual reasons, and the right of the parties to make statements and defenses in writing; Fourth, holding hearings for demolition decisions involving large amounts or significant impacts, either upon request or proactively organized by the authorities; Fifth, making and delivering decisions, with the documents clearly stating the facts, legal basis, remedies, and deadlines; Sixth, enforcement, which must comply with the provisions of the Administrative Enforcement Law regarding notifications, public announcements, and time limits. Any omission of these steps may constitute a procedural violation.

Q3: If you disagree with the determination of an illegal building, should you first file for administrative reconsideration or initiate legal proceedings?

You can choose one of the two options, but not both at the same time. According to the Administrative Reconsideration Law and the Administrative Litigation Law, if you disagree with an administrative act, you can either apply for reconsideration first and then file a lawsuit, or file a lawsuit directly. However, reconsideration and litigation cannot proceed concurrently. If the evidence of procedural violations is clear, it is often more direct to directly initiate administrative litigation to revoke the act; if there are disputes over the facts and the administrative organ needs to conduct a self-inspection first, you can apply for reconsideration first. Regardless of which path you choose, you should file a lawsuit within six months from the date you learn of the determination, or apply for reconsideration within 60 days. Otherwise, you will lose the right to win the case. It is recommended to consult a professional lawyer as soon as possible to determine the time limit.

Q4: If the administrative authority determines a building as illegal without holding a hearing, how can one appeal against this procedural violation?

If a hearing is not held in accordance with the law, it constitutes a procedural violation, and the procedural flaws can be targeted for attack in the review or litigation process. When filing an appeal, submit evidence to prove that a hearing should have been held but was not: for example, if the proposed demolition involves a large area and has significant impacts, but there is no notice of the hearing or transcripts; at the same time, provide evidence that the rights have been legally claimed but were ignored. After review by the review authority or the court, the violation of the statutory procedures can be determined and the determination can be revoked. It is important to note that the lawsuit should be filed within six months from the date of knowing the decision, or within 60 days for review, and the lack of a hearing should be listed as the core reason in the application. If necessary, hire a lawyer to sort out all the procedural details.

Q5: If the procedure for identifying illegal construction is illegal, can I still seek compensation after the forced demolition has taken place?

You can claim compensation. If the forced demolition itself violates legal procedures (such as failing to give notice, make an announcement, or guarantee the time limit for review and litigation before demolition), the forced action is illegal. The party concerned may request compensation in accordance with Article 4 and Article 7 of the "National Compensation Law of the People's Republic of China" (effective January 1, 2013). It is necessary to prove the causal relationship between the illegal demolition procedures and the loss of their own property, and submit evidence such as property lists, photos, and purchase receipts. Even if the building is identified as an illegal construction, the legitimate property losses caused by the illegal demolition should still be compensated. It is recommended to videotape the building before and after the demolition, list the items indoors, and apply for evidence preservation when necessary before filing a lawsuit for compensation.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific cases.

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