· Document Number：No. 194 [2011] of the Higher People’s Court of Beijing Municipality

· Area of Law： Judicial Assistance Legislative Affairs

· Level of Authority： Local Judicial Documents

· Date issued：06-10-2011

· Status： Effective

· Issuing Authority： Beijing Municipality

Notice of the Higher People's Court of Beijing Municipality on Issuing Some Advice on the Trial and Enforcement of Cases Related to the Projects for Which a Demolition and Relocation Permit Had Been Obtained before the Regulation on the Expropriation of Buildings on State-owned Land and Compensation Came into Force (for Trial Implementation)
(No. 194 [2011] of the Higher People's Court of Beijing Municipality)
The First and Second Intermediate People's Courts of Beijing and the people's courts of all districts and counties:
Some Advice of the Higher People's Court of Beijing Municipality on the Trial and Enforcement of Cases Related to the Projects for Which a Demolition and Relocation Permit Had Been Obtained before the Regulation on the Expropriation of Buildings on State-owned Land and Compensation Came into Force (for Trial Implementation), which have been deliberated and adopted at the 5th session (274th in aggregate) of the Judicial Committee of the Higher People's Court of Beijing Municipality on May 30, 2011, are hereby issued for your reference during the trial practice. If you have any problem in the implementation process, please timely report it to the Higher People's Court of Beijing Municipality.
June 10, 2011
Several Opinions of the Higher People's Court of Beijing Municipality on the Trial and Enforcement of Cases Related to the Projects for Which a Demolition and Relocation Permit Had Been Obtained before the Regulation on the Expropriation of Buildings on State-owned Land and Compensation Came into Force (for Trial Implementation)
These Opinions are formulated in accordance with the relevant laws and judicial interpretations and in light of the actualities of Beijing for purposes of implementing Article 35 of the Regulation on the Expropriation of Buildings on State-owned Land and Compensation (hereinafter referred to as the “Regulation on Expropriation and Compensation”), and regulating the trial and enforcement of the cases related to the projects on state-owned land in Beijing for which a demolition and relocation permit had been obtained before the Regulation on Expropriation and Compensation came into force (hereinafter referred to as the “original projects of demolition and relocation”).
Article 1 During the trial and enforcement of the cases related to the original projects of demolition and relocation, the people's courts shall firmly rely on the leadership of the Party committee, seek for the understanding of and support from all walks of life, strictly implement the standards for examination according to law, do more work to resolve conflicts, use compulsory measures with care, effectively maintain social harmony and stability and strive to achieve the goal of “resolving conflicts without adopting compulsory measures and making the rulings performed without conducting enforcement”.
Article 2 Where a party lodges a lawsuit against a specific administrative act such as a ruling on demolition and relocation permit or on compensation and resettlement related to an original project of demolition and relocation, and the conditions for instituting a lawsuit are met, the people's court shall accept the case as an administrative case.
Article 3 After the party carrying out demolition related to an original project of demolition and relocation has reached an agreement on compensation and resettlement with the party whose house is to be demolished and who is to be relocated or the tenant thereof, if either party regrets or breaches the contract, and the other party lodges a lawsuit, the people's court shall accept the case as a civil case.
Article 4 If an original project of demolition and relocation falls under any of the following circumstances, the people's court shall make a ruling of rejection. If it has accepted the case, it shall make a ruling to dismiss the action:
(1) The party whose house is to be demolished and who is to be relocated or the tenant thereof as involved in the original project of demolition and relocation has reached an agreement on compensation and resettlement with the party carrying out the demolition, but then lodges a lawsuit against the act of demolition and relocation licensing;
(2) The act of licensing a demolition and relocation related to the original project of demolition and relocation has been determined as legal by an effective judgment, and the party lodges a lawsuit against any previous act related to the demolition and relocation license; or
(3) Other circumstances under which the statutory conditions for bringing an action are not met.
Article 5 Where two or more parties lodge administrative lawsuits at different times against the act of licensing a demolition and relocation related to an original project of demolition and relocation, if the people's court puts the cases on file and accepts them separately, the effective judgment on one case shall be binding on other cases.
Article 6 The people's courts shall examine the legality of the specific administrative acts such as ruling on demolition and relocation permit or on compensation and resettlement related to the original projects of demolition and relocation by applying the Regulation on the Dismantlement of Urban Houses, the Measures of Beijing Municipality for the Administration of Urban Houses Demolishment and other provisions on demolition and relocation before the Regulation on Expropriation and Compensation came into force.
Article 7 Where, after a ruling on compensation and resettlement related to an original project of demolition and relocation has been determined as legal by the effective judgment of the people's court, the party whose house is to be demolished and who is to be relocated or the tenant thereof fails to relocate within the prescribed time limit, the demolition and relocation administrative department or the party carrying out the demolition may apply to the people's court for enforcement.
Article 8 If a party whose house is to be demolished and who is to be relocated or the tenant thereof neither lodges a lawsuit against the ruling on compensation and resettlement related to an original project of demolition and relocation nor relocates within the statutory time limit, the demolition and relocation administrative department may apply to the people's court for enforcement.
The people's court shall not accept an application for enforcement if the statutory time limit for demolition or relocation has not expired.
Article 9 Where a demolition and relocation administrative department applies to the people's court for enforcing a ruling on compensation and resettlement related to an original project of demolition and relocation, it shall make the application within 180 days upon expiry of the statutory time limit for the parties to lodge a lawsuit. If the application is not made within the time limit, the people's court shall not accept it unless there is any justified reason.
Where the demolition and relocation administrative department fails to apply or gives up the application to the people's court for enforcing the ruling on compensation and resettlement within the statutory time limit for application for enforcement, the party carrying out the demolition may apply to the people's court for enforcement within 90 days upon expiry of the time limit. The application for enforcement made by the party carrying out the demolition shall be governed by the provisions on the applications made by the demolition and relocation administrative departments to the people's courts for enforcing the rulings on compensation and resettlement.
Article 10 Where a demolition and relocation administrative department applies to the people's court for enforcing a ruling on compensation and resettlement related to an original project of demolition and relocation, it shall submit the following materials:
(1) A written application for enforcement;
(2) The ruling on compensation and resettlement;
(3) The demolition and relocation permit and the evidence and legal norms on which the ruling on compensation and resettlement is made;
(4) The certificate for the service of the ruling on compensation and resettlement;
(5) Information about the building involved in the ruling on compensation and resettlement (including the house structure, nature of the property right, whether it is leased, etc.);
(6) Information about the parties who are resettled and compensated as involved in the ruling on compensation and resettlement (including the natural status quo, contact address, contact information, etc. of the title holder, the tenant, and the inmates);
(7) An explanation on the compensation and resettlement as determined in the ruling on compensation and resettlement (if monetary compensation is ruled, the amount of compensation and the special account number shall be attached, if the swap of property right of completed housing units is ruled, the certification materials of the ownership of houses shall be provided, and if the resettlement of future marketable housing units is ruled, the location, size, etc. of the temporary dwelling shall be provided);
(8) An explanation on the social stability risk assessment and the relevant plans; and
(9) Other materials required.
The materials of (1) to (7) and (9) of the preceding paragraph shall be the basis for the administrative tribunals of the people's courts to examine the legality of the rulings on compensation and resettlement, and materials of (8) and (9) shall be the basis for the enforcement institutions of the people's courts to examine the enforceability of the rulings on compensation and resettlement during the enforcement.
Article 11 For an application which does not meet the statutory conditions for case acceptance and does not contain an explanation on the social stability risk assessment and relevant plans, the people's court accepting the case shall return the application to the applicant or make a ruling of rejection. If it has accepted the case, it shall rule against enforcement.
If the application materials are not complete and may be supplemented, the people's court accepting the case shall inform the applicant of making supplements within 7 days. If the applicant fails to make supplements within the prescribed time limit without any justified reason, the people's court shall make a ruling of rejection.
Article 12 After the people's court accepts an application for enforcement from the demolition and relocation administrative department, the administrative tribunal shall form a collegial panel to examine the legality of the ruling on compensation and resettlement within 30 days, and make a ruling on whether to approve the enforcement. If the time limit needs to be extended in any special circumstance, the extension shall be approved by the higher people's court of Beijing Municipality.
Article 13 When examining a case of enforcement, the people's court may verify the facts related to the ruling on compensation and resettlement, understand the opinions of the parties to demolition and relocation, the reasons why the party whose house is to be demolished and who is to be relocated does not voluntarily perform the ruling, etc. by such means as holding talks, conducting on-site inspection and ordering the relevant parties to fulfill corresponding obligations.
Article 14 Where the ruling on compensation and resettlement related to an original project of demolition and relocation falls under any of the following circumstances, the people's court shall rule against enforcement:
(1) Lack of factual basis;
(2) Lack of legal basis;
(3) The ruling on compensation and resettlement is legal but unreasonable;
(4) The compensation and resettlement is not effectively carried out; or
(5) Other non-enforcement circumstances.
Article 15 Where, during the proceedings, the demolition and relocation administrative department or the party carrying out the demolition applies to the people's court for advance enforcement of the ruling on compensation and resettlement against which a lawsuit is lodged, the people's court shall not conduct enforcement generally, unless state interests or significant public interests are involved. If the party carrying out the demolition applies for advance enforcement, it shall provide corresponding property guarantee.
Article 16 The court accepting the case shall strictly examine the reasons of the applicant for advance enforcement, and request it to provide relevant evidence. If it is found upon examination that the application conditions for advance enforcement are met, and the legitimate rights and interests of the party whose house is to be demolished are effectively protected, the court shall make a ruling after reporting to the Higher People's Court of Beijing Municipality in writing for approval.
Article 17 For a case the enforcement of which is approved by the court accepting the case, if it is unable to make the party voluntarily relocate after multi-party coordination and the compulsory relocation measures need to be taken in the long run, the court needs to report to the court at the next higher level for examination and approval before enforcement.
Article 18 To conduct compulsory relocation, the court accepting the case must report to the local Party committee in advance, and conduct it under the unified leadership and coordination of the Party committee and cooperation with the government and relevant parties.
If, during the process of compulsory relocation, it is found that the enforcement plan is incomplete or there is any circumstance under which the compulsory relocation act is not appropriate to continue, the court accepting the case shall stop the enforcement.
For any case the enforcement of which may cause social instability, the court accepting the case shall truthfully report the relevant information to the local Party committee and the court at the next higher level in a timely manner.
Article 19 These Opinions shall come into force on a trial basis from the date of issuance.