[Gist of the Adjudication].
1.The original judgment ordered that "the Chengde Municipal Bureau of Natural Resources and Planning shall make a new administrative act within the statutory time limit", which did not fully respect "the litigation request of both parties to apply to the court to entrust an appraisal agency to conduct the assessment", which objectively increased the litigation burden of the parties.
2.The defendant raised several questions about the Land Valuation Report of Chengde Tianshun 2020 (Land Assessment) Zi No. 022, and Tianshun Company replied one by one in accordance with relevant laws, regulations and the actual situation of the land involved at that time. In the absence of targeted, legal and effective evidence to support the defendant, the appraisal results of the Land Valuation Report of Chengde Tianshun 2020 (Land Assessment) Zi No. 022 should be used as the legal basis for Anye Company to pay the land transfer fee.
[Basic facts of the case].
On December 12, 2005, the Chengde Municipal Urban and Rural Planning Bureau made the (52) Chengde Huiqiang Mining Building land planning and design conditions, in which the building design requirements in the floor area ratio is: in the building spacing in line with the current national waterproof, disaster relief and other specifications and requirements, the floor area ratio does not exceed 35。
On November 30, 2006, the Chengde Municipal Planning and Approval Committee held a special meeting to review the three planning plans of Huiqiang Mining Building, and believed that the general layout of the No. 2 standard scheme was reasonable, the building was simple and modern, and the urban landscape effect was good, which basically met the requirements of urban planning. The total construction area of the planning scheme is 72,180 square meters, of which the total construction area on the ground is 67,6269 square meters, plot ratio 476, building density 35%, parking space 120. The meeting agreed in principle to the plan and proposed amendments.
On January 15, 2007, the plaintiff Anye Company and Hongwei Company signed the Land Use Right Transfer Contract to acquire the land use right of the land on the north side of the Biling Ridge in Dashimiao Town. On April 3, 2007, the people of Chengde City applied for a state-owned land use right certificate for the plaintiff. The plaintiff developed and constructed the Huiqiang Mining Building project on the site.
On August 21, 2008, the Chengde Municipal Urban and Rural Planning Bureau issued a letter to the Chengde Municipal Bureau of Land and Resources on the changes of some planning conditions in accordance with the Notice on Approving the Planning and Design Conditions and Planning Scheme Adjustment Measures for the Transfer of State-owned Land Use Rights of the Chengde Municipal Planning Bureau, etc., in which the original planning conditions of the land for Huiqiang Mining Building [(2005) No. 52] The plot ratio does not exceed 35. The approved revised floor area ratio is 50。
The Chengde Municipal Bureau of Land and Resources entrusted Jinfeng Company to evaluate the amount of land transfer fees that should be paid for the land involved in the Huiqiang Mining Building Project of Anye Company due to the planned increase in floor area ratio. On September 2, 2015, Jinfeng Company made a land appraisal report, stating: assessment reference date: November 30, 2006; Land use: commercial; Plot ratio: The original planned plot ratio of the parcel to be assessed is 35. The floor area ratio is 5 after changing the planning conditions0。881050,000 yuan.
On October 10, 2015, the defendant Chengde Municipal Bureau of Natural Resources and Planning issued No. 26 Notice to the Plaintiff on the Change of the Planning Conditions of the Dashimiao Partial Ridge Plot (Huiqiang Mining Building Project) and the Supplementary Payment of Land Transfer Fee, requiring the Plaintiff to pay the land transfer fee to increase the plot ratio. Within 30 days after receiving this notice, the floor area ratio will be increased by 35 adjusted to 50 land transfer fee 881050,000 yuan, and the original document [2012] No. 168 was invalidated. The plaintiff received the notice on January 7, 2016. The plaintiff failed to pay the land transfer fee within the time limit.
On August 20, 2018, the defendant issued to the plaintiff the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Payment of the Land Transfer Fee Involved in the Change of the Planning Conditions of the Dashimiao Partial Ridge Plot, which stated: In October 2015, our bureau issued the No. 26 "Notice of the Chengde Municipal Land and Resources Bureau on the Change of the Planning Conditions of the Dashimiao Partial Ridge Plot (Huiqiang Mining Building Project) to Make the Supplementary Payment of the Land Transfer Fee" to your company, in view of the fact that the planning plot ratio of the Dashimiao Partial Ridge Plot used by your company is 35 adjusted to 50. According to the "Notice on Strengthening the Management of State-owned Land Assets" (Guo Fa [2001] No. 15) document, the land transfer fee needs to be paid to increase the plot ratio. After evaluation, it is confirmed that your company should pay the land transfer fee of 881050,000 yuan, but your company has not paid it so far. Please come to our bureau within 30 days after receiving this notice to go through the relevant procedures for paying the land transfer fee.
In the second instance, according to the claims of both parties and with the consent of both parties (in writing), the court of second instance entrusted Tianshun Company to conduct an assessment at the request of Anye Company. On April 2, 2020, the company submitted the Chengde Tianshun [2020] (Land Assessment) Zi No. 022 Land Valuation Report. The court of second instance organized both parties to cross-examine the Land Valuation Report, and the appraiser of Tianshun Company appeared in court to accept the questioning.
[Plaintiff's Claim].
Surveon's first-instance litigation request: to revoke the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Payment of the Land Transfer Fee Involved in the Change of Planning Conditions of the Dashimiao Partial Ridge Plot issued by the defendant on August 20, 2018.
[Court ruling].
The first-instance judgment revokes the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Payment of the Land Transfer Fee Involved in the Change of the Planning Conditions of the Dashimiao Partial Ridge Plot issued by the defendant Chengde Municipal Bureau of Natural Resources and Planning on August 20, 2018; Order the defendant to take a new administrative act within the statutory time limit.
Second-instance judgment: 1. Item 1 of the first-instance administrative judgment is upheld; 2. Revoke item 2 of the first-instance administrative judgment; 3. Order the Chengde Municipal Bureau of Natural Resources and Planning to recover the land transfer fee payable by Anye Company within 60 working days from the effective date of this judgment in accordance with the assessment results of the Land Valuation Report of Chengde Tianshun [2020] (Land Assessment) Zi No. 022; Fourth, the assessment fee of 150,000 yuan shall be borne by Surveon Company.
[Comment on the focus of the controversy].
OneWhether the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Change of Planning Conditions for the Dashimiao Partial Ridge Plot Involves the Supplementary Payment of Land Transfer Fees should be revoked
The main evidence of the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Change of Planning Conditions of the Dashimiao Partial Ridge Plot Involving the Supplementary Payment of Land Transfer Fees is insufficient
On August 21, 2008, the Chengde Municipal Urban and Rural Planning Bureau commissioned an appraisal agency to make a land valuation report on the basis of the "Letter on the Change of Some Planning Conditions". That is, the assessment report made by the appraisal agency was based on the time of the Planning Committee, and the changed plot ratio was based on the notice of the planning department provided to it by the defendant, and the adjusted plot ratio in the notice of the planning department was inconsistent with the adjusted plot ratio in the minutes of the special meeting.
The Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Change of Planning Conditions for the Dashimiao Partial Ridge Plot Involving the Supplementary Payment of Land Transfer Fees issued by the Chengde Municipal Bureau of Natural Resources and Planning is the main evidence insufficient.
The Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Change of Planning Conditions of the Dashimiao Ridge Plot Involving the Supplementary Payment of Land Transfer Fees should be revoked
Article 70 of the Administrative Litigation Law provides: "In any of the following circumstances, the people's court shall make a judgment to revoke or partially revoke an administrative act, and may make a judgment that the defendant shall take a new administrative act: (1) the main evidence is insufficient; (2) Applying laws or regulations in error; ......
The original trial court revoked the Notice of the Chengde Municipal Bureau of Land and Resources on Urging the Payment of the Land Transfer Fee Involved in the Change of Planning Conditions for the Dashimiao Partial Ridge Plot issued by the Chengde Municipal Bureau of Natural Resources and Planning on August 20, 2018, and found that the facts were clear and the law was correctly applied, and the court of second instance affirmed it.
IIWhether the original judgment was appropriate to order "the Chengde Municipal Bureau of Natural Resources and Planning to make a new administrative act within the statutory time limit".
The original judgment was indeed improper in ordering "the Chengde Municipal Bureau of Natural Resources and Planning to make a new administrative act within the statutory time limit".
The original judgment ordered that "the Chengde Municipal Bureau of Natural Resources and Planning shall make a new administrative act within the statutory time limit", which did not fully respect "the litigation request of both parties to apply to the court to entrust an appraisal agency to conduct the assessment", which objectively increased the litigation burden of the parties.
2.The court of second instance entrusted Tianshun Company to evaluate the land involved in the case in accordance with the law, taking into account the legal effect
fruit and social effects
In fact, the Chengde Municipal Bureau of Natural Resources and Planning "must also re-evaluate the administrative action in accordance with legal procedures". However, initiating this procedure requires the investment of administrative resources, therefore, based on the fact that both parties had clearly put forward the proposition that the people's court should entrust an appraisal agency to conduct the appraisal in the first instance, the parties in the second instance also clearly put forward the litigation request that the appraisal agency be entrusted by the court of second instance to conduct the assessment. Adhering to the principle and purpose of fully "respecting the wishes of the parties, focusing on resolving the contradictions, and closing the case", the court of second instance entrusted Chengde Tianshun Land Appraisal to evaluate the land involved in the case in accordance with the law, which is also a "different path to the same end", which has not only been recognized by both parties, but also reflects the organic unity of legal and social effects.
3.Chengde Tianshun [2020] (Land Assessment) Zi No. 022 "Land Valuation Report" should be used as this
Basis for adjudication
Chengde Tianshun [2020] (Land Valuation) Zi No. 022 "Land Valuation Report" adopts the "difference method" for evaluation, which is in line with the market conditions of the land involved in the case at that time under the two valuation periods confirmed by both parties; It also complies with the provisions of Article 8 of the Norms for the Transfer of State-owned Land Use Rights by Agreement (Trial) (Guo Lu Zi Fa [2006] No. 114); It is also in line with the ...... of the Chengde Municipal People's ** "Measures for Increasing the Floor Area Ratio of State-owned Construction Land in Chengde City" (Cheng Shi Shi Zi [2010] No. 9) issued by the people of Chengde City on January 20, 2010The amount of the supplementary payment shall be determined according to the assessment results and the following formula: the amount of land transfer that the original land use right holder shall pay The land use right market under the new land use conditions at the time of approval of the increase** The market of the land use right with the remaining term under the original land conditions at the time of approval of the increase**".
Chengde Tianshun [2020] (Land Assessment) Zi No. 022 "Land Valuation Report" confirmed that the average price of housing sales at the end of 2006 was 3,00000 yuan square meters, the average price of house sales in August 2008 was 335000 yuan square meters, in line with the fact that the Dashimiao area of Shuangqiao District, Chengde City has not yet formed a standard development and is relatively remote.
According to the objective fact that the benchmark land price issued by the people of Chengde City in 1999 was not adjusted until 2007, Chengde Tianshun [2020] (Land Assessment) Zi No. 022 "Land Valuation Report" adopts the 1999 benchmark land price based on the date of 2006, which is in line with the above provisions3. In line with the market situation at that time.
The defendant raised several questions about the Land Valuation Report of Chengde Tianshun 2020 (Land Assessment) Zi No. 022, and Tianshun Company replied one by one in accordance with relevant laws, regulations and the actual situation of the land involved at that time. In the absence of targeted, legal and effective evidence to support the defendant, the appraisal results of the Land Valuation Report of Chengde Tianshun 2020 (Land Assessment) Zi No. 022 should be used as the legal basis for Anye Company to pay the land transfer fee. More importantly, the defendant made it clear in court: "It is recommended that the appraiser check whether there are any changes to the original assessment, and if so, I hope to give a supplementary opinion, and if not, give the court a reply, submit a reply, and we will not claim any other rights in the future, and the court will adjudicate in accordance with the law." The plaintiff also made it clear that it "agreed to pay the land transfer fee for the parcel in question according to the amount determined in the aforementioned report". Accordingly, the court of second instance confirmed that the appraisal result of the Land Valuation Report of Chengde Tianshun 2020 (Land Assessment) Zi No. 022 was the amount of the land transfer fee paid by Anye Company.