In the process of housing expropriation, various contradictions and disputes may arise between the expropriated person and the expropriation department, the main reason is still that the compensation and resettlement are unreasonable, the expropriated person is unwilling to sign the compensation agreement, and the expropriation department may take a series of actions to force eviction or even directly take forced demolition. Illegal forced demolition should bear the liability for compensation, and generally speaking, at least the principle of compensation should be followed, and the compensation should not be lower than the compensation, and the higher should not be lower. That is, if the house is forcibly demolished, the compensation shall not be lower than the amount of compensation that should be obtained according to the compensation and resettlement plan for housing expropriation.
Next, we mainly use a case to understand whether the expropriated person can still get compensation for the demolition incentive fee after the house is demolished if the expropriated person fails to sign the agreement within the contract periodShi Xining, chief lawyer of Beijing Jingkang Law FirmLet's talk to you.
Lawyer's interpretation
1.If the contract is not reached within the contract period, the compensation after the house is forcibly demolished includes a demolition award
Ms. Liu owns a legal house in a community, which is used for business and has considerable economic benefits. In 2016, ** due to the shantytown renovation project, the housing of Ms. Liu's residential area was expropriated. Due to the unreasonable compensation and resettlement, Ms. Liu did not sign the compensation and resettlement agreement within the contract period. At the beginning of February 2018, District ** organized personnel to forcibly demolish Ms. Liu's house. After Ms. Liu filed an administrative lawsuit against the forced demolition of District **, she was subjected to.
The court of first and second instance confirmed that the forced demolition of Ms. Liu's house was unlawful. Later, Ms. Liu submitted a written application for compensation to District **, and the compensation value determined by District **'s compensation decision was significantly low and insufficient to make up for Ms. Liu's actual losses. Therefore, an administrative compensation lawsuit was filed with the people's court.
After trial, the people's court upheld Ms. Liu's claim for loss of house value, loss of decoration and appurtenances, moving subsidy, and operating losses to a certain extent.
As for the demolition incentive fee, according to the housing expropriation compensation and resettlement plan, in principle, the condition for enjoying the demolition incentive fee is to sign the compensation agreement in a timely manner within the contract period and take the initiative to relocate within the specified time. However, in this case, because District ** forcibly demolished Ms. Liu's house without signing an expropriation and resettlement compensation agreement with Ms. Liu, without expropriating and compensating Ms. Liu, and without making a decision on expropriation and compensation, it violated the procedural provisions of the Regulations on the Expropriation and Compensation of Houses on State-owned Land and infringed on Ms. Liu's legitimate rights and interests. Therefore, the State Compensation Law and the Regulations on the Expropriation and Compensation of Houses on State-owned Land should be applied in a comprehensive and coordinated manner in light of the type of illegal act of the administrative organ and the severity of the violation, and the compensation items and amount should be reasonably determined in accordance with the law, so as to ensure that the compensation received by the respondent shall not be less than the amount it can receive in accordance with the expropriation compensation plan. Although Ms. Liu did not sign an expropriation and resettlement compensation agreement with District ** within the incentive period determined by the expropriation compensation, due to the punitive nature, District ** should also compensate Ms. Liu for the loss of the demolition reward for the expropriation compensation. The people's court ultimately upheld Ms. Liu's claim for the demolition incentive.
2.The Supreme People's Court also made it clear that the resettlement subsidy award should be included in the "direct loss".
According to the Supreme People's Court's case: Zhou XX v. an economic and technological development zone management committee for demolition administrative compensation.
[Basic Facts of the Case].Zhou Moumou owns two houses on the collective land of a natural village, and the village began to implement the demolition and reconstruction of farmhouses in 2010. Due to the failure to reach a resettlement compensation agreement with Zhou, in March 2012, the Demolition and Relocation Office organized personnel to forcibly demolish the building involved in the case. Zhou Moumou was dissatisfied with the lawsuit and went to the court, requesting that the management committee of an economic and technological development zone be ordered to compensate him for his resettlement of more than 8 million yuan.
[Judgment Result].The court of first and second instance held that the house involved in the case had been demolished and could no longer be assessed, and the parties had no objection to the construction area and appurtenances, and that the compensation for the house involved in the case could be calculated with reference to the relevant provisions and in accordance with the replacement of the demolished farmhouse from the interests of Zhou, so it ruled that the management committee of an economic and technological development zone should compensate Zhou more than 490,000 yuan and rejected other litigation claims. Dissatisfied, Zhou XX applied to the Supreme People's Court for a retrial.
After trial, the Supreme People's Court held that in order to give full play to the function and role of the State Compensation Law in safeguarding and relieving the legitimate rights and interests of the injured administrative counterpart, the understanding of "direct loss" in Article 36 of the Law on the scope of compensation for losses should include not only the loss of vested property interests, but also the loss of property interests that are not vested but must be obtained, such as the rights and interests of compensation for the demolition and resettlement of rural houses. In this case, without the intervention of the management committee of an economic and technological development zone, Zhou Moumou could have obtained corresponding compensation in accordance with the law through the compensation procedure for demolition and resettlement, so this part of the benefits is an inevitable benefit and should be included in the scope of "direct losses" as provided for in the State Compensation Law.
Director Shi reminded
Demolition and relocation is a long-term struggle, which requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and updating, so that he can calmly analyze and make correct judgments in a case. For non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.