Zheng Chang Zheng Fa [2009] No. 21 "Regulations on House Expropriation, Compensation and Resettlement on State-owned Land in Changsha"

This regulation is illegal and is abolished

I don’t know whether the original penalties, demolitions, etc. based on this regulation will be changed

Changsha Municipal People’s Government The "Changsha City Regulations on House Expropriation, Compensation and Resettlement on State-owned Land" (hereinafter referred to as: "House Expropriation Regulations") formulated do not comply with legal provisions.

1. Changsha City’s “House Expropriation Regulations” violate the relevant provisions of our country’s “Constitution”.

Article 13 of my country’s Constitution stipulates: “Citizens’ lawful private property shall not be infringed upon. The state protects citizens’ private property rights and inheritance rights in accordance with legal provisions. For the needs of the public interest, the state shall Citizens’ private property may be expropriated or requisitioned in accordance with legal provisions and compensation shall be provided.”

Obviously, when the state "expropriates" or requisitions "citizens' private property" for the needs of "public interests", it must and can only be implemented in accordance with the provisions of "law".

The "House Expropriation Regulations" formulated and implemented by the Changsha Municipal People's Government are only local regulatory documents and do not belong to the level of law. Therefore, the "House Expropriation Regulations" issued and implemented by the Changsha Municipal People's Government violates the provisions of the Constitution.

2. The "House Expropriation Regulations" of the Changsha Municipal Government violates the relevant provisions of the "Laws of the People's Republic of China and the State".

Article 8 of the "Legal and Laws of the People's Republic of China" stipulates: "Only laws can be enacted on the following matters: (1) Matters concerning national sovereignty; (2) People's congresses and people's governments at all levels , the establishment, organization and powers of the People’s Courts and People’s Procuratorates; (3) the system of regional ethnic autonomy, the system of special administrative regions, and the system of grassroots mass autonomy; (4) crimes and penalties; (5) deprivation of citizens’ political rights and restrictions on personal freedom coercive measures and penalties; (6) Expropriation of non-state-owned property; (7) Basic civil systems; (8) Basic economic systems and basic systems of finance, taxation, customs, finance and foreign trade; (9) Litigation and arbitration systems ; (10) Other matters that must be enacted by the National People's Congress and its Standing Committee."

From the sixth item of Article 8 of our country's "Legislation Law", we can see that "the expropriation of non-state-owned property" can only be regulated by law.

In the "House Expropriation Regulations" of the Changsha Municipal Government, citizens' "personally owned houses" that are "non-state-owned assets" have been included in the scope of expropriation. This collection requirement does not fall within the scope of the law. Obviously, the "House Expropriation Regulations" have exceeded the authority stipulated in the "Laws of the People's Republic of China and the State" and are illegal.

3. Changsha City's "House Expropriation Regulations" violate the relevant provisions of the "Property Law of the People's Republic of China" and the "City Real Estate Management Law of the People's Republic of China".

Paragraph 3 of Article 42 of the "Property Rights Law of the People's Republic of China" stipulates: "Houses and other real estate of expropriated units and individuals shall be compensated for demolition in accordance with the law to safeguard the legal rights of the expropriated persons." Rights and interests; when expropriating personal residences, the living conditions of the expropriated persons shall also be guaranteed.”

The newly revised “Real Estate Management Law of the People’s Republic of China and the People’s Republic of China” only adds the following provision: “ For the needs of the public interest, the state may expropriate the houses of units and individuals on state-owned land, and provide demolition compensation in accordance with the law to safeguard the legitimate rights and interests of the expropriated persons; when expropriating individual residences, the living conditions of the expropriated persons shall also be guaranteed. The specific measures shall be prescribed by the State Council.”

The above two laws strictly stipulate three basic principles that should be followed when “expropriating personal houses”, namely:

(1) It must be For the needs of the public interest, the state can expropriate the houses of individual citizens;

(2) The expropriation of houses must be based on the law, that is, "carried out in accordance with the law", and the "law" here cannot be expanded arbitrarily As for administrative regulations, the State Council can formulate administrative regulations for implementation only when authorized by law. According to the provisions of the Legislation Law, regulations cannot set procedures and related systems for expropriating private property from citizens.

(3) Those who expropriate citizens’ houses “should also ensure the living conditions of the expropriated persons.” This is the bottom line requirement for compensating and resettling citizens’ private houses.

In short, I personally believe that the "Changsha City Provisions on the Expropriation, Compensation and Resettlement of Houses on State-owned Land" promulgated by the Changsha Municipal Government is inconsistent with the "Constitution" and relevant legal provisions. The People's Court is considering When the government expropriates the houses of Changsha residents in accordance with the "House Expropriation Regulations", the administrative cases arising from the expropriation of the houses of Changsha City residents should be revoked on the grounds that the expropriation decision has "errors in the application of laws and regulations" and "illegal procedures".

Changsha City Provisions on Expropriation, Compensation and Resettlement of Houses on State-owned Land

(Changzhengfa [2009] No. 21)

The first article is to regulate the city The expropriation, compensation and resettlement of houses on state-owned land shall safeguard the legitimate rights and interests of the expropriated persons and interested parties, in accordance with the "Property Rights Law of the People's Republic of China" and the "City Real Estate Management Law of the People's Republic of China" and relevant laws. , laws and regulations, and combined with the actual situation of our city, these work regulations are formulated.

Article 2 If construction projects on state-owned land in Furong District, Tianxin District, Yuelu District, Kaifu District and Yuhua District of this city that are in the interests of the public require implementation of house expropriation and compensation and resettlement, the applicable This work regulation.

Article 3: The Municipal People’s Government shall strengthen its leadership over house expropriation, compensation and resettlement.

Each district people's government is responsible for the organization and implementation of house expropriation, compensation and resettlement within its jurisdiction. The work department designated by the district people's government (hereinafter referred to as the district expropriation implementation department) is responsible for the specific work of house expropriation, compensation and resettlement.

The Changsha Urban House Demolition Management Office (hereinafter referred to as the Municipal Demolition Office) is responsible for the supervision and management of house expropriation, compensation and resettlement.

Article 4 Before the district people’s government makes a decision on expropriation, the district expropriation implementation department shall investigate the ownership, location, purpose, building area, lease, usufruct rights, mortgage, seizure, etc. of the houses within the scope of proposed expropriation. Organize investigation and registration, and verify with relevant departments such as real estate and planning. Relevant departments and the expropriated person shall cooperate.

Article 5: After the state-owned land use rights within the scope of proposed expropriation are recovered according to law, the district people's government shall, based on the construction project approval documents, construction land planning licenses, and state-owned land use rights approval documents provided by the district expropriation implementation department. Documents and other information will be used to make decisions on house expropriation, and announcements will be made within the scope of the expropriation.

The announcement of the house expropriation decision should specify the purpose of expropriation, scope of expropriation, implementation department of expropriation, implementation period of expropriation, administrative review, administrative litigation rights, etc.

Article 6: If the expropriated person or interested party is dissatisfied with the house expropriation decision, he or she may apply to the Municipal People's Government for administrative reconsideration in accordance with the law, or may file an administrative lawsuit in the People's Court in accordance with the law.

Article 7: After the house expropriation decision is announced, no new buildings, expansions, or reconstructions of houses are allowed within the expropriation scope. The use of houses and land is not allowed to be changed, and houses are not allowed to be bought, sold, divided, leased or mortgaged. The district collection implementation department should promptly notify the construction, planning, real estate, industry and commerce and other departments to stop handling relevant procedures.

Article 8 The people’s government of the district where the expropriated houses are located shall follow the "Regulations on the Administration of Urban House Demolition", the "Measures of Hunan Province for the Implementation of the Regulations on the Administration of Urban House Demolition", and the "Changsha City Regulations on the Administration of Urban House Demolition" ", "Several Provisions on the Management of Urban House Demolition in Changsha", "Changsha Municipal People's Government's Decision on Adjusting Compensation Standards for Urban House Demolition in Changsha" and other regulations to provide compensation and resettlement to the expropriated persons in accordance with the methods and standards.

Article 9 The district expropriation implementation department shall apply to the municipal demolition office to organize project classification assessment. The municipal demolition office shall organize the project in accordance with the "Guiding Opinions on the Valuation of Urban House Demolition" and the "Regulations on the Management of Urban House Demolition Assessment in Hunan Province" implementation.

The valuation time point for house expropriation is the date when the expropriation decision is announced.

Article 10 The district expropriation implementation department shall formulate a project house expropriation compensation and resettlement plan based on the classified assessment price and investigation and verification, and issue an announcement soliciting opinions on the project house expropriation compensation and resettlement plan within the scope of expropriation, and solicit opinions from the affected persons. If the expropriated person and the interested party submit their opinions and the expropriated person and the interested party request a hearing, the district expropriation implementation department shall organize the hearing in accordance with the regulations, and the municipal demolition office shall participate in the hearing. The public comment period shall be no less than 7 working days.

The district expropriation implementation department shall study the opinions of the expropriated persons and interested parties, and if modification is really needed, it shall be modified and improved.

The contents of the project house expropriation compensation and resettlement plan should include: legal basis, expropriation scope, expropriation implementation steps, details of the property rights of the expropriated houses, specific expropriation compensation standards and resettlement methods, and the implementation of expropriation compensation funds. , the situation of resettlement housing and turnover housing, the implementation period of expropriation, etc.

Article 11 The district expropriation implementation department will submit the revised and improved project house expropriation compensation and resettlement plan to the municipal demolition office for approval, and provide the following information:

1. House expropriation decision , announcements and related materials;

2. Adoption of opinions of expropriated persons and interested parties, if a hearing is held, the hearing transcript should be attached;

3. Expropriation of compensation and resettlement funds Or proof of resettlement housing or turnover housing;

4. Collect house demolition construction safety management information.

The district expropriation implementation department shall issue an implementation announcement of the project house expropriation compensation and resettlement plan within the expropriation scope according to the approved plan, and organize its implementation.

Article 12 The funds for expropriation, compensation and resettlement shall be fully deposited into the special account for expropriation and compensation before the project house expropriation, compensation and resettlement plan is announced and released. The special funds shall be used for expropriation, compensation and resettlement and shall not be diverted for other purposes, and shall be accepted Supervised by the Municipal Demolition Office. If the deposit is not fully deposited, the district expropriation implementation department shall not issue an announcement on the implementation of the project house expropriation compensation and resettlement plan.

The municipal demolition office should promptly monitor the corresponding amount of funds based on the signing of the expropriation, compensation and resettlement agreement, and conduct supervision and inspection on the use of funds.

Article 13 The expropriated person shall, within the expropriation implementation period, sign an expropriation compensation and resettlement agreement with the district expropriation implementation department in accordance with the approved project house expropriation compensation and resettlement plan, vacate the house, and complete the relocation.

The district expropriation implementation department shall submit the agreement to the municipal demolition office for record within 10 working days from the date of signing the expropriation, compensation and resettlement agreement.

Article 14 If the expropriation implementation period stipulated in the house expropriation decision announcement has expired, if an expropriation compensation and resettlement agreement has not been reached and a decision on expropriation, compensation and resettlement needs to be issued, the district expropriation implementation department shall handle it according to the following procedures:< /p>

1. The district expropriation implementation department shall apply for household-based assessment of expropriated houses in accordance with the procedures stipulated in the "Guidance on Valuation of Urban House Demolition" and "Regulations on the Management of Urban House Demolition Assessment in Hunan Province";

2. The district expropriation implementation department will formulate a house expropriation compensation and resettlement plan for each household based on the household assessment results and notify the expropriated persons in writing;

3. The district expropriation implementation department applies for municipal demolition mediation, and Submit the proposed household house expropriation compensation and resettlement plan, household assessment report, negotiation transcripts, compensation and resettlement fund certificates, resettlement house and turnover house ownership certificates, property rights and registration of the expropriated houses and other relevant information;

< p>4. The municipal demolition office shall organize mediation within 7 working days from the date of accepting the mediation application. If the mediation fails, the district expropriation implementation department shall submit an application to the district people's government, and the district people's government shall issue a decision on house expropriation, compensation and resettlement.

Article 15 The decision on compensation and resettlement for house expropriation shall include the following contents:

1. Basic information about the expropriated houses and the rights holders

2. Basis and reasons

3. Price and method of expropriation, compensation and resettlement

4. Relocation period

5. Notification of the parties’ rights to administrative reconsideration and administrative litigation, Paths and deadlines;