Real estate perspective: "married women" can enjoy resettlement compensation treatment?
Published:
2020-09-23
Introduction:
The so-called "married woman" mainly refers to a woman who is married to a foreigner but whose hukou remains in the village or who moves back to the village after divorce. Generally speaking, the focus of the dispute in the case of married women is whether the married women still enjoy the land expropriation compensation, dividends and other benefits of their village after they are married. This article takes the judicial adjudication as the observation window, takes the judicial review standard as the breakthrough point, through the case interpretation, analyzes whether the "married woman" can enjoy the resettlement compensation treatment.
Case Introduction:
In April 2017, a county village shed reform headquarters issued a compensation plan, stating that the resettlement compensation plan adopts monetary compensation, and monetary compensation is adopted for members of village collective economic organizations according to the resettlement area of 47 square meters per person. On November 15, 2017, the first villagers' group of a village committee in the county issued a certificate stating that the plaintiff was a married woman, that the plaintiff no longer lived in the village after she got married, and that her original responsible farmland was contracted to other members of the group with the unanimous vote of the village villagers' group in 2016. therefore, the plaintiff no longer belongs to the members of the village villagers' group. On November 28, 2017, the county's urban village shed reform headquarters signed a demolition and resettlement compensation agreement with the plaintiff's father, but did not provide resettlement compensation to the plaintiff. The plaintiff believed that the county's urban village shed reform headquarters did not provide compensation for its resettlement, which violated its legitimate rights and interests, so it filed an administrative lawsuit.
Referee's view:
The court held that China's law has not yet made special provisions different from ordinary villagers on whether "married women" can enjoy the same resettlement compensation treatment as ordinary villagers. In view of this livelihood issue, which directly involves the vital interests of "married women", it should be comprehensively considered from the following six criteria: first, whether the household registration of "married women" is still in the original collective economic organization when the land expropriation compensation scheme is determined; second, whether the "married women" are still in the actual production and life of the collective economic organization when the land expropriation compensation scheme is determined; the third is whether the "married woman" still uses the land of the original collective economic organization as the basic living security; the fourth is the opinions of the villagers' Congress of the collective economic organization where the "married woman" is located; the fifth is the villagers' obligations that the "married woman" should perform in the collective economic organization; the sixth is whether the "married woman" enjoys the treatment of villagers in other collective economic organizations.
Case extension:
In practice, the court usually adopts the strategy of judicial avoidance, and transfers the dispute of married women to the administrative organ for settlement, and then the court conducts judicial review on the administrative act made by the administrative organ. However, with the advancement of judicial reform, the initiative of judicial governance is becoming more and more important. In the field of "married women" disputes, the judicial power should not only respect the administrative power, but also actively urge the administrative organs to perform their legal duties. In the following, our lawyers, through legal search, list some of the rules of adjudication for "married women" disputes as follows:
1. In March 2006, the Lishui Intermediate People's Court of Zhejiang Province issued the "Guiding Opinions on Issues Concerning the Trial of Rural Land Contract Dispute Cases", which determined the "Lishui Model". Under this mode, if the "married woman" thinks that the rural collective economic organization has infringed upon its rights and interests, it can apply to the agricultural administrative department of the township level government or the district and county level government for processing, but the processing mode is only administrative mediation. Administrative mediation is a precondition for "married women" to file a lawsuit. Only if the administrative mediation fails or is not satisfied with it can a civil lawsuit be brought to the court.
2. On November 13, 2007, the Guangdong High Court issued Document No. 303 of the Guangdong High Law [2007], which determined the "Guangdong Model" for handling cases of "married women". Under this model, if the "married woman" believes that the rural collective economic organization infringes on her rights and interests, she can appeal to the township level government; if the "married woman" is not satisfied with the administrative decision of the township level government, she can file an administrative reconsideration with the district government; if she is not satisfied with the result of the reconsideration, she can bring an administrative lawsuit to the court.
3. In 2008 and 2012, the Hainan Provincial Higher People's Court successively formulated the "Opinions on Several Issues Concerning the Handling of Disputes over the Distribution of Land Compensation for Rural Collective Economic Organizations by" Married Women "" and the "Hainan Provincial Higher People's Court on the Trial of Rural Collective Economic Organizations" Opinions on Several Issues in Land Compensation Fee Distribution Disputes (Trial) "two documents to determine the" Hainan Model "to resolve the" married woman "dispute". Under this model, the parties sue the rural collective economic organization on the grounds that the rights and interests of the members of the rural collective economic organization have been infringed, and request the distribution of the collective economic organization's land compensation fee, and the court accepts it if it meets the prosecution conditions stipulated in the Civil Procedure Law; If the parties file a civil lawsuit on whether the land compensation fees received by the rural collective economic organization should be distributed and the amount of land compensation fees used for distribution, the distribution, the people's court will not be accepted.
4. In the case of Tang Mou v. the Management Committee of a city's economic and technological development zone for compensation and resettlement [(2018) Luxing Final No. 2520], the court held that whether the married woman can obtain resettlement compensation should be comprehensively considered in combination with the following four criteria: first, whether the household registration of the married woman is still in the original collective economic organization when the land acquisition compensation plan is confirmed; Second, when the land acquisition compensation plan is determined, whether the married woman is still in the actual production and life of the collective economic organization; the third is whether the married woman still uses the land of the original collective economic organization as the basic living guarantee; the fourth is the opinions of the villagers' congress of the collective economic organization where the married woman is located Wait. It is worth noting that the trial court of the case is the same court as the trial court of the case described in this article, but the case occurred before the above-mentioned case, and the six criteria for handling the "married woman" dispute summarized in the case described in this article are a further supplement to the adjudication rules of the case.
Summary:
The six criteria for dealing with "married women" disputes in the cases described in this paper not only provide a basis for the court to examine whether the government has performed its duties in accordance with the law, but also provide rules and guidelines for the government to perform its duties in accordance with the law. The Law on the Protection of Women's Rights and Interests in the People's Republic of China stipulates that "women enjoy equal rights with men in rural land contract management and income distribution of collective economic organizations; no organization or individual may use women's unmarried, married, divorced, widowed, etc., Infringe on women's rights and interests in rural collective economic organizations." The "the People's Republic of China Land Management Law" stipulates that "a rural villager can only own one homestead." "In areas where the per capita land is small and a household cannot be guaranteed to own a homestead, the county-level people's government fully respects the wishes of rural villagers. On the basis of this, measures can be taken to ensure that rural villagers can live in their households in accordance with the standards set by provinces, autonomous regions, and municipalities directly under the Central Government." When the administrative organs carry out the activities of requisition and relocation, they will inevitably have an impact on the residential rights and interests of "married women", and the administrative organs have the responsibility to protect the basic residential rights and interests of "married women" from infringement. Compared with other villagers, the legitimate rights and interests enjoyed by "married women" should be treated fairly, legally and reasonably, which is not only in line with the constitutional spirit of protecting the basic rights of citizens, but also in line with the requirements of ensuring the livelihood of households.
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