Analysis and recommendations on the impact of the new crown virus epidemic on housing expropriation projects on state-owned land.

【Abstract】 In order to prevent and control the new coronavirus epidemic, the central and local governments have issued a series of strict epidemic prevention and control measures. Before the outbreak of the epidemic, the local government has decided to implement the housing expropriation project on state-owned land for the public interest, which is inevitably affected by the prevention and control measures of the epidemic. In this paper, the local government has made a housing expropriation decision on state-owned land housing expropriation projects, affected by the epidemic may arise related issues to comb analysis, and put forward legal recommendations.

【Key words】Housing expropriation compensation agreement signing period administrative reconsideration administrative litigation enforcement

Since January 2020, the new coronavirus epidemic (hereinafter referred to as the epidemic) has ravaged the country, in order to effectively stop the spread of the epidemic and resolutely win the epidemic prevention and control war, the central and local governments have introduced a series of strict epidemic prevention and control measures, including delaying the resumption of work, restricting the gathering of people, restricting the travel of residents, closing external traffic and even "closing the city. Before the outbreak of the epidemic, local governments had begun to implement housing expropriation projects on state-owned land for the public interest, which were inevitably affected by the epidemic prevention and control measures. In this paper, in view of the housing expropriation project on state-owned land that the local government has made a decision on housing expropriation, this paper analyzes and makes suggestions on several related issues affected by the epidemic, so as to provide reference for the relevant parties in the specific practical work.

The impact of the 1. epidemic on the signing of compensation agreements for housing expropriation on state-owned land.
 

This epidemic is very similar to the "SARS epidemic" that broke out in 2003. It is also "a sudden abnormal event and a worldwide epidemic. Not only the parties cannot foresee it, but also medical experts with extensive medical knowledge. Since its outbreak, there has been no effective method to prevent its spread, and the medical community has not yet determined the exact and effective treatment method", it is an objective situation that cannot be foreseen, unavoidable and insurmountable. Regarding the legal nature of the epidemic, on February 10, 2020, Zang Tiewei, spokesperson of the Legal Work Committee of the Standing Committee of the National People's Congress and director of the research office, clearly stated: "The current outbreak of new coronary pneumonia in my country. In order to protect public health, the government has also taken corresponding epidemic prevention and control measures. For the parties who cannot perform the contract, it is an unforeseeable, unavoidable and insurmountable force majeure."

Force majeure has a direct impact on civil contracts, while the expropriation of houses on state-owned land is an administrative act, and the agreement signed between the housing expropriation department and the expropriated person is an administrative agreement, but I believe that the epidemic also has a direct impact on the signing of the expropriation agreement.

According to the "Regulations on Expropriation and Compensation of Houses on State-owned Land" and other relevant laws and regulations, the municipal and county-level people's governments shall determine the contract period in the expropriation compensation plan and publicize it to the public. The regulations on the signing period vary from place to place, but the determination of the signing period is of great significance to the legal progress of the entire expropriation work. On the one hand, it helps the housing expropriation department to control and ensure the smooth progress of the expropriation project in accordance with the law, and determine the relocation The reward standard and time point, and determine the time limit for the expropriated person who cannot reach the expropriation compensation agreement within the signing period; on the other hand, the determination of the signing period will enable the expropriated person to grasp the progress of the negotiation with the housing expropriation department, and know the legal consequences of failing to reach an expropriation compensation agreement with the housing expropriation department without justifiable reasons within the signing period. So can the contract period be suspended due to the force majeure of the epidemic?

The author believes that if the contract period has already been calculated when the epidemic breaks out, it will be difficult for the expropriated to fully and effectively negotiate with the housing expropriation department on compensation matters due to the influence of epidemic prevention and control measures. At this time, if the housing expropriation department still calculates or even issues a compensation decision according to the original contract period, it will inevitably have an adverse impact on the rights of the expropriated and be unfair to the expropriated, in the later collection procedure, there may also be legal consequences such as being recognized as illegal collection compensation decision because of procedural violations. Therefore, in order to protect the expropriation interests of the expropriated and to ensure that the expropriation work of the housing expropriation department is carried out in accordance with the law, it is suggested that when the signing period covers the epidemic prevention and control period, the municipal and county people's governments that make the housing expropriation decision may decide to suspend the signing period and make public announcements, and the signing period will continue to be calculated after the epidemic prevention and control period has passed.

The impact of the 2. epidemic on the performance of the compensation agreement for housing expropriation on state-owned land.
 

According to the first paragraph of Article 25 of the "Regulations on Expropriation and Compensation of Houses on State-owned Land": "The house expropriation department and the expropriated person shall, in accordance with the provisions of these regulations, discuss the compensation method, compensation amount and payment period, and use for the exchange of property rights. The location and area of the house, relocation fee, temporary resettlement fee or turnover house, loss of suspension of production and business, relocation period, transition method and transition period, etc., enter into compensation agreement". In terms of legal nature, the expropriation compensation agreement signed by both parties is an administrative agreement. On the one hand, the expropriation compensation agreement has some particularity in the subject, purpose and content of the contract. At the same time, according to Article 18 of the provisions of the Supreme People's Court on Several Issues concerning the trial of administrative agreement cases, the people's court shall support the exercise of the right of defense in accordance with the provisions of civil laws and regulations. In view of this, in the course of the performance of the compensation agreement, the new crown epidemic conforms to the provisions of Article 180, paragraph 2, of the General Provisions of the the People's Republic of China Civil Law and Article 117, paragraph 2, of the the People's Republic of China Contract Law, which may be used as a defense of performance in the performance of the expropriation compensation agreement as a force majeure.

During the prevention and control of the epidemic, the expropriated person looking for new housing, moving and other matters can not be carried out and other reasons, the epidemic may cause the expropriated person to be unable to vacate the expropriated house in a timely manner in accordance with the agreed time, and thus affect the expropriated person to obtain the compensation agreement agreed relocation incentive fee. The author believes that the housing expropriation department should fully consider the new crown epidemic as a factor, which is force majeure and can fully protect the legitimate rights and interests of the expropriated person. Therefore, the expropriated person's relocation incentive fee will not be withheld when the expropriated person defers to vacate the expropriated house. At the same time, after the epidemic prevention and control measures are lifted, the expropriated person should also perform the relocation obligation as soon as possible within a reasonable period.

As far as the housing expropriation department of the other party to the compensation agreement is concerned, if the impact of the prevention and control measures of the new crown epidemic leads to the delay in the delivery of the resettlement housing, which in turn leads to the extension of the transition period, should the temporary resettlement transition fee be double paid in accordance with the agreement? The author believes that the resettlement housing should be analyzed according to the specific problems. If the resettlement housing has already met the delivery conditions at the time of the epidemic, and the epidemic prevention and control measures cannot be implemented, the collection department can pay the temporary resettlement fee according to the original temporary resettlement fee standard until the prevention and control measures are lifted. If the resettlement housing is still under construction at the time of the epidemic, if the final delivery time is later than the transition period, the specific impact of epidemic prevention and control on delayed delivery should be taken into account and should not be generalized.

The impact of the 3. epidemic on the legal time limit for administrative reconsideration and litigation by the expropriated.
 

In the process of making house expropriation decisions and subsequent housing expropriation projects, the expropriated person who is not satisfied with the expropriation has the right to apply for administrative reconsideration or file an administrative lawsuit. At the time of the epidemic, if the expropriated person misses the above-mentioned statutory deadline due to government epidemic prevention and control measures, does it mean that the expropriated person's statutory relief rights have expired and cannot be exercised?

The second paragraph of Article 9 of the "the People's Republic of China Administrative Reconsideration Law" stipulates: "If the statutory application period is delayed due to force majeure or other justified reasons, the application period shall continue to be calculated from the date when the obstacle is removed." The first paragraph of Article 48 of the "the People's Republic of China Administrative Litigation Law" stipulates: "If a citizen, legal person or other organization delays the time limit for prosecution due to force majeure or other reasons that do not belong to him, the delayed time shall not be counted in the time limit for prosecution." Article 13 of the "the People's Republic of China Emergency Response Law" stipulates: "If litigation, administrative reconsideration, and arbitration activities cannot be carried out normally due to the adoption of emergency response measures, the provisions on the suspension of the statute of limitations and the suspension of procedures shall apply, but as otherwise provided by law.." In summary, the epidemic can be used as a cause of force majeure to suspend the statutory period, pending the lifting of the epidemic prevention and control measures, the expropriated person can still apply for administrative reconsideration and bring administrative proceedings in accordance with the above-mentioned government administrative acts.

Therefore, although the time limit for the expropriated person to apply for administrative reconsideration and file administrative litigation can be suspended due to the occurrence of this epidemic, it is suggested that the expropriated person and his entrusted agent should pay attention to the epidemic information in time, and pay attention to actively save the evidence of the occurrence of the epidemic and the failure to file corresponding procedures within the legal period, and file administrative reconsideration or litigation in time after the epidemic is eliminated. At the same time, the expropriated person should also make full use of online filing, timely exercise of their rights.

The impact of the 4. epidemic on the time limit for the housing expropriation department to apply to the people's court for enforcement of the compensation decision in accordance with the law.
 

If the expropriated person does not apply for administrative reconsideration or file an administrative lawsuit within the statutory time limit, and does not move within the time limit specified in the compensation decision, the people's government at the city or county level that made the house expropriation decision shall apply to the people's court for compulsory enforcement in accordance with the law. Article 2, paragraph 3, of the provisions of the Supreme people's Court on several issues concerning the handling of cases in which the people's Court is applied for compulsory execution of compensation decisions on housing expropriation on state-owned land stipulates: "the application for compulsory execution shall be filed within three months from the date of expiration of the statutory time limit for prosecution of the person subject to execution; if the application is overdue, the people's court shall not accept it unless there are justifiable reasons, the statutory time limit for the people's government at the city or county level that made the house expropriation decision to apply to the people's court for enforcement of the compensation decision is three months, but can the statutory time limit be suspended due to the force majeure of the epidemic?

The author believes that the legal nature of the epidemic is force majeure, which is in line with the legitimate reasons stipulated in the third paragraph of Article 2 of the provisions of the Supreme people's Court on handling the cases of applying to the people's Court to enforce the compensation decision on housing expropriation on state-owned land. If the housing expropriation department files an application for enforcement of the compensation decision due to the delay of the epidemic, the people's court shall accept it. The suspension period should be limited to the period of epidemic prevention and control measures announced by the government, and the housing expropriation department, as the dominant party in the expropriation act, should strictly limit its rights, while the expropriation party should also make full use of online filing and other technical means to ensure the timely implementation of the application.

Under the epidemic, both parties to the expropriation of houses on state-owned land have a greater impact. Both parties to the expropriation should face up to the objective reality, and the implementation of the agreement must be beneficial to the expropriated person and have laws to abide by; Housing expropriation departments must not only actively exercise their rights, but also be good at using network technology to exercise them in a timely manner to prevent the relevant rights from being protected after the prosecution deadline or application deadline.