Analysis of Litigation Issues Related to Housing Expropriation Compensation Agreement on State-owned Land

The interpretation of the Supreme People's Court on the application of the "the People's Republic of China Administrative Procedure Law" came into effect on February 8, 2018, and it has been nearly three years since the "Administrative Procedure Law" was revised in 2014. At the same time, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Procedure Law (Fashi [2015] No. 9) promulgated by the Supreme People's Court on April 22, 2015 has completed its historical mission and was abolished at the same time as the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the the People's Republic of China Administrative Procedure Law (Fashi [2000] No. 8). In this context, the relevant litigation procedures of housing expropriation compensation agreement on state-owned land tend to be perfect, but there are still problems that need to be further clarified and solved. Now the author analyzes the relevant problems in combination with judicial practice as follows:
 

The legal nature of the compensation agreement for housing expropriation on state-owned land in 1.
 

Before the implementation of the State Council's "Regulations on Expropriation and Compensation of Houses on State-owned Land" (hereinafter referred to as "Regulations on Expropriation") in 2011, according to the provisions of the "Regulations on Urban Housing Demolition", the demolition person and the demolished person are equal civil subjects. The demolition compensation agreement reached by both parties on the demolition compensation and resettlement issues is a civil contract. If there is a lawsuit due to the performance of the demolition compensation agreement, according to the Supreme People's Court's "Reply on Accepting Housing Demolition, Compensation, and Resettlement Cases" on July 24, 1996, the court should accept it as a civil case, which is not controversial in theory and practice.

However, after the implementation of the Regulations on Expropriation, the main body of the agreement on compensation for house expropriation on state-owned land is the house expropriation department, and the other is the expropriated person, and the house expropriation department is determined by the government to organize the implementation of house expropriation and compensation in the administrative area. The work department represents the government. The expropriation is related to the expropriation and the expropriation. Therefore, whether the nature of the compensation agreement on housing expropriation on state-owned land is a civil contract or an administrative agreement is directly related to the settlement of disputes arising from the performance of the compensation agreement on housing expropriation on state-owned land. Before the revision of the Administrative Procedure Law in 2014, the relevant laws and judicial interpretations did not clarify the nature of the compensation agreement for housing expropriation on state-owned land, and the dispute cases of housing expropriation compensation agreement were not clearly defined as the scope of administrative litigation. In practice, the operation varies from place to place, and there are also differences in theory. The main points are as follows:

The first point of view is that the compensation agreement for housing expropriation on state-owned land is an administrative agreement. From the perspective of the main body of the agreement, one party represents the government and the other party is the expropriated person. Inequality, the rules followed in signing the agreement are mainly administrative regulations such as the "Expropriation Regulations". Expropriation is mandatory, so the expropriation compensation agreement should be an administrative agreement.

The second point of view is that the compensation agreement for housing expropriation on state-owned land should belong to a civil contract, because in essence, the expropriation compensation still reflects a property exchange relationship, and the signing process of the expropriation compensation agreement is still negotiated by both parties, reflecting the agreement reached by both parties. It is not entirely a unilateral act of the government expropriation party, so the expropriation compensation agreement should belong to a civil contract.

I agree with the first point of view, the main reasons are as follows:

An administrative agreement refers to an agreement signed by an administrative organ with the contents of rights and obligations in administrative law with citizens, legal persons or other organizations within the scope of legal duties in order to achieve public interests or administrative management objectives (see Article 11 of the interpretation on Several Issues concerning the application of the administrative procedure law of the the People's Republic of China (Fa Shi [2015] No. 9)). It has the following characteristics: 1. One of the two parties to the agreement must be the administrative subject, that is, the administrative organ; 2. The purpose of the agreement is to achieve public interest or administrative objectives; 3. The content of the agreement is the rights and obligations of administrative law, which mainly applies to administrative regulations.

From the state-owned land housing expropriation compensation agreement signed subject, purpose, content and other aspects, fully with the characteristics of the administrative agreement. Although the compensation agreement for housing expropriation on state-owned land has gone through the corresponding negotiation process, the negotiable content is often limited to the negotiation of the way of housing expropriation compensation, that is, housing resettlement or monetary compensation. As long as it is a legal housing expropriation project, the housing expropriation compensation standard is legal and effective, and it is not negotiable for the value of the expropriated house, the compensation standard and so on. Therefore, in the compensation agreement for house expropriation on state-owned land, the expropriated person does not have the complete freedom to enter into a contract in the civil contract, and the expropriated person does not have the right to refuse to expropriate, let alone the right and freedom to refuse to sign the agreement for house expropriation on state-owned land. Not only that, the expropriator, as the administrative subject, has certain privileges in the administrative agreement, such as the right to unilaterally change or terminate the administrative agreement under certain conditions, and the right to sanction the contract counterpart for breach of the contract. Therefore, Article 12 (11) of the revised "Administrative Litigation Law" in 2014 clearly stipulates that the nature of the administrative agreement of the compensation agreement for housing expropriation on state-owned land is affirmed in legislation.
 

The litigation relief method of the 2. expropriator's failure to perform or the expropriator illegally changes or terminates the compensation agreement for the expropriation of houses on state-owned land.
 

Article 25 of the "Expropriation Regulations" stipulates that "after the conclusion of the compensation agreement, if one party fails to perform the obligations stipulated in the compensation agreement, the other party may file a lawsuit according to law". The positive significance of the above provisions is that it is clear that after signing the compensation agreement for house expropriation on state-owned land, those who fail to perform the compensation agreement can be resolved through litigation; but the deficiency is that, it is not clear what kind of proceedings can be instituted in accordance with the law.

From the promulgation of the Expropriation Regulations in 2011 to the revision of the Administrative Procedure Law in 2014, many parties were accustomed to referring to the demolition compensation agreement to file a lawsuit against the housing expropriation compensation agreement as a civil case in the court, which ultimately wasted more time and energy. It cannot be effectively resolved, and the purpose of litigation cannot be achieved. After the revision of the Administrative Procedure Law in 2014, the above-mentioned problems have been generally accepted and recognized by judicial practice in accordance with the administrative litigation method.
 

3. the way of litigation relief that the expropriated person does not perform the compensation agreement for housing expropriation on state-owned land.
 

Generally speaking, in the administrative litigation against the administrative act including the administrative agreement, the administrative organ can only act as the defendant, and the administrative counterpart or the counterpart of the administrative agreement can only participate in the litigation as the plaintiff. However, in the case that the expropriated person does not perform the administrative compensation agreement, the administrative organ as the expropriated person cannot bring the administrative litigation as the plaintiff, article 25 of the "Expropriation Regulations" and other administrative regulations also do not explicitly mention how the administrative agency can provide relief in this case, and the administrative agency as the expropriator appears to be at a loss.

In judicial practice, when the expropriated person fails to perform the compensation agreement for house expropriation on state-owned land, there are the following two handling opinions:

In the first opinion, the government collection agency filed a civil lawsuit with the court. Although the expropriation compensation agreement is in the nature of an administrative agreement, it also reflects the agreement of both parties, and the form of judgment in civil litigation is more flexible than that in administrative litigation. From the point of view of facilitating dispute resolution, it is appropriate to accept it as a civil case.

The second opinion, the government collection organ to the court administrative non-litigation enforcement. Since the expropriation compensation agreement is an administrative agreement, it means that it belongs to an administrative act. According to the provisions of the expropriation regulations and other relevant administrative regulations, the fulfillment of the relocation obligation is both a contractual obligation and a legal obligation. Therefore, when the expropriation fails to perform the relocation obligation stipulated in the housing compensation agreement, the expropriation department can apply to the people's court for compulsory enforcement, thus legally solving the problem that the expropriated person fails to perform the relocation obligation.

Before the amendment of the administrative procedure law in 2014, the author once filed a civil lawsuit with the court on behalf of the collection department, asking the court to judge the expropriated person to fulfill the relocation obligation stipulated in the expropriation compensation agreement according to law; however, after the amendment of the administrative procedure law, the nature of the administrative agreement of the housing expropriation compensation agreement was clarified, especially when Article 12 (11) of the administrative procedure law stipulates that the expropriated person can file an administrative lawsuit, most judicial departments believe that it is not appropriate to settle the matter through civil proceedings. At the same time, the court also believes that the administrative agreement should not be directly used as the basis for non-litigation enforcement, but should be made by the administrative agency after the administrative agency has made an administrative decision, and the expropriated person can apply for non-litigation enforcement only if he has not filed an administrative reconsideration or litigation within the statutory time limit. This means that it is possible to start the non-litigation compulsory procedure to allow the expropriated person to perform the relocation obligation, this is obviously very unfavorable to the smooth implementation of the collection work.

The draft of the "Interpretation on Several Issues Concerning the Application of the Administrative Litigation Law of the People's the People's Republic of China of China" (Fa Shi [2015] No. 9) has made the following provisions: "Citizens, legal persons, or other organizations have not filed a lawsuit against administrative agreements and have not performed their agreed obligations. If an administrative agency applies to the people's court for enforcement, the people's court shall accept it in accordance with the law. When the people's court examines a case in which an administrative organ applies for compulsory execution of an administrative agreement, it shall conduct a hearing and examine the legality and validity of the agreement and the performance of the agreement by both parties. If the execution is approved after examination, it shall make a ruling with the content of execution." Unfortunately, the article was eventually deleted. However, according to the understanding and application of the provisions of the the People's Republic of China administrative procedure law and judicial interpretation edited by Jiang Bixin (pages 636-637 of the 2015 edition), the Legislative Affairs Committee of the Standing Committee of the National People's Congress and the judicial committee of the Supreme People's court tend to apply non litigation enforcement procedures to such administrative agreements, but from the procedural point of view, the legality, validity and performance of the administrative agreement should be comprehensively reviewed.

Therefore, the author basically agrees with the second opinion. At the same time, the expropriator should pay attention to the following issues:

First of all, the compensation agreement for housing expropriation on state-owned land should clearly stipulate the specific time limit for the expropriated person to perform the relocation obligation, which can be used as the basis for applying for non-litigation enforcement.

The compensation agreement for the expropriation of houses on state-owned land is an administrative agreement, and the administrative agreement also belongs to the category of administrative acts. Therefore, it conforms to Article 97 of the Administrative Litigation Law. If a citizen, legal person or other organization does not file a lawsuit against an administrative act within the statutory time limit and fails to perform it, the administrative agency may apply to the people's court for enforcement. And in 2014, the administrative procedure law changed the original "specific administrative act" to "administrative act". Of course, administrative act includes specific administrative act, administrative agreement, etc., so there is a law to follow to take administrative agreement as the basis for non litigation execution. However, not all housing expropriation compensation agreements can be used as the basis for applying for non-litigation enforcement. If the time limit for the relocation of the expropriated person is not agreed or the agreement is not clear, it is not enforceable and cannot be directly used as the basis for applying for non-litigation enforcement. Instead, the competent county and city people's government should make a separate decision on relocation within a time limit, non-litigation enforcement proceedings can be initiated only if the decision is neither reconsidered nor litigated nor fulfilled the obligation to relocate after the expiration of the statutory prosecution period.

Secondly, on the issue of the time limit for applying for non-litigation enforcement. According to Article 156 of the judicial interpretation of the administrative procedure law, which came into effect on February 8, 2018, "an administrative organ without the power of enforcement shall apply to the people's court for compulsory execution of its administrative act, it shall submit it within three months from the date of expiration of the statutory prosecution period of the person subject to execution. If the application is overdue, the people's court shall not accept it unless there are legitimate reasons." This involves two time limits, one is the statutory prosecution time limit for administrative actions, and the other is the time limit for applying for enforcement. According to the current administrative procedure law and judicial interpretation, the legal prosecution period of the expropriated person against the compensation agreement for the expropriation of houses on state-owned land shall be six months from the signing of the compensation agreement for the expropriation of houses on state-owned land. If the agreement does not inform the prosecution period, the prosecution period shall be calculated from the date when the expropriated person or should know the prosecution period, but the maximum period from the date when the administrative act is known or should be known. After the above-mentioned prosecution period, the expropriated person does not file an administrative reconsideration or litigation and does not fulfill the obligation of relocation can initiate the enforcement procedure, and begin to calculate the three-month period for the expropriator to apply for non-litigation enforcement.

To sum up, when the government agency as the expropriator signs the compensation agreement for the expropriation of houses on state-owned land with the expropriated person, it must clearly stipulate the time limit for the performance of the relocation obligation in the terms of the agreement, otherwise it may be due to lack of agreement or unclear agreement. As a result, the relocation decision needs to be issued by the government separately, so the cycle of realizing the relocation purpose will have to be delayed; in addition, the expropriator shall clearly inform the expropriated person of the time limit for prosecution against the expropriation compensation agreement. In this way, it can not only protect the legitimate rights and interests of the expropriated, but also ensure the efficiency of the public interest administrative purpose of the administrative organ. In short, the litigation relief methods of disputes related to the compensation agreement on housing expropriation on state-owned land, especially the non-litigation enforcement of the compensation agreement on housing expropriation on state-owned land, require us to combine the theoretical principles of administrative law under the framework of existing laws and regulations to explore It is necessary to protect the legitimate rights and interests of the expropriated person and effectively realize the public interest of the administrative agency.