Case eight: the prosecution of the defendant is not the plaintiff prosecution dismissed

  [The case]

   Plaintiff Spring

 Defendant City Land Resources Bureau

 Third people The winter

 2001Years12Month27DayThe area of real estate development, business center for the repair shop road2School No.3Housing pre-sale permit (No.2001) article234Commercial housing pre-sale permit.2002Years10Month30Day, third commercial housing sales contracts were signed with the district property management repair development center, buy Shop Road2School No.3No.1Unit two floor West houses.2004Years12On the city Housing Authority for third person issuing the property right certificate. The land and housing area property management repair development center and food limited joint development, human food limited company the right to the use of the original land, the number of the original license: S2003.ArticleA00528No.. Third people had signed a contract with Food Co. Ltd., the same year12Month23The people's Government of the city for third days with the person issuing country2004.ArticleA28032The use of land. The plaintiff think they live in the dispute, and from others to buy the house, have to pay the mortgage, the certificate of the violation of their legitimate rights and interests, requesting revocation of country2004.ArticleA28032The use of land.

   Hear.

 The court thought,A country with2004.ArticleA28032The use of landThe payment of the registration authority is the Municipal People's government, rather thanCity Land Resources Bureau, which made the specific administrative act are the Municipal People's government, the plaintiff sued the City Land Resources Bureau as a defendant, is not the main grid, according to "the mostExplain the high people's Court on the implementation of the "PRC Administrative Procedure Law > problems"Article forty-fourth (three) the provisions of item, ruling as follows:

Dismissed the plaintiff's prosecution.

The case acceptance fee100Yuan by the plaintiffs burden.

 [Analysis of]

  In the case of the trial is to review the land department land administrative jurisdiction in the case of the people's Government of issuing, seal, who should be the proper defendant problem.

 The land is the right to administrative cases, the actual operator is the land management department, and the seal cover is the government of the people, in this case is to land management departments or the government? The author thinks that the certificate stamped organ that is people's government as a defendant is appropriate. The reason is that to cover the seal of the people's government, because legal authority belongs to the people's government, people's government for the land management department for examination, should be regarded as a kind of administrative entrustment. According to the provisions of the administrative procedure law spirit, entrusting organ: People's government for the defendant.

 According to the "administrative procedure law" the forty-first regulation, the prosecution shall meet the following conditions: (a) the plaintiff is that citizens, legal persons and other organizations of the specific administrative acts infringe upon their lawful rights and interests; (two) a definite defendant; (three) there are specific claims and facts according to (four) belonging to the people's court; the scope of accepting cases and be subject to the jurisdiction of the people's Court of appeal. The "clear the accused" refers to the name of the plaintiff should be clearly pointed out that the administrative subject and administrative disputes occurred in one's. Of course, that the plaintiff is not necessarily true of the defendant, the plaintiff in the specified the discomfort case,According to "the mostHigh people's Court on the implementation of the "PRC Administrative Litigation Law" interpretation of several issues "article forty-fourth (three) of the Convention, the people's court shall perform the following procedure: first shall notify the plaintiff to alter the defendant, the defendant the plaintiff change; if the plaintiff does not agree to the change, then reject it.

In this case, should be to the Municipal People's government as a defendant, plaintiff defendant and the plaintiff in that changes do not agree with the case, the court made a ruling dismissed the plaintiff prosecution is in accordance with the law.