Author: Di Shunhong lawyer  If reproduced please indicate the author

Tel: 15010511091

As a professional for land acquisition and demolition of lawyers, administrative litigation has been accompanied by together. In the process of administrative proceedings, the court in the administrative proceedings, will take a different approach, different understanding of the law and lawyers understand. Some problems needed to discuss legal workers, promote the administrative procedure of continuous improvement, more conducive to the trial of administrative cases fair, notarization, promote the progress of the rule of law.

A,         The time limit of administrative cases.

According to the "administrative procedure law", "administrative procedure law" judicial interpretation stipulates the defendant should be in receipt of the copy of the complaint within ten days from the date of the people's court to undertake a specific administrative act of evidence and basis.

It means that, the defendant not only bear the burden of proof, but the evidence and basis must be provided to the people's court within ten days. If you exceed the time limit for adducing evidence, evidence and basis means that has not made the specific administrative act means that the specific administrative act as illegal. Removal cases, involving about administrative adjudication of administrative cases, the case is complex. In strict accordance with the relevant provisions of the law of burden of proof in administrative litigation is very important.

Below I will for their own local court cases in the process of practice, together with the discussion of this operation is illegal, the court:

Case 1: the trial in the proof period

Inner Mongolia Zhalantun City People's court, in the2011Years5Month13DayThe admissibility of the Mousu Li Zhalantun city housing and urban and Rural Construction Bureau of administrative adjudication of cases, the people's Court of Zhalantun city in the acceptance notice informing, additional units of Zhalantun city land reserve Trading Center for third people. And in the delivery notification of acceptance at the same time, issued a court summons. Scheduled to2011Years5Month17At nine in the morningThe Administrative Tribunal hearing Li Mousu Zhalantun city housing and urban and Rural Construction Bureau of administrative adjudication of disputes.

From the time and the time of the session, it should give the defendant10The time limit for adducing evidence, the court did not in accordance with the provisions of the administrative procedure law to give the proof term.

2011Years5Month17DayThe Construction Bureau, the submission of defence and some evidence. Our court the court not in accordance with the law to give the time limit for adducing evidence, the defendant is the burden of proof in the case, if the defendant to trial after the court evidence, whether the defendant exceeds the time limit for adducing evidence. And asked the clerk to the lawyer had objections to court records. The judge is the answer, the time limit for adducing evidence law is to restrict the defendant and the plaintiff, it doesn't matter. After the defendant proof, after court to submit evidence not deemed valid evidence.

The lawyer thinks, Zhalantun municipal court in violation of the administrative procedure law and the relevant provisions of the judicial interpretation, the court is not established, if in accordance with the tie in the practice of the court, the plaintiff is easy to infringe upon the interests of the blind, program form of justice, fairness and justice and thus lose their trial.

Case two, send administrative retrial of the defendant to the proof of the problem

2008Inner Mongolia Zhalantun people's court Wang v. Zhalantun City Construction Bureau of administrative adjudication of cases, the court of first instance for tie construction bureau to make administrative adjudication. Wang Mou to appeal to the Hulun Buir intermediate people's court, then to the facts unclear, insufficient evidence for trial of the case remanded to tie the court.

Construction Bureau in the first instance proceedings, some crucial evidence not submitted to the court of first instance. Remand the case for a new trial, the court of first instance to the time limit for adducing evidence, the defendant submitted in the original trial did not submit evidence of the time limit for adducing evidence in the trial.

The lawyer thinks, the evidence could not be recognized as valid evidence, since there is no submit the evidence in the procedure of administrative behavior, as the lack of factual and legal basis. And the evidence of possible in proceeding, so can not be used as effective evidence.

The court held that a bar, after submitting the evidence, is also valid evidence.

Aiming at this problem, combined with the procedure law stipulates strict proof term, its legislative purpose is in order to guarantee the judicial fairness and justice, protects the administrative relative person's legitimate rights and interests, then in the administrative proceedings, the defendant after remand in the original trial did not submit evidence as an effective evidence that violates the provisions of the administrative procedural law of the yuan.

Two,         Administrative enforcement decision whether to apply for a retrial

Case:2009A district of a city of Jiangsu province in tobacco logistics training grounds for removal, Lee House was listed as the scope of the demolition, as Lee and the demolition of a zone, no minimum compensation agreement, the demolition to the city construction bureau to apply for a ruling. City Construction Bureau to make administrative decisions, to a people's court for compulsory execution, a court for the award made to execute administrative rulings.

Because the ruling Construction Bureau made itself is illegal, unreasonable compensation problem. The court ruled that the construction bureau do not have legitimacy review of obligations, the wrong decision is made based on the wrong administrative enforcement decision, so filed retrial appeal to the trial court and the higher court.

The superior court believes that as the ruling does not appeal, so it can not apply for a retrial.

The lawyer that the execution order can apply for retrial, according to the administrative procedure law and the judicial interpretation of the provisions, as long as that court decisions and rulings error can apply for retrial.

Three,         Administrative adjudication of cases in the course of the proceedings, the court can enforce.

   Case:Hebei County of Leting Province2011In the first stage of the transformation of the old city land acquisition demolition project, with Leting County City Construction Investment Co. Ltd. as a minimum, Lee's commercial housing is a minimum range. Taken with the removal of people who Lee is not just housing compensation agreement demolition demolition, to the Leting County Land Office for a ruling.2011Years4Month14DayLeting County, land acquisition demolition office made a ruling. Lee believes that the ruling is illegal, to the Leting county court to revoke the administrative adjudication action.

Leting County People's court accepted the case, according to the Leting County resettlement office application, to allow execution order. And in2011Years5Month13DayTo enforce the Lee commercial premises.

The lawyer thinks, Leting County People's court practices, in violation of the administrative procedure law on compulsory execution. According to the2011Years1Month22DayImplementation of the "provisions on state-owned land on the housing levy and Compensation Ordinance" article thirty-fifth the government shall not instruct the relevant departments forced relocation. Also means to lose in the government to enforce the right circumstances, it shall apply to the court for compulsory execution. The court accepts the case of enforcement, shall form a collegiate court ruling on the legality of the review and shall, according to the provisions of the administrative procedure law, can not be taken in the administrative litigation cases of ruling executive standard execution.

So, Leting County Court misinterpret the provisions of the administrative procedure law, forced the illegal demolition Lee commercial housing act.