In order to correctly hear administrative compensation cases, according to the provisions of the State Compensation Law of the People's Republic of China and the Administrative Procedure Law of the People's Republic of China, the following provisions are made on several issues in hearing administrative compensation cases:
Article 1 Other illegal acts stipulated in Articles 3 and 4 of the State Compensation Law of the People's Republic of China include specific administrative acts and acts related to the exercise of administrative functions and powers by administrative organs and their staff, which cause damage to citizens, legal persons or other organizations and violate administrative duties.
Article 2 Where a claimant brings an administrative compensation lawsuit against a specific administrative act confirmed by an administrative organ to be illegal but decides not to pay compensation, or disagrees with the determined compensation amount, the people's court shall accept it.
Article 3 If the claimant thinks that the administrative organ and its staff members have committed acts that are not specific administrative acts as stipulated in Article 3 (3), (4) and (5) and Article 4 (4) of the State Compensation Law, which infringe his personal rights and property rights and cause losses, the organ liable for compensation refuses to confirm that the harmful acts are illegal, and the claimant may directly bring an administrative compensation lawsuit to the people's court.
Article 4 Where a citizen, a legal person or any other organization files an administrative claim for compensation together with an administrative lawsuit, the people's court shall accept it together.
When a claimant brings an administrative compensation lawsuit alone, it must be handled by the organ liable for compensation first. If the claimant disagrees with the amount of compensation determined by the organ liable for compensation or the organ liable for compensation fails to pay compensation within the time limit, the claimant has the right to bring an administrative compensation lawsuit to the people's court.
Article 5 If a specific administrative act that is stipulated by law to be finally decided by an administrative organ is confirmed to be illegal by the administrative organ that made the final decision, and the claimant for compensation claims that the organ liable for compensation should make compensation but refuses to make compensation or fails to make compensation within the time limit or has objections to the amount of compensation, the people's court shall accept it according to law.
Article 6 If a citizen, a legal person or any other organization brings an administrative compensation lawsuit to the people's court on the grounds that national defense, foreign affairs and other state acts or administrative regulations, rules or decisions and orders with universal binding force have infringed upon their legitimate rights and interests, the people's court will not accept it.
Article 7 Where a citizen, a legal person or any other organization files an administrative compensation claim at the same time, the people's court shall exercise jurisdiction in accordance with the provisions of Articles 17, 18 and 20 of the Administrative Procedure Law.
Article 8 Where the claim for administrative compensation brought by the claimant involves immovable property, it shall be under the jurisdiction of the people's court where the immovable property is located.
Article 9 Cases of administrative compensation litigation filed separately shall be under the jurisdiction of the basic people's court at the defendant's domicile.
The Intermediate People's Court has jurisdiction over the following administrative compensation cases of first instance:
(1) The defendant is a customs or patent administration authority;
(2) The defendant is a department of the State Council or the people's government of a province, autonomous region or municipality directly under the Central Government;
(3) Other significant and complicated cases of administrative compensation within the jurisdiction.
The Higher People's Court has jurisdiction over the cases of administrative compensation of first instance that have great influence and are complicated within its jurisdiction.
The Supreme People's Court has jurisdiction over the first-instance administrative compensation cases with great influence and complexity nationwide.
Article 10 Where a claimant brings an administrative lawsuit against two or more administrative organs for the same fact, he may bring it to the people's court of the domicile of any of them. Where a claimant brings an administrative compensation lawsuit to two or more people's courts with jurisdiction, it shall be under the jurisdiction of the people's court that first received the complaint.
Article 11 If a citizen refuses to accept the administrative compulsory measures that restrict personal freedom, or refuses to accept the specific administrative acts of the administrative compensation organ that restrict personal freedom and take compulsory measures against property against the same party on the basis of the same fact, and at the same time file an administrative lawsuit, he shall be under the jurisdiction of the people's court that accepted the administrative case; Where an administrative compensation lawsuit is filed separately, it shall be under the jurisdiction of the people's court where the defendant's domicile or the plaintiff's domicile or the real estate is located.
Article 12 If a people's court finds that the case it accepts is not under its jurisdiction, it shall transfer it to a people's court with jurisdiction; The transferred people's court may not transfer it again.
Article 13 Where a people's court has a dispute over jurisdiction, it shall be settled by both parties to the dispute through consultation. If negotiation fails, it shall be reported to their people's court at a higher level for designation of jurisdiction. If the two parties are people's courts across provinces, autonomous regions and municipalities directly under the Central Government, and the Higher People's Court fails to reach an agreement through consultation, the Supreme People's Court will promptly designate jurisdiction.
When reporting to the people's court at a higher level for designated jurisdiction in accordance with the provisions of the preceding paragraph, it shall be done step by step.
Fourteenth other citizens, legal persons or other organizations that have a legal interest in the outcome of administrative compensation cases have the right to participate in administrative compensation proceedings as a third party.
Article 15 If an injured citizen dies, his heirs and other dependent relatives, as well as the disabled persons raised by the deceased before his death, have the right to bring an administrative compensation lawsuit.
Article 16 If an enterprise as a legal person or any other organization is revoked, changed, merged or cancelled by an administrative organ, and it thinks that its business autonomy has been infringed, it shall bring an administrative compensation lawsuit according to law. The original enterprise as a legal person or any other organization, or any legal person or any other organization that enjoys rights to it, shall have the plaintiff qualification.
Seventeenth more than two administrative organs * * * with infringement, compensation claimant brought an administrative compensation lawsuit against one or more of the infringing organs, if the claim is a divisible lawsuit, the defendant of one or more of the infringing organs; If the claim is inseparable, the people's court shall add other tort organs as * * * co-defendants.
Article 18 If the reconsideration decision of the reconsideration organ aggravates the damage, the compensation claimant only brings an administrative compensation lawsuit against the administrative organ that made the original decision, and the administrative organ that made the original decision is the defendant; If the claimant only brings an administrative compensation lawsuit to the reconsideration organ, the reconsideration organ shall be the defendant.
Article 19 If an administrative organ applies to a people's court for compulsory execution of a specific administrative act in accordance with the provisions of Article 66 of the administrative litigation, and an administrative compensation lawsuit occurs due to the wrong basis for compulsory execution, the administrative organ applying for compulsory execution shall be the defendant.
Article 20 If it is necessary for the people's court to change the defendant when trying a case of administrative compensation, but the plaintiff does not agree to the change, it shall rule to dismiss the prosecution.
Article 21 A claimant who files an administrative compensation lawsuit alone shall meet the following conditions:
(1) The plaintiff is qualified to request;
(2) There is a clear defendant;
(3) There is a specific claim for compensation and a factual basis for the damage;
(4) If the injurious act is a specific administrative act, it has been confirmed as illegal;
(5) The organ liable for compensation has dealt with it first or refused to deal with it beyond the statutory time limit;
(6) It belongs to the scope of administrative compensation litigation of the people's court and the jurisdiction of the people's court;
(7) The time limit for prosecution as prescribed by law.
Article 22 A claimant who files an administrative compensation lawsuit alone may file it within three months from the expiration of two months after submitting an application for compensation to the organ liable for compensation.
Twenty-third citizens, legal persons or other organizations in the administrative proceedings at the same time, the administrative compensation request, the prosecution period in accordance with the provisions of the administrative proceedings.
The plaintiff in an administrative case may file a request for administrative compensation after bringing an administrative lawsuit to the end of the trial of the first instance of the people's court.
Article 24 Where the organ liable for compensation fails to inform the claimant of the right of action or the time limit for prosecution when making the compensation decision, so that the claimant brings a suit in a people's court within the time limit, the time limit for prosecution shall be counted from the time when the claimant actually knows the right of action or the time limit for prosecution, but the overdue period shall not exceed one year from the date when the claimant receives the compensation decision.
Twenty-fifth victims of the death of citizens, their heirs and dependents to bring administrative compensation proceedings, should provide proof of the death of the citizen and the relationship between the claimant and the dead citizen.
Article 26 If a party has been subjected to compulsory measures such as administrative compulsory measures and criminal detention, and claims compensation because the compulsory measures are confirmed to be illegal, the people's court shall apply administrative compensation procedures and criminal compensation procedures respectively according to the nature of his behavior.
Article 27 The people's court shall, after receiving a separate complaint for administrative compensation filed by the plaintiff, examine it and file a case within seven days or make a ruling that it will not be accepted.
If the people's court cannot determine whether it is admissible within seven days after receiving the complaint for administrative compensation, it shall accept it first. If it is found during the trial that the conditions for acceptance are not met, the prosecution shall be dismissed by ruling.
If a party refuses to accept the ruling of not accepting or dismissing the prosecution, he may appeal to the people's court at the next higher level within ten days from the date of service of the ruling.
Article 28 Where a party brings an administrative lawsuit and requests for administrative compensation at the same time, or if a specific administrative act and other acts related to the exercise of administrative functions and powers infringe and cause damage, the people's court shall file separate cases, which may be tried jointly or separately according to the specific circumstances.
Twenty-ninth people's courts try administrative compensation cases, and try and judge administrative compensation disputes between the parties.
Thirtieth the people's court in the trial of administrative compensation cases, on the premise of legality and voluntariness, can mediate on the scope, method and amount of compensation. If mediation is established, a conciliation statement for administrative compensation shall be made.
Article 31 If the defendant reached a compensation agreement with the plaintiff before the judgment of first instance, and the plaintiff applied to withdraw the lawsuit, the people's court shall examine it according to law and decide whether to grant it.
Article 32 The plaintiff shall bear the burden of proof for his own claims in administrative compensation proceedings. The defendant has the right to provide evidence of not paying compensation or reducing the amount of compensation.
Article 33 If the defendant's specific administrative act violates the law but has not caused damage to the plaintiff's legitimate rights and interests, or if the plaintiff's claim has no factual or legal basis, the people's court shall decide to reject the plaintiff's claim for compensation.
Article 34 The people's court shall confirm whether the damage caused by the organ liable for compensation is illegal or not when making a judgment in a case where the claimant directly files an administrative compensation lawsuit without confirmation procedure.
Article 35 The name of the legal document that the people's court makes a judgment on a separate administrative compensation case is administrative compensation judgment, administrative compensation ruling or administrative compensation mediation.
Thirty-sixth legally effective administrative compensation judgment, ruling or mediation agreement, the parties must perform. If one party refuses to perform, the other party may apply to the people's court of first instance for execution.
The time limit for applying for execution is one year if the applicant is a citizen and six months if the applicant is a legal person or other organization.
Article 37 The trial period of an administrative compensation case of first instance accepted separately is three months, and that of second instance is two months; The time limit for hearing a case of accepting administrative compensation claims together is the same as that of the administrative case. If the case cannot be closed on schedule due to special circumstances and it is necessary to extend the trial period, it shall be submitted for approval in accordance with the relevant provisions of the Administrative Procedure Law.
Article 38 In handling administrative compensation cases, the people's courts shall, except in accordance with the provisions of the State Compensation Law on administrative compensation procedures, apply the relevant provisions of administrative litigation if there are no provisions on these provisions, provided that they do not contravene the State Compensation Law.
Article 39 The claimant for compensation requests the people's court to confirm that the appraisal, inspection, audit and other expenses involved in the illegal act of causing harm shall be paid by the applicant in advance, and finally borne by the losing party.
Fortieth the Supreme People's Court before the relevant judicial interpretation is inconsistent with these provisions, according to these provisions.
Extended data:
Case:
No compensation agreement was reached, no compensation decision was made, and the district government forcibly demolished houses.
The Third Circuit Court ruled in court that administrative compensation should be paid.
Xu Shuiyun, who lives in downtown Jinhua City, Zhejiang Province, made a living by breaking the wall of an old house built when his parents were alive, worked as a tailor, and then engaged in flower and bird business. In 200 1 year, Xu Shuiyun's house was included in the scope of demolition, but the demolition compensation agreement was never signed in 10 years. More than three years ago, the old city was rebuilt, and the house was demolished because of dissatisfaction with the resettlement compensation.
Since then, Xu Shuiyun has taken the case of "people suing officials" to the Higher People's Court of Zhejiang Province. Both courts ruled that the government's administrative action of forced demolition was illegal. Because the compensation could not be supported, he took the lawsuit to the Supreme People's Court.
20 18 1 25, the third circuit court of the supreme court held a public hearing to hear the retrial case of administrative incidental compensation, and the collegial panel made a final judgment in court, confirming that the administrative act of compulsory house demolition by the government of Wucheng District of Jinhua City was illegal, and ordered Xu Shuiyun to be given administrative compensation according to law within 90 days from the effective date of the judgment.
Authoritative experts pointed out that at the moment when the urbanization process continues to accelerate and the demolition disputes are prominent, the Third Circuit Court not only positively responds to many hot issues in the forced demolition, but also regulates and prevents the "zero cost" phenomenon of illegal administration by administrative organs through judicial decisions, which is of typical significance for protecting property rights according to law and promoting the administration of cities and counties according to law.
References:
Baidu Encyclopedia-Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Compensation Cases
People's Daily Online-The Third Circuit Court ruled in court that administrative compensation should be paid.