XUAN Yicheng Et Al. V. Bureau of Land and Resources of Quzhou Municipality, Zhejiang Province, a Case of a Recovery of the Rights to Use State -Owned Land

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XUAN Yicheng et al. v. Bureau of Land and Resources of Quzhou Municipality, Zhejiang Province, A Case of a Recovery of the Rights to Use State -Owned Land

Guiding Case No. 41 (Discussed and Passed by the Adjudication Committee of the Supreme People’s Court Released on December 25, 2014)

CHINA GUIDING CASES PROJECT English Guiding Case (EGC41) * September 15, 2015 Edition

* The citation of this translation of the Guiding Case is:《宣懿成等诉浙江省衢州市国土资源局收回国有土地使用权案》 (XUAN Yicheng et al. v. Bureau of Land and Resources of Quzhou Municipality, Zhejiang Province, A Case of a Recovery of the Rights to Use State -Owned Land ), CHINA GUIDING CASES PROJECT , English Guiding Case (EGC41), Sept. 15, 2015 Edition , available at http://cgc.law.stanford.edu/guiding -cases/guiding -case - 41. This document was primarily prepared by Jeffrey Chivers, Jesse Holmes, Oma Lee, Thomas Rimmer, Tian Zhang, and Bin Quan Zhuang. The document was finalized by Jordan Corrente Beck and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings to correspond with those boldfaced in the original Chinese version, was done to make the piece more comprehensible to readers. The following text, otherwise, is a direct translation of the original text and reflects the formatting of the Chinese document released by the Supreme People’s Court. The following Guiding Case was discussed and passed by the Adjudication Committee of the Supreme People’s Court of the People’s Republic of China and was released on December 25, 2014, available at http://www.chinacourt.org/article/detail/2014/12/id/1524380.shtml. See also 《最高人民法院关于发布第九批指导性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the Ninth Batch of Guiding Cases ), Dec. 24, 2014, available at http://rmfyb.chinacourt.org/paper/images/2014 -12/26/02/2014122602_pdf.

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Keywords

Administrative Litigation Burden of Proof

Without Citing Specific Legal Provisions Erroneous Application of Law

Main Points of the Adjudication

When an administrative organ carries out a specific administrative act without citing specific legal provisions and is unable to prove during litigation that the specific administrative act complies with specific provisions of law, the specific administrative act should be regarded as lacking legal basis and [containing] an erroneous application of law.

Related Legal Rule(s)

Article 32 of the Administrative Litigation Law of the People’s Republic of China

Basic Facts of the Case

Plaintiffs XUAN Yicheng ( 宣懿成 ) et al., 18 individuals [in total], were residents of the Quzhou Fushan Secondary School Teaching and Administrative Staff Dormitory at No. 1 (formerly, No. 14) Weining Alley, Kecheng District, Quzhou Municipality, Zhejiang Province. On December 9, 2002, based on a report by third -party Quzhou Branch of the Construction Bank 1 (建设银行衢州分行 ) (hereinafter referred to as the “Quzhou Branch”), the Development and Planning Commission of Quzhou Municipality consented, after review, to a construction project [that would allow] the Quzhou Branch to expand [its] business space on the southeast side of its original Business Comprehensive Building. On the same day, the Planning Bureau of Quzhou Municipality formulated an opinion on the selection of the construction project site. In order to expand [its] business space, etc., the Quzhou Branch planned to acquire and demolish, on its own accord, the Fushan Secondary School Teaching and Administrative Staff Dormitory, which covered an area of 205 square meters, and to convert it into an outdoor parking lot. The specifications would be implemented according to detailed planning drawings.

On [December] 18, the Planning Bureau of Quzhou Municipality planned out a two - dimensional red line map 2 of the construction land [used for] the expansion of the Quzhou

1 Translators’ note: the term “ 建设银行 ” (“Construction Bank”) likely refers to “ 中国建设银行 ” (“China Construction Bank”). 2 Translators’ note: the term “ 平面红线图 ” (“two-dimensional red line map”) means an overall plan determined by a planning bureau, on which red lines are used to indicate a construction project’s outer edge limits, that is, the boundaries of the land that will be used.

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Branch’s business space. On the 20 th , the Planning Bureau of Quzhou Municipality issued a construction land planning permit [to approve] 756 square meters of land for use in the Quzhou Branch’s construction project. On the 25 th , defendant Bureau of Land and Resources of Quzhou Municipality 3 (hereinafter referred to as the “Quzhou Municipality Land Bureau”) requested instructions on the recovery of the rights of the residents of the Quzhou Fushan Secondary School Teaching and Administrative Staff Dormitory to use 187.6 square meters of state -owned land, reporting to the People’s Government of Quzhou Municipality for review and approval. On the 31 st of the same month, the Quzhou Municipality Land Bureau issued the Qu Shi Guo Tu (2002) No. 37 Notice to Recover the Rights to Use State -Owned Land (hereinafter referred to as the “Notice ”), with content informing the 18 individuals, including XUAN Yicheng, that their rights to use the state -owned land would be recovered and of [their] right to initiate litigation. The Notice stated the name of the law upon which the administrative decision was based, but did not explain the specific legal provision upon which [it] was based. Dissatisfied [with the content of the notice], the plaintiffs initiated administrative litigation.

Results of the Adjudication

On August 29, 2003, the Kecheng District People’s Court of Quzhou Municipality, Zhejiang Province, rendered the (2003) Ke Xing Chu Zi No. 8 Administrative Judgment: [the court] revokes the Qu Shi Guo Tu (2002) No. 37 Notice to Recover the Rights to Use State- owned Land issued by defendant Bureau of Land and Resources of Quzhou Municipality on December 31, 2002. After the judgment was pronounced, none of the parties appealed. The judgment has already come into legal effect. 4

Reasons for the Adjudication

In the effective judgment, the court opined: When defendant Quzhou Municipality Land Bureau issued the Notice , although [it] stated the name of the law upon which the notice was based, [it] did not cite specific legal provisions. During the trial, the defendant defended its position, claiming that it carried out the challenged specific administrative act in accordance with

3 Translators’ note: the name “ 衢州市国土资源局 ” is translated here as “Bureau of Land and Resources of Quzhou Municipality”. The phrase “Land and Resources” is used to translate “ 国土资源 ” in accordance with the translation used on the website of the Ministry of Land and Resources ( 国土资源部 ), at http://www.mlr.gov.cn/. 4 Translators’ note: the original text reads “判决生效 ” (“the judgment comes into effect”). According to Article 85 of the Administrative Litigation Law of the People’s Republic of China , if a party is dissatisfied with the first -instance judgment, that party has the right to appeal to the appropriate higher court within 15 days of the judgment’s being served. If the case is not appealed within the prescribed time limit, the judgment will come into legal effect. See 《中华人民共和国行政诉讼法》 (Administrative Litigation Law of the People’s Republic of China ), passed and issued on Apr. 4, 1989, effective as of Oct. 1, 1990, amended on Nov. 1, 2014, effective as of May 1, 2015, available at http://www.spp.gov.cn/sscx/201502/t20150217_91466.shtml.

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Article 58, Paragraph 1 of the Land Administration Law of the People's Republic of China (hereinafter referred to as the “Land Administration Law ”). 5

Article 58, Paragraph 1 of the Land Administration Law provides:

Under any of the following circumstances, the land administration department of the relevant people’s government, after reporting to and [obtaining] approval from the people’s government that originally approved the land use or the people’s government that has the authority to approve [the land use], may recover the rights to use state-owned land [if]: (1) the land use is needed for [a] public interest [purpose]; (2) the land use needs to be adjusted for carrying out old town renovations to implement urban planning […]

As a land administration department, the Quzhou Municipality Land Bureau has the authority to carry out, in accordance with the Land Administration Law , the administration and adjustment of the rights to use state-owned land within its jurisdiction. However, when [the bureau] exercises this authority, it must have a clear legal basis [for doing so]. When the defendant issued the Notice , [it] only stated that [the Notice ] was issued according to the Land Administration Law and relevant regulations of Zhejiang Province, but did not cite specific legal provisions. Therefore, the specific administrative act that it carried out did not have a clear legal basis, and [contained] an erroneous application of law.

In this case, [considering] the relevant evidence that the Quzhou Municipality Land Bureau provided, including the Development and Planning Commission of Quzhou Municipality’s (2002) No. 35 Reply Concerning Consenting to a Construction Plan for a Business Space Expansion Project , the Approval Form of a Written Opinion on the Selection of a Construction Project Site , and the Planning Red-Line Map of the Construction Land for Expanding the Business Space of the Quzhou Branch of the Construction Bank , it was difficult [for the bureau] to prove that the Notice that it issued conformed with the circumstances set forth in Article 58, Paragraph 1 of the Land Administration Law , [namely that] “the land use is needed for [a] public interest [purpose]” or “the land use needs to be adjusted for carrying out old town renovations to implement urban planning”. The main evidence [presented] was insufficient and, therefore, the defendant’s alleged reasons [supporting its contention] that its issued Notice conformed with the provisions of the Land Administration Law could not stand. According to the Administrative Litigation Law of the People’s Republic of China and its related judicial interpretations, the defendant bears the burden of proof during administrative litigation [to justify] the specific administrative act that it carried out. [In situations] where the defendant does not provide evidence [that supported its specific administrative act] or the [legal] basis [upon which the defendant relied] when it carried out its specific administrative act, [a court] should

5 See 《中华人民共和国土地管理法》 (Land Administration Law of the People’s Republic of China ), passed and issued on June 25, 1986, effective as of Jan. 1, 1987, amended two times, most recently on and effective as of Aug. 28, 2004, available at http://www.npc.gov.cn/huiyi/lfzt/tdglfxza/2012 -12/19/content_1747507.htm.

2015.09.15 Edition determine that the specific administrative act did not have [the requisite] evidence and [legal] basis [to justify it].

In conclusion, the main evidence [to support] the defendant’s specific administrative act of recovering the rights to use state-owned land was insufficient. [The specific administrative act contained] an erroneous application of law and should be revoked.