Pingxiang Yapeng Real Estate Development Co., Ltd. v. Bureau of Land and Resources of Pingxiang Municipality, A Case About Non-Performance of an Administrative Agreement Guiding Case No. 76 (Discussed and Passed by the Adjudication Committee of the Supreme People’s Court Released on December 28, 2016) CHINA GUIDING CASES PROJECT English Guiding Case (EGC76) September 14, 2018 Edition∗ ∗ The citation of this translation of this Guiding Case is: 《萍乡市亚鹏房地产开发有限公司诉萍乡市国土 资源局不履行行政协议案》 (Pingxiang Yapeng Real Estate Development Co., Ltd. v. Bureau of Land and Resources of Pingxiang Municipality, A Case About Non-Performance of an Administrative Agreement), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC76), Sept. 14, 2018 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-76. The original, Chinese version of this case is available at 《最高人民法院网》(WWW.COURT.GOV.CN), http://www.court.gov.cn/zixun-xiangqing-34332.html. See also 《最 高人民法院关于发布第 15 批指导性案例的通知》 (Notice of the Supreme People’s Court on the Release of the 15th Batch of Guiding Cases), issued on and effective as of Dec. 28, 2016, http://www.court.gov.cn/shenpan- xiangqing-34262.html. This document was primarily prepared by Sean Webb and Dr. Mei Gechlik; it was finalized by Dimitri Phillips and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People’s Court. Keywords Administrative Administrative Agreement Contract Interpretation Judicial Review Legal Effect Main Points of the Adjudication [Where] an administrative organ carries out, within the scope of its authority, an interpretation of a clause stipulated in an administrative agreement, [the interpretation] is legally binding on the parties to the agreement. After review and based on actual situations, a people’s court may use [the interpretation] as a basis for reviewing the administrative agreement. Related Legal Rule(s) Article 12 of the Administrative Litigation Law of the People’s Republic of China1 Basic Facts of the Case On January 13, 2004, entrusted by the Pingxiang Meat United Processing Factory, the Land Acquisition and Reserve Center of Pingxiang Municipality, with approval from defendant Bureau of Land and Resources of Pingxiang Municipality (hereinafter referred to as the “Municipal Land Bureau”), published in the Pingxiang Daily an announcement of the public listing of the rights to use state-owned land [stating that the land] would be publicly listed in the land trading hall from January 30, 2004, to February 12, 2004. [The announcement was about] the rights to use State-Owned Land No. TG-0403, which was located in Wangong Tang, Houbu Street, Anyuan District, Pingxiang Municipality. The area of the land for transfer was 23,173.3 square meters, the development land was [designated as] commercial and residential land, the status quo of the cold storage workshop would be maintained, the plot ratio was 2.6, and the land use period was 50 years. On February 12, 2006, Pingxiang Yapeng Real Estate Development Co., Ltd. (hereinafter referred to as “Yapeng Company”) obtained, by bidding and [paying] RMB 7.68 million, the rights to use State-Owned Land No. TG-0403. On February 21, 2006, [Yapeng Company] and the defendant, the Municipal Land Bureau, signed the Contract for the Transfer of the Rights to Use State-Owned Land. The contract stipulated that the parcel was to be used as commercial and residential land and that the status quo of the cold storage workshop was to be maintained. The transfer fee for the rights to use the land was RMB 331.42 per square meter, and the total amount was RMB 7.68 million. 1 《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 two times, most recently on June 27, 2017, effective as of July 1, 2017, http://www.npc.gov.cn/npc/xinwen/2017-06/29/content_2024894.htm. On March 2, 2006, the Municipal Land Bureau awarded Yapeng Company two certificates for the use of state-owned land, which were [numbered] Ping Guo Yong (2006) No. 43750 and Ping Guo Yong (2006) No. 43751. On the Ping Guo Yong (2006) No. 43750 land certificate, the type of land (use) was [specified as] “industrial”, the type of [land] use rights was [specified as] “transfer”, and the area that [the party] had the right to use was 8,359 square meters. On the Ping Guo Yong (2006) No. 43751 land certificate, the type of land was [specified as] “commercial and residential land”. With respect [to the agreement], Yapeng Company argued that the stipulation “the status quo of the cold storage workshop shall be maintained” was to maintain the use functions of the cold store, rather than to maintain the nature of the land. [Yapeng Company] demanded that the type of land [specified] in one of the certificates be corrected from “industrial” to “commercial and residential”. However, the Municipal Land Bureau argued that maintaining the status quo meant that the cold storage workshop was transferred while keeping the nature of the land. Also, [the bureau pointed out that] the [amount of] transfer fee for the rights to use the land that the company had paid was on the basis that the cold storage workshop was transferred as industrial land. Therefore, [the bureau] did not agree to change the land use. On July 30, 2012, the Planning Bureau of Pingxiang Municipality issued to the Land Acquisition and Reserve Center of Pingxiang Municipality a reply [addressing] relevant issues [identified] in the Request for an Interpretation of [Issues Stated in] the “Letter Regarding the Pingxiang Meat United Processing Factory Land”. The main contents of [the reply] were: In the planning conditions that our office issued on October 8, 2003, it has been clarified that the use of the plot is commercial and residential (the [area] of the cold store is about 7,300 square meters, the same below), but the status quo of the cold store shall be maintained. According to the regulations controlling [the use of] the plot, the nature of the land use is residential (and commercial). However, because the food cold storage workshop on the land is currently the only agricultural stock reserve in our municipality and is also an important livelihood project in our municipality, the use of the cold store [with an area of] approximately 7,300 square meters in the plot will be temporarily preserved and [the cold store] cannot be removed without the approval of the government or relevant authorities. On February 21, 2013, the Municipal Land Bureau replied to Yapeng [Company] in writing: 1. Based on the planning conditions issued by the Municipal Planning Bureau and the actual situation of the parcel, [we] agreed with your company’s application that the use of the land for the cold storage workshop in Land No. TG-0403 plot be changed from industrial land to commercial and residential land. 2. The right to use the land for the cold storage workshop in the parcel was obtained by your company on the basis that it was transferred at the price of industrial land. Your company is applying to change the use of the land for the cold storage workshop in Land No. TG-0403 plot from industrial land to commercial and residential land. According to the Law of the People’s Republic of China on the Administration of Urban Real Estate, [your company] should[, therefore,] pay an additional amount of land transfer fee. The additional land transfer fee may be calculated on the basis of the same proportion of the assessed value of the comprehensive land (residential, office) at the time of the transfer of the land, that is, RMB 2,976,656*70% = RMB 2.086 million. 3. After the use of the land for the cold storage workshop is adjusted, its function of use shall not be changed without the approval of the municipal government. On March 10, 2013, Yapeng Company initiated administrative litigation in court, requesting that [the court] order the defendant to correct the land use [stated on] the Ping Guo Yong (2006) No. 43750 Use of State-Owned Land Certificate, changing it from “industrial” to [“]commercial and residential land (the status quo of the cold storage workshop shall be maintained)[”], and [that the court] revoke the second item of the Reply on the Relevant Land Use of Land No. TG-0403 of [Pingxiang] Yapeng Real Estate Development Co., Ltd. issued by the defendant [regarding the] decision to pay a land transfer fee of RMB 2.0836 million. Results of the Adjudication On April 23, 2014, the Anyuan District People’s Court of Pingxiang Municipality, Jiangxi Province, rendered the (2014) An Xing Chu Zi No. 6 Administrative Judgment: 1. [the court orders] defendant Bureau of Land and Resources of Pingxiang Municipality to correct, within 90 days of the judgment’s coming into effect and in accordance with law, the use of the 8,359.1 m2 land [stated] on the Ping Guo Yong (2006) No. 43750 Use of State-Owned Land Certificate. 2. [the court] revokes the second item of the Reply on the Relevant Land Use of Land No. TG-0403 of [Pingxiang] Yapeng Real Estate Development Co., Ltd. issued by defendant Bureau of Land and Resources of Pingxiang Municipality on February 21, 2013, [regarding the] decision to pay a land transfer fee of RMB 2.0836 million.