Shibalidian village legal case: “the government report does not exist”

konjaku:

The Shibalidian villagers in their statement to the town government said that they did not oppose the transformation of the village, but they wanted a number of legal conditions met.

“According to the regulations of 2003 and 2004, the authorities must strictly follow this procedure: apply for a demolition permit, make a public announcement of the demolition and resettlement plan, provide an estimate of compensation, then reach and sign an agreement with the affected parties. … The public announcement should be accompanied by the following legal documents: the demolition permit, official comments on the construction project, permit to use the land for construction, document of approval of use of state land, the demolition plan, criterion for compensation estimates, proof that the fund for demolition and resettlement has been set aside in a bank account, qualifications and certifications of the demolition company and the building estimation company, including qualifications of their employees.”

Several villagers undertook legal challenges to obtain one of the items mentioned above, the “proof that the fund for demolition and resettlement has been set aside in a bank account.”

If Beijing city had set aside funds for the demolition and relocation of Shibalidian village (since the transformation of the 50 villages is a city-wide project), finding out the amount of the fund would allow the villagers to see what rights and benefits were granted to them in regard to compensation. It would also be a step toward preventing the town government from appropriating this fund for its own purposes, while granting as little of it as possible to the villagers. There is also a possibility that, although existence of the fund is apparently a legal requirement for demolition, it simply never existed.

Theses documents show how the villagers sued the town government to gain access to information on the fund. When this step yielded no results, villagers subsequently filed suits in the Basic People’s Court (the lowest level of the judiciary).

The following is from a blog:

http://blog.sina.com.cn/s/blog_a571fdef01017qr7.html

One aspect of the Beijing City Chaoyang District Shibalidian town Shibalidian village illegal demolition –suing the government to make public its demolition and relocation fund account record

Plantiff Guo Guijun, female, date of birth 1970-09-20, identification card number_______, address: Shibalidian village number 500, telephone number 13901243870, social status: agricultural (nongmin)

Defendant: Shibalidian town people’s government, Representative: Guo Liang, township head. Address: Shibalidian town people’s government office

The plantiff charges the defendant, as required by law, to make available a public report describing the fund set aside for demolition and relocation of the village, including proof of the bank account

Fees entailed in this lawsuit will be paid by defendant

The plantiff charges that disclosing details of the fund is an essential condition which must be met for demolition to proceed, as required under article 7 of the city demolition code, and under number 1177 of the national code (2001). Failure to make this information public is also a violation of article 9 of the government public information code. Since the defendant is concealing information on the fund, the plantiff has no recourse but to file this suit in court to determine whether or not the defendant has illegally diverted the fund. The plantiff assumes the fund exists. If it turns out there is no record of the fund, and indeed no fund at all, then without question it is illegal to go forward with demolition of the village.

2012-11-09

konjaku: the following document is translated below:

Shibalidian District Office 2012, number 6

Notification that a Government Report [on the fund] does not exist

Guo Guijun (handwritten in the space provided):
Greetings. On 2012-04-23, we received your request to make a government report public, as shown in the “Receipt of request registration” [which was sent to you] from the Shibalidian district office.
Upon investigation, we determined you requested the following document “Proof of an account of funds for the demolition and relocation of Shibalidian village.” We have not produced the document (not produced/ not obtained/ not preserved) because the said government report does not exist.

We thank you deeply for your interest in our work.

konjaku: after this, the plaintiff filed an appeal and received this in response:

Beijing City Chaoyang District People’s Government Administrative Redress Decision

Applicant Guo Guijun claims that the Shibalidian town government has not fulfilled its legal obligation, and requests them to release its report of the fund set aside for demolition and relocation of Shibalidian village. On 2012-07-13 Guo Guijun filed for administrative redress.

The applicant states: on 2012-04-23 I filed a written request for the government report on the fund, but up to now I haven’ t received it. This infringes on my lawful rights and interests and is a violation of law. I request that the government office now support my claim of administrative redress.

Respondent [Shibalidian township government]: on 2012 -04-23 received the applicant’s submission. On 2012-05-14 the respondent issued the “Notification that the government report does not exist.” [translated above]. Therefore, the respondent has already produced an answer to the applicant’s request. On the Notification there was a mistake in the use of the seal –it was stamped “Shibalidian District Office,” instead of the “Shibalidian Town People’s Government,” but that had no effect on the content of the document. The respondent has already carried out its duty in this regard. The office in charge of investigating redress rejects this application for administrative redress.

The investigating office has found that after the applicant filed a request for administrative redress, the Shibalidian town government on 2012-10-22 issued a corrected Notification of non-existence of the report, with the proper seal. The respondent states that it will review and strengthen management practices in regard to the use of seals, to prevent such mistakes from occurring in the future.

Summary: paragraph citing the legal code to assert that the respondent, by producing a document [of the non-existence of the fund report] in answer to the applicant’s request, has fulfilled its legal obligations.

Therefore, according to article 48.1.1 of the regulations on administrative redress, the application is denied. If the applicant does not accept this decision, within 15 days the applicant can file an administrative suit with the People’s Court.

konjaku: another villager filed the same suit and received a different response:

http://www.freenovel.net/content/20151104/53016.html

Plantiff Xie Yuling does not accept the Shibalidian town government actions regarding the release of information to the public, and filed a suit in the People’s Court. The Court agreed to hear the case, and assembled a panel of judges.

The suit of the plantiff states, that the plantiff on 2012-04-23 made a written request to obtain the administrative report, “Beijing City Chaoyang District Shibalidian town Shibalidian village demolition and relocation fund distribution and use.” On 2012-05-14 the defendant only received a notification from the Shibalidian District Office stating that the report in question had already been issued. However, the defendant has not seen that this report was released to the public. The plantiff considers that this notification is itself illegal, since it has no factual basis and violates the stipulations of the code on government public disclosure. Therefore, the plantiff appeals to the court to 1) revoke the notification stating that the government report has already been released, 2) demand that the government issue a public report according to the facts, detailing the fund set aside for demolition and relocation of Shibalidian village.

This court considers that, before hearing a suit concerning administrative actions, it must first determine whether this case falls within the legal parameters of such suits. Since the creation of the green zone and the various actions attendant upon it are a matter of policy adjustment, these actions do not fall within the category of possible suits over administrative actions. Therefore the court finds no legal basis to bring a suit, as the plantiff’s suit does not fall within the definition of suits against administrative actions, as detailed in the Supreme People’s Court ruling 44.1.11. Therefore:
The Court rejects Xie Yuling’s suit
The cost to hear and try the case was 50 yuan, within 15 days this sum will be delivered to Xie Yuling.
If the plantiff does not accept this decision, within 10 days they can appeal to a higher court, the Beijing Third Intermediate People’s Court.

suit concerning administrative actions 行政诉讼
policy adjustment 政策调整

konjaku: the demolition of the 50 villages as part of the urban rural unification project is here referred to simply as the “creation of the green zone.” Since this is a “policy adjustment” the opinion here is that it is outside the definition of government actions that can be subject to legal challenges in the forms of suits or appeals from the people. However since the plaintiff does not have to pay the court costs, they might be encouraged to appeal to a higher level.