Recently, the factory buildings of an enterprise in a certain province were forcibly demolished by the local administrative authority while the enterprise was conducting administrative reconsideration against the illegal construction determination. The expropriation side claimed that the factory constituted illegal construction and thus should be demolished, while the enterprise argued that the premises belonged to historically retained buildings and that forced demolition during the reconsideration period was unlawful, triggering fierce disputes between both parties.
The practice of “promoting demolition through illegal construction identification” is a common irregularity in land expropriation and demolition. Combining statutory provisions and practical experience, Lawyer Wang Youyin from Beijing Sheng Yun Law Firm systematically interprets the procedural violations and key rights protection points of such cases.
Hot Event Legal Popularization: Legal Boundaries of Forced Demolition During Administrative Reconsideration
Many parties promptly file administrative reconsideration after receiving aTime-Limited Demolition Decision, yet their buildings are still demolished during the reconsideration process, leaving them confused: why can demolition proceed even after applying for reconsideration?
It is necessary to clarify the basic legal principle first: administrative reconsideration does not suspend the execution of administrative acts.
According to Article 21 of the Administrative Reconsideration Law of the People’s Republic of China, specific administrative acts shall not cease execution during the administrative reconsideration period. In general, a reconsideration application does not automatically suspend the enforcement of illegal demolition decisions, which is often cited by administrative authorities as the legal basis for forced demolition.
Nevertheless, the law clearly stipulates four exceptional circumstances under which execution must be suspended:
(1) The respondent authority deems it necessary to suspend execution;
(2) The administrative reconsideration authority deems it necessary to suspend execution;
(3) The applicant applies for suspension, and the reconsideration authority approves the request on reasonable grounds;
(4) Suspension of execution is prescribed by law.
More importantly, even for legally identified illegal buildings, direct forced demolition without due process is prohibited.
In accordance with the Administrative Compulsory Law, before issuing a compulsory enforcement decision, administrative authorities must issue a prior performance reminder notice, granting parties the right to statement and defense. Where a party fails to perform the administrative decision within the time limit without legitimate reasons, the authority may issue a formal compulsory enforcement decision. For the forced demolition of illegal buildings, structures and facilities, the authority must issue a public announcement and order self-demolition within a specified period. Forced demolition is only permissible if the party neither applies for reconsideration or litigation nor conducts self-demolition within the statutory period.
In short: execution is generally not suspended during reconsideration, but forced demolition must go through complete statutory procedures including prior reminder, public announcement and formal enforcement decision. If the party’s application for suspension is approved, all demolition actions must be halted immediately.
In-depth Analysis by Lawyer Wang Youyin: Three Core Violations in Such Cases
1. Block Enforcement Immediately After Receiving Illegal Construction Documents
Parties must never ignore official documents such as Time-Limited Demolition Decisions or Reminder Notices. On the one hand, enterprises shall file administrative reconsideration or administrative litigation within the statutory time limit (normally 60 days for reconsideration and 6 months for litigation) to revoke wrongful illegal construction determinations. On the other hand, enterprises may simultaneously submit a Suspension of Execution Application to the reconsideration authority or court, clarifying that forced demolition will cause irreparable property losses, so as to suspend the demolition procedure in advance.
Many enterprises mistakenly believe their buildings are legal and ignore official notices, thus missing the statutory remedy deadlines. This causes wrongful illegal construction determinations to take effect, leaving the enterprise in a passive position for subsequent rights protection.
2. Preserve Evidence and File Police Reports Once Forced Demolition Occurs
If forced demolition is imminent, priority shall be given to comprehensive evidence preservation. Arrange personnel to record the entire demolition process through high-definition video, clearly capturing the demolition subject, time, procedure and on-site property damage. Meanwhile, dial 110 to request police intervention to stop illegal demolition and retain complete police records and service receipts.
Notably, violent confrontation is strictly prohibited to avoid additional legal risks. Rational evidence collection is the core foundation for subsequent administrative accountability and compensation claims.
3. Initiate Illegality Confirmation and Compensation Procedures Timely After Demolition
After forced demolition, enterprises shall promptly file administrative litigation to confirm the demolition act illegal. On the basis of confirmed illegality, enterprises may initiate administrative compensation procedures to claim full compensation for factory building losses, equipment and material losses, business suspension losses, decoration losses and other related damages.
In accordance with legal provisions, if the defendant authority’s illegal conduct renders the plaintiff unable to prove the exact amount of losses, the burden of proof shall be borne by the administrative authority. Enterprises only need to submit preliminary evidence to prove the scope of losses, and the court will determine reasonable compensation based on case facts. Even if part of the factory is identified as illegal construction, legitimate building materials and indoor legal property shall still be compensated in full, and no total refusal of compensation is allowed.
4. Standardize Factory Documentation to Prevent Long-Term Legal Risks
Enterprises shall prevent demolition risks through daily standardized management. Complete land use, planning and construction approval procedures during factory establishment, and properly retain all approval documents, payment vouchers and government agreements. For historically incomplete formalities, enterprises shall actively apply for supplementary registration and complete property right procedures in advance.
Once involved in expropriation projects, timely consultation with professional demolition lawyers is strongly recommended to conduct comprehensive legality evaluation of factory buildings and formulate targeted response strategies, so as to avoid passive situations caused by the abuse of “illegal demolition procedures” to promote expropriation.
Conclusion
The practice of “promoting demolition through illegal construction identification” is essentially procedural abuse and ultra vires administrative act. Enterprises facing such irregularities do not need to panic. By accurately identifying procedural violations and asserting legitimate rights and interests in accordance with the law, enterprises can effectively protect their legal property rights.
Legal Consultation Hotlines of Beijing Sheng Yun Law Firm: 010-6190-8088, 400-159-8098, 138-1111-7637
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