The construction agreement should be recognized as a civil contract.
【 gist 】
The demolition headquarters and the municipal construction company are in an equal position. Based on the principle of mutual benefit, they signed the project construction agreement out of true meaning, which created, changed and eliminated the civil legal relationship and belonged to the category of civil contracts.
[case]
Plaintiff: Liu Fulian.
Defendant: Xiushan Tujia and Miao Autonomous County People’s Government (hereinafter referred to as Xiushan County Government).
Third Party: Xiushan Hongda Municipal Construction Engineering Co., Ltd. (hereinafter referred to as Hongda Company).
On December 20, 2000, the Chongqing Municipal People’s Government agreed to requisition the cultivated land of three villages, including Group 1 of Qixing Village in Zhonghe Town, with the "Reply of Chongqing Municipal People’s Government on Completing the Land Requisition Procedures for Xiushan County’s Construction of East Street and Demolition and Resettlement Community Project" (Y.F.D. (2000) No.714) for the construction of Xiushan County’s East Street and the land for the demolition and resettlement community project. On July 23, 2002, Xiushan County Land and Resources Bureau signed a contract with Hongda Company to transfer the right to use Xiushan County’s state-owned land, namely, Xiudi (2002) H-Zi No.014, and transferred 16 meters of land on both sides of the third phase of East Street Project to Hongda Company. On July 29th, 2002, Xiushan County Government issued Xiushan Fu Tong Zi (2002) No.2 Notice of Xiushan County Government on House Demolition of East Street Phase III Project, and the headquarters was responsible for organizing and implementing the house demolition project within the scope of demolition. On August 22, 2003, Liu Fulian signed a house demolition agreement with the headquarters, giving monetary compensation to Liu Fulian’s homestead covering an area of 525.29 square meters. On September 6, 2003, Liu Fulian received the compensation, but she never delivered the land. On December 12, 2011, Xiushan County Land and Resources Bureau made a decision on land administrative treatment, and Liu Fulian was limited to dismantle the buildings within the scope of the expropriated land within 15 days from the date of delivery of the decision. Liu Fulian appealed to the court for an order to confirm that the Agreement signed between Xiushan County Government and Hongda Company was seriously illegal.
[trial]
After trial, Chongqing No.4 Intermediate People’s Court held that a civil contract is an agreement between equal subjects to establish, change and terminate the relationship of civil rights and obligations. An administrative contract is an agreement between the administrative subject and the administrative counterpart to establish, change and eliminate the rights and obligations in administrative law in order to achieve the administrative management goal. One side of the administrative contract is the administrative subject engaged in administrative functions, which is in a dominant position, and the other side is the administrative counterpart in a passive position. The headquarters is responsible for the coordination of engineering construction and house demolition of East Street in Xiushan County. Administrative organs or other organizations that do not perform administrative functions agreed in the Agreement signed with Xiushan Hongda Company on May 16, 2002 that the project funds for the third phase of the construction of East Street in Xiushan County will be offset by the transfer of land transfer fees on both sides of the East Street road, and the project funds will be paid in cash. Although there is an agreement on taxes and fees in the agreement, the headquarters has no right to decide the collection of taxes and fees because it has no tax management function. The essence of the agreement is a construction contract for construction projects. Xiushan Hongda Company, as the other party to the contract, is on an equal footing with the headquarters, not the relative person of administrative management, and the headquarters is not performing administrative duties. It is a civil contract between equal subjects, a non-administrative contract, and does not belong to the scope of administrative litigation. Therefore, it ruled that Liu Fulian’s lawsuit was rejected.
[Comment]
1. Is the defendant qualified?
(a) the nature of the headquarters is a temporary organization.
In recent years, under the background of accelerating urbanization, many cities often set up temporary headquarters during the transformation of old cities to directly participate in the conclusion of civil contracts in order to promote urbanization. The same is true of Xiushan County Urban Construction Headquarters in this case. Its establishment organ is Xiushan County Government, and its purpose is to be responsible for the coordination of engineering construction and house demolition of East Street in Xiushan County. In nature, Xiushan County Urban Construction Headquarters is an organization, which is similar to the government’s anti-counterfeiting office, pig management office, greening office and urban infrastructure construction headquarters. The administrative subject is the unity of power, name and responsibility. It can enjoy and exercise administrative authority, conduct administrative activities in its own name, and independently undertake the responsibilities arising from administrative activities. The organization is a temporary organization established by the government, and it does not have independent administrative subject qualification. If there is a dispute with the administrative counterpart due to administrative activities, it cannot be the respondent in administrative reconsideration and has no defendant qualification in administrative litigation, and its legal rights and obligations should be borne by its organization.
(2) In the case that the headquarters was revoked, the defendant in this case was unqualified.
If the headquarters still exists, it cannot be used as the defendant to file an administrative lawsuit, but the county government that formed the headquarters should be used as the defendant in the administrative lawsuit. On October 25, 2010, the Supplementary Agreement signed by HTC and Xiushan County Urban and Rural Construction Committee also clearly stipulated that the rights and obligations of the headquarters were transferred to Xiushan County Construction Committee, and HTC recognized it. Therefore, in the case that the headquarters has been revoked, the administrative organ that inherits its rights and obligations, namely Xiushan County Construction Committee, should be the defendant.
II. Is the Agreement a civil contract or an administrative contract?
The focus of controversy in this case is what is the nature of the Agreement signed between the headquarters and HTC? If it is an administrative contract, the court shall accept it and further examine the legality of the agreement. If the headquarters signed a civil contract with HTC, then this case does not belong to the scope of administrative litigation.
(A) the administrative contract belongs to the scope of administrative litigation.
Because the administrative litigation system in China started late, and the legal norms of administrative contract are basically in a blank state [1], the concept of administrative contract has not been generally recognized for a long time [2], and the independent legal status of administrative contract has not been recognized. Civil law scholars generally deny the existence of administrative contract and regard it as a kind of civil contract, and the relief procedures of administrative contract are also applicable to civil litigation procedures. [3] However, according to the existing separate laws and the relevant provisions of the Administrative Reconsideration Law, the Administrative Procedure Law and the judicial interpretation of the Supreme People’s Court, administrative contract disputes should be handled by administrative reconsideration or administrative litigation procedures. [4] For example, in 1991, the Supreme People’s Court’s Opinions on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People’s Republic of China (Trial) defined "specific administrative acts" as unilateral acts, excluding administrative contracts from the scope of accepting cases in administrative litigation. In 2000, the Supreme People’s Court’s Interpretation on Several Issues Concerning the Implementation of the Administrative Procedure Law of the People’s Republic of China changed this definition. Judging from the judicial practice, in 1998, Vice President Luo Haocai of the Supreme People’s Court tried the case of Shenzhen Xiancheng Building, which is an example. In 2005, the Intermediate People’s Court of Dongying City, Shandong Province applied Article 11 of the Administrative Procedure Law of the People’s Republic of China to directly accept the case of Dongying City Land and Resources Bureau Development Zone Branch v. Shandong Hualin Paper Co., Ltd.
(B) the distinction between administrative contracts and civil contracts
Civil contract refers to the agreement signed between equal subjects to establish, change and terminate civil rights and obligations. [5] Administrative contract refers to the agreement reached by the administrative subject and the administrative counterpart on relevant matters through consultation in order to exercise administrative functions and achieve administrative management purposes. [6] Professor Wang Xuehui of Southwest University of Political Science and Law disapproves of the formulation of "administrative contract" and thinks that it is more appropriate to change the concept and call it consultative administrative act or agreed administrative act. In his view, the administrative contract is an administrative act in essence, which only exists through negotiation or agreement, not through compulsory means. The author thinks that administrative contract is the unity of administrative and consensual.
According to the general theory, there are three differences between civil contracts and administrative contracts: first, the party who enters into an administrative contract must be the administrative subject. Of course, the administrative subject can also be a civil act, and the contract signed when it carries out a civil act to achieve a certain civil purpose is a civil contract. Second, the main purpose of concluding an administrative contract is to realize the administrative function, which is of public welfare, and what it produces, changes and destroys is the administrative legal relationship; The purpose of concluding a civil contract is to realize the interests of individuals or organizations, and the civil legal relationship is generated, changed and destroyed. Third, the legal status of both parties to an administrative contract is not completely equal, and the administrative subject enjoys the right of administrative superiority. In the conclusion of an administrative contract, the administrative subject is in the position of giving priority to the offer. In the process of performance, the administrative subject has the right of supervision or command. According to the needs of national administration, the administrative subject has the right to unilaterally terminate the contract, while the administrative subject has the right to unilaterally sanction if the counterpart fails to perform the contract.
(3) The nature of the Agreement is a civil contract.
First, the headquarters signed an agreement with HTC as a civil subject. As mentioned above, the headquarters does not have the qualification of administrative subject. It is true that an organization without the qualification of administrative subject can also be an administrative act, and its legitimacy may be flawed or questioned. But in this case, the headquarters signed an engineering construction agreement with HTC as a civil subject. The establishment elements of civil subject include: nominal independence, will independence, property independence and responsibility independence. As a temporary organization established by the county government, the headquarters accepts the entrustment of the county government, and has the right to enter into civil legal relations with other market entities on behalf of the government in various urban construction projects, and has the right to conclude civil contracts separately.
Second, the Agreement produces a civil legal relationship. The headquarters and HTC are in an equal position. Based on the principle of mutual benefit, they signed an agreement equivalent to a construction project contract. The headquarters, as the owner of the land on behalf of the government, signed a contract with the civil subject. The essence of the agreement is that Hongda Company will fund the development, and the government will use the land on both sides of the road to offset the contract price. The Supreme People’s Court’s Interpretation on Applicable Laws in the Trial of Contract Disputes over State-owned Land Use Rights stipulates that this Interpretation is formulated in accordance with the General Principles of the Civil Law of People’s Republic of China (PRC), the Contract Law of People’s Republic of China (PRC), the Land Administration Law of the People’s Republic of China, the People’s Republic of China (PRC) Urban Real Estate Management Law and other legal provisions, and in combination with civil trial practice. It can be seen that in practice, the contract for transferring the right to use state-owned land is treated as a civil contract, which denies the administrative nature of using state-owned land to offset the contract price. In this case, the third-phase project of East Street is an important channel connecting the old and new cities, which plays a very important role in the overall planning and layout of urban construction and the construction of the main framework of the city, and has public interest factors, but it does not change that the agreement is the essence of a civil contract.
Third, the rights and obligations of both parties are equal, and the headquarters has no administrative priority. There is no agreement in the terms of the agreement that the headquarters unilaterally cancels the agreement or compensates or punishes HTC. The rights and obligations stipulated in the contract are binding on both parties, and the contract shall be performed in accordance with the principle of good faith. If either party breaches the contract, it shall be settled according to the Contract Law. The contents of the agreement on tax incentives reduce taxes, which has the administrative function of tax collection and management, and makes the whole agreement shrouded in the color of an administrative contract. However, because the right to tax can only be exercised by local tax and national tax, this part of the content violates the legal provisions, so the Construction Committee has corrected itself through the Supplementary Agreement, and the illegal part has been eliminated. This agreement is still a civil contract.
It was originally told that the defendant signed the Agreement with a third party in the name of the temporary organization headquarters established by him, and transferred the rural collective land legally acquired by the plaintiff to a third party without legal procedures. The defendant has no right to dispose of the land expropriated by the plaintiff, so he requests to confirm that the agreement signed by the defendant and the third party is invalid. However, through the analysis, we can see that the land involved has gone through a series of legal procedures, such as the Chongqing Municipal Government approved the expropriation, Xiushan County Government issued a demolition notice, Xiushan Land and Resources Bureau signed a contract for the assignment of state-owned land use rights with a third party. The plaintiff’s land ownership was transferred because of the house demolition agreement signed between the plaintiff and the headquarters. The Agreement signed by the headquarters and the third party is a civil contract. According to the principle of relativity of the contract, its legal effect only occurs between the two parties to the contract, and it cannot bind the third party. It cannot have a substantial impact on the plaintiff’s land ownership and cannot have legal effect. As this case does not fall within the scope of administrative litigation, it is ruled to dismiss the prosecution.
references
[1] Refer to Jiang Bixin, editor-in-chief: Perfection of Administrative Litigation System in China, Law Press, 2005, p. 70.
[2] Refer to Zhou Youyong, editor-in-chief: Administrative Law Case Course, Fudan University Press, 235 (2008).
[3] Jiang Mingan, editor-in-chief: Administrative Law and Administrative Procedure Law (fifth edition), Peking University Press, Higher Education Press, 2011, p. 328.
[4] Wang Xuehui and Tan Zongze: New Administrative Law, Chongqing Press, 2001, p. 227.
[5] Wei Zhenying, editor-in-chief: Civil Law (Third Edition), Peking University Press, Higher Education Press, 2006, p. 395.
[6] Jiang Mingan, editor-in-chief: Administrative Law and Administrative Procedure Law (fifth edition), Peking University Press and Higher Education Press, 2011, p. 318.
(Author: Chongqing No.4 Intermediate People’s Court)