Let Illegal Demolition Fear the Rule of Law / Sheng Hong

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The other day I went back to my home in Huairou, the Old Beijing Courtyard in Water Great Wall. I found that my neighbors were all prepared for battling against enemy, who are the enemies? The demolition team that may appear at any time. They may come in the daytime, in the evening or in the early morning. For this reason, my neighbors have been on duty day and night since November 2019, when I didn’t know we were going to be forcibly demolished. I only remember one time when the property management called my wife and said that the neighbor asked us to call back and whether we wanted to buy a national flag. We replied, it was not needed, It turns out that they were cautious, even the word “forced demolition” is not willing to say on the phone. Later, it was probably at the end of December that we learned from the SMS of the property that our home would be forcibly demolished. It turns out that neighbors flying the national flag are looking forward to something related to this sign, that is, the protection of citizens’ housing rights by the nation.

It seems that Huairou District doesn’t care about the national flag, let alone the constitution behind it. Since the outbreak of novel coronavirus pneumonia in January, we estimate that the threat of forced demolition could be delayed because of the fact that the Huairou district government was busy with epidemic prevention. However, on March 20, the whole of Beijing was still on high alert. Huairou district government arranged “Jiudu River town government staff” to send anonymous messages to some neighbors, asking them to vacate their houses and demolish them by themselves. This caused immediate tension among the owners. During the Spring Festival, many owners went out to travel and stayed in other places due to the epidemic, some owners were isolated in the city; there were fewer people in the community. But the next day many owners who didn’t live in the community drove back to the Old Beijing Courtyard in Water Great Wall and prepared to join the owners in the community. But when they got to the road outside the community and the T-junction of Jiudu River Bridge, they found a pickup truck blocked the way. There were several people like workers in the demolition company who did not allow the owner’s car to enter, claiming that only when they go to the nearby “demolition headquarter” to sign for forced demolition could they enter.

Some people went to the so-called “headquarter” and found that there were no leader, no villagers, only a few people with foreign accents. They said that the owners could put their cars in if they agreed to move out. This is a kind of blackmail for forced demolition. Their idea is to pledge the furniture property of the owners’ home in exchange for the owners’ submission and consent to forced demolition. It’s really mean. What they did was not only obviously illegal but also with bad behavior. Blocking the road by car is a clear violation of the Traffic Safety Law, which prevents the owners from entering their own houses, and even infringes the citizens’ housing rights and property rights. In the face of such a rogue behavior, the owners are very angry. Because they believe that their houses and properties are protected by the constitution, and that it is just and proper to protect their rights, with their courage and integrity, led by the elder brother with military quality, the owners rush in. It was a big win. But the neighbors’ cars didn’t get in because the pickup was in the way. I track the progress of my neighbors through WeChat group. I admire their courageous defense of their rights. But I’m just a scholar myself, and I’m really ashamed of myself compared with these neighbors.

But I have my advantages. This is writing. This is not just writing a general article, but I have a long-term concern and research on land issues, small property rights housing issues and forced demolition issues. Many years ago, in 2009, there was a “Tang Fuzhen incident”, which forced the demolition of Tang Fuzhen to death. At that time, I wrote an article entitled “Ask what is the ‘law’ in the world, simply drive people to fight by life” to uphold justice for her. Later, I wrote “life first, this is an absolute order” to denounce a homicide case caused by forced demolition. After Panjin land acquisition murder, I once wrote to the Standing Committee of the National People’s Congress with several law tycoons to ask for the truth. At the end of 2017, in the form of forced demolitions, there was an event to drive out migrants in Beijing. I joined hands with several law tycoons to write to the Standing Committee of the National People’s Congress to request constitutional review. Until last year, when I heard that Xiangtang cultural new village would be forced to be demolished, I wrote an article entitled “why Xiangtang can’t be demolished” to support Xiangtang residents.

When I heard that “Old Beijing Courtyard in Water Great Wall” was blacklisted, I began to write relevant article. Before the lunar New Year, it had begun to take shape. But with the novel coronavirus pneumonia outbreak, I turned my attention to the observation and analysis of the epidemic, and wrote some related articles. Later, seeing that the epidemic situation gradually slowed down, I went back and completed this article entitled “The place where my heart settled down is my hometown”, focusing on the experience of “Old Beijing Courtyard in Water Great Wall”, discussing the forced demolition. When I first wrote “Why can’t Xiangtang be demolished”, I mainly combed the legality of “small property right” houses in suburbs like Xiangtang from the Constitution to various laws; and illegality of forced demolition while this article “The place where my heart settled down is my hometown” focused on the illegality of forced demolition means of local governments in the existing forced demolition events. These two articles together can be called sister articles.

I regard Mr. Li Keqiang as the first reader of my article, “The place where my heart settled down is my hometown”. I found that there is a website called “national complaint acceptance office” on the Internet, which is very good. On March 9, I wrote a letter to Mr. Li Keqiang through this website, and attached two articles: “why can’t Xiangtang be demolished” and “the place where my heart settled down is my hometown”. The latter had not yet been published then. The content of the letter is very simple, that is to ask him to read these two articles. At the same time, it quoted the last paragraph of “the place where my heart settled down is my hometown”, which mentions that the most effective way to stop the “one size fits all demolition” is to remove the Secretary of the county Party committee who illegally forcibly demolishes “the most successful” from office. I don’t know if Mr. Li Keqiang has read this article. If not, I can only regret for him. Protecting property rights means a lot more than lowering taxes or interest rates by a few percentage points. However, the website is good on the whole, with feedback on the complaint letter. In addition to the short message of receiving the complaint letter, there is also the function of “query and evaluation”. It includes the handling situation and the complainants’ evaluation of the handling situation. Including the evaluation of the handling of the complaint department and the evaluation of the handling of the responsible unit.

I’m not satisfied to both. In my comments on the handling of the complaint department, I said, “can you correct the mistake by transferring the letter directly to the local government itself that should correct the mistake? If you think it’s a problem, you should send someone to investigate it. If it’s a mistake, you should correct it directly. If you are not willing to investigate, at least you should confirm that the local government is wrong according to the literal understanding of the problem reflected by me, and transmit the letter to local government and order it to correct the mistake” This is the reason why letters and visits have no obvious effect, and even lead to retaliation against the complainants. It only transferred the letter to Cuicun government, which is responsible for Xiangtang issue, and not to Jiudu River town government, which is responsible for the issue of “Old Beijing Courtyard in Water Great Wall”. However, the so-called “treatment” of Cui Village government is a two-line sentence paper with no receiver’s name nor sender name, saying that “administrative acts are not within the scope of letters and visits”. In my evaluation, I criticized this kind of response for being neither serious nor polite in form, nor unreasonable in content. “To say ‘administrative act’ is not within the scope of acceptance of petition matters, that is to say, as long as the town government says that it is an ‘administrative act’, it can violate the Constitution and can’t do anything bad.” This is to say that the petition Department of the State Council has no right to accept all the cases of the town government, because its actions are “administrative acts”.

Generally speaking, if the behavior of all levels of government is “administrative behavior”, which is not within the scope of petition acceptance, is the petition department only set up for “non-administrative behavior”? Who will restrain the government administration? In the written constitution, China is a country with people’s sovereignty. In order to effectively govern the public, it has set up governments and administrative departments at all levels. In order to ensure that these government departments can implement the constitutional obligations to protect the rights of citizens, a set of supervision and restraint mechanism has been set up. This is an organic whole. The petition department focuses more on obtaining the information of the illegal acts of the administrative departments at all levels, and has the obligation to provide it to the relevant departments under the framework of the Constitution to correct and punish those illegal so-called “administrative acts”. To say that “the administrative act is not within the scope of petition acceptance” means that “my act can be free from any restriction” and continue to infringe upon civil rights is really lawless and rampant. If governments at all levels claim that they are not subject to supervision and restriction, what will the country look like?

A week later, I would like to send this article to Dai Binbin, Secretary of CCP of Huairou District in Beijing. However, although the website of Huairou district government has a “district chief mailbox”, its function is poor and it has no attachment function. I have to send the article by express. In the letter, I reminded him not to use “carrying order out” as an excuse, because this has been criticized by Hannah Arendt as “the crime of mediocrity”, which is even a worse crime: doing bad things without taking responsibility. I suggest that he fully abide by the legal due process stipulated by the Constitution and the law, including not skipping or bypassing any legal procedure, informing the residents of the Old Beijing Courtyard in Water Great Wall in time of relevant information, and protecting their rights protection actions. The website of Huairou district government has no feedback function, and there is no other channel to tell me whether Dai Binbin has received and read my letter. On March 20, I heard that he wanted to forcibly demolish our home. I think he read it, but judging from the illegal and chaotic practices of Jiudu River town in those two days, he made a retaliatory response.

On March 16, I put “The place where my heart settled down is my hometown” on the Internet. As we all know, this is a sentence of Zhaoyun, which was used by Su Shi in his poem. At this time, it is very appropriate to be used as the title of the article. Because only the housing right, property right and the associated right to life can be protected, there could be a safe place, the home. And human beings set up government just for this kind of “my heart settled down”. This also counts as my efforts to protect my common home with my neighbors and make up for my lack of action ability. At the same time, as mentioned before, I have always been concerned about all the homes facing forced demolition, so when a friend of Xiangtang thanked me for my words, I said “not only for Xiangtang”. This article also “not only for the Old Beijing Courtyard in Water Great Wall”. I speak for all my friends in this predicament.

When I say that, it seems that I’m a bit defending my behavior, saying that I have no selfish intention. I remember a few years ago, someone asked me why I wanted to defend the “small property right house” and whether it was because I bought the “small property right house”. At that time, indeed, I had already bought “Old Beijing Courtyard in Water Great Wall”. But how strange the logic is. If I claim to protect property rights, it is because I have property; I claim to protect life, it is because I have life. A person’s legitimate rights must be safeguarded with integrity. Society seems to be upside down now. Those who often infringe upon others’ property rob openly, while those whose properties damaged have to defend their behaviors. But at a deeper level, in the minds of most people, the belief in just rights has become widespread and rooted. What I see in my neighbors this time is the spirit of fighting to defend their legitimate rights. They will not be ashamed that these properties are their own, they just fight for their rights. But those who infringe their property rights have no foundation. People who rush through the blockade and enter their homes are mostly old people, while those who guard the checkpoints are young people. Obviously it’s not a matter of physical strength.

While defending their right to housing and property, they are actually defending the inviolability of everyone’s right to housing and property, that is to say, defending the constitution. In this sense, they have contributed to the whole society. And everyone can contribute to the whole society in this way. In fact, the property right system is the result of everyone’s efforts to protect their own property rights. In fact, it is impossible to imagine an omniscient and omnipotent God who has the ability and selflessness to bring property right system to human beings. The most active to the property rights institution are the owners themselves. Their efforts and struggles to obtain and maintain property rights are the biggest driving force for the formation of property rights system. In mainland China, the property right system established by the reform and opening up has indeed played a role in motivating the people. However, some officials mistakenly think that this is their gift to the people, so they repeatedly violate, plunder and even destroy the existing property rights of the people. On the other hand, the property right system needs to stand the test of resisting infringement. Those who oppose illegal “breaking rules” tend to scold “one size fits all”. The key is to change the situation of people taking the place of “I am the fish” and “the other is the knife” . At this time, the protecting rights action for anti-demolition of the residents of the Old Beijing Courtyard in Water Great Wall, together with the rights protection of other people, constitute an important practice in the reconstruction of the Chinese property rights institution.

Novel coronavirus pneumonia is not yet over, what is the reason why the Huairou district government has to rush to forcibly demolish houses? Maybe it thinks it’s a good time. But it made a mistake while it was busy. This is exactly what the Constitution and the law should avoid and prohibit. According to Article 43 of the administrative compulsory law, “administrative organs shall not enforce administrative compulsory execution at night or on legal holidays”. The spirit of legislation should be that forcibly demolition cannot “take advantage of people’s absence”, “take advantage of people’s unpreparedness” or “take advantage of people’s inconvenience”. This highlights the neutrality and benevolence of law. The punishment that has to be implemented as stipulated in the law is not to hurt the parties, but only to punish, without any malice. On the other hand, Huairou district government’s act of forcible dismantling before the epidemic is over is quite different from the above legislative spirit. This arrangement of Huairou District obviously takes into account that during the anti-epidemic period, many owners can’t rush back in time, and the community is empty; even if the owners rush back, as long as they block the entrance to the community and take the property of the owners’ home as the hostage, they can coerce the owners to comply. There is no cover for the malice here.

However, this malicious behavior itself made Huairou district government make two mistakes at the same time. One is to block the road; the other is to stop the owners from going home. In a letter to Dai Binbin, Secretary of Huairou District Committee of the Communist Party of China on March 23, I said that blocking the road “violates Article 31 of the traffic safety law.”. The king is under the law. Even the premier of the State Council can’t violate it, let alone a mayor. ” “The right to housing not only means that no one else can enter without permission, but also means that no one else can prevent the owner of the right to housing from entering his or her house. It is unconstitutional and illegal to block access. ” I suggest that he stop these two kinds of wrong behaviors. On March 24, I saw that the car was still blocked at the intersection, and I suggested to Dai Binbin to stop such behavior in the latter letter.

However, not only did the pickup not withdraw, people from Jiudu River town arranged by Huairou District suddenly came to the “Old Beijing Courtyard in Water Great Wall and began to post “Notice of demolition within a time limit” on some residential gates. It seems that my house is the first to bear the brunt. In my letter to Dai Binbin on March 24, I commented on the “notice” and said, “Compared with Xiangtang’s forced demolition notice, there are still some improvements. For example, the first is aimed at the individual owners rather than the general institutions, and the second indicates the rights of administrative reconsideration and administrative litigation. It’s commendable.“ “However, this notice has two low-level hard mistakes.”

强拆通知书

First, it refers to “the first paragraph of Article 40 of the land management law”. In fact, no matter the new or old article 40 of the land management law, there is no second paragraph.

Second, the urban and rural planning law was passed in 2007, and the Old Beijing Courtyard in Water Great Wall was completed and sold in 2006. Article 93 of the legislative law stipulates that “laws, administrative regulations, local regulations, autonomous regulations, separate regulations and rules shall not be retroactive”.

These two tough injuries basically negated the murderous “notice”. If a law article without the second paragraph is written as the first paragraph of Article X, it is obvious to tell people that the person who wrote it has never seen that law article, and he does not know what that law article means. He doesn’t care what that law article means at all. He only cares about the purpose of this “notice”. As long as this goal is achieved, he doesn’t care whether the “notice” has a legal basis, whether it is illogical; he doesn’t care that it’s easy for others to see this kind of low-level hard mistakes. This implies that all this does not prevent it from passing legal proceedings. This is because it believes it can manipulate legal proceedings. On the other hand, this kind of low-level hard mistakes does not prove the illegality of this “notice”?

In terms of form, this kind of forced demolition notice in the name of the town government, which has no legal basis at all, is a kind of blasphemy to the house, that is, the blasphemy to the law. In terms of intensity, the nature of forced demolition is more than the death penalty. There is no such penalty as “forced demolition” in traditional China, but there is a contrary comparison. For example, the punishment of “digging graves” is higher than that of “killing people”. And the grave is the house of the dead. It can also be said that “forced demolition” is a worse crime than homicide. However, in traditional China, although “the murderer pays for his life”, the death penalty is not arbitrary. Even in the Qing Dynasty, the death penalty cases were reviewed repeatedly and finally decided by the emperor. Now the decision of “forced demolition” can be made by a town government! Think about how many more people die in a year if the town government has the power to sentence them to death. Today, the Chinese mainland is full of forced evictions. Is it related to the rule that one town can decide demolition without care and prudence?

This kind of situation of blocking the road and threatening to agree to forcibly demolition for cars’ entering lasted for several days, and Dai Binbin seemed to be reluctant to change. I think of the website of the national complaints acceptance office. On March 25, I wrote to Li Keqiang, and the selected classification was “public health emergencies”. In my letter, I told him, “on March 23, Beijing’s epidemic prevention and control was still in a tense period. I was stuck with a notice of forced demolition by the town government on the door of the” Old Beijing Courtyard in Water Great Wall “in Jiudu River Town, Huairou District. Large scale illegal “forcibly demolition” has begun. “Different from the previous forced demolition, Huairou district government, when the epidemic situation in Beijing was still very tight, threatened the forced demolition to “artificially cause crowd gathering and strong physical contact during the epidemic prevention period.” Specifically, it includes sending people to block the entrance of the community, “pushing and jostling with the owners who want to enter the community; the town government sends out a” talk notice “to ask the residents to talk with it; forcing the residents to rush back to the community”; and so on. At the same time, I also told him the behaviors of blocking the road by car and infringing the residents’ right to enter the housing. And said that I wrote to Dai Binbin three times without success.

On March 24, Huairou district government sent people from Jiudu River town to the “Old Beijing Courtyard in Water Great Wall” to continue to post the notice of forced demolition. Residents refused to let them into the courtyard. On March 26, it sent people from Jiudu River town to the community, and the residents still refused to let them in. As a result, they put the notice on the wall outside the courtyard. This notice is called “Urging notice”. In my letter to Dai Binbin on March 27, I talked about my feelings about the “Urging notice”: “I feel that the above language is terrible. It’s very similar to the “Urging money collection notice” of bandit kidnapping. Limit the time and kill the hostage without paying. ” It’s like “bandit kidnapping”. Does what I said go too far? In 1946, the famous kidnapping case of Rong Desheng happened in Shanghai. Until the 8th day, the ransom price was still discussed. This “notice” requires the owner to vacate the house within three days and demolish it by himself, not to mention its legitimacy. Even if the owner wants to surrender, it is not feasible from the perspective of technical implementation. The first thing is to find a house that can be moved. Whether it’s for purchase or rent, you need to find a house, bargain, sign a contract and so on. The fastest time is two weeks. We need to find a moving company. Rent forklifts, etc. What’s more, during the outbreak, these services have not been restored. Many house owners are stranded in other areas due to epidemic prevention and control and have not come back.

催告书

The earliest reference to “three days within a time limit” was in the forced demolition notice given to Xiangtang village by Cuicun town. It seems that these local governments engaged in forced demolition often exchange evil experiences of forced demolition. In fact, the “three-day time limit” which cannot be implemented technically proves the illegality of this illegal forced demolition. There is only one possibility behind this irrational crazy demand, that is, it originally wants to make the parties too late, that is, to carry out a surprise attack, so that the parties are caught off guard. Why let the parties be caught off guard? Because Huairou district government is very clear that its forced demolition is illegal. If it believed that its actions were legitimate, it would not take a surprise attack. It is clear that once the case enters the legal due process, once it really has to undergo the test of the Constitution and the law, it will be difficult to have an opportunity to forcibly dismantle it. Because as I revealed in “Why can’t Xiangtang be Demolished” and “The place where my heart settled down is my hometown”, China’s constitution and law protect the right of residence, which covers the rights of residence and property of “Old Beijing Courtyard in Water Great Wall”.

Therefore, the motive of Huairou district government’s “three-day deadline” is to use the method of sudden attack to cause the demolition to become a fact. Once the demolition is completed, it will be much more difficult for the owners to claim for compensation. It can take advantage of the defects of our judicial system and directly intervene in the fair trial of justice, at least dragging for a long time. However, such attempts have long been banned by the State Council. As early as 2010, the State Council issued the “emergency notice of the general office of the State Council on further tightening the management of land acquisition and demolition and earnestly safeguarding the legitimate rights and interests of the masses”, which stipulates that ” In case of illegal and compulsory demolition by means of “involving demolition” and “surprise demolition”, the responsibility of relevant responsible units and persons shall be investigated strictly. In case of casualties or serious property losses due to violent demolition and land acquisition Criminals shall be severely punished in accordance with the law “. Only in recent years, some local governments have set some bad examples, and they have not been punished in time, which makes other local governments think they can follow suit. In fact, just as the “three-day period” directly interrupts the “administrative reconsideration” and “administrative litigation” procedures, the nature of its “sudden attack” is also illegal. In this illegal state, forced demolition is a crime of serious infringement of property rights.

On March 27, when I returned to the Old Beijing Courtyard in Water Great Wall, I found that the pickup truck in the road was missing. It was replaced by an anti epidemic checkpoint, and the residents’ cars were already to drive in. I don’t know whether the letter I sent to Li or Dai worked or whether it was the result of the efforts of our neighbors. I think it might be a joint effort. On the same day, I wrote to Dai Binbin and said, “I’m glad to see that the illegal pickup truck has been removed and replaced by the anti-epidemic inspection when I went to the Old Beijing Courtyard in Water Great Wall today.” I believe that you have conscience in your heart and are willing to follow the road of rule of law. ” I added, “it also shows that you are determined to bear the legal responsibility for this illegal” forcibly demolition”, instead of pushing the duty down to” temporary workers “or up to” superior orders “. I believe that once you realize that you are legally responsible for these government actions in Huairou District, you will move in the direction of the Constitution and the law. “

The latter paragraph refers to a phenomenon of local government in recent years. This phenomenon is that the person who bears the legal responsibility for the forced demolition tries his best not to bear the responsibility. If the order of forcible demolition comes down from above, it is generally expressed as “military order” or “deadly order”. This is a very bad form, because the meaning of “military order” is to ask the lower level government to carry out a task with a single goal, and the higher level only needs the result, no matter how the lower level completes it. This implies that the subordinate can take illegal measures, but he does not want to know. So he can be irresponsible. Once the subordinates have done something wrong, he may get rid of the responsibility without knowing it. But he can “protect” the subordinate who has executed the wrong order without pursuing the illegal responsibility of the subordinate. But that’s all. If things are too big, sometimes the lower level will be scapegoated. This is from top to bottom. The same is true in the county. Hire some workers from security companies and demolition companies to rush ahead and forcibly demolish them. If they demolished houses, they naturally complete the “task”; if there is an accident, they can be said to be “temporary workers” rather than “government workers”.

However, it is this kind of person who should bear the legal responsibility does not bear the legal responsibility that will cause the illegal forced demolition which is common and forbidden repeatedly in the whole country, and the person who actually bears the legal responsibility is also very hard to be punished. The point is that the legal principle is very clear. It’s the person who gives the order, not the demolition workers in front, is the person who should bear the legal responsibility. This view has a long history in our country. This is the meaning of the story “Zhao Dun killed the Duke” in the Warring States period. Zhao Dun fled for fear of being harmed by Ling Duke of Jin, but he returned when he heard that Ling Duke of Jin had been killed. Dong Hu, a historian, wrote “Zhao Dun killed the Duke”. Zhao Dun said that I didn’t kill the Duke. Dong Hu said that he “did not leave the country when escaped, and did not punish the killer after being back “. How is it said that he didn’t kill the monarch? Conversely, if the leaders of the county government can bear the legal responsibility for the forced demolition, there will not be so many illegal forced demolition.

However, based on such a small change, can I conclude that Mr. Dai Binbin will bear the legal responsibility of forced demolition in Huairou District and take the road of rule of law? It’s just my belief. When I wrote to him once, I said, “Mr. Yangming said that everyone has conscience. I’m sure you do.” In another letter to him, I said, “I believe in your conscience; it is my strong ally.”

March 29, 2020, Wangyan Hill-house

Author: flourishflood

Economist, Confucianist

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