Yesterday (January 18, 2021) two major events occurred in the history of protecting Constitution and resisting demolition. One is Yang Yusheng, an owner of Xiangtang and a professor at the China University of Political Science and Law. After his house was cut off of water, electricity, and gas by illegal demolishers, and normal living facilities were destroyed. After 38 days in a cold house and a difficult environment, he chosed to evacuate. The illegal forced demolishers played the “Volunteer Army Song” to celebrate their “victory” when he evacuated. This nakedly vented their despicable and nasty psychology, used the financial resources and police power temporarily entrusted to them by the abused citizens to destroyed the homes of these bare-handed entrusters, and showed off this asymmetrical coward “success” . They also want to get rid of the guilt sense in their minds, with the longing for being appreciated by their superiors. They are naturally the rats that Professor Yang despised extremely. Professor Yang proved to people his determination to protect the Constitution and rights by enduring the unbearable suffering in the world. His calm evacuation was grandly seen off by the owners of Xiangtang. Soon after he left, the illegal forcible demolishers destroyed his homeyard, but their own conscience had been destroyed before then.
Another major incident was that Sichuan Normal University professor Tuo Jiguang committed suicide by jumping off the building because his house was illegally demolished and he had nowhere to complain. Some people suspect that if only because of the two houses, he would not commit suicide, there must be other reasons. In fact, the harm caused by illegal demolitions is not only the loss of houses or property, but also the flagrant infringement of citizens’ rights, which in turn tramples on their rights to fair justice and free expression, which insulted to their personal dignity, deeply damaging their psychology. I once said in an article, “If our rights are violated, we cannot pretend to be dignified.” Professor Tuo chose to commit suicide because he was rudely rejected when he sought legal relief. What’s more serious is that he himself was studying law, and he was powerless, so he said to his wife, “Neither we study journalism nor law can save ourselves.” This is a desperate statement to justice and freedom of expression. He used his death to issue a final protest against the administrative agency that violated his rights.
These two events once again sounded the alarm to the society and the authorities of illegal demolitions. If the administrative department of the government regards its administrative purpose as higher than the constitutional and moral purpose, “complete the task” by means of infringement of citizens’ rights, and in order to eliminate citizens’ resistance and illegally deprive citizens of their rights to use the judicial system and freedom of expression. What kind of social disaster and loss of life will they bring if they have no means of resistance? This kind of human tragedy should end. I said in this article that “rights are established by defending.” Professor Yang has made his own contribution to the protection of the constitution and rights by enduring hardship. Although we do not approve of protecting the constitution at the cost of death, we understand Professor Tuo’s actions. He sacrificed to rebuild the country’s property rights system. One day the solid property rights system will reappear in the land of China, and we must not forget their struggles and efforts. (January 19, 2021)
On June 27, 2020, I saw SOS for help from two places, one from Shanshuizui community and the other from Wayao Village. Both said that there would be up to a thousand of police and employed demolition personnel to besiege the community and carry out illegal demolition.
Shanshuizui community is located in Yesanpo, Laishui County, Hebei Province, with Juma River in front and Ruyi Peak in the back, with pleasant scenery. This is a villa area with complete legal procedures. Its opening sale of 2012 was a proud project of the local government at that time. However, on April 21, 2020, the Management Committee of Yesanpo scenic area suddenly posted a notice on demolition violation, claiming that the residential buildings in Shanshuizui community were “illegal buildings” and ordered the owners to demolish them within three days. In the face of doubt, the local government responded with “it was legal at that time, but it is not in line with the plan now”, and its ignorance of the rule of law made it to be laughed nationwide. The owners rushed back to fight against illegal demolition. They created the public WeChat account of Shanshui Speaking, published rights protection articles, and held an oath to “defend the Constitution and protect the homes”. They were in a standoff with the local administration for two months. During this period, the government unilaterally proposed the compensation scheme and induced the owner to sign. But we don’t know the specific arrangement of the compensation plan, nor have we heard of any negotiation.
Wayao is the name of a village in Changping District of Beijing. The villa area of Wayao Village is composed of several communities on the mountain south of Wayao Village, including Authors’ village, Shanzuo courtyard, Guanyun, Russian style garden and Presburg. It is said that there are more than 1800 households in total. Wayao villa group was first developed with the theme of “Wayao Cultural Industry Creative Park”. It is a key project launched by Changping District Government in 2003. There were dozens of writers and artists in the earliest Authors’ village. Wayao Village has attracted more than 1000 senior intellectuals, most of whom are university professors, writers, actors, doctors, and financial circles, political and legal circles. They have put in more than 3 billion yuan to settle down in Wayao Village with their savings or even the money from selling downtown houses. These villas are jointly built by Wayao Village and developers, and sold in the form of franchise members’ right to use them. In 2012, the court ruled that the villa in Wayao was illegal, and the owners refused to accept it. Some people filed an administrative lawsuit, but there was no information afterward. On June 15, 2020, some houses in the community were pasted with “forced demolition notice”, which limited the owners to move out and demolish them within 7 days.
Sure enough, on the second day of SOS, on June 28, 2020, Laishui county government launched an attack on Shanshuizui community. According to the Shanshui Speaking, “at 6 o’clock in the morning, the Laishui county government led more than 1000 staff members and more than 1000 special policemen forcibly entered Shanshuizui community. Four people have been arrested and many people’s mobile phones have been robbed. Two owners fainted. An old man had a heart attack. The number of injured is still unclear. If somebody’s voice of opposition is louder, he or she would be captured out What’s more, someone even stepped on one of the female owners and (June 28, 2020) in order to force the residents and cover up the illegal behavior of the demolishers, they cut off water, power and power in advance. In order to facilitate access from the riverway beside the residential area, the demolishers also destroyed the dam and let the water run out (Shanshui Speaking, June 27, 2020). After June 28, many owners lost contact, and Shanshuizui’s WeChat public account, “Shanshui Speaking”, was also “voluntarily cancelled”.
In the early morning of June 29, 2020, information and videos I got showed in Changping, Beijing, police and demolition workers attacked Wayao Village again. Five police cars led the way, followed by hired demolition workers pushing into the residents’ lines. The owners fought hard to defend their homes. During the attack, the demolishers used hot pepper water and tear gas to drive away the anti-demolition owners. A woman was knocked down and trampled, some residents were injured, and some residents fainted in the tense confrontation. More than a dozen owners are said to have been kidnapped, including Cao Bisong, a physicist at Tsinghua University. In this process, the forcible demolition also took the means of cutting off the network. Police and employed demolition personnel finally captured the villa area of Wayao, and quickly illegally demolished dozens of houses, and continued to block the villa area. On July 2, power was cut off in Wayao villa area, and on July 7, many houses were pasted with “notice on demolition within a time limit” issued by Changping court.
Of course, from the perspective of legal procedures, there are still some differences between Wayao villa area and Shanshuizui community. Laishui Yesanpo Scenic Area Management Committee’s “Notice of demolition within a time limit” on April 21 is only an administrative penalty. The owners have the right of administrative reconsideration and administrative litigation, and the effective period of administrative litigation is to October 20. Therefore, this forced demolition is obviously in violation of the Administrative Compulsory Law. In 2012, Changping District Court has ruled that some villa areas in Wayao are “illegal buildings”. Because the owners didn’t receive the written judgment, their legal response is somewhat scattered, resulting in this forced demolition in the name of the court, and court vehicles and police were deployed. However, the two forcibly demolitions did not give fair compensation to the third party in good faith, so there was no legality of the forcibly demolitions on the whole (detailed later). The most serious violation of the two evictions is the public use of up to 1000 police officers to intervene in the demolition. The police was originally set up to protect citizens’ constitutional rights. To use the police for forced demolition is to use it for the purpose opposite to the constitutional purpose, that is, to abuse the police force. What’s more, it also violates the State Council’s ban on “using public security police to participate in forced land acquisition and demolition” (General Office of the State Council, 2010).
The second serious violation is the use of financial funds to hire a large number of demolition personnel to act as thugs. Since forced demolition is illegal, employing personnel to participate in forced demolition is an illegal contract, and the acts of these demolishing personnel are also illegal. The financial revenue comes from the tax payment of citizens, including those whose houses have been forcibly demolished. It is intended to be used for the government to fulfill its constitutional obligations, rather than for other aspects, especially for the forced demolition in violation of the Constitution and the law. The forced demolition by employing personnel also violates the Budget Law and exceeds the scope of financial funds. The two forced demolition incidents employed hundreds even thousands of demolition personnel. It is said that tens of millions of Yuan were spent in the illegal demolition of Changping tile kiln. While deterring residents from defending their homes, they are also challenging the Constitution and the laws.
The third noteworthy point is that in addition to the previous illegal acts of water and power failure, the two forced demolition incidents also increased illegal acts such as shielding mobile phones, spraying hot pepper water, throwing tear gas, and damaging dams. The act of shielding mobile phones first violates the freedom of communication and expression protected by the constitution, which makes mobile phone users unable to transmit information for help to the outside at the time of crisis. At the same time, it covers up the illegal acts of the local government, and also violates the “crime of damaging public telecommunications facilities” in the criminal law. Only when the police are authorized to spray hot pepper water and throw tear gas can they be implemented cautiously in the public sphere. The hired demolition personnel are not the police, but the private sector personnel, so they have no right to use such “weapons”. What’s more, they were used in the invasion of Wayao community, and they had already entered the private territory of the owners of the community, which became an illegal act of attacking others. According to Article 114 of the criminal law, “the penalty is not less than three years but not more than ten years.” In a word, the two forced demolition incidents, especially the demolition of Laishui County, took more illegal actions and reached the peak in the history of forced demolition.
Why do they dare to commit so many illegal acts? Is there a “Imperial Sword” given by the superior administrative department, to make them not be afraid of breaking the law? I thought so before. However, I recently saw a record on the Internet about the “national call conference on rectifying illegal villas”. I don’t know whether it is true or not. If it is true, it will not be so. Although, I hold a negative attitude towards the premise of this “conference call”. The theme of the whole conference, that is, to “rectify illegal villas” is a problematic administrative goal. Villa as a form of residence should not be “rectified”. Especially in China, the word “villa” is quite ambiguous. In the eyes of many populists, the demolition of a villa is at least not sympathetic. However, the Chinese “villa” refers to the city people’s houses in the countryside, which is a kind of ordinary residence, corresponding to the house in English. Especially in today’s city land prices soaring and private cars have become popular, to buy “houses” in the suburbs is a way to avoid high house prices, not to inconvenience life, but also to live decent form. Therefore, the implication of “renovating villas” to crack down on powerful or corrupt officials obviously conceals the fact that most villa owners are middle class or even lower income people.
The main reason for rectifying villas is to “protect the environment”. But the house in a society has higher value and significance, it contains personality right and property right, including family affection and cultural value. Although sometimes it may conflict with “environment”, the solution is not to rectify or demolish, but to develop new solutions or methods under the premise of protecting the right of residence, with the goal of ensuring the harmony between human settlements and the environment. Of course, what’s more important is that if the construction of villas in the past is really in conflict with the environment, new rules can be used to limit the increment, instead of demolishing the houses that people have lived in for many years. The latter is obviously, not to say the worst, the clumsiest solution. In this “record of the call conference”, a notice issued by the State Council in 2004 is also used as the standard to judge whether the construction is “in violation of the law”. This is to place the administrative departments’ documents above the laws, and it is also a problem that the administrative officials cannot distinguish between the government documents and the law. However, there are also some statements in this “record of the call conference” that are worth affirming and can be used to reduce the destructiveness of the current illegal demolition campaign.
For example, the first is the definition of “illegal villa” by Mr. Lu Hao and Mr. Han Zheng. If the definitions of Lu Hao and Han Zheng are put together, the scope is very narrow. One is “great damage to the ecological environment”; the other is “intertwined with substantive and procedural violations”, and it was built after 2004. According to the definition of “illegal villas”, both Wayao villa area and Shanshuizui community are not qualified. According to legal theory, if we want to prove that these two places have “great damage to the ecological environment”, Laishui county and Changping district government should bear the burden of proof.
According to data, the area where Wayao villa is located was originally a mountain wasteland, and its geological structure is andesitic porphyrite and marl. If the status quo is better than the original mountain wasteland, there is no “destruction”. We did not find the “2012 Changzhi Zi No. 25 administrative ruling” mentioned in the Changping court’s “deadline demolition notice” and the relevant “Beijing land and land (Chang) sub Bureau punishment Zi (2011) No. 58 punishment letter”. We don’t know how Wayao villa district “destroyed” the ecological environment. However, judging from the fact that the two documents were not made public, the government at least failed to fulfill the burden of proof for the determination of “illegal construction” in Wayao villa area. Only in the reply letter from Changping District natural resources and Planning Bureau to Wayao residents, we can see that it implies that Wayao Village is classified as “ecological control area” in the “Beijing urban master plan (2016-2035)”. However, in the previous planning, it was “conditional construction land”. This kind of planning change not only violates the provisions of the Urban and Rural Planning Law to solicit experts and public opinions (Article 26), but also classifies the areas with a large number of residential buildings into “ecological control areas”, which obviously contains malice. What’s more, “Law does not rule the past.”
There are mountains and water in Yesanpo scenic area where Shanshuizui community is located. Therefore, Shanshuizui gets its name and the owners buy their houses. Human settlement and environment are so mutual promotion and complement each other. In the “notice on demolition within a time limit” on April 21, the Management Committee of Yesanpo did not cite any legal provisions or any illegal evidence. It just arbitrarily said that “the illegal villas located in Xiazhuang village and Duya village, Sanpo Town, Laishui County will be demolished.” It doesn’t even have the form of legitimacy. And we did not see any words related to “Shanshuizui” on the website of Laishui county government and its Bureau of natural resources and planning, that is to say, it did not provide evidence, how to identify “great damage to the ecological environment”?
And then look at “substantive illegality and procedural illegality interweave”. The so-called “procedural illegality” refers to the failure to comply with the legal procedures for building and buying and selling houses. In the market economy, the commercial housing is obtained through purchase, and its legal procedure is to sign a contract with the seller, fulfill the contractual obligations, pay the house price, and the other party delivers the house, which should be regarded as fulfilling the legal procedure. If the house seller needs to purchase relevant resources, such as land, when building a house, it should also perform due process of law, pay money to the land seller, and ensure that the purchased land is not prohibited by law from building houses. In this sense, the owners of Wayao villa and Shanshui Zui community have obviously fulfilled the legal procedures. Of course, the “procedural violations” referred to in the “record of call conference” focus more on the legal procedures of land use, but we also do not see the evidence from the government. And if there is any defect, it is not the responsibility of the owner, but the builder-seller. As for Shanshuizui community, it is the so-called “complete five certificates”, and there is no “procedural violation”.
The so-called “substantive violation” means that the illegal act has caused bad results. Here, it overlaps with “great damage to the ecological environment”. The fact is, after the formation and development of Wayao villa area, the owners have improved the local ecological environment through hard work and introduction of Technology (all franchisees of Wayao cultural and creative industry cluster area, 2018). According to the previous discussion, since Laishui county government and Changping District government did not provide evidence, and there was no cross examination process, it was impossible to determine that Shanshuizui community and Wayao villa district were “substantially illegal”. It should also be seen here that Lu Hao’s definition is that if there are both “procedural violations” and “substantive violations”, that is, “procedural violations” and “great damage to the ecological environment,” then the premise of remediation, even the most severe means of remediation, “forced demolition” would be formed. If there is only “substantial violation” or “great damage to the ecological environment”, but there is no “procedural violation”, the actor should not be punished, but remedial measures should be considered. For example, the drainage of buildings with risk of water pollution should be rectified to ensure that the water source will not be polluted. If the appearance of the building causes damage to the scenic area, the appearance of the building can also be changed. If there is a real need to change the location of the building, since the original location is agreed by the government, the government should also compensate another similar location of land.
If it is only a “procedural violation” but not a “substantive violation”, that is, there is no “great damage to the ecological environment”, which means that the construction of the building has not caused damage to the parties, neighbors and society, and should not be “rectified” or even “forcibly demolished”. Lu Hao also stressed that “for procedural violations, it should be classified according to the approval procedures obtained and the actual situation. ” If a building brings good results, it is in line with the natural law. The so-called “legal procedure” that does not conform to the natural law is only a kind of artificial law, which is inevitably lower than the natural law. At this time, in order to maintain the current legal system, we should warn and criticize procedural violations, and instruct them to complete legal procedures, but there is no reason to “rectify” or “forcibly dismantle”. In a longer period of time, unreasonable “legal procedures” can also be reformed. As in the whole period of reform and opening up, reform measures often do not conform to the legal procedures at that time. However, due to the good results of reform and opening up, the “procedural violations” during the reform will not be investigated, but the Constitution and laws may be gradually changed in the process of legislation and amendment in the future.
Only when “substantive illegal” and “procedural illegal” exist at the same time, can “illegal construction” be identified and “rectification” be considered, but it is not necessary to “forcibly demolish”. Because the house is a valuable property, and constitutes an important condition for the survival of residents, it should not be demolished if it cannot be demolished. Even if it is necessary to demolish, the original residents should be settled before demolition. In addition to forced demolitions, there are many punitive measures and remedial measures. On this basis, using Han Zheng’s definition, that is, the villas after the “State Council notice” in 2004, the number of illegal villas that need to be renovated is less than 1 / 10000, and only a few cases should be forced to demolish.
The second place that can be used for reference in the record of “national call conference on rectifying illegal villas” is that Lu Hao emphasizes “protecting their litigation rights.” “They” are the owners threatened to demolish. Therefore, even if some local governments improperly expand the scope of the so-called “illegal villas” for the sake of political performance competition and profit seeking, there are also legal constraints to reduce or even completely eliminate forced demolition. The owners of Shanshui drunk were only told to be forced to demolish on April 21. According to the administrative compulsory law, they have the right to carry out administrative reconsideration and administrative litigation, and the effective period of administrative litigation is six months, that is, before October 20, if they file an administrative lawsuit, they can not forcibly demolish. Obviously, the Laishui county government of Hebei Province invaded Shanshuizui community on June 28, far from reaching the validity period of administrative litigation, so it should not demolish by force. In 2012, the Changping court found that the Wayao villa was illegal and was to be demolished. It was only issued to the building seller of the villa, Wayao Village, without notifying the owners with significant interests. As a result, they had no way or difficulty in effective legal response and could also be regarded as incomplete legal process. Therefore, on June 29, Changping District dispatched police and demolition personnel to attack Wayao Village It’s illegal.
Lu Hao also pointed out that “the responsibility of the government should not be simply shifted to market entities and individuals, and the compensation should be reasonable.” If we follow this principle, even if the local government has broken through the identification of “illegal villas” and bypassed the due process of legal relief of the parties concerned, they should compensate the bona fide third party before forcibly demolishing. The so-called “bona fide third party” means that there is no fault in the transaction process, and only believes in good faith that the products sold by the seller are legal. However, if there are legal problems with the other party’s products, such as a stolen car, when the original owner recovers it, it should not damage the bona fide third party, the cash buyer. However, in almost all cases of illegal demolition, the result is to damage the buyer of the house. If it is really a “illegal villa”, the builder is usually the cooperation between the local village and the developer, and the owner is only the buyer. If the government declares the building “illegal”, it is illegal for the builder and the seller to obtain or use the land. When selling, there are many local government officials to help promotion, and the owners of the houses could not know those houses are illegal when purchasing, so they are absolutely bona fide third party.
Therefore, even if it is “illegal construction”, according to the legal principle, after the third party in good faith “obtains the ownership of the movable or real estate, the original owner shall not ask the transferee to return the property, but can only ask the transferor (the possessor) to compensate for the loss.” Apart from various legal constraints, the legal power of a government agency to demolish a house can be broken down into three steps. The first is to declare the ownership of the house illegal; the second is to transfer the property right to its own name; the third is to demolish it. This is equivalent to government agencies becoming “original owners”. However, according to the protection of the bona fide third party, the original owner can only ask the transferor (seller) to compensate for the loss. Since “return” is not required, the property right of the owner’s house is still legal. Only by placing the building under its own property rights can the government demolish the building itself, that is, the government can not demolish the house owned by others. It can only be demolished after the original builder and the seller “compensate for the loss” to a bona fide third party and transfer the property right of the house to its own name.
The so-called “compensation for losses” does not only mean “compensation according to market value”, because the market price of a commodity is formed on the margin, that is, the person who offers the lowest price within the balanced quantity of supply and demand. Therefore, anyone who does not want to sell his house under the existing market price will definitely value his house higher than the market price. In particular, the residences that have lived and operated for many years have condensed family affection, cherished good memories, precipitated courtyard ingenuity, and cultivated community culture. Therefore, it is several times, dozens of times higher than the market price. As US Judge Posner said, “due to the cost of demolition and the emotional or special needs for his property, the value given to his property by the owner is often greater than the market price If the government expropriates their property and only gives them market price compensation, these people will feel hurt. ” Therefore, “fair market price is fair compensation” only when it is for “public use” (quoted from Zhang Libin, 2007) if not, the compensation should be higher than the market price.
However, in reality, the seller of Wayao villas, Changping District, is unable or unwilling to compensate. The grass-roots government that declared the Wayao villas “illegal construction” was the government department that sold the villas at the time of the sale. Wayao villa district was identified as “cultural and creative industry cluster area” by Changping District in 2009. The district government provided supporting funds for the infrastructure of Liucun town government. Jin Shudong, the then district chief, personally helped to promote the villa district. Even if the seller and the government are not integrated body, they are inextricably linked. Therefore, even if we assume that the Wayao villas are “illegal buildings”, the “original owner” (i.e. the government) claims compensation from the illegal “transferor” (i.e. the seller), that is, the Liucun town government itself “claims compensation” to itself, which has nothing to do with the owners of the Wayao villas. They are protected by law as bona fide third parties. If the government wants to demolish the Wayao villas, it must make full compensation in advance. It is illegal to make compensation even on the day after the demolition, because it damages a third party in good faith. However, in Changping District Court, the sellers and purchasers of villas are called “executed person” and “illegal construction user” respectively in the notice of demolition within the time limit, which deliberately obliterates the relationship between the “Transferor” and the “bona fide third party”. Is it not using the control of judicial power to get rid of the compensation liability of Changping Liucun town (transferor) to the owner (bona fide third party) ?
The problem is that since according to Lu Hao’s definition of “illegal villas”, the “litigation rights” of the parties are “protected” and their legitimate rights and interests are protected, and “reasonable compensation should be made for them”, and then the final decision on whether to forcibly demolish the villas should be made according to the actual situation, few villas could be demolished. Recently, Hanbi building in Qingdao, Aoshan international in Changping, Yunju in Banshan, Fairy Tale Hill House, wooden house in Oubei, Laishui Shanshuizui, Wayao villa district, etc., which have been illegally demolished recently, will hardly be regarded as “illegal construction”, and would not be forced to demolish before the judicial process is completed, nor before the owner as a goodwill third party has not been fully compensated. But in fact, they were illegally demolished. Why? Let’s note that in the record of the “national call conference on illegal building of villas”, Lu Hao said, “we should leave policy space for the local government” and “we can’t allow one-size-fits-all kind.” This seems to be a good principle. This is that the local government has the discretion in “rectifying illegal villas” and can have a lot of space to tradeoff. This is a good thing. We can start from the long-term interests of the region, ease the impact of the above instructions, protect the interests of local people and stabilize the development of the local economy in the context of the bleak economy and epidemic situation. However, the results we see are quite different. Why is this?
This is because a matter, good or bad, as long as it is a task of the government, it must be regarded as a political achievement of the local government. Even if it is not publicly assessed, it is also a factor to be taken into consideration when officials are promoted. Therefore, local governments will try their best to achieve “political achievements”, and what they are good at is to make use of the government’s advantageous functions and resources, which is mainly the advantage in violence. The most extreme violence is forced demolition. Although it does not show direct violence in many cases, either persuasion or threat will more or less borrow violence as a backing to have an impact. When the party is coerced by the government, the result will be worse than the voluntary behavior. For example, Wang Anshi of the Northern Song Dynasty carried out the Young Crops Law, which was intended to help the poor when they have no money. However, once this was regarded as a political achievement of local officials, they forced the poor to borrow money by any means, and the rich guaranteed them. In the end, the poor couldn’t pay back the money, and the rich people guaranteeing went bankrupt. If local officials consider not only “political achievements”, but also “politics”, the word “worse” should be added because it not only means to gain recognition with “achievements”, but also to “show loyalty” with “excessive implementation” to gain additional opportunities.
In today’s Shandong Province, the situation of farmers under “merging villages and Living together” movement is getting worse and the people are in dire straits. Some people even say that it is “good intention to do bad things”. As mentioned above, even “good intentions” are bound to “do bad things. “Because the urbanization of the countryside should be carried out in the form of market, that is, the individual can calculate according to their cost and income, and decide whether to transfer their family residence to other places. As long as the houses in the countryside can be freely traded, as long as the people can move and settle freely, the process will show the result if the time is long enough, just as the urbanization in Chinese mainland has been in the forty years since the reform and opening up. Just as the government has no ability to formulate a production plan better than the market allocation, it also has no ability to find the optimal allocation of land in space. Therefore, it is a kind of “Fatal Conceit” for government officials to promote merging villages and living together. What’s more, Shandong officials are not so pure. Some analysts say that their purpose is to obtain the income from the sale of construction land quota (He Xuefeng, 2020). In fact, if the land released can sell the construction land quota, the beneficiaries should not be the government, but the land owner farmers. In fact, it is illegal for the government to do so, and it is a snatch of farmers’ land interests.
“Performance competition” is obviously an important motivation. In the “policy space” of the local government, there may be a great impetus to lean towards the direction of evil rather than the direction of good. Taking 1 / 10000 as a reasonable ratio, the Beijing municipal government publicly declared that “more than 4000 hectares of land is planned to be demolished and vacated” (Beijing Development and Reform Commission, 2020), that is, 40 square kilometers, about 2.8% of Beijing’s built-up area of 1485 square kilometers. It should be noted that this is only a one-year forced demolition plan. From 2013 to 2019, about 190 square kilometers have been demolished (Geng Nuo, 2017; Beijing Evening News, 2018; Zhang Nan, Zhang Ao, 2019). Therefore, on the whole, the planned area of demolishing illegal buildings in Beijing is about 15.5% of the total area of the built-up area. Making a “plan” of the demolished building area in advance violates the definition of “illegal villas” by Lu and Han, which is 1550 times of the estimated value of 1 / 10000. Moreover, Professor Sun Liping pointed out that the mayor of a district in Beijing complained to him that his task in one year was to demolish a million square meters of houses. “No matter where it is demolished, as long as one million square meters are demolished, the district chief will continue to be in his office, otherwise, let another person who will be able to demolish the one million square meters to be the district chief.” This clearly shows that the “policy space” given by the central government to the local government has become a vicious space for the “performance competition” with the “demolition area” as the quantitative index.
Of course, there are more direct and explicit interest motives than the Shandong government wants to sell construction land indicators for self-interest. For example, in 2017, a large number of houses were forcibly demolished in Xihongmen Town, Daxing, Beijing, which caused a shocking event of “driving out foreign residents” at home and abroad. The direct reason is the urban consolidation and the “reduced development” of Beijing. In fact, the town government takes advantage of this to directly seize the land of rural collective. At that time, Xihongmen Town was the only pilot project of “rural collective land entering the market” in Beijing, and “rural collective” was mainly the concept of collective organization with village or natural village as the unit. However, because Xihongmen Town was close to the urban area of Beijing, the land market value was extremely high, which caused the salivation of the town government. In the northern suburbs of Beijing, there is also a clear motive for land grabbing. For example, the market value of land in Beiqijia area, Changping District, Beijing is very high, but in 2020, the government will only pay compensation for land acquisition at 200000 yuan per mu. In the same town, the price of a piece of land listed for sale in 2018 is as high as 37.77 million yuan per mu (Beijing natural resources and Planning Commission, 2018), with a price difference of more than 100 times. Changping District has a special position in Beijing, because it is close to Chaoyang District and Haidian District. It is the tradition of Beijing that the upper wind and upper water are the good direction. The suburbanization extends naturally to Changping District. As a result, Changping’s population more than doubled from 2000 to 2017, and land prices also increased rapidly. Therefore, the land price of many residential areas built 10-20 years ago is not what it used to be. This may be one of the reasons why Changping District has the most illegal demolition and the worst means in Beijing.
The question is, according to the principles of “protecting litigation rights” and “protecting legitimate rights and interests”, there should be few forced evictions. Why are illegal evictions so rampant in places like Beijing? As long as we take a look at the tone of these administrative superiors, we can see that such a statement is a kind of unilateral self-discipline without compulsory requirements, which can only be found in the minds of local officials. If they do not have this “heart”, there will be no punishment, and the legitimate rights and interests of owners and litigation rights can not be protected. So the legal protection is greatly discounted. The reason why they say this is because, first, they should be politically correct on the surface. If there is a problem, they can use this as a shield to evade their responsibilities; second, as administrative officials, they do not want to be restricted by the Constitution and laws. If they punish local governments for breaking the law, they will recognize that the Constitution and the laws also constrains them. Third, administrative officials may also want to expand the scope of forced demolition, but they do not want to bear direct responsibility. Therefore, they connive at local officials’ violation of the law, but will not really punish their illegal acts.
Of course, since “policy space” is the discretionary space of local governments, it means that different local governments are more friendly or malicious because of their different personalities, and there will be different results. We also see that there are some places where illegal demolition is more prominent. Generally speaking, in addition to moral considerations, forced demolition is inversely proportional to wisdom. The more stupid and prone to illegal demolition, the larger the scope of forced demolition, and the worse the means of forced demolition. This is because violence is the simplest way. If happening to have public violence in hand, even a fool can use it. Because he doesn’t know how to work without violence. It takes wisdom to reconcile conflicting interests in public governance and political structures and to propose peaceful solutions. Second, the more knowledge is lacking, the more we will only see the immediate interests and ignore the long-term interests. Those local officials who try their best to demolish houses only see that catering to the current “leader’s intention” may be promoted, but they can’t see that this only highlights their tool value and will not be respected. Once there is a problem, they are more likely to be taken as scapegoats. Thirdly, such people also lack vision. They don’t know that it will be his lifetime nightmare, if he seriously damages civil rights in order to flatter leaders.
Therefore, on the one hand, we are sure that there are still some places worthy of borrowing in the “national video and telephone conference on illegal building villas” in order to curb illegal demolition. On the other hand, we should also point out that none of these places worthy of affirmation has played a role in practice. Fundamentally speaking, a government should not regard the demolition of the so-called “illegal villas” as its task, let alone hold such a meeting. If there is a “illegal villa”, only as a judicial case, the relevant local natural resources management department may file a lawsuit. As long as the government carries out a campaign on one thing, it will inevitably lead to bad results. This is because in a society, the scale and energy of the government are too large. Once it is started, it will inevitably break the equilibrium formed by the market, and the result will be bad. According to the TV series “Qingpingyue”, Emperor Renzong of Song once patronized a candied fruit shop with good intentions. As a result, the raw materials of the candied fruit shop became expensive due to other people’s competing to follow suit, leading to bankruptcy. In spite of the fact that in the campaign launched by the government, it has often been stressed that “attention should not be overdone” and that “voluntariness” should be emphasized, but it doesn’t work. At that time, there were some problems in Wang Anshi’s Young Crops Law, and the Song Dynasty repeatedly stressed that people could not be forced to borrow money, but this tendency still could not be stopped. Su Shi criticizes that “it is just an empty paper that the loan cannot be borrowed forcibly.”
The same is true in recent decades of history. In the process of agricultural collectivization in the 1950s, farmers were “voluntary” in principle, but in fact they were forced. Mo Yan’s novel “Life and Death Fatigue” vividly describes the scene. If local officials saw Mao Zedong waiting for the establishment of one million cooperatives by 1955, would they wait for farmers to “volunteer”? Therefore, if the government takes an issue as its task and says that it allows the people to “volunteer”, it is actually self-deception. After media exposure and criticism by scholars, the leaders of Shandong Province quickly came out to stop the movement and reiterated “respect for the wishes of farmers”. In fact, this is another “voluntary”. According to an entrepreneur who knows Shandong very well, he was very happy with the suspension of “merging villages and living together”. Later, “after asking other friends in Shandong, he realized that he did not stop the” dismantling the village and living together. ” (Lu, 2020) therefore, if we really want to stop this kind of government behavior of forcibly demolishing under the banner of “merging villages and living together”, the only way to stop this kind of government behavior is to completely stop the combination of villages. The government should return to its very duty to provide a safe, just and orderly institutional environment for the market to play its role.
Of course, to say “give local government policy space” also allows us to see clearly one thing, that is, the illegal demolition of specific areas is directly caused by the local government, which should bear the main legal responsibility. In fact, I only emphasized theoretically that the local government, especially the top leaders of the party and government at the district and county level, should bear legal responsibility for illegal demolition. I once stressed to Dai Binbin, Secretary of the Huairou District Committee of the Communist Party of China, “In Huairou District, if a brick is illegally demolished, and a resident is knocked off a hair by the demolisher, it must be your legal responsibility.” Now this assumption is more practical. Since the “national call conference on the illegal villas” on the one hand proposed that “in accordance with the law and regulations”, to “protect their litigation rights”, “to protect their legitimate rights and interests”, “to make reasonable compensation for those should be compensated”, on the other hand, “to give policy space to the local government”, this means that all acts of forced demolition that seriously deviate from the above-mentioned principles are committed by the local government In the “policy space”, these acts not only violate the Constitution and law, but also violate the requirements of higher administrative departments. Therefore, the top leaders in these areas should bear the legal responsibility of illegal demolition.
So, how to solve this problem? The central government puts forward an improper government goal, but it is used to putting forward unilateral constraints, suggesting that its subordinates respect the Constitution and law, while the local government ignores the Constitution and laws for the sake of political performance competition and land finance, and the central government does not punish them. The problem seems to be unsolved. Because there is no solution, there is a solution. The so-called “no solution” is the illegal forced demolition of Laishui county government and Changping District government. Now it seems that there is no institutional constraint. The so-called “solution” is that they will eventually encounter constraints, which is the resistance of the people forced to demolish. When Laishui County forced demolition team to attack Shanshuizui community, they met resistance. Some owners were injured in the resistance, some people were illegally kidnapped, and the police and other demolition teams finally rushed in. When the demolition team of Changping District attacked Wayao Village, they met with stronger resistance. The police and the employed demolitions took out chili water to spray the resisters, threw tear gas shells, the defenders used shit packs to fight back, and some sprayed into the invaders with sprayers. After a period of stalemate between the two sides, Wayao villa area was finally captured. Although the demolishers have achieved “victory” in both attacks, they not only encounter the obstruction of the owners with their bodies on the road they invade, but also the people behind the demolishers also receive a strong signal from the home defenders: This is my legal residence, this is my home, please leave!
The “victory” of the demolishers only relies on temporary advantages, that is, stealing the name of the government, abusing police force and administrative resources, 10 times the number than that of resistance, and more powerful “weapons”. But this is a team that has no fighting spirit, is too shy to show up and dare not face up to it. Through the video, we can see that at the intersection, the resisters shout “get back” to the police. A person in the shape of an official turned his back when he was scolded by the house owners, and deliberately did not let others take pictures of her face. And those who demolish people, most of them are cheated, only know how much money to give a day. Among them, a number of minors were temporarily employed by the security company, and their ID cards were withheld and no wages were paid for two months. It is said that 800 temporary personnel were recruited during the invasion of Wayao, and more than 300 people ran away after knowing the truth. All the time, the person with the greatest legal responsibility has been hiding behind the scenes.
This shows that, even with intuition, we can feel the illegality of this demolition. If we can sort it out, the illegality of these two acts of forced demolition lies in the following aspects:
1. On the identification of “illegal construction”, the two local governments have not given evidence of “great damage to the ecological environment”, even if there is, it has not been publicized on the Internet;
2. The governments of the two places have not pointed out where the owners of Shanshuizui community and Wayao villa area violate legal procedure; punishing the citizens who are just in the procedure is equal to violating the legal procedures themselves;
3. The owners of Shanshuizui and Wayao villas, as the third party in good faith, did not get reasonable compensation;
4. Before putting up the notice of demolition within a time limit, the parties concerned were not given the “right of statement” and “the right of defense” (Article 8 of the Administrative Compulsory Law); in some villa areas of Wayao, even the “Notice of demolition within a time limit” was not posted, some houses were demolished forcibly;
5. After the parties file administrative reconsideration or administrative litigation, or before the expiration of the administrative litigation period, violate Article 44 of the Administrative Compulsory Law to forcibly demolish Shanshuizui community and Wayao villa area;
6. The use of police in forced demolition violates the provisions of the police law of the people’s Republic of China to “uphold the constitution” (Article 26), and shall not “illegally deprive or restrict the personal freedom of others, illegally search other people’s bodies, articles, residences or places” and “beat others or instigate others to beat others” (Article 22); it also violates the State Council’s “police shall not intervene in forced demolition” Prohibition;
7. Employing demolishing personnel to participate in the demolition violates the provisions of the Budget Law on the scope of financial expenditure (articles 27 and 93);
8. In the conflict with the owners, the employees of forced demolition take away some owners and deprive them of their personal freedom, which is an illegal kidnapping Act (article 239 of the criminal law);
9. The use of steel forks, hot pepper water, tear gas and other utensils by the police and the employed demolition personnel in the conflict with the owner is a serious violation of the owner and violates the “intentional injury crime” (Article 234) of the criminal law;
10. Before and during the forced demolition, the demolisher violated the administrative compulsory law and cut off water and electricity in Wayao villa area and Shanshuizui community (Article 43, paragraph 2);
11. The demolisher blocked the mobile phone and partially cut off the network, which violated the crime of damaging public telecommunication facilities (Article 124) of the Criminal Law;
12. The demolisher of Shanshuizui community also destroyed the adjacent dam, thus violating the “crime of breaking water” (Article 114) of the criminal law;
13. The demolisher blocked the residential area and restricted access, which violated the “crime of illegal detention” (article 238) of the criminal law.
14. The most important thing is that the two evictions have seriously violated the owners’ constitutional rights of personal freedom, housing rights and property rights.
In general and in a narrow sense, the forced demolition of Shanshuizui community in Laishui County and the demolition of Wayao villa area in Changping District are “abusing public power and seriously violating property rights on a large scale”. In my letter to Dai Binbin on April 3, I explained that “the abuse of public power” refers to the use of the administrative power of the government, including the resources of public violence, for acts and purposes that violate the Constitution and the laws and violate citizens’ constitutional rights.” Judging from the above-mentioned 14 articles, the two cases of forced demolition, from the determination of “illegal construction”, administrative action procedures to forced demolition, were unconstitutional and illegal, so they must be criminal acts of “abusing public power”. These behaviors obviously do not meet the requirements of “national call conference on illegal villas”, “protect their legitimate rights and interests”, “protect their litigation rights” and “make reasonable compensation for the compensation”. According to common sense, Changping District and Laishui County of the people who have legal responsibility for forced demolition should be subject to administrative punishment before legal punishment. Even if I have different opinions on the above-mentioned 14 articles, we should at least stop the demolition action, investigate these two illegal demolition incidents, and punish them according to the investigation results. Otherwise, the central government will lose its authorities and the lawlessness of local governments will not be stopped.
Since the government does not protect property rights but infringes upon them, the anti-demolition action of owners of Shanshuizui and Wayao is just, that is, self-defense. It is an act taken to stop illegal infringement in order to protect the personal, property and other rights of oneself or others from the ongoing illegal infringement (Article 20 of the criminal law). Above this is the natural law, which is everyone’s instinct and natural right to defend his own freedom, property and life. However, we can see in the video that Changping court claimed with a high pitched loudspeaker that the owners’ resistance against them was “obstructing public affairs”. Later, it was heard that the owners who were kidnapped in Wayao will be punished as “obstructing public affairs”. If the police force is used for the purpose of violating the Constitution and the law, it is obviously not “public affairs”, and to call the abuse of public power as “public affairs” is an insult to “public affairs”. In doing so, they are violating another one of the citizens’ rights for their having violated one, in an attempt to stop the victim from speaking. The reason why the two local governments can do this does not mean that they are legal, but only that they have the technical and financial ability to abuse public rights to infringe on citizens’ constitutional rights without being punished immediately, which was originally entrusted by citizens for their temporary use. It’s used against citizens, which is illegal use. This judgment will not be temporary. As long as the environment is suitable, the Constitution and laws will work.
According to the record of “national call conference on illegal villas”, this result is not expected by the central government. If it adheres to the road of legalization proposed by the Fourth Plenary Session of the 18th CPC Central Committee, and if it really wants to protect the “legitimate rights and interests” of owners and “protect their litigation rights” as they said, but there is no way to restrict them for a while, I would suggest that we should start with protecting the “litigation rights” of Shanshuizui and Wayao owners. This is not only the administrative reconsideration and administrative litigation that they refuse to accept the “illegal construction” cognizance, punishing the administrative officials and departments who interfere with the court’s acceptance; but also includes the owners’ lawsuit against any local government’s illegal behavior in the process of the two illegal demolition incidents, including those violating the Criminal Law, such as destroying public communication facilities crime, crime of illegal detention, crime of breaking dam, etc., while the object of action is the actual legal responsible person, that is, the top leaders of the party and government of these local governments, the realization of the requirements of “teleconference” will be effective soon. Because they’re tearing down houses as well as the rule of law in this country.
The real effective system is the balance between the groups of people with conflict of interest, which ultimately depends on the fight against the infringement of rights. The property right system has existed in the world for thousands of years. It is the result of the interaction between generations and generations of the people. The reform and opening-up started under the background of planned economy. It refers to the systems of the United States and other western countries, the experience of Taiwan and Hong Kong in China, and the heritage of traditional China’s property rights institution. These property rights institutions themselves are the institutional equilibrium formed by the long-term interaction of various interests. At the beginning of the reform and opening up, the rulers accepted the market system based on the property right system and regarded it as the decisive mechanism of resource allocation. In the period of planned economy, people’s original inherent rights were deprived completely, so the process of reform and opening up is characterized by “opening up” and “allowing”, which is shown as the return of civil rights. But this situation will be misunderstood as a gift from the government to citizens in the short term. Today’s officials do not remember the government’s respect for the property rights system at the beginning of the reform and opening up. They believe that the rights of unilateral “opening” and “allowing” can also be “withdrawn” and “restricted”. This actually creates a state of “no property rights”.
There are similar misunderstandings among citizens. Some people attribute the improvement of their situation under the market system to the “good policy of the party”, without thinking about what it will be like once their rights are “withdrawn” and “restricted”. When illegal evictions happen to them, they suddenly realize that the rights that are not guaranteed by the rule of law will disappear as soon as possible. And the rule of law is not only a set of constitutional and legal provisions, but also requires citizens to practice, that is, when their rights are violated, they should come forward, activate the Constitution and laws, and protect their rights. The recent action of Wayao and Shanshui Zui owners to defend their homes under the banner of the constitution will be an important time node, which marks people’s awareness that rights are not given unilaterally, but are protected. The action of the owners of Wayao and Shanshui Zui is a great action to form a more solid property right system and implement the rule of law. The sacrifices they have made for this should be praised and tear. I also hope that the people in power can realize this. If the slogan of “building a country ruled of law, a government ruled of law and a society ruled of law” is sincere, we should see that the strength of citizens to defend their rights is the necessary strength for the rule of law, and to jump out of the narrow vision of administrative officials’ interest groups. To impose fair punishment on those who violate the Constitution and illegally demolish houses will make the promise be fulfilled possible.
Reference
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July 8, 2020, Forget-talk Hill Study
Nature of Rights 