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夏善荣诉徐州市建设局行政证明纠纷案
原告:夏善荣,女,55岁,江苏省徐州市奎山乡关庄村农民,暂住徐州市湖北路西段菜地。
被告:江苏省徐州市建设局,住所地:徐州市解放路。
法定代表人:郭宗明,该局局长。
第三人:江苏省徐州市恒信房地产开发有限公司,住所地:徐州市中山南路。
法定代表人:闻远,该公司总经理。
2001年6月18日,被告徐州市建设局给第三人徐州市恒信房地产开发有限公司(以下简称恒信房产公司)颁发徐建验证
(15)号《住宅竣工验收合格证书》(以下简称15号验收合格证),认定:恒信房产公司建设的世纪花园1-6号、11号住宅楼经专家组验收,验评得分
80.5分,符合验收标准,具备入住条件。原告夏善荣认为该证书侵犯其合法权益,向江苏省徐州市云龙区人民法院提起行政诉讼,云龙区人民法院将此案移送徐州市泉山区人民法院,泉山区人民法院追加恒信房产公司为第三人公开审理了此案。
原告夏善荣诉称:世纪花园小区内有第三人恒信房产公司给原告提供的拆迁安置房。由于该房质量不合格,且第三人还拖欠着过渡房费,原告提起民事诉讼,在诉讼中得知,世纪花园是经被告徐州市建设局验收的合格工程。原告认为,在被告验收时,世纪花园住宅小区尚未安装电表,明显不具备竣工合格条件,被告却为第三人颁发验收合格证,严重损害原告利益。请求判令撤销被告颁发的15号验收合格证。
原告夏善荣提交以下证据:
1.《拆迁协议书》,用以证明夏善荣是世纪花园合法住户,对房屋质量有权主张权利;
2.照片7张,用以证明世纪花园内的房屋存在质量问题;
3.通知1份,用以证明世纪花园住宅小区竣工时未安装电表,直至2002年3月
25日第三人恒信房产公司才开始校验电表及内线。
除此以外,原告夏善荣还申请证人许吉良出庭作证。许吉良的证言内容是:夏善荣提交的反映房屋质量问题的照片为其所摄,世纪花园住宅小区内垃圾未清理、绿化未搞好、道路不通,电表直至2001年9月才安装,根本不具备交房条件,被拆迁户为此曾多次到市政府反映问题。
被告徐州市建设局辩称:为履行法定职责,依照法定程序,被告在组织专家组对世纪花园住宅小区进行综合验收后,根据建设单位整改情况才颁发验收合格证。被告向第三人恒信房产公司颁证的行为,与原告夏善荣主张的“房屋质量不合格以及拖欠过渡房费”等事实无关,应当驳回原告的诉讼请求。
被告徐州市建设局提交以下证据:
1.徐州市计划委员会制作的《关于奎山乡刘场东村改造项目建议书的批复》,徐州市规划局制作的《建设用地规划许可证》、《建设工程规划许可证》,徐州市国土管理局制作的《征用土地批准通知书》,徐州市土木建筑工程质量监督站制作的《建筑安装工程质量初验等级证书》,徐州市公安消防支队制作的《消防验收意见书》,以及《物业托管合同书》等,用以证明综合验收需审查的各单项手续齐全、合法;
2.住宅竣工验收申报表、《徐州市住宅小区竣工验收评分标准》、15号验收合格证,用以证明综合验收符合程序、符合要求;
3.国务院发布的《城市房地产开发经营管理条例》,建设部发布的《城市住宅小区竣工综合验收管理办法》,徐州市建设委员会发布的《关于修改住宅小区竣工验收标准的通知》,用以证明实施综合验收具体行政行为的法律依据。
第三人恒信房产公司述称:被告徐州市建设局向第三人颁发验收合格证,是依照法定程序履行法定职责。颁证行为与原告夏善荣主张的“房屋质量不合格以及拖欠过渡房费”等事实无关,应当驳回原告的诉讼请求。
经质证、认证,徐州市泉山区人民法院查明:
徐州市计划委员会批准在刘场村建设世纪花园小区住宅楼,用于安置在徐州市奎山乡关庄村实施旧城改造中私房被拆除的村民,该项目工程交第三人恒信房产公司开发。原告夏善荣是私房被拆除的村民,
1999年7月,奎山乡关庄村委会与其签订《拆迁协议书》,约定在世纪花园住宅小区为夏善荣安置住房,18个月内交房。2001年5月8日,恒信房产公司向被告徐州市建设局报告,世纪花园住宅小区的住宅楼已经建成,申请竣工综合验收,同时提供了竣工综合验收所需的各种验收资料。徐州市建设局组织专家到现场验收后,世纪花园住宅小区总得分为80.5分,无不合格项目。据此,徐州市建设局于2001年6月18日为恒信房产公司颁发了15号验收合格证。
另查,世纪花园住宅小区白通知交房后,能够保证居民通电,但电表是2001年 9月才安装到位。
徐州市泉山区人民法院认为:被告徐州市建设局是徐州市的建设行政主管部门,具备组织实施城市住宅小区竣下综合验收的法定职责;验收合格证是建设行政主管部门履行综合验收职责、确认住宅符合验收标准的载体,徐州市建设局具有颁发验收合格证的主体资格,
被告徐州市建设局举证证明,该局在接受了第三人恒信房产公司的申报材料后,于2001年5月8日组织综合验收小组到现场检查。经综合验收小组的现场检查、鉴定和评价,世纪花园住宅小区在规划设计、建筑设计、工程质量、公建配套设施、市政基础设施以及物业管理等方面均合格,总评分80.5分,符合国务院《城市房地产开发经营管理条例》、建设部《城市住宅小区竣工综合验收管理办法》和徐州市建设委员会《关于修改住宅小区竣工验收标准的通知》规定的程序与实体要求。对上述法规和规范性文件的效力,原告夏善荣认可。徐州市建设局根据这些文件的规定和综合验收结果,向恒信房产公司颁发15号验收合格证,事实清楚,证据确凿,适用法律正确,程序合法。
被告徐州市建设局的职责,是对世纪花园住宅小区进行综合验收,不是对该小区的单项工程质量进行鉴定。徐州市土木建筑工程质量监督站出具的《建筑安装工程质量初验等级证书》证明,世纪花园住宅小区的工程质量符合《徐州市住宅小区竣工验收评分标准》的要求。世纪花园住宅小区内的电表未及时安装,综合验收时已经被专家注意到,并在评分时相应扣除。该小区虽然存在局部瑕疵,但总评分仍旧合格,局部瑕疵没有影响整个小区的工程质量,况且法律也没有规定安装电表是住宅小区综合验收的必要条件。原告夏善荣如果对该小区的单项工程质量存在异议,可依建设工程保修制度或投诉制度保护自身合法权益。夏善荣以单项工程质量存在的问题否定徐州市建设局对世纪花园住宅小区的竣工综合验收工作,理由不能成立。
综上,徐州市泉山区人民法院依照《中华人民共和国行政诉讼法》第五十四条第
(一)项的规定,于2002年11月26日判决:
维持被告徐州市建设局于2001年6月18日颁发的15号验收合格证。
一审宣判后,夏善荣不服,向江苏省徐州市中级人民法院提出上诉。理由是:世纪花园1-6号楼、11号楼未执行现行的建筑设计国家标准,还存在擅自改动图纸及房屋结构,以至外观整体造型不美观等问题,属建筑设计、规划设计验收标准中的应保证项目不合格;厨房、卫生间及墙体多处漏水,无地漏,水电未安装到位,地基深度不够,说明工程质量不合格;供电、供水设施不齐全,不能正常运转,说明公建配套设施和市政基础设施不合格;建筑垃圾在验收时未全部清运,说明物业管理不合格。存在这么多问题的住宅楼,根本不具备验收条件。在此情况下,被上诉人徐州市建设局仍向第三人恒信房产公司颁发15号验收合格证,违反相关规定,应当撤销。一审认定事实不清,适用法律错误,请求二审改判。
被上诉人徐州市建设局答辩称:根据建设单位申请,被上诉人在查验了其提供的相关资料后,于2001年5月8日组织专家组现场综合验收,然后根据建设单位整改情况给世纪花园1-6号、11号楼颁发了验收合格证。一审对被上诉人的颁证行为认定事实清楚,适用法律正确,二审应当驳回上诉,维持原判。
原审第三人恒信房产公司称:第三人是严格按照标准和图纸施工,世纪花园住宅小区不存在任何工程质量问题。被上诉人严格按照法定程序给第三人颁发15号验收合格证,是合法的行政行为,二审应当维持一审判决。
徐州市中级人民法院经审理,认定的案件事实与一审无异。
徐州市中级人民法院认为:作为徐州市的建设行政主管部门,被上诉人徐州市建设局在其组织实施的竣工综合验收工作中的法定职责,是检查小区的土地使用情况是否符合要求,小区建设是否符合建设工程规划、是否具备各单项工程的检验合格证明、是否有消防验收合格证明等。而出具《建设工程规划许可证》、各单项工程的检验合格证明、消防验收合格证明等,则是相应职能部门的法定职责,不在建设行政主管部门的职权范围内;各项证明的内容是否正确、综合验收小组的打分是否恰当,也不属建设行政主管部门的审查范围。上诉人夏善荣上诉所称的房屋工程质量不合格,与徐州市土木建筑工程质量监督站出具的《建筑安装工程质量初验等级证书》相矛盾。如果夏善荣认为徐州市土木建筑工程质量监督站出具的证明错误,或其他单项工程质量有问题,可通过其他途径解决,以维护自身合法权益,但不属本案审查范围。至于夏善荣所提1、2号楼地基深度不够、小区垃圾未清运、电表未及时安装等问题,综合验收小组在评分时均已适当扣除,且局部瑕疵不影响整个小区的综合验收工作,因此不予支持。
综上,原判认定事实清楚,证据充分,审判程序合法,适用法律正确。徐州市中级人民法院依照行政诉讼法第六十一条第
(一)项的规定,于2003年4月14日判决:
驳回上诉,维持原判。
二审宣判后,夏善荣仍不服,向江苏省高级人民法院申请再审。主要理由是:《建设工程规划许可证》是原审被上诉人徐州市建设局在竣工综合验收中必须审查的一项证明。原审第三人恒信房产公司申请住宅小区竣工综合验收时,只向徐州市建设局提交过徐市规建20010108号《建设工程规划许可证》(以下简称108
号规划许可证)的复印件。经了解,108号规划许可证复印件与徐州市规划局留存的同一编号规划许可证存根内容不一致;徐州市规划局证明,恒信房产公司承建世纪花园从未办理过建设工程规划许可证,该局拟对恒信房产公司进行处罚;充分证明恒信房产公司提交的108号规划许可证复印件是伪造的证据。徐州市建设局依据伪造的规划许可证给恒信房产公司颁发15号验收合格证,颁证的主要证据不足。原判称徐州市建设局的颁证行为合法,属认定事实不清,适用法律错误。请求再审撤销原一、二审行政判决,依法改判撤销15号验收合格证;原一、二审诉讼费由徐州市建设局负担。
为证明再审理由成立,再审申请人夏善荣提交了徐州市规划局于2004年7月
29日作出的《关于对许吉良人民来信的答复》(以下简称《答复》)。该《答复》的主要内容为:徐州市规划局接到许吉良举报后,查明恒信房产公司承建的世纪花园未办理《建设工程规划许可证》,依法对其进行了查处,并拟在组织听证后,按照法定程序作出行政处罚。夏善荣同时申请法院调取徐州市规划局对恒信房产公司进行行政处罚作出的(2004)徐规行罚字第90号《行政处罚决定书》(以下简称90号处罚决定书)。
原审被上诉人徐州市建设局答辩称:作为徐州市的建设行政主管部门,徐州市建设局只是本行政区域内城市住宅小区竣工综合验收工作的组织者。世纪花园使用的是集体土地,对在集体土地上建设的住宅小区,法律没有规定必须由建设行政主管部门进行竣工综合验收。为了保护旧村改造过程中拆迁安置户的利益,避免出现不同的交付标准,根据广大拆迁安置户的要求,并应原审第三人恒信房产公司申请,徐州市建设局才对世纪花园进行了竣工综合验收。在竣工综合验收中,徐州市建设局仅对《建设工程规划许可证》进行形式审查,不负责验证真伪,因此不知道恒信房产公司未办理《建设工程规划许可证》;况且在综合验收时,对世纪花园落实规划设计方面的情况,是由综合验收小组中的徐州市规划局工作人员负责检查的。徐州市规划局的工作人员从未在综合验收时提出规划许可证存在问题,事后该局虽然发现了规划许可证存在问题,并据此对恒信房产公司进行了行政处罚,也未将有关情况向徐州市建设局通报。因此,徐州市建设局虽然是依据恒信房产公司提交的复印件进行综合验收,但只要该复印件得到规划部门的认可,徐州市建设局就可以认定世纪花园住宅小区落实了规划设计。该复印件如果被证明是假的,责任也只能由认可该复印件的徐州市规划局承担。徐州市建设局根据综合验收小组提交的竣工综合验收报告颁发15号验收合格证,并无不当。
原审被上诉人徐州市建设局提交徐州市人民政府办公室于1999年5月21日作出的第20号《市政府办公室关于晓庄部分居民拆迁问题会议纪要》(以下简称《会议纪要》),用以证明在奎山乡关庄村实施旧村改造中建造农民住宅安置房所用的土地是集体土地。再审申请人夏善荣认为,该《会议纪要》未加盖公章,也不是新的证据,不能作为定案依据。
原审第三人恒信房产公司称:108号规划许可证的原件由于被盗而丢失,恒信房产公司才在世纪花园竣工综合验收中,向原审被上诉人徐州市建设局提交了该证复印件;在一、二审中,再审申请人夏善荣从未对108号规划许可证的真实性提出过异议,108号规划许可证的效力经过法律程序得到确认;徐州市建设局依据有法律效力的108号规划许可证颁发15号验收合格证,是合法的。108号规划许可证复印件如果与徐州市规划局留存的该许可证存根内容不一致,只能证明徐州市规划局内部管理极其混乱。徐州市规划局对恒信房产公司所作的90号处罚决定书,仅涉及世纪花园项目中部分建筑的违规超建,且未明确超建范围,与本案诉争的颁证行为无关。夏善荣的房屋建造在集体土地上,对集体土地上建造的房屋,徐州市建设局没有组织竣工综合验收的法定职责。徐州市建设局为保护拆迁安置户的利益才组织世纪花园的竣工综合验收,这不是依法行使职权的具体行政行为,不属于人民法院行政诉讼受案范围。
原审第三人恒信房产公司提交徐州市公安局彭城派出所2003年7月14日填写的《接处警登记表》,用以证明108号规划许可证的原件因被盗丢失。
江苏省高级人民法院审查认为:最高人民法院《关于行政诉讼证据若干问题的规定》(以下简称《行政诉讼证据规定》)第五十二条第(三)项规定,当事人在举证期限届满后发现的证据,是新的证据。再审申请人夏善荣申请再审时,以《答复》作为证据。《答复》于原审判决生效后作出,夏善荣不可能在举证期限内发现,因此属于新的证据。夏善荣持新的证据申请再审,符合再审条件,对本案应当立案再审。
再审期间,江苏省高级人民法院依照《行政诉讼证据规定》第二十二条、第二十三条第(三)项规定,根据再审申请人夏善荣的申请,向徐州市规划局调取了90号处罚决定书和108号规划许可证的存根、建设工程规划定点批办单、批准定点通知书存根和发放登记等证据。90号处罚决定书载明:恒信房产公司在世纪花园建12栋楼合计49
139.9㎡,其中超规划定点建
5049.4㎡的行为,违反了《徐州市城市规划管理办法》第十九条的规定,根据该办法第三十七条、第三十八条规定,决定对恒信房产公司罚款49
527元,缴清罚款后按规定补办规划审批手续。108号规划许可证的存根、建设工程规划定点批办单、批准定点通知书存根和发放登记等证据证明,108号规划许可证的建设单位为徐州市奎山农房综合开发公司,建设项目名称为营业、住宅楼(1-8#),建设位置为泰山路南侧,建设规模为40
930平方米。而原审第三人恒信房产公司提交给原审被上诉人徐州市建设局的108号规划许可证复印件,载明的建设单位为恒信房产公司,建设项目名称为住宅楼(1-11#),建设位置为湖北路北侧刘场东村,建设规模为66
800平方米。两份规划许可证的编号虽然一致,所载内容却完全不同。
再审庭审中经质证、辩论,各方当事人对案件事实部分存在以下两个争议:
1.世纪花园住宅小区所在土地是集体所有还是国有?再审申请人夏善荣认为,世纪花园住宅小区所在土地的性质已由集体土地变更为国有土地,因此对世纪花园住宅小区,原审被上诉人徐州市建设局有责任组织竣工综合验收。徐州市建设局认为,世纪花园住宅小区所在土地仍然是集体土地,其为保护旧村改造过程中拆迁安置户的利益,根据广大拆迁安置户的要求,并应原审第三人恒信房产公司申请,才对世纪花园组织竣工综合验收,进行此项工作不属于其履行法定职责。恒信房产公司认为,世纪花园住宅小区所在土地是集体土地,对在集体土地上建造的住宅小区组织竣工综合验收,不是徐州市建设局的法定职责,由此引起的纠纷也不属于人民法院行政诉讼受案范围。法庭认为,一审时,徐州市建设局提交了徐州市计划委员会徐计投
(1996)第184号《关于奎山乡刘场东村改造项目建议书的批复》、徐州市规划局徐市规地(99)95号《建设用地规划许可证》,这些证据足以证明世纪花园住宅小区所处土地为集体土地,各方当事人在一、二审时对此本无争议。再审期间,夏善荣虽然主张世纪花园住宅小区所在土地已由集体变更为国有土地,但未提供新的证据支持这一主张,故该主张不能成立。
2.108号规划许可证复印件是否真实?再审申请人夏善荣以《答复》为证,指控原审第三人恒信房产公司伪造了108号规划许可证。恒信房产公司则以《接处警登记表》为证,辩称108号规划许可证的原件丢失,所以才向原审被上诉人徐州市建设局提交了复印件;对复印件与108号规划许可证存根的内容不一致,恒信房产公司以“徐州市规划局管理极其混乱”做解释。法庭认为,《接处警登记表》上仅记录了报警内容、损失情况,没有记录失窃文件名称,不能证明恒信房产公司曾持有108号规划许可证原件。徐州市规划局保留的108号规划许可证存根,其内容有同时存档的建设工程规划定点批办单、批准定点通知书存根、发放登记等证据印证,是真实的。而恒信房产公司提交的108号规划许可证复印件,所载内容不仅与108号规划许可证的存根内容不一致,且没有其他证据可以印证。据此认定,恒信房产公司提交的108号规划许可证复印件,是虚假的、伪造的证据。
除上述两点以外,各方当事人对原审认定的其他事实无异议,再审予以确认。
再审应解决的争议焦点是:1.对在集体土地上建设的世纪花园住宅小区,徐州市建设局在组织竣工综合验收后颁发验收合格证,是否属于可诉的行政行为?2.108号规划许可证复印件被查出是伪造的证据后,责任应当由谁承担?
江苏省高级人民法院经审理认为:
一、国务院《城市房地产开发经营管理条例》第十七条规定:“房地产开发项目竣工,经验收合格后,方可交付使用;未经验收或者验收不合格的,不得交付使用。”“房地产开发项目竣工后,房地产开发企业应当向项目所在地的县级以上地方人民政府房地产开发主管部门提出竣工验收申请。房地产开发主管部门应当自收到竣工验收申请之日起30日内,对涉及公共安全的内容,组织工程质量监督、规划、消防、人防等有关部门或者单位进行验收。”建设部《城市住宅小区竣工综合验收管理办法》第三条第三款规定:“城市人民政府建设行政主管部门负责组织实施本行政区域内城市住宅小区竣工综合验收工作。”现行法律、法规和规章虽然规定建设行政主管部门负责本行政区域内城市住宅小区的组织竣工综合验收工作,但建设行政主管部门对建设在集体土地上的住宅小区组织竣工综合验收,也不违背
“房地产开发项目竣工,经验收合格后,方可交付使用”的立法原意。无论世纪花园住宅小区所在的土地是国有还是集体所有,原审被上诉人徐州市建设局都必须依其享有的行政职权,才能对该住宅小区组织竣工综合验收。其在竣工综合验收后颁发15号验收合格证,直接影响到世纪花园住宅小区居民的利益,属可诉的行政行为。原审第三人恒信房产公司认为徐州市建设局对世纪花园颁发验收合格证的行为不属于行政诉讼受案范围,理由不能成立。
二、《城市房地产开发经营管理条例》第十八条第一款规定:“住宅小区等群体房地产开发项目竣工,应当依照本条例第十七条的规定和下列要求进行综合验收:
(一)城市规划设计条件的落实情况;(二)城市规划要求配套的基础设施和公共设施的建设情况;(三)单项工程的工程质量验收情况;(四)拆迁安置方案的落实情况:
(五)物业管理的落实情况。”《城市住宅小区竣工综合验收管理办法》第八条第一款规定:“住宅小区竣工综合验收应当按照以下程序进行:(一)住宅小区建设项目全部竣工后,开发建设单位应当向城市人民政府建设行政主管部门提出住宅小区综合竣工验收申请报告并附本办法第六条规定的文件资料;(二)城市人民政府建设行政主管部门在接到住宅小区竣工综合验收申请报告和有关资料1个月内,应当组成由城建(包括市政工程、公用事业、园林绿化、环境卫生)、规划、房地产、工程质量监督等有关部门及住宅小区经营管理单位参加的综合验收小组;(三)综合验收小组应当审阅有关验收资料,听取开发建设单位汇报情况,进行现场检查,对住宅小区建设、管理的情况进行全面鉴定和评价,提出验收意见并向城市人民政府建设行政主管部门提交住宅小区竣工综合验收报告;(四)城市人民政府建设行政主管部门对综合验收报告进行审查。综合验收报告审查合格后,开发建设单位方可将房屋和有关设施办理交付使用手续。”
依照上述规定,作为徐州市人民政府的建设行政主管部门,原审被上诉人徐州市建设局是依法代表国家对世纪花园住宅小区行使竣工综合验收权力。在竣工综合验收合格后,徐州市建设局向原审第三人恒信房产公司颁发《住宅竣工验收合格证书》,是凭借由国家公权力形成的政府机关公信力,来担保该住宅小区的建筑质量达到了可以交付使用的水平。徐州市建设局在颁发该证书前,必须保证该证书所依据的每个事实都真实,以免因此而破坏政府机关的公信力。在竣工综合验收中,徐州市建设局虽然不直接审阅有关验收资料,但却是综合验收小组的组织者,对综合验收小组提交的住宅小区竣工综合验收报告负有审查职责。《建设工程规划许可证》是住宅小区竣工综合验收报告所附的验收资料之一,对该证件的真实性,当然由参加综合验收小组的徐州市规划局工作人员先行审查,但徐州市建设局不能因此而推脱自己最终审核的责任。特别是在恒信房产公司只提交了108号规划许可证复印件的情况下,徐州市建设局更应当谨慎审查。徐州市建设局没有审查出108号规划许可证复印件是伪造的证据,并据此伪造证据颁发了
15号验收合格证,应当承担审查失职的法律责任。15号验收合格证是徐州市建设局对世纪花园住宅小区进行竣工综合验收后所作的结论,这个结论建立在虚假证据的基础上,因此不具备证明世纪花园住宅小区经验收合格可以交付使用的作用。徐州市建设局向恒信房产公司颁发15号验收合格证,主要证据不足、适用法律法规错误,应当撤销。
鉴于在原一、二审中,再审申请人夏善荣不是以世纪花园规划设计条件未落实为由提起诉讼,在诉讼中各方当事人也均未对108号规划许可证的真实性提出过异议,故一、二审法院根据当时已知的证据认定事实,并作出维持被诉具体行政行为的判决,不违反法律规定。再审查明原一、二审据以定案的证据发生了改变,原一、二审判决的事实根据已不存在,因此再审依法应当予以改判。据此,江苏省高级人民法院依照行政诉讼法第五十四条第
(二)项第1目、第2目,第六十一条第(二)项,最高人民法院《关于执行<中华人民共和国行政诉讼法>若干问题的解释》第七十六条第一款、第七十八条的规定,于2006年3月6日判决:
一、撤销二审行政判决;撤销一审行政判决;
二、撤销原审被上诉人徐州市建设局于2001年6月18日颁发的15号验收合格证。
本判决为终审判决。
再审改判后,江苏省高级人民法院为妥善化解行政争议,促进依法行政,于
2006年3月13日以司法建议向徐州市人民政府通报了本案案情,指出:某些行政机关及其工作人员伪造国家公文,已严重影响到国家正常的行政管理秩序,损害了政府的诚信,极易引发行政争议、激化官民矛盾,不利于建设法治江苏、构建和谐社会。建议徐州市人民政府依法追究相关人员伪造国家公文的责任。 |
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Xia Shanrong v. Xuzhou Construction Bureau
(Case on Dispute over Administrative Attestation)
Plaintiff: Xia Shanrong, female, 55 years old, farmer of Guangzhuang
Village, Kuishan Country, Xuzhou, Jiangshu Province, temporarily
dwelling in the vegetable field, Hubei Road, Xuzhou
Defendant: Xuzhou Construction Bureau, Jiangshu Province, domiciled
on Jiefang Road, Xuzhou
Legal Representative: Guo Zongming, director of the Bureau
Third Party: Hengxin Real Estate Development Co., Ltd. of Xuzhou,
Jiangshu Province, domiciled on Zhongshan South Road, Xuzhou
Legal Representative: Wen Yuan, general manager of the Company
On June 18, 2001, Xuzhou Construction Bureau (hereinafter referred
to as the Bureau) issued a Certificate of Passing the
Completion-based Inspection and Acceptance of Residential Houses
(Certificate No. 15 of Xuzhou Construction Bureau) (hereinafter
referred to as the Certificate No. 15) to Hengxin Real Estate
Development Co., Ltd. of Xuzhou City (hereinafter referred to as
Hengxin Co., Ltd.), ascertaining that, Buildings No. 1 through 6 and
Building No. 11 of the complex of Century Garden constructed by
Hengxin Co., Ltd. have been inspected and accepted by experts of
residential houses with a score of 80. 5, thereby comply with the
standards for inspection and acceptance and are ready for move-in.
Xia deemed that the Certificate has injured her legitimate rights
and interests and thus filed an administrative action with the
People’s Court of Yunlong District, Xuzhou, Jiangshu Province. The
People’s Court of Yunlong District transferred this case to the
People’s Court of Quanshan District and the latter added Hengxin
Co., Ltd. as the third party and publicly heard this case.
Xia alleged that: There is a house for dismantlement resettlement in
the complex of Century Garden that Hengxi Co., Ltd. provided to her.
As the house quality failed to meet the relevant requirements and
the third party defaulted the transition house price, the plaintiff
filed a civil action. It is learned in the action that Century
Garden is a qualified project that had been inspected and accepted
by the Bureau. The plaintiff alleged that, when the defendant
conducted the inspection and acceptance, there is no ammeter
installed in the residential complex of Century Garden, so obviously
it failed to meet the requirements for completion. The defendant, in
such a case, issued a certificate of passing the inspection and
acceptance to the third party, which seriously injured the interest
of the plaintiff, so the plaintiff pleaded the court to revoke the
Certificate No. 15.
Xia presented the following evidences:
1. Agreement on Dismantlement and Relocation, certifying that Xia is
a legal resident in the Century Garden and thus has the right to
house quality;
2. 7 photos, certifying that the houses in the Century Garden suffer
from quality problems;
3. 1 Notice, certifying that there is no ammeter installed in the
Century Garden upon completion and that not until March 25, 2002 did
Hengxin Co., Ltd. begin to check the ammeters and inner lines.
Except for this, Xia applied for having Xu Jiliang bear witness in
court, which goes as follows: The photos presented by Xia which
reflect the house quality problem were taken by Xu. Upon the alleged
completion, the garbage failed to be cleaned off, the forestation
failed to be fulfilled, the roads were not ready for use and the
ammeters were not installed in the Century Garden till September,
2001, which indicated that the requirements for house transfer were
not at all satisfied at that time. The households subject to
dismantlement and relocation went to the municipal government for
several times to raise the relevant problems.
The Bureau argued that: In order to perform its statutory functions
and duties and according to the statutory procedures, it organized
the relevant experts to make a comprehensive inspection and
acceptance on the residential complex of Century Garden and issued
the certificate of passing the inspection and acceptance according
to the progress of rectification and reform of the construction
entity. The certificate issuance made by the defendant to Hengxin
Co., Ltd. has nothing to do with the facts alleged by Xia that “The
house quality failed to meet the relevant requirements and the
transition house price was defaulted.” Therefore, the plaintiff’s
litigation claim shall be rejected.
The Bureau presented the following evidences:
1. The Reply of the Proposal on the Re-construction Projects of
Liuchang East Village, Kuishan Country produced by Xuzhou Planning
Commission, the Planning License for Construction Land Use and the
Planning License for Construction Projects as produced by Xuzhou
City Planning Bureau, Notice on Approving the Land Requisition
formulated by the State Land Administration Bureau of Xuzhou,
Quality Certificate of the Construction Installation Project
formulated by Xuzhou Supervision Station of Construction Project
Quality, Opinion on Fire-fighting Inspection and Acceptance
formulated by Xuzhou Firefighting Sub-brigade as well as the
Contract on Logistics Entrustment, certifying that the relevant
formalities for the examined items in the comprehensive inspection
and acceptance are complete and legitimate.
2. Application Form for the Completion-based Inspection and
Acceptance of Residential Houses, Standards for Scoring in the
Completion-based Inspection and Acceptance of Residential Houses in
Xuzhou and Certificate No. 15, certifying that the comprehensive
inspection and acceptance meets the relevant procedures and
requirements.
3. The Regulation on the Development, Operation and Administration
of Urban Real Estate, the Measures for the Completion-based
Comprehensive Inspection and Acceptance of Urban Residential Houses
as promulgated by the Ministry of Construction and the Notice on
Modifying the Standards for the Completion-based Inspection and
Acceptance of Urban Residential Houses, certifying the legal ground
for the implementation of the specific administrative act of
comprehensive inspection and acceptance.
Hengxin Co., Ltd. alleged that the certificate issuance made by the
Bureau to the third party is a performance of its statutory
functions and duties according to the statutory procedures. The
certificate issuance has nothing to do with Xia’s allegation that
“The house quality failed to meet the relevant requirements and the
transition house price was defaulted.” The plaintiff’s litigation
claim shall be rejected.
Upon cross-examination and attestation, the People’s Court of
Quanshan District, Xuzhou found that:
Xuzhou Planning Commission approved to build up a residential
complex of Century Garden so as to relocate the villagers whose
individual houses were dismantled in the implementation of old city
re-construction in Guangzhuang Village, Kuishan Country, Xuzhou. The
project was delivered to Hengxin Co., Ltd. for development. Xia is a
villager whose individual house was dismantled in the process. In
July, 1999, Guangzhuang Village Commission of Kuishan Country
concluded with Xia an Agreement on Dismantlement and Relocation,
stipulating that a residential house will be resettled for Xia in
the Century Garden with a term of 18-month for house delivery. On
May 8, 2001, Hengxin Co., Ltd. reported to the Bureau that the
residential houses in Century Garden have been completed and thus it
applied for a completion-based comprehensive inspection and
acceptance, with all the required materials of inspection and
acceptance attached thereto. After the Bureau organized the relevant
experts to conduct inspection and acceptance on the spot, the
residential complex of Century Garden was scored 80.5 with no
disqualified item. Based thereon, the Bureau issued the Certificate
No. 15 to Hengxin Co., Ltd. on June 18, 2001.
It was also found out that when the house delivery in the Century
Garden was notified, the electricity therein could be guarantied,
however, the ammeters were not installed therein until September,
2001.
The People’s Court of Quanshan District, Xuzhou held that, the
Bureau is the administrative department of construction in Xuzhou,
which has the statutory functions and duties of conducting a
comprehensive inspection and acceptance of urban residential houses.
The certificate of passing the inspection and acceptance is a
carrier for the administrative department of construction to perform
the duties and functions of comprehensive inspection and acceptance
and confirm whether the houses meet the requirements for inspection
and acceptance. Therefore, the Bureau is qualified as the subject to
issue the certificate of passing the inspection and acceptance.
The Bureau presented the relevant evidences to prove that, after it
accepted the application materials from Hengxin Co., Ltd., it
organized a comprehensive inspection and acceptance group to conduct
an on-site examination on May 8, 2001. Upon the on-site examination,
authentication and appraisal by the said group, the Century Garden
turned out to be qualified in all such aspects as planning design,
construction design, project quality, supporting facilities for
public construction, municipal infrastructure and logistics
administration with a score of 80. 5, which meets the procedures and
material requirements as prescribed in the Regulation on the
Development, Operation and Administration of Urban Real Estate, the
Measures for the Administration of the Completion-based
Comprehensive Inspection and Acceptance of Urban Residential Houses
and the Notice of Xuzhou Construction Committee on Modifying the
Standards for the Completion-based Inspection and Acceptance of
Residential Houses. Xia admitted the force of the aforesaid
provisions and regulatory documents. The Bureau issued the
Certificate No. 15 according to the provisions of these documents
and the result of comprehensive inspection and acceptance, which is
clear in facts, affirmative in evidence, correct in the application
of law and legitimate in procedures.
The duties and functions of the Bureau is to conduct a comprehensive
inspection and acceptance of the residential complex of Century
Garden rather than make an appraisal on the quality of any
individual project therein. The Certificate on Preliminary Quality
Inspection of Architectural Installment Projects produced by Xuzhou
Architectural Project Quality Supervision Station certifies that,
the project quality of the Century Garden meets the requirements of
the Standards for Scoring in the Inspection and Acceptance of
Residential Houses in Xuzhou. That the ammeters failed to be
installed in a timely manner had been noticed by the relevant
experts in the comprehensive inspection and acceptance and the
relevant score had been deducted correspondingly. Although there are
some defects in the complex, the overall score thereof is fairly
enough to pass the inspection. The partial defect did not affect the
project quality of the complex. There is no such provision in law
that it is a requisite to have the ammeters installed before any
comprehensive inspection and acceptance is conducted. If Xia had any
different opinion on any individual project of the complex, she may
protect her legitimate rights and interests through the construction
project modification system or the complaint system. The ground of
Xia that the completion-based comprehensive inspection and
acceptance of residential houses on Century Garden conducted by the
Bureau shall not be accepted barely because of any quality problem
of any individual project is not well-established.
In conclusion, the People’s Court of Quanshan District, Xuzhou
adjudicated on November 26, 2002, according to the provisions of
item (1), Article 54 of the Administrative Litigation Law of the
People’s Republic of China that:
The Certificate No. 15 as issued by the Bureau on June 18, 2001
shall be sustained.
After the judgment of the first instance was announced, Xia was
dissatisfied and filed an appeal with the Intermediate People’s
Court of Xuzhou City, Jiangshu Province on the following ground: The
state standards for architectural design were not executed in
Buildings No.1 through 6 and Building No. 11 and what’s more, there
are also such problems as unlawful alteration of drawings and house
structure leading to the ugliness of overall external sculpt, which
falls within the scope of project disqualification as prescribed in
the inspection and acceptance standards for architectural design and
planning design. There are several places of water leak in the
kitchens, bathrooms and walsl, there is no land line, the water and
electricity had not been installed, the groundwork was not deep
enough, which indicates that the project quality fails to meet the
relevant requirements. The facilities of power and water supply were
not complete and thus normal operation could not be achieved, which
indicates that the supporting facilities of public construction and
municipal infrastructure facilities fail to meet the relevant
requirements. The construction garbage failed to be cleaned off
before the inspection and acceptance was conducted, which indicates
the logistics management fails to meet the relevant requirements. A
residential building with so many problems cannot possibly meet the
requirements for inspection and acceptance. Under such a
circumstance, the Bureau still issued a Certificate No. 15 to the
third party, Hengxin Co., Ltd., in violation of the relevant
provisions and thus shall be revoked. The confirmation of facts is
not clear and the application of law is wrong in the first instance
and thus, Xia pleaded the court to overrule it.
The Bureau argued that: According to an application of the
construction entity, the appellee, after checking the relevant
materials as submitted, organized a group of relevant experts to
conduct a comprehensive on-site inspection and acceptance on May 8,
2001 and thereafter, according to the status of rectification and
reform of the construction entity, issued a certificate of passing
the inspection and acceptance for Buildings No. 1 through 6 and
Building No. 11. As to the certificate issuance by the appellee, the
confirmation of facts is clear and the application of law is correct
in the first instance. The court of the second instance shall revoke
the appeal and sustain the original judgment.
Hengxin Co., Ltd. argued that it conducted the construction in
strict accordance with the standards and drawings, so there is no
quality problem with the Century Garden. The appellee issued the
Certificate No. 15 in strict accordance with the statutory
procedures, which is thus a legitimate administrative act. The court
of the second instance shall sustain the judgment of the original
instance.
The Intermediate People’s Court of Xuzhou City found through hearing
that the facts as confirmed are the same as those in the first
instance.
The Intermediate People’s Court of Xuzhou City held that: The
Bureau, as the Administrative Department of Construction of Xuzhou,
shall perform its statutory duties and functions of organizing and
implementing the completion-based inspection and acceptance in such
aspects as whether or not the land use of the complex meets the
relevant requirements, whether or not the construction of the
complex meets the planning of construction projects, whether or not
all the individual projects pass the inspection and whether or not a
certification of passing the firefighting inspection and acceptance
has been obtained. It is the statutory functions and duties of the
relevant functionary departments to produce the Planning License for
Construction Projects, the certification proving that all the
individual projects have passed the inspection and the certification
of passing the firefighting inspection and acceptance, which does
not fall within the power limit of the administrative department of
construction. Whether or not all the certified contents are correct
or whether the scoring of the comprehensive inspection and
acceptance group is proper does not fall with the scope of
examination of the administrative department of construction. The
appellant claim of Xia that the house quality of the project failed
to meet the relevant requirements conflicts with the Certificate on
the Preliminary Quality Inspection of Architectural Installment
Project as produced by Xuzhou Architectural Project Quality
Supervision Station. If Xia deemed that the certification produced
by the Architectural Project Quality Supervision Station is wrong or
that there is any other quality problem in any other individual
project, it could be settled by any other way so as to maintain her
legitimate rights and interests, which, however, does not fall
within the scope of examination in this case. As to Xia’s allegation
that the groundwork of Buildings No. 1 and 2 were not deep enough,
the garbage in the complex failed to be cleared off and the ammeters
failed to be installed in a timely manner, the comprehensive
inspection and acceptance group has deducted the relevant scores
properly. Partial defects do not affect the comprehensive inspection
and acceptance of the whole complex and thus Xia’s claim shall not
be supported.
In conclusion, the confirmation of facts is clear and the evidences
are sufficient, the trial procedures are legitimate and the
application of law is correct in the first instance. The
Intermediate People’s Court of Xuzhou City adjudicated on April 14,
2003 according to the provisions of item (1), Article 61 of the
Administrative Litigation Law that:
The appeal shall be rejected and the judgment of the original
instance shall be sustained.
After the judgment of the second instance was announced, Xia was
still dissatisfied and filed an application for re-hearing with the
Higher People’s Court of Jiangsu Province, on the following ground
that: The Planning License for Construction Projects is a
certification that shall be examined by the Bureau in the
completion-based comprehensive inspection and acceptance. Hengxin
Co., Ltd., when applying for the completion-based comprehensive
inspection and acceptance of residential houses, only submitted the
photocopy of the Planning License for Construction Projects No.
20010108 (hereinafter referred to as the Planning License No. 108)
to the Bureau. Upon inspection, the photocopy of the Planning
License No. 108 is inconsistent with the stub of the Planning
License of the same serial number as preserved in the Bureau in
contents. Xuzhou Planning Bureau City proved that, Hengxin Co., Ltd.
never handled any Planning License for Construction Projects for the
construction of the Century Garden, and the City Planning Bureau
once planned to give punishment to Hengxin Co., Ltd., which fully
indicates that the photocopy of the Planning License No. 108 as
submitted by Hengxin Co., Ltd. is fabricated evidence. The Bureau
issued a Certificate No. 15 to Hengxin Co., Ltd. according to the
fabricated planning license on insufficient evidential ground. The
facts as confirmed are not clear and the application of law is wrong
in the judgment of the original instance confirming that the
certificate issuance of the Bureau is legal. Xia pleaded the court
to revoke the administrative judgments of the first and second
instances and overrule that the Certificate No. 15 shall be revoked
according to law and that the costs of action of the first and
second instances shall be borne by the Bureau.
In order to certify that the ground for re-hearing is
well-established, Xia submitted a Reply on the Letter Sent by Xu
Jiliang (hereinafter referred to as the Reply) that the Bureau made
on July 29, 2004, indicating the following contents: After Xuzhou
City Planning Bureau received a tip-off filed by Xu Jiliang, it was
found that Hengxin Co., Ltd. failed to handle a Planning License for
Construction Projects for the Century Garden whose construction it
had undertaken, so the City Planning Bureau gave a punishment
thereto according to law and gave, after holding a hearing, an
administrative punishment according to the statutory procedures. Xia
applied, at the same time, with the court for collecting the
Decision on Administrative Punishment (No. 90 [2004] of Xuzhou City
Planning Bureau) (hereinafter referred to as the Decision on
Punishment No. 90)
The Bureau argued that: As the Administrative Department of
Construction of Xuzhou City, it is only an organizer of the
completion-based comprehensive inspection and acceptance of
residential houses within its administrative region. The Century
Garden was built up on the collective land. As to any residential
complex that is built up on the collective land, there is no such
provision of law that the administrative department of construction
shall conduct any completion-based comprehensive inspection and
acceptance. In order to protect the interests of the households
subject to dismantlement and resettlement in the re-construction of
old-village and avoid any different standard for delivery as well as
according to the requirements of the households subject to
dismantlement and resettlement at large and corresponding to the
application of Hengxin Co., Ltd., the third party in the original
instance, the Bureau conducted a completion-based comprehensive
inspection and acceptance. In the process of carrying out the
completion-based comprehensive inspection and acceptance, the Bureau
merely made an examination on the Planning License for Construction
Projects in terms of form rather than authenticity, so it had no
idea that Hengxin Co., Ltd. failed to obtain a Planning License for
Construction Projects. Furthermore, in the comprehensive inspection
and acceptance, the personnel from Xuzhou City Planning Bureau in
the comprehensive inspection and acceptance took charge of examining
the implementation of planning design of the Century Garden. The
personnel of Xuzhou City Planning Bureau never set forth any
question regarding the Planning License in the comprehensive
inspection and acceptance. Although the City Planning Bureau gave an
administrative punishment to Hengxin Co., Ltd. after the relevant
problem in the Planning License was found out, it failed to report
it to the Bureau. Therefore, the Bureau conducted a comprehensive
inspection and acceptance based on the photocopy submitted by
Hengxin Co., Ltd., namely, as long as the photocopy had been
recognized by the planning department, the Bureau might confirm that
the design planning had been carried into effect in the Century
Garden. If the photocopy was proved to be fake, the liabilities
shall be borne by Xuzhou City Planning Bureau which had recognized
the photocopy. Therefore, it is not improper for the Bureau to issue
a Certificate No. 15 according to the report on completion-based
comprehensive inspection and acceptance as submitted by the
comprehensive inspection and acceptance group.
The Bureau submitted a Meeting Minutes of the General Office of the
Municipal Government on the Issues Regarding the Dismantlement and
Resettlement of Some Residents in Xiao Village (No. 20) (hereinafter
referred to as the Meeting Minutes) that the Office of Xuzhou
People’s Government made on May 21, 1999, proving that the land as
employed by Guangzhuang Village, Kuishan Country to construct the
residential resettlement houses for farmers subject to dismantlement
and re-location in the re-construction of old village is collective
land. Xia deemed that there is no seal affixed onto the Meeting
Minutes, which is neither any new evidence, so it could not function
as any ground in case judgment.
Hengxin Co., Ltd. alleged that: The original of the Planning License
No. 108 was stolen and thus lost, so Hengxin Co., Ltd. submitted the
photocopy of the Planning License to the Bureau in the
completion-based comprehensive inspection and acceptance. In the
first and second instances, Xia never had any different opinion on
the authenticity of the Planning License No. 108, so the force of
the Planning License No. 108 had been confirmed through the legal
procedures. It is legal for the Bureau to issue the Certificate No.
15 based on the legal force of the Planning License No. 108. If the
photocopy of the Planning License No. 108 is inconsistent with the
corresponding stub reserved in Xuzhou City Planning Bureau, it could
only be explained as that the internal management of Xuzhou City
Planning Bureau is in chaos. As to the Decision on Punishment No. 90
made by Xuzhou City Planning Bureau to Hengxin Co., Ltd., it is only
concerned with the rule-breaking and excessive construction of some
buildings in the project of Century Garden without any clear
indication of the scope of excessive construction, thus it had
nothing to do with the certificate issuance under action in this
case. Xia’s house was built on the collective land and the Bureau
does not bear any statutory duty to organize any completion-based
comprehensive inspection and acceptance on any house built on any
collective land. The Bureau organized a completion-based
comprehensive inspection and acceptance of the Century Garden for
the purpose of protecting the interest of the households subject to
dismantlement and re-settlement, which is not any specific
administrative act of performing its functions and duties according
to law and thus does not fall within the case acceptance scope of
the people’s court.
Hengxin Co., Ltd. presented the Case Report Registration Form
produced by Pengcheng Police Station of Xuzhou Public Security
Bureau on July 14, 2003, certifying that the Planning Certificate
No. 108 was stolen and thus lost.
The Higher People’s Court of Jiangshu Province held through hearing
that: Item (3), Article 52 of the Provisions of the Supreme People’s
Court on Several Issues Regarding the Evidences in Administration
Action (hereinafter referred to as the Provisions on Evidences in
Administrative Action) prescribes the evidence as found upon
expiration of the term for evidence presentation are new evidences.
Where Xia applied for re-hearing, she employed the Reply as
evidence. The Reply was made after the original judgment came into
force, so it is impossible for Xia to find it within the term for
evidence presentation, therefore, it shall be deemed as new
evidence. The application of Xia for re-hearing on the ground of new
evidence meets the requirements for re-hearing and thus shall be
accepted.
In the period of re-hearing, the Higher People’s Court of Jiangsu
Province, according to the provisions of Article 22 and Item (3),
Article 23 of the Provisions on Evidences in Administrative Action
and based on Xia’s application, collected such evidences as the
Decision on Punishment No. 90 and the stub of the Planning License
No. 108, the approval form of designated locale of construction
projects, stub of the notice on approving the designated locale and
issuance registration. It is indicated in the Decision on Punishment
No. 90 that, the 12 buildings of Century Garden constructed by
Hengxin Co., Ltd. cover an area of 19, 139. 9 ㎡, of which the
excessive area is 5, 049. 4 ㎡ as to the planning, which violates the
provisions of Article 19 of the Measures for the Administration of
Urban Planning in Xuzhou City. According to Articles 37 and Article
38 of the Measures, it decided to impose upon Hengxin Co., Ltd. a
fine of 49, 527 yuan and that the relevant formalities for
examination and approval for planning should be made up according to
the relevant provisions after the fine is cleared off. Such
evidences as the stub of the Planning License No. 108 and the
approval form of the designated locale of construction project and
the stub of the notice on approving the designated locale and
issuance registration prove that, the construction entity that holds
the Planning License for Construction Project is Kuishan Farm House
Comprehensive Development Co., Ltd. of Xuzhou City, the construction
item is the buildings (1-8#) for commercial and residential
purposes, the construction locale is on the south of Taishan Road
and the construction scale is 40, 930 ㎡. However, it is indicated in
the photocopy of the Planning License No. 108 that Hengxin Co., Ltd.
submitted to the Bureau that the construction entity is Hengxin Co.,
Ltd., the construction item is residential buildings (1-11#), the
construction locale is in Liuyang East Village on the North Side of
Hubei Road and the construction scale is 66, 800 ㎡. Although the two
Planning Licenses are of the same serial number, the contents as
indicated therein are completely different.
Upon cross-examination and argument in the re-hearing, all the
parties concerned have a dispute over the following two points:
1. The first is whether the land on which the Century Garden was
built up is collective or state-owned. Xia deemed that the nature of
the land on which the Century Garden was built up has been altered
from collective to state-owned. Therefore, the Bureau is obligated
to conduct a completion-based comprehensive inspection and
acceptance thereon. The Bureau deemed that the land on which the
Century Garden was built up is still collective and it conducted a
completion-based comprehensive inspection and acceptance thereon for
the purpose of protecting the interest of the households subject to
dismantlement and resettlement according to the requirements of the
households concerned and the application of Hengxin Co., Ltd., which
does not fall within the statutory functions and duties it shall
perform. Hengxin Co., Ltd. held that the land where the Century
Garden was built up is collective land and it is not a statutory
function of the Bureau to conduct a completion-based comprehensive
inspection and acceptance on any residential complex built on the
collective land and thus the relevant dispute triggered therefrom
does not fall within the case acceptance scope of the people’s
court. The Court holds that, in the hearing of the first instance,
the Bureau submitted the Reply on the Proposal on the Re-constructed
Projects in the Re-construction of Liuchang East Village, Kuishan
Country (No. 184 [1996] of Xuzhou Planning Commission), the Planning
License for Construction Land Use (No. 95 [99] of the City Planning
Bureau), which are sufficient to prove that the land where the
Century Garden was built up is collective and are not at issue by
all the parties concerned in the first and second instances. During
the re-hearing, although Xia alleged that the land where the Century
Garden was built up has been altered from collective to state-owned,
he failed to present any evidence to support his allegation so the
allegation is not well-established.
2. The second is whether or not the photocopy of the Planning
License is authentic. Xia indicated that Hengxin Co., Ltd.
fabricated the photocopy of the Planning License No. 108 on the
basis of the Reply. Hengxin Co., Ltd. employed the Case Report
Registration Form as evidence to argue that the original of the
Planning License No. 108 was lost and thus submitted the photocopy
to the Bureau, yet the photocopy and the stub of the Planning
License are inconsistent in contents, for which Hengxin Co., Ltd.
gave an explanation that “the internal administration of Xuzhou City
Planning Bureau is in chaos”. This Court holds that, the Case Report
Registration Form merely indicates the content of case report and
the losses rather than any name of the stolen document, so it could
not prove that Hengxin Co., Ltd. once held the original of the
Planning License No. 108. The stub of the Planning License as
reserved by the City Planning Bureau can be proved to be authentic
by such evidences as the approval form of the designated locale for
construction project, the stub of the notice on designated locale
and issuance registration. Whereas, the photocopy of the Planning
License No.108 submitted by Hengxin Co., Ltd. is inconsistent with
the stub of the Planning License No. 108 and cannot be proved by any
other evidence. Therefore, it could be confirmed that the photocopy
of the Planning License No. 108 submitted by Hengxin Co., Ltd. is
fake and fabricated.
Except for the aforesaid two points, all the parties concerned had
no different opinion on the other facts so those facts are confirmed
in the re-hearing.
The focuses of dispute in the re-hearing are: 1. As to the
residential complex of Century Garden that was built up on the
collective land, whether or not that the Bureau issued a certificate
of passing the completion-based comprehensive inspection and
acceptance is a suable administrative act. 2. Who shall bear the
liabilities after the photocopy of the Planning License No. 108 was
found out to be fake.
The Higher People’s court found through hearing that:
1. Article 17 of the Regulation on the Development, Operation and
Administration of Urban Real Estate prescribes “Real estate
development projects shall not be delivered for use before they are
completed and checked and accepted as qualified.” “After real estate
development projects are completed, real estate development
enterprises shall apply for check and acceptance after completion
with administrative organs responsible for real estate development
of people's governments at or above the county level of the region
where the project is located. Within 30 days after receiving the
application for check and acceptance after completion, the
administrative organs for real estate development shall check and
accept together with relevant departments or units for project
quality supervision, planning, fire prevention, people's defense,
etc.” Paragraph 3, Article 3 of the Measures for the Administration
of Completion-based Comprehensive Inspection and Acceptance of Urban
Residential Houses prescribes “The administrative department of
construction of the municipal people’s government shall take charge
of organizing the completion-based comprehensive inspection and
acceptance of urban residential complex within its administrative
region.” Although it is prescribed in the effective laws and
regulations in force that the administrative department of
construction shall take charge of organizing the completion-based
comprehensive inspection and acceptance of urban residential complex
within its administrative region, that the administrative department
of construction takes charge of organizing the completion-based
comprehensive inspection and acceptance of urban residential complex
on the collective land does not go against the legislation purpose
that “Only when the real estate development project is completed and
passes the relevant inspection may it be delivered for use”. No
matter the land where the Century Garden was built up is collective
or state-owned, the Bureau shall be limited by its power in
conducting a completion-based comprehensive inspection and
acceptance of the residential complex. That it issued a Certificate
No. 15 upon the completion-based comprehensive inspection and
acceptance directly affects the interest of the residents in the
complex of Century Garden and thus shall be deemed as a suable
administrative act. The ground for Hengxin Co., Ltd. to deem that
the certificate issuance made by the Bureau does not fall within the
case acceptance scope is not well-established.
2. Paragraph 1, Article 18 of the Administrative Ordinance on
Development and Management of Urban Real Estate prescribes “On
completion of group housing real estate projects such as housing
districts, they shall be checked and accepted in accordance with the
provision in Article 17 of the present Ordinance and the following
requirements: (1) the circumstances of the implementation of the
designing requirements of urban planning; (2) the circumstances of
the construction of necessary infrastructure and public utilities as
required by urban planning; (3) the circumstances of the check and
acceptance of construction quality of separate projects; (4) the
circumstances of the implementation of the plan of relocation; (5)
the circumstances of the implementation of logistics administration.
Paragraph 1, Article 8 of the Measures for the Administration of the
Completion-based Comprehensive Inspection and Acceptance of Urban
Residential Houses prescribes “A completion-based inspection and
acceptance of residential complex shall be conducted according to
the following procedures: (1) After a construction project in a
residential complex is completed, the development and construction
entity shall file an application for completion-based inspection and
acceptance of the residential complex with the administrative
department of construction of the municipal people’s government,
with the documents and materials as prescribed in Article 6 of the
present Measures attached; (2) The administrative department of
construction of the municipal people’s government shall, within 1
month after receiving an application for completion-based inspection
and acceptance of residential complex and the relevant materials,
organize a comprehensive inspection and acceptance group comprised
of such relevant departments as urban construction (including
municipal projects, public undertaking, forestation and
environmental hygiene), planning, real estate and project quality
supervision; (3) The comprehensive inspection and acceptance group
shall examine the relevant materials of inspection and acceptance,
solicit the report of the development and construction entity,
conduct an on-spot examination, make an overall authentication and
appraisal on the construction and management of the complex, set
forth its inspection and acceptance opinions and submit a report on
the completion-based inspection and acceptance of residential
complex to the administrative department of construction of the
municipal people’s government; (4) The administrative department of
construction of the municipal people’s government shall conduct an
examination on the report on comprehensive inspection and
acceptance. Only after the report on comprehensive inspection and
acceptance passes the examination may the development and
construction entity handle the formalities for delivering for
occupancy of houses and relevant facilities.
According to the aforesaid provisions, the Bureau, as the
Administrative Department of Construction of Xuhzhou Municipal
Government, exercised, on behalf of the state, the power to conduct
the completion-based inspection and acceptance of residential
complex of Century Garden. That the Bureau issued, after the Century
Garden passed the completion-based inspection and acceptance, a
Certificate of Passing the Completion-based Inspection and
Acceptance to Hengxin Co., Ltd. is a governmental credibility formed
by the state public right to guarantee that the building quality has
reached a level for delivery for occupancy. The Bureau shall, before
issuing a certificate, guarantee that all the facts functioning as
the basis of the Certificate shall be authentic so as to avoid any
damage to the governmental credibility. In the completion-based
inspection and acceptance, although the Bureau did not directly
examine the relevant materials of inspection and acceptance, it is
an organizer of the comprehensive inspection and acceptance group
and thus bears the functions and duties of examining the report on
completion-based inspection and acceptance submitted by the
comprehensive inspection and acceptance group. The Planning License
for Construction Projects is a material of inspection and acceptance
attached to the report on comprehensive inspection and acceptance.
As to the authenticity of the Planning License, the personnel from
Xuzhou City Planning Bureau who were members of the comprehensive
inspection and acceptance group shall conduct a preliminary
examination, yet the Bureau cannot be exempted from its liabilities
of final examination thereon, especially in such a case where
Hengxin Co., Ltd. merely submitted the photocopy of the Planning
License No. 108, the Bureau shall be more prudent and careful in
examination. The Bureau did not find out that the photocopy of the
Planning License No. 108 is fabricated and issued, based thereon,
the Certificate No. 15, so the Bureau shall bear the liabilities of
breach of its duty of examination. The Certificate No. 15 is the
conclusion that the Bureau reached upon the completion-based
inspection and acceptance of the Century Garden, which is based on
fake evidence and thus could not be applied to certify that the
Century Garden has passed the examination and is ready for delivery
for occupancy. The evidences are not sufficient and the application
of law is wrong in the Bureau’s issuance of the Certificate No. 15
to Hengxin Co., Ltd. and the Certificate shall thus be revoked.
As in the first and second instances, Xia filed an action not on
such a ground that the planning design was not implemented, and no
party concerned had any different opinion on the authenticity of the
Planning License No. 108, therefore, it did not go against any law
for the courts of the first and second instances to rule to sustain
the specific administrative act under action. It was found in the
re-hearing that the evidences which were applied to convict the case
changed so the factual ground for the judgment of the first and
second instances does not exist any more. So the judgments shall be
overruled. Therefore, the Higher People’s Court of Jiangsu Province
adjudicated on March 6, 2006 according to sub-items (1) and (2) of
Item (2), Article 54 and Item (2), Article 61of the Administrative
Litigation Law as well as Paragraph 1, Article 76 of the
Interpretation of the Supreme People’s Court on Implementing the
Administrative Litigation Law of the People’s Republic of China
that:
1. The administrative judgments of the first and second instance
shall be revoked; and
2. The Certificate No. 15 issued by the Bureau on June 18, 2001
shall be revoked.
This judgment shall be final.
After the overruling in the re-hearing, the Higher People’s Court of
Jiangshu Province, in order to properly resolve administrative
disputes and promote the administration according to law,
circulated, on March 13, 2006, this case to Xuzhou Municipal
People’s Government, indicating that: Some administrative organs and
the functionaries thereof fabricate the state official document,
which has seriously affected the state normal administration order,
injured the government creditworthiness and is easy to trigger
administrative disputes and sharpen the conflicts between the
government and the people and thus goes against the building-up of
Jiangsu legal bylaws and harmonious society. The court suggests that
Xuzhou Municipal People’s Government investigate into the relevant
functionaries’ liabilities of fabricating the state official
documents. |
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