贤成大厦案评析

About Shenzhen Xian building case final judgment opinions will perform

Peking University professor Jiang Mingan? All rights reserved.

1, whether the existence of the case implementation?

The provisions of the \"administrative litigation law\" the eighth chapter of the implementation includes two meanings: first, the parties to fulfill the judgment and ruling consciousness; second, the parties refuse to perform (including administrative organ refuses to perform, the people's court) or enjoy enforcement enforcement by administrative organs. The first meaning of execution, any verdict, there are second kinds of meaning; the execution is only the parties refuse to perform the case will exist. However, as the possibility of compulsory execution, any judgment or ruling also exists. Therefore, that the case does not exist the problem of enforcement of the view is difficult to set up the execution problem and impossible.

2, what are the contents of the case execution?

The final judgment of the case only two: one is to maintain a verdict, another is to order the defendant to re processing behavior. But in this case the implementation of the content is including six, because the first trial included three revocation. Thus the judgment is consisted of three and three to withdraw.

3, revocation decision what effect?

Revocation decision effect usually has two kinds: first, make the administrative action made since the date of failure; second, make the administrative action from the date of revocation of failure. The first case of the revocation of applicable situation: illegal administrative acts, and the revocation will not damage the behavior when make retroactive effect national or public interests; second cases for revocation situation: illegal administrative acts (legal administrative act can not be revoked, check, but only waste) abrogative effect when will make retroactive behavior damage to the public interests of the state and society, or illegal acts in fact cannot undo the consequences. In this case, revoke the illegal behavior of the administrative organ to be cancelled from the date of revocation to restore the original company, and may not make the shareholders operate completely as Xian into building the company to. In fact, in this case from the date of revocation or resume building Yin into companies are not practical.

4, the case for revocation decision whether appropriate?

In foreign countries, the cancellation of administrative act if it does harm to the stability of social relations, harm the national and social public interests, the court generally does not apply to revoke the decision, by confirming judgment or declaratory judgment, namely the confirmation or declaration of the administrative action is illegal, but still maintain the existence of illegal administrative acts; if the illegal administrative acts cause or will continue to cause damage to

the rights and interests of relative people, by administrative organs to give money or other compensation compensation. If the case involves civil, civil issues and court civil judgment should be illegal administrative confirmation or judgment as the premise and according to. He Xian into building case, if the court does not apply for revocation decision confirming judgment, it might be more appropriate.

5, it means that the revocation decision must be restored?

Cancel the execution of the judgment usually means restitution, such as the court to revoke the administrative fines and confiscation, seizure, seizure, freezing and other means of restitution. But this is not absolute,

Some may not revoke the decision of restitution, because restitution may damage the state and social public interests, or may seriously damage the interests of killing third people, or the economic cost is too high, sometimes restitution is not possible. Such as the illegal demolition of illegal housing, exempt from the legal representative of the enterprise office, illegal dissolution of social organizations or gatherings, sometimes is impossible to restore. In this case, the court or for confirming judgment, or the revocation of administrative organs at the same time, shall be ordered to make re treatment, so as to eliminate the consequences of illegal, compensation or compensation for the loss of the opposite party.

6, the decision of how to perform?

The content of the judgment execution are six: first, cancel

the cancellation behavior of the administrative organ for Industry and commerce. Cancel the cancellation meant to restore the original Yin into building company, but this is very appropriate. This is performed depends on the second execution. Second, the problem of re cancellation in accordance with the law. Xian into building the company's business license has expired, its continued operation has been impossible, so only in accordance with the \"company law\" and other relevant laws and regulations to deal with. As for the Xianchenglianghe company losses, it should be how to determine whether the administrative compensation and compensation for the illegal administrative organs according to the situation of the fault and the relative person itself. Third, revoke the Foreign Office approved the establishment of the company act Hongchang square. Revoke the approval means that now operates the Hongchang square company can not continue to exist, consider this from the stable point of the economic interests of the parties and the social relationship is obviously not appropriate. This is performed depends on the fourth execution. Fourth, the approval of behavior to deal with according to law. The original approval is illegal, mainly lies in the company to obtain the corresponding Hongchang no land use rights. In this way, the administrative organ should contribute to the company and the first Hongchang in accordance with legal procedures for land use rights transfer procedures, and then in accordance with the law for company registration, the legal establishment of the company. Fifth, revocation of the administrative department for Industry and Commerce set up a liquidation group behavior. Industrial and commercial authorities set up a liquidation group to cancel the illegal behavior program is correct (and perhaps more appropriate but

not confirmed illegal revocation). But the original Xian into building company liquidation is necessary, so the

implementation depends on the execution of sixth. The six, the liquidation in accordance with the law again. That should be in accordance with the \"company law\" to organize a liquidation group, the original Xian into building the company's property, debt, debt liquidation. At the time of actual assets (including land use rights), in accordance with the contribution proportion. The Xianchenglianghe company and other

shareholders deserve possession, the other shareholders shall return to Xian building GmbH & Co. kg.

In addition, according to the \"State Compensation Law\building to suffer kg illegal administrative acts of administrative organs of the loss, may apply for state compensation. But the compensation is limited to actual loss (including interest), shall be deducted by the liquidation by other shareholders return part and compensation obtained by civil means and part of themselves because of the relative losses caused by fault.

(thanks to the Peking University law school teacher Jiang Mingan feeds)