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Chapter 44 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (10)
In urban demolition, the core issue is the compensation and resettlement of the demolished people. Article 4 of the "Regulations on the Administration of Urban House Demolition and Relocation" stipulates that the demolisher shall provide compensation and resettlement to the demolished person in accordance with the provisions of these regulations; the demolished person shall complete the relocation within the time limit for relocation.The demolisher mentioned in these Regulations refers to the unit that has obtained the house demolition permit.The demolished person mentioned in these Regulations refers to the owner of the house to be demolished.

Therefore, the key to compensation is to determine the owner of the house to be demolished.The demolished person is the person who owns the house, and the identification of the house owner is generally based on the registration information of the house management department.In practice, it often happens that when some parties apply for renovation and expansion of houses, they fail to apply for property registration with the housing management department in time, and fail to report to the planning department for approval.In this case, the first thing to do is to apply to the planning department to determine the legality of the house.If the house construction is legal, the demolisher should give compensation, but if it is an illegal building, no compensation will be given.

In this case, Mr. Zhou should go to the planning department to complete the formalities as soon as possible. If the house he built has no adverse impact on urban planning, the planning department can make up the formalities on the basis of imposing a fine on him.If the formalities are complete, the house is a legal building and should be compensated.

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The right subject of house ownership is a specific subject, and it must be based on "facts and laws".This means that the way of obtaining ownership cannot violate the provisions of the law, and the documentary evidence used to apply for ownership must also meet the requirements of the law, so that it has the effect of law, especially for some documentary evidence that requires specific procedures to be obtained, the applicant must follow the It can only be obtained through the application of legal procedures, otherwise it cannot be obtained, or the documentary evidence obtained from non-specific procedures is also invalid.For example, the construction of commercial housing must be applied to the planning department and approved by the planning before obtaining a construction project planning permit according to law.If you go to other departments to obtain a certificate of permission to build a house, then this certificate will definitely be invalid.

40. In a house demolition dispute, how to apply to the court for obtaining evidence to win the lawsuit?
The three houses that Zhao and his wife lived in for a long time were demolished. After Zhao’s wife completed all the procedures for compensation for the demolition, she moved to a relative’s house. As a result, Zhao had no place to live and did not receive a penny of compensation. .Now Zhao is going to divorce his wife, which involves the division of family property, but Zhao doesn't know anything about the family's financial accounts.Zhao believes that the three houses were built together by the two of them after they got married. Although they are going to divorce now, he should also have his share of the demolition funds.

Wanting to pay for the demolition, Zhao had a hard time: he didn't know how the contract between his wife and the demolition department was signed?Second, I don't know how much money the demolition department paid for their family?But now he is homeless, and he cannot easily give up his rights. After thinking about it, his wife will not tell him the truth, so Zhao applied to the court for investigation, and the court will find out the details of the demolition funds according to law. amount.And this amount is directly related to the division of the common property of Zhao and his wife, which is the evidence that must be involved in this case. The court approved and helped to obtain evidence according to law. A passbook of a wife's demolition compensation.Finally, after mediation by the court, Zhao and his wife voluntarily reached a divorce agreement.

Analysis according to law
In our country, the litigant evidence system is mainly based on the production of evidence by the parties and supplemented by the investigation and collection of evidence by the people's court.According to Article 17 of the Supreme People's Court's Civil Procedural Evidence Rules, if one of the following conditions is met, the parties and their agents ad litem may apply to the People's Court for investigation and collection of evidence:

([-]) The evidence collected under the application for investigation belongs to the archival materials kept by the relevant state departments and required to be obtained by the people's courts ex officio;

([-]) Materials involving state secrets, commercial secrets, and personal privacy;

([-]) Other materials that the parties and their litigation representatives cannot collect on their own due to objective reasons.

There are mainly the following situations where a party applies to the court for investigation and evidence collection: 1. Archives and materials managed by the relevant archives department or preserved by the unit involved in the case.Many archives of these departments are not open to the public and are under strict management. It is difficult for ordinary parties and litigation representatives to obtain them by their own ability. Therefore, the parties have reason and need to apply to the court for retrieval.These archival materials mainly include industrial and commercial materials, materials for handling labor disputes in labor disputes, injury identification materials in personal injury cases, diagnosis and medical records and drug prescriptions of hospitals in medical malpractice disputes, tax materials involved in sales disputes, real estate Certificates of property rights in disputes, materials related to bank deposits in other debt disputes, customs entry and exit declarations, etc. 2. The evidence materials are in the hands of the other party, the party cannot obtain them and the evidence affects the determination of the main case facts. 3. Materials involving some technical materials, business secrets and personal privacy. 4. The witness refuses to appear in court to testify or the witness is not in the same place as the party concerned or the witness is abroad, but the testimony of the witness has a decisive impact on the ascertainment of the facts of the case. 5. Evidence investigation applications from parties who are illiterate, have no ability to investigate and collect evidence, and have not hired a lawyer. 6. The parties apply to the court for investigation and evidence collection due to economic reasons.

Regarding the above-mentioned applications, the court generally agrees to the application in items 1 to 3, because these evidential materials are not graspable due to objective reasons other than the will of the parties concerned, and items 4 to 6 are difficult to completely say that they are objective reasons, and the court generally does not agree to the application. .

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Application for court investigation and evidence collection (sample)

Applicant: name, gender, age, nationality, place of origin, work unit, current address, contact information.

Matters requested: Request the People's Court to inquire the amount of bank deposits of the defendant Wang in ×× Bank according to its authority.

Facts and reasons:
The case of marriage dispute between the applicant and Mr. Wang has been appealed to the People's Court and is currently under trial.During the period when the applicant and Wang lived together, the economy was completely managed by Wang.Now Wang claims that during the time of living together, he did not leave any deposits, but in fact, the applicant's salary, bonuses, etc. are all handed over to Wang, so it is impossible to have no deposits.The applicant has seen the passbook of XX Bank at home, but has not seen the specific content.Based on the above facts, in accordance with the provisions of the "Marriage Law of the People's Republic of China" and the "Civil Procedure Law of the People's Republic of China", in order to protect the legal rights and interests of the applicant to the family property, I hereby apply to the People's Court to inquire about Wang's deposits in XX Bank .

Sincerely,
XX District People's Court of XX City
Applicant: Liu
××year××month××day

Attachment: The name of the evidence applied for investigation, the source of the evidence, the name of the witness, and the current address.

41. If dissatisfied with the evaluation report on the housing area and market price, can the demolition party apply for re-evaluation?
Lin's house is located in a certain street in a certain district of Beijing, and it is now facing demolition.Lin asked for monetary compensation, and a real estate development company agreed.Lin was dissatisfied with the evaluation report on the house area and market price issued by the real estate development company.So, if you are dissatisfied with the evaluation report on the housing area and market price, can you apply for re-evaluation?

Analysis according to law
Regarding the evaluation of housing area and market price, the State Council basically authorizes the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government to formulate corresponding measures according to local conditions.This case took place in Beijing.Beijing also has regulations on the evaluation of housing area and market price.According to these regulations, if the property owner of the house to be demolished has any objection to the demolition report, he may apply for appraisal to the house demolition evaluation expert committee organized by the Municipal Real Estate Appraiser Association within the statutory time limit from the date of receipt of the evaluation report.The original appraisal agency will provide the appraisal report, appraisal technical report and other relevant materials to the expert committee in a timely manner.After the expert committee accepts the appraisal application, it will appraise the legality, standardization and rationality of the appraisal report, and issue appraisal opinions within the statutory time limit after receiving the application.If the evaluation report is legal, standardized and reasonable after the evaluation by the expert committee, the expert committee shall issue an evaluation opinion to maintain the original evaluation result, and the original evaluation report will be used as the basis for demolition compensation; if the evaluation report is illegal or irregular after the evaluation by the expert committee or unreasonable, the demolisher may request the original appraisal agency to re-evaluate or entrust another appraisal agency with house demolition appraisal qualifications to re-evaluate.

If the parties have no dispute over the re-evaluation results, the re-evaluation results shall be used as the basis for demolition compensation; if the parties still have disputes over the re-evaluation results, the demolisher shall re-apply to the expert committee for appraisal.As for the appraisal fee, the usual practice is that whoever applies for it should pay in advance. If citizens apply for appraisal, they need to pay the appraisal fee in advance.If the evaluation report is identified by the expert committee as illegal, irregular or unreasonable, the evaluation fee shall be borne by the evaluation agency that issued the evaluation report; if the evaluation report is legal, standardized, and reasonable, the evaluation fee shall be borne by the applicant.

If the re-evaluation result is inconsistent with the original evaluation result, both parties shall negotiate and determine it, and compensate according to the determination result; if the two parties fail to negotiate and determine, one party may apply to the district or county land and housing management bureau, and the district or county land and housing management bureau shall designate an evaluation agency The evaluation reports submitted by both parties will be reviewed and compensated according to the review results.The cost of the re-check shall be borne by the applicant; however, if the difference between the re-check result and the original evaluation result exceeds the statutory percentage of the re-check result, the original evaluation agency shall bear it.

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According to the "Regulations on the Management of Urban House Demolition" implemented nationwide, the value of the demolished house is no longer the final decision of the demolition department, and the demolisher can choose among qualified evaluation agencies.If the demolished person still has doubts about the evaluation result after the evaluation agency explains, the demolished person can entrust another evaluation agency identified by the demolition authority to re-evaluate.If the evaluation results of the two evaluation units are within the specified error range, the original evaluation results are deemed to be valid; if they exceed the error range, the demolition authority may organize a debate with the participation of the demolisher, the demolished, relevant experts and representatives from all walks of life. Respondents are conducted by two evaluation agencies, and a panel of experts finally decides which one is more accurate.

property, decoration

42. There is a problem with the quality of house decoration, what kind of evidence is the effective proof?
Liu signed a project construction contract with the builder Zhang, and handed over the construction of the housing project he planned to build to Zhang for construction work, and agreed that all the projects would be completed within three months.However, during the construction of the house, Liu, who visited the site many times, was extremely dissatisfied when he saw the messy layout and rough construction.After carefully comparing the drawings, Liu believed that Zhang did not strictly follow the drawings and contract requirements during construction, and suspected that there were many quality problems in the house.

After repeated negotiations between the two parties failed, the plaintiff Liu decided to collect evidence on his own, and then brought the builder Zhang to court.In order to prove his claim, Liu provided the court with two pieces of evidence collected by himself: one is two investigation transcripts, and the other is a set of photos.However, after cross-examination in court, it was found that the persons under investigation in the two investigation transcripts were not construction professionals.

The court held that the plaintiff did not present legally valid and sufficient evidence to the court to prove that the house did have quality problems.Plaintiff Liu's claim was dismissed in court.

Analysis according to law
In this case, Liu provided the court with two pieces of evidence collected by himself in order to prove his claim: one is two investigation transcripts, and the other is a set of photos.The respondents in these two investigation transcripts are not construction professionals, and their opinions on housing quality are purely personal opinions, and the transcripts are not legally valid certifications issued by professional departments, so the court cannot accept them.

In addition, although the photo issued by Liu has a certain degree of intuition, it cannot explain the quality of the house, because the quality of the house should be appraised by a professional department, so this evidence material cannot be used as valid evidence.Therefore, the court will make the above judgment.

Liu can entrust an authoritative department to conduct housing quality inspections, and use the inspection report as an effective proof of quality.Housing quality inspection is to use certain technical means and methods to check and measure the quality of stock housing (not the quality of construction in progress), especially its structural quality, and implement dynamic monitoring to ensure the safety of people's life and property in the country. , to promote the full and rational use of existing housing resources, and to ensure social stability.

House quality inspection categories include: house damage inspection, house safety inspection, house damage trend inspection, house structure and function change inspection, house earthquake resistance inspection, house quality comprehensive inspection and other inspections.

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Note that housing quality inspections should be conducted by qualified institutions.For example, the housing quality testing unit must be equipped with full-time testing management personnel and testing equipment according to regulations, establish a strict management system, report to the municipal housing quality testing center for qualification examination, and issue a certificate before it can carry out work within the specified business scope .The full-time testing personnel of each testing unit must have the relevant professional skills of housing quality testing, master the testing standards and methods, pass the qualification examination of the Municipal Housing Quality Testing Center, and hold a testing operation certificate.

43. Is there a need for appraisal for house decoration quality disputes?What are the identified risks?

The plaintiff bought a set of commercial housing in a certain community in February 2004. When he moved in in June 2, the plaintiff found that the upstairs resident, namely the defendant, was being renovated.The plaintiff claimed that it was discovered that the defendant's decoration workers had laid cement mortar and tiles on the floors of the living room, dining room, hall, kitchen, and bathroom with a total thickness of 2004 to 6 centimeters. The ground stipulated in the "Book" is only allowed to be decorated with 9 cm building materials.At the same time, the plaintiff, after his own calculation, believed that the defendant's decoration was 10 to 5 kilograms more than the 68 kilograms per square meter of floor decoration stipulated in the original design. Bending downward will inevitably lead to a reduction in the crack resistance during an earthquake and cause life hazards.Based on the above considerations, the plaintiff brought a lawsuit to the people's court, requesting the defendant to remove the ground after the illegal decoration and remove the obstruction.The plaintiff did not agree to make an appraisal during the court hearing. In this case, the court dismissed the lawsuit because the plaintiff had insufficient evidence.

Analysis according to law
The plaintiff's defeat in this case was mainly due to insufficient evidence. On the one hand, he did not know to conduct an appraisal, and on the other hand, he underestimated the economic risk of the appraisal.

Why should it be identified?In this case, whether the safety of the house is damaged cannot be explained by the plaintiff’s visual inspection of the thickness of the ground decoration and the load value calculated by himself, nor can it be explained by the defendant’s own belief that it is safe. This requires professional and technical personnel to use scientific methods. The conclusions can only be drawn after rigorous calculations.The plaintiff did not understand this, and subjectively believed that the defendant's decoration caused hindrance to him, but did not have the appraisal conclusion as a basis, which led to the loss of the lawsuit.

What are the economic risks identified?One is to bear the appraisal fee, and the other is to bear the economic loss caused by the appraisal.Once the appraisal is carried out, the party who proposes the appraisal must pay the appraisal fee in advance. This fee is collected by the appraisal agency, and the amount is uncertain.After an agreed time, the parties concerned, the judges, and the entrusted appraisers went to the scene to conduct an inspection, and then made an appraisal conclusion after analysis, which was the main basis for the judgment of the case.Taking this case as an example, the plaintiff proposed an appraisal. After paying the appraisal fee in advance, the Quality Appraisal Center accepted the commission of the court to carry out the appraisal. After consulting the drawings and on-site inspection, the appraisal conclusion was finally reached. If the plaintiff is unfavorable, the plaintiff must bear the appraisal fee. If the appraisal conclusion is unfavorable to the defendant, the defendant shall bear the appraisal fee.At the same time, since building safety appraisal needs to sample and analyze the ground of the house, it will inevitably cause damage to the house, and the resulting economic loss is sometimes very large. The burden of this economic loss is the same as the sharing of appraisal fees. According to the identification results to share.The plaintiff underestimated how much economic loss would be caused by the appraisal, and could not make up his mind to conduct the appraisal for a while, but the court could not take the plaintiff's subjective judgment as a basis.

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When you encounter real estate problems and need to resort to the law, you may wish to consult an expert first. For legal issues, consult a lawyer, for construction issues, consult an architect, and for decoration issues, consult a home improvement association. Do not solve the problem by yourself. If the research on the problem is not deep, it is inevitable that there will be deviations in understanding. Secondly, the conclusions made by experts may be used as the basis for dealing with the problem.Regarding the issue of whether to conduct an appraisal, we believe that if the two parties cannot reach a consensus and resort to the law, in order to find out the facts and clarify responsibilities, an appraisal should still be conducted.

44. The decoration pollution exceeds the standard, how can the parties identify the indoor air quality?

(End of this chapter)