Rural relocation lottery agreement
1. Define the subject qualification of the demolisher and the demolished person.
The first content of signing the compensation agreement for demolition and resettlement is to clarify who is the main body of demolition and who is the person to be demolished. The first content of a legal and effective agreement is to have a qualified subject. Article 9 of the Contract Law of People's Republic of China (PRC) stipulates that when concluding a contract, the parties shall have corresponding capacity for civil rights and capacity for civil conduct. Among them, capacity for civil rights refers to the qualification of citizens, legal persons or other organizations to enjoy rights and undertake obligations according to law, and capacity for civil conduct refers to the qualification of citizens, legal persons or other organizations to enjoy rights and undertake obligations through their own actions.
In the demolition agreement, if the main body is a citizen, it should be a person with full capacity for civil conduct, that is, 18 years of age or above, without mental illness or other circumstances that lead to normal thinking. At the same time, he can be the most important condition for the parties to the demolition and resettlement compensation agreement, and it is also a special requirement beyond the general capacity for civil conduct and rights, that is, he should be the owner of the demolished house. If it is not the owner of the house and is not authorized by other authorized parties such as the entrusted party, the agreement signed by it may be invalid. If the subject is a legal person or other organization, it shall be registered according to law. The power and ability of a legal person begins with registration and ends with cancellation of registration. And its ability scope is closely related to the registered business scope. Beyond the scope of its registration and restricted by the state, it shall not be implemented, and even if it is implemented, it will be an invalid civil act. The special requirements for legal persons or other organizations in the compensation agreement for demolition and resettlement are mainly aimed at the demolished. According to the Regulations on the Administration of Urban House Demolition (hereinafter referred to as the Regulations on Demolition), the demolisher shall obtain the demolition permit according to law. Those who have not obtained this certificate are not qualified for demolition, and the signed compensation agreement for demolition and resettlement may be invalid. If there are other contents in this agreement, which are within the capacity of the legal person or organization, the contents are valid; The content of the house demolition agreement should not belong to the nature of the demolition agreement; If there are other violations of the agreement, such as violation of the overall national construction plan, the agreement can also be considered invalid.
Therefore, it is very important to know whether the parties to the agreement are qualified subjects. If both parties are qualified, their rights will be easily guaranteed and their obligations will be easily fulfilled. If the parties are not qualified, it will easily lead to unexpected disputes, and both parties will fall into risks that they cannot understand.
2. The premise of demolition behavior
Articles 2 and 3 of the Demolition Regulations point out that these Regulations shall apply to the demolition of houses on state-owned land in urban planning areas that require compensation and resettlement for the demolished people. Demolition must conform to urban planning, which is conducive to the transformation of old areas and the improvement of ecological environment, and is conducive to the protection of cultural relics and historical sites.
It can be seen that the demolition behavior cannot be implemented at will. In addition to the necessary formal premise-obtaining the approval of the competent department and obtaining the demolition permit, it is also necessary to have the substantive premise, that is, it is in line with the overall and local planning of the city, which is conducive to the performance of the old city, the improvement of the environment and the protection of cultural relics. If the purpose of demolition does not meet the above conditions, it is illegal demolition, which can be formal or substantive. No matter what kind of illegal behavior, the person being demolished or other interested parties think that the project construction or demolition behavior violates the above provisions, they can report to the demolition authorities and ask them to exercise their functions and powers according to law to stop the illegal demolition behavior of the person being demolished.
This item may include the name of the construction project, the construction site, the construction unit, the demolition permit number, etc. , not limited to the above items.
3. Overview of house demolition
Whether the general situation of the demolished houses is clear or not will affect whether the compensation available to the demolished people is appropriate and legal. According to the provisions of Article 24 of the Demolition Regulations, the amount of compensation is determined according to the location, use, construction area and other factors of the house to be demolished and the assessed price of the real estate market. In this content, we must first make clear where the demolished houses are located and whether they belong to the scope of demolition. Defining the location of a house is to define the compensation standard of the compensation price for the location of the house. Once the two sides confirm and the standards are determined, the demolition parties will no longer have disputes about this; Building area, including building area and usable area. The scale of housing construction is one of the main factors that affect the compensation for demolition. The two sides reached an agreement on this in the agreement, which is also conducive to the smooth implementation of the future demolition agreement. In addition to the above items, both parties can also record the house decoration and the attachments on the ground here, and clarify the relevant compensation items. In short, the more detailed the record, the more conducive to reducing disputes, but also conducive to the settlement of disputes in the future.
4. Agreed compensation for demolition and resettlement.
The demolition compensation and resettlement agreement is divided into two parts:
(1) Compensation for house demolition.
According to Article 23 of the Regulations on the Management of Urban House Demolition (hereinafter referred to as the Regulations on House Demolition), the compensation for house demolition can be monetary compensation or the exchange of house property rights. Then, when the demolished people conclude the demolition and resettlement agreement, they must first make clear the compensation method for demolition, whether it is the way of "demolishing the house to make up the house" or the way of "demolishing the house to make up the money". As for the compensation method, the demolition resettlement compensation scheme is provided by the demolition person, and then the demolition person chooses which compensation method to adopt. However, if there are other provisions in laws and regulations on the demolition of rented houses and public welfare houses, they shall be implemented in accordance with the provisions of the law, even if there are other ways in the approved compensation plan for demolition and resettlement, they shall not be adopted.
For "demolishing houses to make up houses", according to the provisions of Articles 24 and 5 of the Demolition Regulations, the demolisher and the demolished person should first evaluate the market price of the demolished house according to the location, use and construction area of the demolished house, then calculate the compensation amount of the demolished house and the exchange price of the house, and settle the price difference of the property right exchange; For the "compensation for demolition of houses", according to the provisions of the Demolition Regulations, the market price of the demolished houses is evaluated and determined according to the location, use and construction area of the demolished houses. Among them, the location compensation price is regularly announced by the local government, and the purposes are divided into residential houses and business houses. The construction area is the main basis and foundation for determining the compensation amount. The value of the demolished house is assessed by a qualified real estate appraisal agency, but if the demolished person or other interested parties have objections, they may apply for a review or entrust another appraisal. If you are still not satisfied with the results, you can apply for technical appraisal. For the determination of the value of resettlement houses, according to the provisions of Article 25 of the Guiding Opinions on Urban Housing Demolition and Valuation, and with reference to these measures, the value of the demolished houses shall be determined. It is also necessary to clarify the location, area, use and other factors of resettlement houses.
In addition to the compensation for the above-mentioned houses, if land expropriation is involved, the attachments and appendages on houses and land should also be compensated during the demolition. Compensation for attachments and appendages is compensation for their owners. Generally, the depreciation of their market value is taken as the compensation standard, and the principle of how much is demolished and how much is replenished is implemented. Paragraph 4 of Article 47 of the Land Management Law of the People's Republic of China stipulates that the compensation standards for attachments and young crops on expropriated land shall be stipulated by provinces, autonomous regions and municipalities directly under the Central Government. In practice, there are generally the following attachments and appendages that need to be included in the demolition compensation project: gas, independent electricity meter, telephone, network cable, cable TV, independent water meter, electric heating, etc.
(two) relocation subsidies and temporary resettlement subsidies.
Article 31 of the Demolition Regulations stipulates that the demolisher shall pay the relocation subsidy to the demolished person or the lessee. During the transition period, if the demolished person or lessee arranges his own residence, the demolished person shall pay the temporary resettlement subsidy; If the demolished person or lessee uses the revolving house provided by the demolished person, the demolished person shall not pay the temporary resettlement subsidy. The standards for relocation subsidies and temporary resettlement subsidies shall be formulated by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
First of all, if the demolished person or lessee needs to move because of the demolition, the loss caused by the relocation belongs to the compensation project, that is, the relocation subsidy. Secondly, the demolished person or lessee needs temporary resettlement, and if the demolished person fails to provide revolving houses, he shall pay temporary resettlement subsidies to the demolished person, and the demolished person shall use the expenses for temporary revolving living needs such as renting a house.
In practice, in the process of signing the demolition agreement, the amount of relocation subsidy and temporary resettlement subsidy is often considered, and the family population of the demolished person is often considered. If the population needs to be relocated, the greater the relocation cost, the greater the subsidy needed for temporary resettlement. The people here should be people who have lived with the demolished people for a long time, and those who stay temporarily for a short time should not be subsidized. In addition, for the demolition of production and business premises, the relocation cost of the production equipment of the demolished person is also a key factor to be considered when signing the agreement.
(3) Other compensation expenses.
Article 3 of the Guiding Opinions on Urban Housing Demolition and Valuation points out that if the demolition of non-residential houses leads to the failure of normal production and operation, it shall compensate for the loss of production and business suspension, and this compensation standard shall be implemented in accordance with the standards stipulated by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government; In addition, the interior decoration and other facilities of the demolished houses should also be compensated according to the price. The way to determine the demolition needs to be negotiated between the demolition and the demolition. If negotiation fails, an assessment agency may be entrusted for determination.
Therefore, in this article "Demolition Compensation and Resettlement Agreement", the methods of demolition compensation and resettlement, the amount of compensation or difference, the area, location and use of resettlement houses, the appendages and their values that need compensation, the amount of relocation subsidies, the amount of temporary resettlement subsidies, the compensation for decoration and the compensation for the loss of production and business of demolition of non-residential houses should be clearly defined.
5. Agreement on performance of the agreement
(1) Payment of compensation fees.
The payment of compensation should include two parts: first, the delivery of property rights exchange houses; The other is the payment of compensation.
1. house delivery.
(1) The delivery time must be agreed.
According to Article 142 of the Contract Law of People's Republic of China (PRC) (hereinafter referred to as the Contract Law), the risk of damage or loss of the subject matter shall be borne by the seller before delivery and by the buyer after delivery, unless otherwise stipulated by law or agreed by the parties. Therefore, it is of great significance to determine the delivery time of the house to the interests of the demolished, and who will bear the consequences of the house damage should be clearly defined in the agreement first. In addition, according to Article 107 of the Contract Law: "If a party fails to perform its contractual obligations or fails to perform its contractual obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses." Article 112 stipulates: "If one party fails to perform its contractual obligations or fails to comply with the contract, and after performing its obligations or taking remedial measures, the other party has other losses, it shall compensate for the losses." Article 113 stipulates: "If one party fails to perform its contractual obligations or fails to perform its contractual obligations as agreed, thus causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen when concluding the contract." After the delivery time is determined, determine the time for the demolition to perform its obligations. If the demolisher fails to deliver the house according to the agreed time, the demolished person may investigate the other party's liability for breach of contract in accordance with the agreement. The way can be to ask them to continue to perform their obligations, pay liquidated damages, compensate for losses, etc.
(2) Deliverables must be agreed.
When the house is delivered, the quality and decoration of the house shall be agreed upon. If the agreement on housing quality is lower than the national or local standards, the provisions of the corresponding standards shall be implemented. In addition, when concluding the demolition and resettlement agreement, the structural type and apartment type of the resettlement house should also be agreed. Although this content is not stipulated by laws and regulations, it is also a project that actually involves the interests of the people being demolished and should be paid attention to.
2. Payment of compensation.
For the payment of compensation, the parties may agree to pay in one lump sum or by installments, but the time of performance shall be specified in detail, and the purpose of the agreement is to determine the demolition period. If the demolisher fails to perform within the agreed time limit, he shall be liable for breach of contract. The method of payment should also be agreed, and the appropriate way of performance is to realize the performance of the legitimate rights and interests of the parties. If the performance mode chosen by one party makes it difficult for the other party to accept the benefits, obviously unfair's will. If losses are caused, the observant party may demand compensation. However, the relief of this right is obviously not enough. First of all, this kind of loss is often very small, and the cost of asking for public relief is too high; There is no basis for the parties to demand private relief. More importantly, even if the parties are willing to pay a high cost to protect their rights and interests through public relief, the process of safeguarding rights is very difficult because there is no clear division of responsibilities and rights between the two parties.
(2) the vacation of the house.
The vacating of the demolished house is one of the manifestations of the realization of the rights of the demolished house, and it is also the result of the implementation of the compensation agreement for demolition and resettlement. When the agreed relocation period expires, the demolished person fails to perform his obligations,
The demolisher can apply for and then trigger the compulsory demolition procedure to ensure the smooth progress of the demolition project and the normal implementation of the overall progress of the project. Similarly, for the demolished, the agreement on vacating the house limits their right to possess, use and benefit from the house, and their rights terminate when vacating the house.
(3) Cancellation of real estate rights such as houses.
Sales is also a way to eliminate the property rights of real estate such as houses. The right to housing and land arises when the right is registered and disappears when the registration is cancelled. After the demolition of the house is cancelled, the demolition can handle the initial registration of property rights for the project construction. Therefore, the agreement on this content is a protective provision for residents' rights. Both parties can agree that the demolished person will hand over the relevant houses and land certificates within a certain date and go through the cancellation procedures. If the demolished person fails to perform his obligations, he may seek public relief.
Party B shall apply to the relevant departments for the transfer, transfer or cancellation of water, electricity, telephone, cable TV and natural gas in the house, and settle the water, electricity and gas expenses.
6. Agreement on other matters
(1) Liability for breach of contract.
According to the first paragraph of Article 106 of the General Principles of Civil Law of People's Republic of China (PRC): "Citizens and legal persons who violate contracts or fail to perform other obligations shall bear civil liability." Article 111 stipulates: "If one party fails to perform its contractual obligations or fails to meet the agreed conditions, the other party has the right to demand performance or take remedial measures and demand compensation for losses." It can be seen that the liability for breach of contract is the main adverse consequence of non-performance or incorrect performance of the contract, and its forms include taking remedial measures and compensating losses. Article 107 of the Contract Law of People's Republic of China (PRC) also stipulates that if a party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. The liability for breach of contract is generally assumed in the form of continuing to perform, repairing, redoing and paying liquidated damages. If losses are caused, compensation shall also be made.
It can be seen that it is of great significance for both parties to clearly stipulate the liability for breach of contract in the agreement. If one party fails to perform the contract in accordance with the law or the contract, the other party may require the other party to bear the liability for breach of contract in accordance with the law and the contract. In the liability for breach of the demolition and resettlement compensation agreement, the counterpart is generally required to perform the agreement, pay liquidated damages and compensate for losses. The demolisher and the demolished can agree on the following contents in the agreement: First, it is agreed that if the demolisher fails to pay all kinds of compensation fees to the demolished on the date agreed in the agreement, he will pay liquidated damages according to a certain proportion of the amount owed for one day overdue; If the demolisher fails to resettle Party B according to the location, area and grade specified in the agreement, he shall pay a certain amount of liquidated damages to Party B; If the demolished person still refuses to move after the agreed resettlement, he shall pay liquidated damages to the demolished person for each day overdue. The clarification of the above matters and the amount of liquidated damages clarifies the consequences of the rights and obligations of the demolition and the demolition in the agreement, which is punitive to some extent and can urge both parties to perform the agreement in good faith. At the same time, it is also the more operable content of this protocol.
(2) Handling of disputes.
Disputes are a state of interest confrontation between social subjects, and civil disputes refer to social disputes between equal subjects with civil rights and obligations as their content. China's civil dispute settlement mechanism includes private relief, public relief and social relief. Private remedy refers to the way that the parties solve disputes by themselves or private forces to realize their rights in the name of neutrality without the intervention of a third party and without going through state organs and legal procedures; Public relief refers to the mechanism of compulsory settlement of disputes through state public power; Social relief refers to a mechanism that relies on social forces to solve civil disputes on the basis of the consent of the parties to the dispute. For these three dispute settlement methods, the parties can choose to apply them.
In the dispute settlement agreement, the parties may agree to choose self-settlement, arbitration and litigation. If arbitration or litigation is involved, they can also choose a clear arbitration institution or a people's court with jurisdiction.
(3) The validity of the agreement.
The contract may take effect immediately. If approval or registration is required, it will take effect after approval or registration. If the term of validity or conditions of validity are specified in the contract, the contract shall take effect upon the expiration of the term or when the conditions are met. The invalidity of a contract includes the invalidity under the statutory conditions stipulated in Article 52 of the Contract Law, the invalidity when the contract is cancelled, the invalidity when the contract is dissolved, terminated and performed. In addition, if both parties have agreed on a time limit for the performance of the contract, the contract will be invalid when the time limit expires.
The entry into force of the contract means the beginning of the rights and obligations of both parties, and the invalidity means the end of the rights and obligations of both parties. In the demolition and resettlement compensation agreement, the demolition person has the right to ask the demolition person to vacate the house after the agreement takes effect. If the demolished person fails to perform his obligations without justifiable reasons, the demolished person may file a compulsory demolition procedure through application; After the agreement comes into effect, the relocated people have the right to receive resettlement compensation and temporary resettlement fees. If the demolished person fails to perform his obligations, the demolished person has the right to claim to force the demolished person to perform his obligations through public relief. After the expiration of the contract, the above rights and obligations of both parties will be completely eliminated. Therefore, whether the validity of the contract is clear is also very important to the relationship between the demolition and the demolition. Both parties shall stipulate in the agreement the time when the agreement will take effect, such as signing and sealing, or the specific date. At the same time, both parties may stipulate the validity period of the contract or the conditions or time limit for the invalidation of the contract. If both parties agree, this agreement shall come into effect as of the date when both parties or their legal representatives or their authorized representatives sign and affix their official seals. The validity period is _ _ _ _ _ _ _ _ years, and it will take effect from _ _ _ _ _ _ _.