Lawyer

Chapter 898 Illegal possession?Impossible, absolutely impossible!

"The prosecutor can respond to the defender's defense opinion." The presiding judge glanced at the public prosecutor's seat and said step by step.

"Okay, regarding the defender's defense, we express our views as follows:
We believe that the actions of the appellant Niu Shengming constituted the crime of extortion.The main reasons are as follows:
[-]. Niu Shengming reported to the relevant departments that the investment and development company's projects violated laws and regulations, and his behavior belonged to extorting property by means of threats and coercion, which belonged to extorting property.It meets the objective elements of the crime of extortion.

[-]. Niu Shengming has signed an agreement and received compensation for the demolition of the house and tomb of Niu Shengming's family. It is not reasonable for him to ask the investment and development company for a huge amount of money, but intends to illegally occupy the huge amount of property of the investment and development company.It meets the subjective elements of 'using the illegal possession of other people's property' in the crime of extortion.

To sum up, we believe that the appellant's behavior meets the subjective and objective elements of the crime of extortion and constitutes the crime of extortion.complete. "The female prosecutor's face was frosty.

"The defender can respond to the prosecutor's opinion." The presiding judge looked at Fang Yi.

"Based on the Prosecutor's defense opinion and response, the defender issued the following defense opinion:

The defender believes that Niu Shengming's behavior does not constitute the crime of extortion, either subjectively or objectively. The specific reasons are as follows:
[-]. Niu Shengming's behavior did not meet the subjective element of "for the purpose of illegal possession" in the crime of extortion.

The crime of extortion refers to the act of forcibly extorting public and private property for the purpose of illegal possession by means of threats or intimidation, and the amount is relatively large.

The defender believes that under normal circumstances, illegal occupation of property that is not one's own is illegal possession.But in fact, the property relationship in reality is very complicated and cannot be generalized.Only when the perpetrator knows that the property does not belong to him and deliberately takes the property as his own in a way prohibited by the Criminal Law, can the perpetrator be determined to have the purpose of illegal possession.

In this case, Niu Shengming, as the demolition household, cannot be determined by the evidence in the case that his act of claiming compensation from the developer had the intention of illegal possession.The reasons are as follows:
First, Niu Shengming has a dispute over the demolition compensation fee. Although the Niu family has already obtained a certain amount of demolition compensation fee, it does not rule out the possibility of continuing to demand compensation.

According to Article No. 13 of the State Council's "Regulations on the Administration of Urban Demolition and Relocation", the demolisher and the person to be demolished shall, in accordance with the provisions of the Regulations, conclude a demolition compensation and resettlement agreement on matters such as compensation method and compensation amount, resettlement housing area and resettlement location, relocation period, relocation transition method and transition period.

In this case, Niu Shengming's mother signed an agreement on house demolition with the demolition company, and the validity of the agreement is a key document in this case.

The ownership and use rights of the houses and tombs involved in the case have been jointly owned by the entire Niu family since the death of Niu Shengming’s father. The agreement signed by Niu Shengming’s mother and the demolisher must, strictly speaking, be agreed by the whole family including the appellant Niu Shengming.Otherwise, although the agreement is established, it has not taken effect.

In the absence of ratification by Niu Shengming and other Niu family members, the effectiveness of the demolition agreement in this case is pending for the following reasons:

1. In the evidence in the case, there is no evidence to prove that Niu Shengming's mother was entrusted by the whole family to sign the agreement with the relevant department;
2. The ownership and right to use Niu’s house and tomb are shared by the whole family, and Niu Shengming’s mother cannot independently exercise the right to dispose of the property shares enjoyed by other members of the family;

3. According to the provisions of the "Contract Law", if a person without the right to dispose of the property of another person obtains the right to dispose after ratification by the obligee or the person without the right to dispose of the contract, the contract is valid.

In this case, the demolition office did not urge Niu Shengming to ratify the validity of the demolition agreement, nor did Niu Shengming and his wife ratify it. Although Niu Shengming did not raise any objections to the relevant departments regarding the standard of demolition compensation, he always disagreed with the demolition contract signed by his mother, and he did not ratify it afterwards.

On the contrary, Niu Shengming expressed dissatisfaction with his family's failure to notify him to be there when the tomb was moved. Niu Shengming also had opinions on the demolition work, so he came up with the idea of ​​asking the demolition office and other units for damages related to the demolition and tomb relocation.

Second, Niu Shengming has the right to ask the demolisher to ask for relocation compensation in accordance with the law.

It is not prohibited by law for Niu Shengming to reclaim compensation for demolition and relocation from relevant departments.

According to Article No. 16 of the "Regulations on the Administration of Urban House Demolition and Relocation", if the demolisher and the demolished person or the demolisher, the demolished person and the house lessee fail to reach a demolition compensation and resettlement agreement, upon the application of the parties concerned, the house demolition management department will make a ruling.

The house demolition management department belongs to the demolished person, and it is decided by the people's government at the same level.The ruling shall be made within 30 days from the date of receipt of the application.If a party is dissatisfied with the ruling, it may file a lawsuit in a people's court within 3 months from the date of delivery of the ruling.

The "Reply of the Supreme People's Court on Accepting Cases of House Demolition, Compensation, and Resettlement" also stipulates that if there is a dispute between the demolisher and the demolished person over house compensation, resettlement, etc., or after the two parties reach an agreement, one or both parties go back and file a civil lawsuit with the people's court in accordance with the law only on house compensation, resettlement, etc. without an administrative organ's ruling, the people's court shall accept it as a civil case.

The "Regulations on the Cause of Action of Civil Cases" formulated by the Supreme People's Court also identified the cause of action of such disputes as disputes over housing demolition and resettlement compensation contracts.

To sum up, it is possible for Niu Shengming to ask for re-acquisition of demolition compensation through any means, but whether he can re-obtain demolition compensation and how much demolition compensation can be re-obtained should be determined by Niu Shengming through consultation with relevant departments and units in accordance with relevant laws and regulations.

It can be seen from this that Niu Shengming's new claim for demolition compensation belongs to the re-claim of the demolished party for demolition compensation, which falls within the category permitted by law.

Niu Shengming and others re-claimed the demolition compensation fee. Although the amount was huge, it was not without any factual basis. In other words, the disputed demolition compensation fee did not necessarily belong to Niu Shengming, but was in an uncertain state.

Therefore, Niu Shengming's request for demolition compensation is actually a way of exercising his civil rights, and it does not belong to "for the purpose of illegal possession". "

After Fang Yi finished the first point, he swallowed, cleared his throat, and glanced at the inspector opposite. The other party had a serious expression and frowned from time to time, probably thinking about Fang Yi's speech.

　There are two more at six in the evening!
　　
　
(End of this chapter)