The Legal Work Committee of the Standing Committee of the National People's Congress has announced the first selection of local cases such as real estate sales restrictions for the first time in the 2024 filing and review work case No. 1-瞭望新时代网

The Legal Work Committee of the Standing Committee of the National People's Congress has announced the first selection of local cases such as real estate sales restrictions for the first time in the 2024 filing and review work case No. 1

2024-06-11

The Legal Work Committee of the Standing Committee of the National People's Congress recently announced the No.1 filing and review case of 2024 to the public. In November 2022, the Legal Affairs Commission explored the establishment of a guidance system for filing review cases, and timely released typical cases that reflect common issues in local legislation and have guiding significance. As of now, a total of 8 filing review work guidance cases have been published three times. Unlike before, the three cases announced this time are all filing and review cases of the Standing Committee of the Local People's Congress, involving regulations related to urban water supply management, real estate sales restrictions, and gas safety management. Regarding why typical cases of local filing review are published as guiding cases, Yan Dongfeng, Director of the Regulations Filing Review Office of the Legal Work Committee of the Standing Committee of the National People's Congress, said that the main reason is that in recent years, local People's Congress Standing Committees have generally increased their efforts in filing review, improved the quality of filing review work, and formed a group of typical cases that reflect local characteristics, have strong timeliness and pertinence, which have direct reference significance for local legislation and filing review work. Case 1: The Standing Committee of the People's Congress of a certain city reviewed and corrected the normative documents of the municipal government departments regarding real estate sales restrictions. In August 2021, the municipal government issued a notice on further promoting the stable and healthy development of the real estate market in our city, which stipulated that "newly purchased newly-built commercial housing and second-hand residential properties can only be listed for trading after obtaining a real estate ownership certificate for at least 3 years"; In April 2022, the Notice on Promoting the Positive Cycle and Healthy Development of the Urban Real Estate Industry was issued, which stipulated that "newly purchased newly-built commercial residential properties can be listed and traded for at least 3 years from the date of filing of the commercial housing sales contract," and relaxed the sales restriction period for newly-built commercial residential properties; In June 2022, a notice was issued on promoting the virtuous cycle and healthy development of the urban real estate industry, which stipulated that "newly purchased newly-built commercial residential buildings and second-hand residential buildings are not subject to sales restrictions", and the sales restrictions were completely lifted. However, second-hand houses purchased between August 2, 2021 and June 10, 2022 still need to obtain a real estate certificate for at least 3 years before they can be listed for trading. In May 2023, based on citizen review suggestions, the Legal Work Committee of the Standing Committee of the People's Congress of a certain city reviewed the provisions on real estate sales restrictions in the three aforementioned documents and concluded that the Civil Code stipulates that owners have the right to lawfully possess, use, benefit from, and dispose of their immovable or movable property. The sale of real estate is a disposal right of the owner, and real estate transactions are the rights and freedoms of citizens, protected by law. The implementation of the sales restriction policy is a temporary measure taken by the State Council to implement the spirit of "housing for living, not for speculation", and to empower local governments to take measures based on actual situations. The sales restriction policy introduced by the government of a certain city on August 2, 2021 is aimed at implementing relevant national real estate regulation policies, curbing the rapid rise of housing prices, safeguarding public interests, and imposing necessary restrictions on the legitimate rights and interests of citizens, which has certain rationality. With the changes in the national policy background and the real estate market environment, the government of a certain city still imposes restrictions on the sale of second-hand residential properties purchased between August 2, 2021 and June 10, 2022. This is a differential treatment of some citizens in real estate transactions during a specific period, improperly restricting the exercise of civil subject property rights, which is unfair, unreasonable, and inappropriate, and inconsistent with the provisions of relevant laws such as the Civil Code. It should be corrected. In August 2023, the municipal government abolished all restrictions on the sale of second-hand residential properties. Case 2: The Standing Committee of the People's Congress of a certain province reviewed and corrected the regulations of the provincial government on double charging for operating water, imposing administrative penalties for overdue payment of water fees, and setting administrative compulsions. The "Urban Water Supply Management Regulations of a certain province" (hereinafter referred to as the "Water Supply Management Regulations") stipulated the principle of double charging for operating water, and also stipulated administrative penalties for overdue payment of water fees. Administrative compulsions such as stopping water supply and late payment fines were also established. In 2021, the Legal Work Committee of the Standing Committee of the People's Congress of a certain province actively reviewed the aforementioned provisions in the Water Supply Management Regulations. The review found two issues: first, the provision on the principle of double charging for operating water. Article 26 of the Urban Water Supply Regulations of the State Council stipulates that "the price of urban water supply shall be formulated in accordance with the principles of maintaining a minimum profit for domestic water and reasonable pricing for production and operation water. The method for formulating the price of urban water supply shall be formulated by the people's governments of provinces, autonomous regions, and municipalities directly under the central government." According to this regulation, the price of water supply for production and operation shall be based on the principle of reasonable pricing. However, the Water Supply Management Regulations distinguish the water supply prices for production and operation, which is inconsistent with the important deployment spirit of the Party Central Committee on reducing the burden on enterprises and the relevant provisions of the Urban Water Supply Regulations. Production water still follows the principle of reasonable pricing, while operation water is charged according to the principle of double charging, which increases the economic burden on relevant market entities. The second is about imposing administrative penalties on those who fail to pay water fees on time, and stipulating administrative enforcement measures such as stopping water supply and imposing late fees. The revised Urban Water Supply Regulations of the State Council in 2018 stipulate that those who fail to pay water fees in accordance with regulations may be fined; When revised in 2020, this regulation had been deleted. The Water Supply Management Regulations have not been modified accordingly and still retain relevant administrative penalty provisions, lagging behind higher-level laws. Stopping water supply is an administrative compulsory measure. The revised Urban Water Supply Regulations of the State Council have removed the provision that administrative compulsory measures such as stopping water supply can be taken if water fees are not paid according to regulations. The relevant provisions of the Water Supply Management Regulations have no upper legal basis and should be corrected. Meanwhile, imposing late fees is a statutory method of administrative enforcement that can only be established by law. At present, there is no provision in the law for imposing late fees on those who fail to pay their water bills on time, and the Water Supply Management Regulations have no authority to establish provisions for imposing late fees. In 2022, the provincial government abolished the Water Supply Management Regulations. Case 3: The Standing Committee of the People's Congress of a certain city reviewed and corrected the normative documents of the city government regarding the mandatory requirement for gas users to install and use designated gas facilities and the right of gas enterprises to take gas shutdown measures against gas users. The opinions and regulations formulated by the city government on further strengthening the safe operation and management of pipeline gas in the city stipulate that "gas users must fully promote the use of stainless steel corrugated hoses, gas combustion appliances that meet national standards and standards with extinguishing devices, install and use safety self closing valves, and install intelligent gas meters." "From the date of document release, any gas facilities that have not been delivered for use or newly built residential buildings must be installed and designed with intelligent gas meters, safety self closing valves, and other gas facilities, otherwise they will not be completed and accepted. Existing residential buildings shall be inspected by the local government (management committee)." Organize pipeline gas enterprises within the jurisdiction to develop renovation plans, which will be completed in batches, stages, and within a limited period of six months. The opinion also stipulates that for those who privately pull, tamper with gas facilities without authorization, and refuse to rectify the illegal use of gas, pipeline gas enterprises shall take gas shutdown measures. Regarding this, some citizens have put forward review suggestions. In July 2022, the Legal Work Committee of the Standing Committee of the People's Congress of a certain city reviewed the issues raised in the opinions. The Legal Work Committee of the Standing Committee of the Municipal People's Congress reviewed and found that according to the relevant provisions of the State Council's "Regulations on Urban Gas Management", gas users only need to use qualified gas combustion appliances and cylinders, and timely replace gas combustion appliances, connecting pipes, etc. that have been officially phased out by the state or have expired their service life in accordance with the regulations. The "Gas Management Measures of a certain city" stipulate that "it is encouraged for residential users to install and use gas leakage safety protection devices, use qualified gas combustion appliances, gas cylinders, and stainless steel corrugated hoses." "Advocacy" is an advocacy and encouraging expression that grants gas users the right to choose. Therefore, the provisions in the opinion regarding the "comprehensive promotion of the use", "mandatory installation" of designated gas facilities, and "deadline for renovation" are suspected to contradict the provisions of the State Council's administrative regulations and municipal government rules, changing the advocated user choice right into a mandatory obligation and infringing on the legitimate rights and interests of citizens. Regarding the provision in the opinion that gas enterprises have the right to take gas shutdown measures against gas users, the Legal Affairs Committee of the Standing Committee of the Municipal People's Congress, after review, believes that according to the relevant provisions of the State Council's "Regulations on Urban Gas Management", "Measures for Urban Gas Management in a Province", and "Measures for Gas Management in a City", if users fail to comply with safety gas regulations and encounter safety hazards, they should be reminded to rectify them; If the user fails to implement rectification according to regulations and may cause safety accidents, the gas operating enterprise can stop gas supply and restore gas supply in a timely manner after the hidden dangers are eliminated. According to the relevant spirit of the Civil Code and the relevant provisions of gas supply contracts, ensuring the continuous supply of gas is not only the obligation of gas operating enterprises, but also the right of gas users. Measures to stop gas supply should be taken with caution. The provisions regarding the adoption of gas suspension measures are inconsistent with administrative regulations, provincial and local regulations, and municipal government regulations. At the same time, this regulation is stipulated in the same clause as the regulation on the comprehensive implementation of renovation projects such as stainless steel corrugated hoses and smart gas meters, which can easily lead to misunderstandings of stopping gas supply without renovation. In summary, the Legislative Affairs Committee of the Standing Committee of the People's Congress of the city has reviewed and found that the relevant provisions of the opinion are inconsistent with the superior law, and it is recommended that the formulating authority revise the relevant provisions. In October 2022, the municipal government made modifications to the relevant provisions of the opinions and required gas companies to correctly interpret and apply the documents, not to forcibly require renovation, not to designate enterprises for renovation, and to use gas shutdown measures with caution in accordance with the law. In addition, in response to the high cost of gas renovation reported by the public, measures such as funding from telecommunications companies for renovation are adopted to reduce the burden on gas users. Some old residential areas are renovated with government subsidies and upgraded for free. (Lai Xin She)

Edit：Liling Responsible editor：Chenjie

Source：http://www.legaldaily.com.cn

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