Skillfully executing the "Golden Cicada Sheds Its Shell" strategy to secure a reprieve for the "Sea Palace"
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Case Review:
The Nanao Dongshan Bay in Longgang District, Shenzhen has long been an aquaculture area for local fishermen, where generations of fishermen have built fish rafts and quarters on this peaceful bay for production and living purposes. Around 2011, the nationally sensational "Sea Palace" in Shenzhen referred to the floating island that drifted on Dongshan Bay.
As early as 2003, entrepreneur Guo XX innovated on the basis of traditional fish rafts and began constructing a relatively large-scale offshore floating island (later dubbed the "Sea Palace" by the media). Since the offshore floating island was a novel concept, for a time no agency was willing to issue a sea area use right certificate for it. By January 2008, the former Longgang District Agriculture, Forestry and Fisheries Bureau (hereinafter referred to as the Ocean Bureau) imposed a fine of 711,000 yuan on the "Sea Palace" and ordered it to restore the sea area to its original state within a specified period. However, through the active efforts of the "Sea Palace" side, Li Zhujiang, then Director of the Guangdong Provincial Ocean and Fisheries Bureau, acting in the spirit of encouraging innovation, issued an instruction on the "Sea Palace" matter, directing the Longgang Detachment to withdraw the case. Nevertheless, out of reverence for the former Longgang District Ocean Bureau, the "Sea Palace" side still chose to pay the fine.
On January 13, 2010, some Shenzhen media published reports regarding the "illegal" use of sea areas by this floating island, naming it the "Sea Palace," which immediately attracted nationwide attention. Journalists from all over converged on Dongshan Bay, creating a momentum as if they were going to blow the "Sea Palace" flat. Under the media's narrative of "collusion between officials and businessmen," the "Sea Palace" was dismantled into three major sections on May 13 and towed away from its original sea area, but was left floating on the surface of Dongshan Bay pending rectification. Following proactive rectification efforts by the "Sea Palace" side, on December 26 of the same year, the former Longgang District Ocean Bureau issued the rectified "Sea Palace" an "Aquaculture Registration Certificate" and a license approval for recreational fishing.
Just as the "Sea Palace" side was preparing to open the floating island to the public, renewed involvement by some media outlets forced the Shenzhen Municipal Oceanic Bureau and Longgang District to issue a joint notice on March 2, 2011, declaring that the "Sea Palace" constituted illegal occupation of sea areas and ordering the former Longgang District Oceanic Bureau to revoke the "Aquaculture Registration Certificate" it had issued to the "Sea Palace" side. On April 8, the Longgang District Oceanic Bureau, without following the statutory administrative procedures, began organizing forces to forcibly dismantle the superstructure of the "Sea Palace."
As early as March 28, prior to this, the "Sea Palace" had already sued the former Longgang District Ocean Bureau for its administrative penalty of reneging on its word and violating legal procedures. On April 20, the Longgang District Court decided to accept the administrative lawsuit filed by the "Sea Palace" in accordance with the law. After completely demolishing the main structures in the central courtyard of the floating island, the former Longgang District Ocean Bureau also halted related demolition work. Subsequently, the plaintiff, the "Sea Palace," entrusted the Zhiming lawyer team from Guangdong Zhiming Law Firm to represent the case.
Art of Representation:
From the moment Attorney Zhiming took on this administrative lawsuit case that had caused a nationwide sensation and been heavily sensationalized by the media, he was acutely aware that "Sea Palace" was a label imposed on the "Floating Island at Sea" by public opinion, tinged with resentment toward the wealthy. Because of this luxurious and repugnant label, the "Floating Island at Sea" was further burdened with alarming tags such as "illegal use of sea areas," "illegal construction," and "Sea Red Mansion." In reality, the "Floating Island at Sea" was the true form of Guo Mouzhang's maritime structure! The reason it was branded as the "Sea Palace" and subjected to fierce criticism was the result of the public's envy being misled by the media. Therefore, resolving this misunderstanding through reason and empathy naturally became Attorney Zhiming's foremost priority at the outset.
Furthermore, Attorney Zhiming tightly focused on the core of administrative litigation judicial review, which should primarily center on the procedural legality of government administrative actions, while deliberately downplaying the legality of the object of the administrative action itself—the "Maritime Palace." He explicitly emphasized the conclusion that the three decisions made by the Ocean Bureau of a certain district in Shenzhen on March 1, 2011, and the forced demolition carried out on April 8, were all procedurally illegal. At the same time, he also noted that the uniqueness of the "Maritime Palace" as a new phenomenon and the complex social background factors that led to the dispute should not be overlooked. To seize the moral high ground, reverse the unfavorable public opinion, and win the understanding and recognition of the judges, this issue had to be reasonably and compellingly highlighted both in court proceedings and in the battles outside the courtroom. Therefore, the representation opinion prepared by Attorney Zhiming not only highlighted the critical issue of procedural illegality in administrative actions but also provided a reasonable and compelling re-framing of the development of the "Maritime Palace."
Such litigation strategy ultimately achieved highly effective courtroom results and extended its impact into society at large, which was a foreseeable and logical outcome.
The trial of the "Offshore Imperial Palace" administrative litigation case drew eager attention and follow-up coverage from media outlets of all levels and types across the country. With one closed-door hearing and two public court sessions, the courtroom was packed with observers both inside and outside, and journalists from dozens of media outlets, finding no seats to sit in and no space to stand, held their breath and stood quietly to listen!
The brilliant performance in this case was first reflected in the intellectual clash and contest of talent revealed during the intense courtroom debate. In court, the arguments of both sides focused on the sensory impression of the "Offshore Royal Palace" — it did not look like an aquaculture fish raft or a fishing venue, but rather more like a royal palace floating on the sea. From this, the inference was drawn as to whether the Offshore Royal Palace qualified as a "lawful" object consistent with aquaculture and fishing purposes.
Regarding the defendant's attorney's argument that Guo Mouzhang's "Sea Palace Company" (abbreviation for "Shenzhen Sea Palace Entertainment Co., Ltd." — author's note) did not actually convert the "Sea Palace" into a "fishing and aquaculture raft," and that the "Sea Palace" had always been an extremely luxurious private club or venue. The "Sea Palace" never obtained the "Sea Area Use Right Certificate" for the sea area it occupied from beginning to end.
In refuting the erroneous position of a certain District Ocean Bureau that "obtaining a Sea Area Use Certificate is a prerequisite for obtaining an Aquaculture Registration Certificate," I played down the actual situation that the emerging "offshore floating island" had never been able to obtain a so-called "normal Sea Area Use Certificate" from the outset, and extricated myself from Article 7 of China's *Sea Area Use Management Law*, which provides that "the competent administrative department for fisheries shall, in accordance with the *Fisheries Law of the People's Republic of China*, exercise supervision and administration over marine fisheries." Instead, I drew upon Article 11 of China's *Fisheries Law*, which provides that "the State shall make unified plans for the use of water areas and may determine water areas and tidal flats that can be used for aquaculture... the people's government at the corresponding level shall issue aquaculture certificates to permit the use of such water areas and tidal flats for aquaculture, and the specific measures for issuing aquaculture certificates shall be formulated by the State Council," as well as Article 5 of the national *Measures for the Administration of the Issuance of Aquaculture Certificates*, which provides that "the competent administrative department for fisheries of the local people's government at or above the county level shall be responsible for the administration of the issuance of aquaculture certificates for water areas and tidal flats within its jurisdiction..." Seeking interlocking legal bases and proceeding layer by layer, I clearly demonstrated that: the competent administrative department for fisheries of the local people's government at or above the county level is the legally authorized authority responsible for issuing aquaculture licenses, and once an aquaculture license is obtained, it naturally confers the lawful right to use the designated sea (water) area for aquaculture, with no legal provision requiring a separate "Sea Area Use Certificate" as an additional prerequisite. From this, it follows that after obtaining an "Aquaculture Registration Certificate," the "offshore floating island" is entirely lawful in conducting aquaculture (angling) in the designated sea area. The so-called argument of a certain District Economic Development Promotion Bureau that "the plaintiff has not lawfully obtained the right to use the sea area" is purely unlawful and unreasonable. Moreover, the fact that over the past nearly thirty years, the fishery administration department of a certain district, in actually supervising and administering aquaculture in the sea areas within its jurisdiction, has only issued Aquaculture Registration Certificates without ever requiring the acquisition of a Sea Area Use Certificate as a prerequisite is in itself the most powerful corroborating evidence!
Attorney Zhiming's rebuttal was forceful and impactful.
What most captivated the audience in the courtroom debate, and drew astonished admiration from the media and judges alike, was my forceful argument regarding the defense opinion that had exaggerated a "floating island at sea"—a luxury fishing raft—into a "Sea Palace," thereby falsely accusing it of being an "illegal structure."
"It is well known that thirty years ago, people went to barbershops for haircuts—one razor, one pair of scissors, a trim and a shave, a rinse, and out the door; thirty years later, people go to high-end salons, enjoying music and beautiful surroundings while getting their hair cut, having their hair washed and backs massaged, receiving hot oil treatments and fragrant sprays. Thirty years ago, people went to public bathhouses—one towel, one bar of soap, a scrub and a wipe-down, clean and home; thirty years later, people go to spa clubs for bathing, with food, drink, and entertainment, television and movies, saunas and massages—a full chain of star-grade service. Thirty years ago, farmers planted rice by hand; today, farmers can operate mechanized cultivation through electronic controls in modern agricultural estates. No one wishes to return to the primitive society of slash-and-burn farming. Why, then, cannot the plaintiff's luxurious fishing raft be recognized and accepted? Although the plaintiff's fishing raft is not only capable of aquaculture and fishing, and its ancillary conditions are indeed luxurious, and it can also fully utilize natural maritime conditions to enjoy ocean scenery resources—this nonetheless does not negate its essential nature and function as a fishing raft, nor does it lose its aquaculture and fishing functions! The ancillary living quarters for those guarding the raft are luxurious and beautiful in condition; even if they resemble a 'palace,' objectively they cause no harm. It can only be seen as a manifestation of social development and progress, and is something that should be encouraged. Why is it unlawful?! Is it factual unlawfulness or conceptual corruption? As for the plaintiff's aquaculture and fishing raft, because its exquisite and ornate construction creates a pleasant landscape, guests often visit to admire it—this is even less illegal, because no national law or regulation prohibits guests from visiting and admiring anyone's fishing raft. Moreover, there are no illegal or criminal circumstances such as gambling, prostitution, or drug use on the plaintiff's luxurious fishing raft; there is only the phenomenon of viewing and gathering. People absolutely should not believe that the plaintiff's luxurious fishing raft is illegal merely because it is luxurious, while others' crude fishing rafts are legal. Such mechanical, narrow-minded, and conservative views that run counter to the tide of historical development must be wrong! The private desire of hatred for the wealthy and jealousy should not receive the support of the law and the government!"
This brilliant and resonant defense argument for the "Sea Palace" caused everyone present to completely forget that the Sea Palace lacked formal legality at its inception, highlighting instead the "legal certificates" it now holds for recreational fishing and aquaculture functions. This tactic of "shedding its shell" made all those present entirely overlook the fact that the Sea Palace's true nature had long since departed from the attributes and functions of aquaculture and fishing. Everyone could only feel that the demolition and penalties imposed on the Sea Palace were entirely the result of blind conformity and jealousy, hatred, and resentment from certain ignorant members of society. It tragically became a "sacrifice" to public opinion hostage-taking and a "scapegoat" for administrative errors, and people began to deeply sympathize with the unfortunate fate of this innovative creation, the Sea Palace...
Outside the courtroom, the government side was naturally unwilling to accept defeat, nor was it willing to compromise or settle with the owner of the "Sea Palace," Guo Mouzhang. It always hoped to declare its administrative actions lawful, correct, and justified by securing a clear and public victory in a judicial ruling. To that end, the relevant government personnel, on the one hand, engaged in extensive "efforts to communicate" with the judges, and on the other hand, had leaders come forward to pressure the court through various means. However, given that our arguments were solidly grounded and seamlessly integrated reason, sentiment, and law, making them irrefutable, the presiding judges did not dare to hastily rule in favor of the government. Naturally, as a judicial body also part of the official system, it would be even less likely to simply and directly rule that the government had lost.
Subsequently, the relevant court leaders exchanged views with us, the plaintiffs, outside the courtroom and put forward new perspectives, which we promptly refuted on the spot with well-founded and lawful arguments. Not long after, a leader from a certain district publicly spoke at a meeting of the Shenzhen Municipal People's Congress, conveying erroneous views to the public through the media and exerting pressure on the court. In response, Zhiming lawyers also issued a stern and lawful rebuttal through a televised legal education program and by publishing online articles, refuting the leader's incorrect statements.
In short, all the government's various efforts and maneuvers to protect its own, so to speak, were repeatedly thwarted by our representative, the "Sea Palace" side. With no grounds whatsoever to support the government's hope of gaining public backing from the court, the government finally sent senior representatives to express a willingness to settle with the owner of the "Sea Palace," a certain Mr. Guo Mouzhang. In the end, both sides compromised, reaching an unspoken understanding that the plaintiff would withdraw the lawsuit and the defendant would no longer forcibly demolish the "Sea Palace." Thus, the "Sea Palace" managed to extricate itself from the deadlock of its confrontation with the government and the courts, achieving a result of forcing a draw and emerging victorious, and has since been preserved in its original form to this day.
Lessons from the case:
By employing original strategic techniques, the strategy of "escaping by cunning means" was skillfully applied to the courtroom debate and argumentation. Through adept use of such methods, the focus of attention was successfully shifted, and with proficient application of reasoning grounded in emotion, law, and logic, the goal of captivating the entire audience was achieved, ultimately yielding the desired results. The attorney's submissions from Zhiming Law Firm shook the courtroom, and what convinced the presiding judges was not the conventional, commonplace criticism that the administrative organ's actions were "procedurally brutal and unlawful," but rather the vivid and compelling argumentation, expressed through irrefutable connections between emotion, reason, and legal principles, which perfectly moved the judges, the media, and every observer present. Strictly speaking, a recreational fishing license is clearly intended solely for leisure fishing and should never be used for ostentatious purposes such as horse racing entertainment, peacock viewing, or showing off Tibetan mastiffs, nor should a marine aquaculture farm ever become a venue for beauty pageants, fireworks displays, or celebratory shows. Unfortunately, the opposing counsel's line of reasoning was unable to respond promptly and effectively to our unexpected winning strategy, leaving their conventional litigation techniques merely reactive and on the defensive, appearing "short of arguments and at a loss for words." This naturally highlighted that our submissions represented the overwhelmingly correct conclusion, earning public approval and a round of applause. Had we merely employed conventional litigation techniques, strictly debating the procedural legality of the government's administrative actions, without emphasizing that the "Maritime Palace" was a novel endeavor benefiting the nation, the people, and private interests alike, without stressing that it was a victim of media misguidance and public misunderstanding, where the government was coerced and manipulated into reckless action, and without using vivid and apt analogies to illustrate the living truth of right and wrong, it would have been impossible to shake the entire room and move every "listener" present, let alone win over the minds of the audience!
Law is "dead," while wisdom is always "alive." The results of conventional litigation techniques and original strategic techniques are undoubtedly vastly different.
Concluding the "Sea Palace" dispute through reconciliation and withdrawal of the lawsuit, a distinctly "Chinese-characteristic" way of ending administrative litigation, inevitably leaves one with a sense of anticlimax. Although I firmly believe that had the "Sea Palace" case been concluded with a lawful judgment, it would have set a precedent for the administrative litigation system, established a benchmark for law-based government administration, and left a milestone in the construction of a rule-of-law state, as the plaintiff's entrusted agent in the "Sea Palace" case, Attorney Zhiming must also respect the decision of the party, Mr. Guo Mouzhang, and can only reluctantly accept this imperfect outcome of administrative litigation, determined by a system where administrative power dominates and judicial power struggles to assert itself.
However, the significant impact and implications of Zhiming Law Firm's representation in the "Sea Palace" case stand in stark contrast to the low-key conclusion of the case. The paradox between grassroots innovation vitality and government regulation and legal norms, the positive interaction between media supervision and law-based administration, and the dialectical relationship between entrepreneurs' wealth-creating capabilities and social fairness and justice.
In particular, Attorney Zhiming's precise grasp of the crux of the case—the legality of the administrative action—and his righteous advocacy for civil rights, daring to engage in a battle of wits and courage with powerful government departments, with an uncompromising stance, delivered a serious lesson in rule of law to the government's legal affairs departments and left a profound lesson that continues to serve as a warning to government officials at all levels in Shenzhen to this day.
An article published in the "A6 Top News" section of a district newspaper in Shenzhen on June 13, 2014, titled "Dean Opens Door to Explain Law, Public Raises Questions On-Site," was written by reporters Zhu Moujun and Zhao Mouming. The report stated that Comrade Fu Xinjiang, who was the deputy district head of a certain district at the time of the "Sea Palace" case and currently serves as the vice president of the Shenzhen Intermediate People's Court, attended a keynote event in Futian District on "Rule-of-Law Thinking and Law-Based Administration." Drawing on the widely publicized "Sea Palace" case from his tenure as deputy district head, he explained the essence of rule-of-law thinking in an accessible manner: "The government must abide by the law and exercise administration in accordance with the law!" Additionally, Comrade Fu Xinjiang, based on his own governance experience, urged leading officials at all levels present to "constantly remind themselves to resolve issues through legal means." This demonstrates that administrative litigation cases such as the "Sea Palace" case have played a significant role in advancing China's efforts to build a law-based country, law-based government, and law-based society.
Appendix:
Attorney's Statement in the Case of the "Sea Palace" Illegal Administrative Dispute Lawsuit
Respected Presiding Judge and Judges:
Guangdong Zhiming Law Firm, entrusted by Shenzhen Hai Shang Mou Mou Entertainment Co., Ltd., invested by Mr. Guo Mouzhang, provides legal aid services out of a spirit of public welfare. Today, we are lawfully attending the court hearing at the People's Court of Mou Mou District, Shenzhen, concerning the lawsuit filed by the plaintiff, Shenzhen Hai Shang Mou Mou Entertainment Co., Ltd., against the Mou Mou District Economic Development Promotion Bureau, regarding illegal administrative actions (illegal forced demolition) and a claim for substantial damages. To better distinguish right from wrong, correct erroneous perceptions, defuse intense emotions, eliminate conflicts, and provide reference opinions for fair judicial adjudication, we have conducted repeated pre-trial investigations into the facts and studied and compared the relevant laws. We now present our agency opinions, hoping the court will give them due consideration and adopt them. These agency opinions are divided into three parts and will take approximately 40 minutes. The details are as follows:
I. The Origin of the "Sea Palace" Unlawful Administrative Litigation Dispute Case
Starting in 2003, Mr. Guo Mouzhang, a young entrepreneur and former painter who graduated from Luxun Academy of Fine Arts, harbored the ideal of developing exquisite offshore structures from marine resources with an artistic approach. He traveled over mountains and rivers, enduring arduous surveys, and arrived at Dongshan Bay in the coastal city of Shenzhen, where dreams are created. There, he creatively unleashed folk wisdom and spontaneously used his own private capital to attempt exploratory development of idle shallow sea resources that had been left unused. After careful deliberation, repeated validation, painstaking effort, and inventive creation, at a cost of nearly one hundred million yuan, he started from a humble seaside shallow-water wooden cabin and, through years of persistence, unwavering dedication, and tireless effort, finally created a dazzling complex of offshore structures. If one were to name it by category, its core form is a "marine fish raft" (because its structural principles derive from fish rafts), with the formal academic name internationally known as a "floating island at sea," now commonly dubbed the "Sea Palace" by the media. The colloquial name given by the public derives from its exterior design and magnificent bearing, which precisely demonstrates that the creative wisdom and diligent efforts of the fish raft's owner, Mr. Guo Mouzhang, have yielded extraordinary and abundant results in the self-development of shallow sea resources, earning the envy and admiration of the public and society alike. It is said that this luxury fish raft (artificial floating island) is, in terms of raw materials, design, and investment, the most cost-effective offshore structure in the world. Combining aquaculture, fishing, leisure, and sightseeing in one, this fish raft—exquisite, splendid, sturdy, and practical—is truly a first for Shenzhen and a first for the world. Yet this classic masterpiece, due to sensationalism by certain media, the wealth-hatred of angry young people, the ignorance of the masses, and misleading public opinion, was forcibly dismantled by the management, who, caught in an atmosphere formed by deception and coercion, chose to play it safe and protect themselves, leaving it on the verge of extinction.
To protect their property rights, safeguard original inventions, and preserve social wealth so that it may have the opportunity to benefit the nation, society, and the public in the future, the plaintiff, after numerous unsuccessful efforts, has finally resorted to legal action, seeking the protection of the law to give vitality to the plaintiff's offshore fish farming platforms and floating islands! This is the brief origin of this case.
II. The Rights and Wrongs of the "Sea Palace" Illegal Administrative Litigation Dispute Case
Right and wrong are the key to this case; legality and illegality are the core of this dispute. Previously, society has been filled with layers of misunderstandings regarding this case's disputes, which have flooded our ears and filled our eyes. Today, it is necessary for us to trace the matter to its source, set things right, and reverse these erroneous viewpoints! With respect to the litigation disputes of this case, the Economic Development Promotion Bureau of a certain district has committed the following cognitive misunderstandings and erroneous practices in law enforcement:
1. Treating the acquisition of a sea area use right certificate as a prerequisite for obtaining an aquaculture registration certificate
China's "Sea Area Use Management Law" is the comprehensive, specific, and specialized law governing the right to use sea areas nationwide. Article 7 of this Law explicitly stipulates that "the administrative department for fisheries, in accordance with the 'Fisheries Law of the People's Republic of China,' shall exercise supervision and management over marine fisheries." Furthermore, Article 2 of China's "Fisheries Law" explicitly provides that "any person engaged in fishery production activities of farming and catching aquatic animals and aquatic plants in the inland waters, tidal flats, territorial seas, exclusive economic zones, and all other sea areas under the jurisdiction of the People's Republic of China must comply with this Law." Article 11 stipulates that "the state shall make unified plans for the use of waters, determining the waters and tidal flats that may be used for aquaculture... the people's government at the corresponding level shall issue aquaculture certificates to permit the use of such waters or tidal flats for aquaculture, and the specific measures for issuing aquaculture certificates shall be formulated by the State Council." Article 5 of the national "Measures for the Administration of Aquaculture Certificate Issuance" provides that "the administrative departments for fisheries under local people's governments at or above the county level shall be responsible for the issuance and administration of aquaculture certificates for waters and tidal flats within their jurisdiction..." It can thus be seen that the relevant laws are interlocking and interconnected, clearly demonstrating that the administrative department for fisheries under the local people's government at or above the county level is the legally authorized authority responsible for issuing aquaculture licenses, and that once an aquaculture license is obtained, one naturally possesses the legal right to use the designated sea (water) area for aquaculture, with no legal provision requiring the separate acquisition of an independent "sea area use certificate" as a precondition. Therefore, in this case, the plaintiff's aquaculture (fishing) activities in the designated sea area after obtaining the "Aquaculture Registration Certificate" are completely lawful. The argument of the Economic Development Promotion Bureau of a certain district that the plaintiff did not lawfully obtain the right to use the sea area is purely illegal and unreasonable sophistry. Moreover, for nearly thirty years, the fishery administrative department of a certain district, in actually supervising and managing aquaculture in the sea areas under its jurisdiction, has only issued aquaculture registration certificates without requiring the acquisition of a sea area use certificate as a precondition—this fact itself is the most powerful corroborating evidence, and it is also self-contradictory with their sophistry, which collapses of its own accord!
2. Exaggerating luxurious fishing rafts as a "Maritime Palace" and falsely accusing them of being "illegal structures"
It is well known that thirty years ago people went to barbershops for haircuts; today people go to upscale hair salons, enjoying music, massage, shampooing, and other services while having their hair cut. Thirty years ago people went to public bathhouses to bathe; today people go to spa clubs for bathing, where they can eat, drink, and be entertained, enjoying star-rated services in one package. Thirty years ago farmers planted rice seedlings with their hands; today farmers can carry out mechanized cultivation through electronic control in modern agricultural estates. No one wishes to return to the primitive age of slash-and-burn farming. Why, then, can the plaintiff's luxurious fish raft not be recognized and accepted? Although the plaintiff's fish raft is not only usable for aquaculture and fishing, and its auxiliary conditions are indeed luxurious, and it can also fully utilize the natural conditions of the sea to enjoy maritime scenery resources, this does not negate that it possesses the essential nature and function of a fish raft, nor does it lose its aquaculture and fishing functions! The fact that the ancillary living quarters for the fish raft keepers are luxuriously and beautifully constructed, even if resembling a "palace," objectively causes no harm. It can only show that it is a manifestation of social development and progress and should be encouraged. As for the plaintiff's aquaculture and fishing raft, because it is delicately constructed with beautiful and pleasant scenery, it is not illegal for guests to frequently visit and admire it, for no national law provides that anyone's fish raft is prohibited from being visited and admired by guests. Moreover, no illegal or criminal circumstances such as pornography, gambling, or drug abuse exist on the plaintiff's luxurious fish raft; there is only the phenomenon of sightseeing and gatherings. People should never hold that the plaintiff's luxurious fish raft is illegal while the simple fish rafts of others are lawful. Such a mechanical, narrow, and outdated view running against the tide of historical development is wrong! The private desire of envy and resentment toward the wealthy should not be supported by law or government!
3. The revocation of the aquaculture registration certificate and fishing license approval is claimed as self-correction without admitting it is illegal administration.
The facts fully demonstrate that the Economic Development Promotion Bureau of a certain district, on July 15, 2010, after repeated deliberation, multiple rounds of coordination, on-site inspections, and prudent study, issued an official reply clearly approving: the plaintiff's rectified fish rafts were to be used for aquaculture and recreational fishing operations in designated sea areas according to functional planning, and on December 22, 2010, issued an official reply via Document No. [2010] 144 (Shen Mou Nong Zi [2010] No. 144) approving the plaintiff's aquaculture and recreational fishing matters. Furthermore, on December 25, 2010, the Bureau formally issued the "Aquaculture Registration Certificate," licensing the plaintiff to operate lawfully. However, less than three months later, the Economic Development Promotion Bureau of a certain district, being influenced by human factors, openly violated legal procedures and hastily issued a notice and decision on March 1, 2011, arbitrarily and high-handedly revoking the official replies that had lawfully acquired the plaintiff's aquaculture, recreational fishing, and other permits, and unlawfully recalled the "Aquaculture Registration Certificate." This seriously violates Article 7 of China's "Administrative Licensing Law" and Article 8, Item 5, and Article 31 of the "Administrative Penalty Law," among other provisions: any administrative decision must undergo the statutory hearing procedure and must afford the counterpart rights-holder (the plaintiff) adequate rights to defend and make statements in advance. Therefore, the administrative action of the Economic Development Promotion Bureau of a certain district on March 1, 2011, can only constitute a new act of administrative illegality, and can never be justified as "self-correction" as it claims. Even if the subjective intention was "self-correction," it should still abide by the law and act in accordance with the law, and should not compound the error. In order to "self-correct the previous error in issuing the certificate," it has once again violated the state's statutory procedural provisions and enforced the law illegally, committing a new error! And errors in law enforcement must be corrected!
4. Characterizing the forced demolition as "lawfully restoring old penalty measures" while refusing to acknowledge "unlawfully implementing new penalty measures"!
The Economic Development Promotion Bureau of a certain district argued: the forced demolition of the "Sea Palace" was a lawful compulsory measure taken pursuant to Administrative Penalty Decision No. 1 (2008) issued by the Shenzhen Municipal Ocean Bureau of a certain district. It was the resumption and continued execution of a previous old administrative penalty decision. Such an absurd statement clearly contradicts the facts and violates the law. In reality, the defendant, the Economic Development Promotion Bureau of a certain district, had repeatedly admitted in court proceedings on multiple occasions that Administrative Penalty Decision No. 1 (2008) had already been fully executed and concluded pursuant to Administrative Execution Ruling No. 78 (2009) issued by the People's Court of a certain district, and that execution was completed with the plaintiff paying a fine of 490,000 yuan. The Economic Development Promotion Bureau of a certain district, being fully aware of this fact, still stubbornly denied that execution had concluded and insisted on falsely claiming that this forced demolition was the resumption and continuation of Administrative Penalty Decision No. 1 (2008). If that were truly the case, the Economic Development Promotion Bureau of a certain district should have lawfully applied to the execution division of the People's Court of a certain district to resume judicial execution; however, in fact, the Economic Development Promotion Bureau of a certain district did not apply for resumption of judicial execution, but instead arbitrarily and unilaterally demolished the structure on its own, without any legal basis. If it were taking new penalty measures, the Economic Development Promotion Bureau of a certain district failed to grant the affected right-holder (the plaintiff) the statutory rights of defense and statement in accordance with the Administrative Licensing Law and the Administrative Penalty Law of China, which is likewise unlawful. Regardless of the grounds on which the defendant, the Economic Development Promotion Bureau of a certain district, based this forced demolition decision and conduct, it is clearly and seriously unlawful, completely erroneous, and should be corrected and penalized by the people's court in accordance with law!
Appendix (I) Factual Evidence:
1. On June 11, 2007, the predecessor of the defendant, the Bureau of Agriculture, Forestry and Fisheries of a certain district of Shenzhen Municipality, issued Document No. [2007] 66, titled "Reply on the Application for the Development of an Offshore Leisure Fishery Project." This demonstrates that the plaintiff's establishment of the offshore leisure fish raft project was approved and actively guided by the defendant.
2. On July 11, 2007, Shenzhen Maritime XX Entertainment Co., Ltd. and Shenzhen Nanao Dongyu Shareholding Cooperative Company executed the "Cooperation Agreement" and cooperation fee receipts. This indicates that both parties jointly developed recreational fisheries, promoted marine-featured tourism, and were committed to addressing the issue of helping local fishermen escape poverty and achieve prosperity.
3. On June 3, 2009, the superior authority of the defendant, the Municipal Ocean Bureau of XX, issued Document No. [2009] 25, "Reply Regarding the Application of Shenzhen XX Entertainment Co., Ltd. for a Sea Area Use Certificate." This indicates that the defendant received and guided the plaintiff's application for the relevant sea area use rights certificate.
4. On July 3, 2009, the defendant's superior authority, the Ocean Bureau of XX City, issued Document No. Shenhai Han [2009]30, titled "Reply on the Application for the Sea Area Use Certificate of Shenzhen XX Maritime Entertainment Co., Ltd." This demonstrates that the defendant had accepted and guided the plaintiff in applying for the relevant sea area use right certificate.
5. The Reply issued by the Defendant, Shenzhen XX District Ocean Bureau, on July 15, 2010, titled "Reply on the Application of XX Maritime Entertainment Co., Ltd. for the Renovation of Demolished Marine Structures." This document indicates that the Defendant, after careful consideration, decided to lawfully and procedurally permit the Plaintiff to operate marine leisure projects such as aquaculture and angling in designated sea areas.
6. In the document "Reply on the Application for Certificates for Mariculture, Recreational Fishing, etc." (Shen XX Agriculture Word [2010] No. 144) issued by the defendant, the Agriculture, Forestry and Fisheries Bureau of XX District, Shenzhen, on December 22, 2010, the defendant, after careful study and on-site verification, approved the plaintiff's request to designate the divided floating islands as aquaculture rafts and recreational fishing rafts respectively according to the specific plans.
7. On December 25, 2010, the defendant, the Agriculture, Forestry and Fisheries Bureau of a certain district, Shenzhen Municipality, issued the "Aquaculture Registration Certificate" with the fish raft number D126. This demonstrates that the defendant administered according to law and fulfilled its lawful obligations.
8. On March 1, 2011, the Notice of Revocation of the "Reply Regarding the Application for Certificates for Marine Aquaculture, Fishing, and Other Activities," the Decision to Revoke the "Aquaculture Registration Certificate," and the Notice of Order to Restore the Original State of the Sea Area, issued by the defendant, the Agriculture, Forestry and Fisheries Bureau of a certain district, indicate that the defendant hastily made erroneous administrative decisions that contradict the facts and violate the law, seriously infringing upon the plaintiff's lawful rights and interests.
9. The Notice on Ordering the Return of Illegally Occupied Sea Areas and Restoration of the Sea Areas to Their Original Condition, issued by the Oceanic Bureau of a Certain District on March 14, 2011, demonstrates that the defendant hastily made an erroneous administrative decision that contradicted the facts and violated the law, seriously infringing upon the plaintiff's lawful rights and interests.
10. The Notice on Mandatory Restoration of the Sea Area to Its Original State, issued by the Defendant, the Ocean Bureau of a Certain District, on March 25, 2011, demonstrates that the Defendant hastily made an erroneous administrative decision contrary to the facts and in violation of the law, which seriously infringed upon the Plaintiff's lawful rights and interests.
11. The Notice on Handling the Demolition of Structures, issued by the Defendant, the Agriculture, Forestry and Fisheries Bureau of XX District, on March 28, 2011. This demonstrates that the Defendant hastily made a wrongful administrative decision that contradicted the facts and violated the law, seriously infringing upon the Plaintiff's lawful rights and interests.
12. Facts reported by media such as Xinhuanet on April 8, 2011 indicate that the defendant had already carried out forced demolition, and to date, all structures on the surface of the fishing raft platform have been completely removed, with only the fishing raft platform itself remaining; however, due to constraints of technical capability and environmental safety concerns, the defendant is still in the process of demonstrating, project approval, and awaiting further forced demolition.
Appendix (II) Legal Basis:
1. Articles 2 and 11 of the Administrative Litigation Law of the People's Republic of China, effective from October 1, 1990.
2. Provisions of Articles 7, 15, 16, 19, 25, 31, and 43 of the Law of the People's Republic of China on the Administration of the Use of Sea Areas, implemented as of January 1, 2002.
3. Articles 2 and 8 of the Measures for the Administration of Certificates for the Right to Use Sea Areas, issued and implemented on June 7, 2002.
4. Articles 11 and 38 of the "Regulations on the Administration of Fisheries in Guangdong Province," which came into effect on September 1, 2003, stipulate that...
5. Article 7 of the Administrative Licensing Law, effective from July 1, 2004, stipulates that administrative licensing must follow statutory procedures.
6. Articles 3, 4, and 18 of the "Regulations of Guangdong Province on the Management of Artificial Reefs," effective from November 1, 2004
7. Article 26 and other provisions of the Regulations of Guangdong Province on the Administration of Sea Area Use, implemented from March 1, 2007.
8. The provisions of Articles 2 and 5 of the Interim Measures of Guangdong Province for the Administration of Recreational Fisheries, published and implemented on March 14, 2007.
9. Articles 3, 5, 7, 8, 14, etc. of the Interim Provisions on the Administration of Sea Fishing Rafts in [Certain] District, effective from February 11, 2009.
10. According to Article 8, Item 5 and Article 31 of the Administrative Penalty Law, which took effect on August 27, 2009, administrative decisions must be made through statutory procedures.
Article 11. Provisions of Articles 2, 11, and 28 of the Fisheries Law of the People's Republic of China, as amended on August 27, 2009.
12. Provisions such as Articles 5, 8, and 10 of the Measures for the Administration of the Issuance of Aquaculture Certificates issued by the Ministry of Agriculture of the People's Republic of China in 2009.
13. The Interim Measures of Shenzhen Municipality for the Registration of Offshore Structures, implemented from March 1, 2010, and the Shenzhen Municipal Planning, Land and Resources Commission published a notice in newspapers on March 3, 2011, stating that all relevant rights holders may complete the registration procedures for property rights of maritime structures. Provisions include Articles 2, 3, 4, 6, and 35.
III. Implications and Aftermath Handling of the "Sea Palace" Illegal Administrative Litigation Dispute Case
The above facts and law have fully demonstrated that the luxury fishing raft, sea floating island, or the so-called "Maritime Palace" in dispute in this case can lawfully and should lawfully survive. The tragedy it faces today is inseparable from, in addition to the siege launched by irresponsible misguidance of some media and the mob mentality of some ignorant people who resent the rich, the fragmented departmental divisions, disconnection between higher and lower levels, mechanical operations, narrow and conservative departmental egotism, and work styles of certain individuals in our relevant government functional departments—especially the defendant, as a first-level administrative supervisory authority, lacking a spirit of responsibility, lacking a spirit of accountability, losing the courage to innovate, failing to seriously study and accurately grasp laws and regulations, being administratively prohibitive and ineffective in law enforcement, and even more so failing to effectively, flexibly, proactively and responsibly coordinate, handle and respond to complex issues and new things. Such a passive working method is closely linked. This departmental self-preservation, mechanical rigidity, arbitrary and reckless conduct, and even ultra vires and unlawful administrative style led to erroneous decision-making, the demolition of the floating island, the destruction of wealth, which is deeply regrettable. In this regard, Mr. Guo Mouzhang, under the pen name "Floating Island Child," wrote an article titled "The Lament of the Maritime Palace," which fully recounts the tragedy of the floating island, and reading it evokes deep sighs and emotion. A young entrepreneur full of ideals, utilizing his own intelligence, through creative labor, investing his own substantial funds to boldly explore and develop marine resources, making uncomplaining and active efforts for developing the marine economy and promoting a maritime power, his efforts have objectively also played a huge positive role in reclaiming land from the sea and advancing our national coastal defense construction. Such a good deed has actually suffered censure and been strangled to death in the difficult struggle among reason and misunderstanding, legality and illegality, support and opposition! Some people today may still be confined by various objective limitations and cannot examine it with detachment; I believe that one day in the future, when people look back and reflect, they will regret today's mistakes. If the sea floating island cannot become a monument standing on the sea, it will surely become a monument in the memory of people who retain their conscience! Regardless of people's attitudes: the creation of the sea floating island has already become a model for efficiently utilizing marine resources and developing the marine economy in our country, and has made tremendous positive contributions to strengthening our national coastal defense construction! It has contributed constructively to the development, utilization, management and service of our country's marine waters. We live in this hot land of Shenzhen, full of innovative spirit. While people loudly sing of reform and opening up and getting rich, they should be highly vigilant: on the one hand, they enjoy the rich fruits of reform and innovation; on the other hand, they intentionally or unintentionally become stumbling blocks to the continued deepening of reform and the continuous exploration and innovation! We hope that all relevant parties will give this deep thought and attention! We hope the defendant can be rational, calm, deliberate, dare to take responsibility, muster courage, act in the principle of safeguarding the interests of the country, society, and the people, regardless of temporary reputation, honor or loss, examine and treat the dispute in this case with a highly responsible spirit, cherish and protect nearly tens of millions to one hundred million yuan of social wealth, and not let it be destroyed by a numb and mechanical work style, so that our Shenzhen coastal leisure tourism can have one more highlight, one more business card, one more industry, one more new star. Because preserving the "Sea Floating Island" benefits the country, the people, and oneself:
Firstly, preserving "floating sea islands" is beneficial to the nation.
The "National Marine Economic Development Planning Outline" formulated by our government in 2001 has long since clearly stated: the state should vigorously advocate and encourage private capital to invest and finance the development of coastal areas and the growth of distinctive tourism. Guangdong Province has even been designated by the State Council as a national marine comprehensive development pilot zone, and Shenzhen also formulated the "Several Opinions of Shenzhen on Accelerating the Development of the Marine Industry and Building a Strong Marine City" in 2008. Clearly, "offshore floating islands," as a typical new phenomenon that creatively harnesses private wisdom and applies private capital to innovatively develop the marine economy, conform to the industrial policy orientation of the national and local governments and the direction of marine economic development. It can not only generate additional tax revenue for the national and local governments, but also does not compromise the defense security of the territorial sea and territorial airspace of the area in question. On the contrary, the "offshore floating island" initiative is not only beneficial to the economy, but also advantageous to national maritime defense, carrying significant positive value.
Secondly, preserving "sea floating islands" is beneficial to the surrounding community residents.
An "offshore floating island" is a coastal aquaculture, fishing, and leisure complex constructed using nearshore floating structures. It can beautify the coastline and create distinctive coastal tourist attractions, while also serving as a new source of economic growth for local fishing village collectives and individual fishermen, increasing income and driving new economic development in fisheries and tourism for the surrounding coastal areas and even the entire Shenzhen coastal region, benefiting people's livelihoods. As it is located in a coastal bay, once sewage discharge issues are properly addressed, it will not impede other normal uses of the sea area or the marine ecological environment, nor will it hinder the production and daily life of coastal fishing villagers. On the contrary, it can be developed into a comprehensive recreational fishery cultural and creative industry park integrating fish farming, angling, fish appreciation, leisure, entertainment, seafood dining, and seafood purchasing, operated as an integrated complex to develop a series of economic activities, and serve as a splendid tourist attraction for Shenzhen citizens, benefiting both society and the public!
Thirdly, preserving the "offshore floating island" is beneficial to the enterprise's own development.
The establishment of "offshore floating islands" represents a bold breakthrough innovation and a beneficial attempt by private enterprise capital to seek new industrial directions and develop emerging industries. If offshore floating islands can continue to develop and mature, they are bound to become a new industry (sector). In that case, private enterprise capital will not only find a new path for survival and development, but can also create greater returns on investment, driving the continuous growth and expansion of private enterprises, steadily strengthening private capital, and adding new avenues for national prosperity and a strong country!
In the 2010 Shenzhen Commercial Daily Chinese New Year editorial, the sixth piece titled "Let Dreams Become the City's Defining Trait of Shenzhen" stated: "After assuming office, Wang Rong, member of the Standing Committee of the Provincial Party Committee and acting mayor, immediately sensed what makes Shenzhen distinctive. When introducing Shenzhen to others, he particularly favored the emotional word: 'dreams.' When meeting Jack Ma of Alibaba, he said: 'Shenzhen grew from nothing, from small to large, gathering so many talented people with dreams who came here to strive and start businesses, precisely because there is a superior environment for innovation and entrepreneurship—this is Shenzhen's greatest charm. Shenzhen is indeed a good place and will not let entrepreneurs with dreams down!' Clearly, what keeps this hot land of Shenzhen perpetually vibrant is not the tangible policies or institutions, but the intangible dreams. There is a term called the American Dream, meaning that people firmly believe that through unremitting effort in America, they can attain a better life. And Shenzhen is undoubtedly the place where people realize the Chinese Dream. It has always been the best city for talented individuals with ideals, drive, and a distaste for the constraints of the old system to realize their dreams. Shenzhen possesses an indescribable environment for innovation and entrepreneurship. The Shenzhen Special Economic Zone turns 30 this year. Thirty is no longer a young age. However, as long as we let dreams become the city's defining trait, our city will never grow old."
In summary, the attorney hopes that the rhetoric in the editorial does not merely remain on paper, but resonates deeply in people's hearts and is implemented in every aspect of concrete work. We must not examine and treat the "offshore floating island" in this case with a one-sided, narrow, outdated, mechanical, or short-sighted perspective, but rather should view and approach the "offshore floating island" with a flexible, forward-looking, and development-oriented vision. To genuinely uphold social harmony, fairness and justice, progress and development, to effectively protect social wealth from unnecessary loss, to efficiently utilize marine resources to develop the marine economy for enriching the people and strengthening the nation, to render a fair judgment in this case, to rectify the unlawful errors of the defendant in accordance with the law, and to ensure that this vibrant land of Shenzhen is left with no regrets! No loss of public confidence! No further criticism! Thank you!
Agent: Guangdong Zhiming Law Firm
Zhiming lawyers
June 21 (24), 2011
Administrative Ruling of the People's Court of [XX] District, Shenzhen City, Guangdong Province
(2011) Shenzhen Longgang District People's Court, Administrative First Instance, Case No. 45
Plaintiff Shenzhen XX Elite Entertainment Co., Ltd. Registered address: XXXX, XX District, Shenzhen
Legal representative Guo Mouli, Chairman of the Board.
Entrusted agent, Attorney Zhi Ming, lawyer at Guangdong Zhiming Law Firm.
Entrusted agent Chen Mouhua, lawyer at Guangdong XX Law Firm.
Defendant: XX Bureau of XX District, Shenzhen. Domicile: No. XXXXXX, XX District, Shenzhen.
Legal Representative: Jia XX, Director.
Entrusted agent Wu XX, lawyer at Guangdong XX Law Firm.
Authorized representative Guo X, lawyer at Guangdong XX Law Firm.
Plaintiff Shenzhen XX Elite Entertainment Co., Ltd., dissatisfied with the defendant Shenzhen XX District XX Bureau's "Notice of Revocation of the 'Reply on the Application for Certificates for Aquaculture, Fishing, and Related Activities'", has had its case accepted by this court in accordance with the law. During the proceedings, the plaintiff voluntarily submitted an application to this court on May 24, 2012, to withdraw the lawsuit.
The court holds that the plaintiff's application for withdrawal of the lawsuit filed by Shenzhen XXX Elite Entertainment Co., Ltd. complies with the provisions of the law, and the court hereby grants the application. In accordance with the provisions of Article 51 of the Administrative Procedure Law of the People's Republic of China, the ruling is as follows:
The plaintiff Shenzhen [XXX] Elite Entertainment Co., Ltd. is permitted to withdraw the lawsuit.
The litigation fee in this case is RMB 50, reduced by half to RMB 25, to be borne by the plaintiff.
Presiding Judge: Zhang Mou
Presiding Judge: Xiong
Presiding Judge: Yang
May 24, 2012
Administrative Ruling of the People's Court of [XX] District, Shenzhen City, Guangdong Province
(2011) Shenzhen Longgang District Court Administrative Case No. 47
Plaintiff Shenzhen XX Elite Entertainment Co., Ltd. Domicile: XXXXXX, XX District, Shenzhen City
Legal representative Guo Mouli, Chairman of the Board.
Authorized representative Guo Mouzhang, male, Han ethnicity, born November XX, 19XX, registered address: Shenyang City XXXXXX, ID number: 2101021964112xxxxx.
Entrusted agent, Attorney Zhi Ming, lawyer at Guangdong Zhiming Law Firm.
Defendant: XX Bureau of XX District, Shenzhen. Address: XXXX, XX District, Shenzhen.
Legal representative: Jia XX. Director.
Entrusted agent Wu XX, lawyer at Guangdong XX Law Firm.
Authorized representative Guo X, lawyer at Guangdong XX Law Firm.
The plaintiff, Shenzhen Some Elite Entertainment Co., Ltd., having refused to accept the forced demolition conducted by the defendant, the Economic Promotion Bureau of Some District, Shenzhen, this court has accepted the case in accordance with the law. During the course of the proceedings, the plaintiff voluntarily submitted an application to this court on May 24, 2012, to withdraw the prosecution.
This court holds that the plaintiff's application for withdrawal of the lawsuit filed by Shenzhen XX Entertainment Co., Ltd. complies with the provisions of the law, and this court hereby grants the application. In accordance with the provisions of Article 51 of the Administrative Litigation Law of the People's Republic of China, the ruling is as follows:
The plaintiff Shenzhen Haishang XX Entertainment Co., Ltd. is permitted to withdraw the lawsuit.
The litigation fee in this case is RMB 50, reduced by half to RMB 25, to be borne by the plaintiff.
Presiding Judge: Yang
Presiding Judge: Xiong
Judge: Zhang Mou
May 24, 2012
Administrative Ruling of the People's Court of [XX] District, Shenzhen City, Guangdong Province
(2011) Shenzhen Longgang District People's Court, Administrative Case No. 53
Plaintiff: Shenzhen [XX] Elite Entertainment Co., Ltd. Domicile: [XXXXXX], [XX] District, Shenzhen.
Legal representative Guo Mouli, Chairman of the Board.
Entrusted agent, Attorney Zhi Ming, lawyer at Guangdong Zhiming Law Firm.
Entrusted agent Chen Moumou, lawyer at Guangdong XX Law Firm.
Defendant: XX Bureau of XX District, Shenzhen. Domicile: No. XXXXXX, XX District, Shenzhen.
Legal Representative: Jia XX, Director.
Entrusted agent Wu XX, lawyer at Guangdong XX Law Firm.
Authorized representative Guo X, lawyer at Guangdong XX Law Firm.
The plaintiff, Shenzhen XX Elite Entertainment Co., Ltd., was dissatisfied with the Decision on Revocation of the made by the defendant, the Economic Promotion Bureau of XX District, Shenzhen, and this court has accepted the case in accordance with the law. During the trial, the plaintiff voluntarily submitted an application to this court on May 24, 2012, to withdraw the lawsuit.
This court holds that the plaintiff, Shenzhen XX Entertainment Co., Ltd.'s application for withdrawal of the lawsuit conforms to legal provisions, and this court hereby grants permission. Pursuant to the provisions of Article 51 of the Administrative Litigation Law of the People's Republic of China, the ruling is as follows:
The plaintiff, Shenzhen Haishang XX Entertainment Co., Ltd., is permitted to withdraw the lawsuit.
The litigation fee in this case is RMB 50, reduced by half to RMB 25, to be borne by the plaintiff.
Presiding Judge: Zhang Mou
Presiding Judge: Xiong
Presiding Judge: Yang
May 24, 2012
