Preface

 

Article 63 of the new "Land Administration Law" stipulates the subject, conditions, scope, and transfer methods for the entry of rural collective commercial construction land into the market, but does not elaborate on the above content. Regarding the transfer of the right to use collective construction land, Article 63 of the new law clearly requires reference to state-owned construction land for similar purposes and authorizes the State Council to formulate specific measures for market entry. The new "Regulations on the Implementation of the Land Administration Law" implements the provisions of Article 63 of the "Land Administration Law" and details the conditions, scope, contracts, prices, and re-transfer of collective commercial construction land entering the market in the section "Entry of Collective Commercial Construction Land into the Market." However, in actual operation, the provisions of this chapter are far from meeting the needs of market entry.

 

Before the State Council's specific measures are introduced, there are still many problems in the actual operation of rural collective commercial construction land entering the market. Although the "Land Administration Law" clearly stipulates that it should be implemented with reference to the same purpose of state-owned construction land, there are essential differences between the entry of collective commercial construction land into the market and the supply of state-owned construction land. This article aims to compare the two by taking the entry of collective commercial construction land into the primary market as an example, so that we can have a deeper understanding of the entry of collective commercial construction land into the market.

 

 

I. The systems for the supply of state-owned construction land and the entry of collective commercial construction land into the market are different

 

According to the provisions of Article 2, Paragraph 5 and Article 54 of the "Land Administration Law", the state implements a system of compensated use of state-owned land in accordance with the law, except for the allocation of state-owned land use rights within the scope prescribed by law. Thus, it can be seen that there are mainly two types of state-owned construction land supply in my country, one is compensated land supply, and if a construction unit uses state-owned land, it shall obtain it through paid use methods such as transfer. This method of acquisition is mainly achieved through bidding, auction, and listing. In this process, the land user needs to pay the state a land use right transfer fee, which forms a system of compensated use of state-owned land. The other is to use the allocated state-owned construction land as a supplement to the compensated use, which is free of charge. At present, the entry of collective commercial construction land into the market only adopts the method of compensated use according to laws and regulations. The legal basis for this is reflected in Article 38 of the "Regulations on the Implementation of the Land Administration Law", which states that "land owners can transfer or lease the land to units or individuals for compensated use within a certain number of years."

 

 

 

II. Different functions of administrative organs

 

According to the provisions of Article 53 of the "Land Administration Law", "For projects that need to use state-owned construction land after approval... apply to the natural resource authorities of the people's government at or above the county level with the approval authority for construction land, and after review by the natural resource authorities, report to the people's government at the same level for approval." The supply of state-owned construction land requires administrative approval. In the process of land supply, the municipal and county people's governments take the lead in a planned and step-by-step manner in accordance with the relevant provisions of the "Urban Real Estate Management Law". The transfer plan is drafted by the municipal and county natural resource authorities and implemented by the natural resource authorities after approval. Different from the supply of state-owned construction land, according to the provisions of Article 40 of the "Regulations on the Implementation of the Land Administration Law", the collective commercial construction land is prepared by the land owner in accordance with the law. After receiving the plan, the municipal and county people's governments review whether the plan meets the planning, industrial access, and ecological environment requirements within the prescribed time limit, and put forward amendments. There is no need to conduct administrative approval of the plan. Obviously, the role of the administrative organ in the market is administrative guidance. In the process of transferring and leasing collective commercial construction land, it is the role of service provider and supervisor.

 

 

 

III. Differences in specific market entry procedures

 

First, we summarize the legal process of compensated supply of state-owned construction land. According to the provisions of the "Land Administration Law", "Regulations on the Implementation of the Land Administration Law" and related documents, the general process of compensated supply of state-owned construction land can be summarized as follows:

 

 

Secondly, in order to implement the "Land Administration Law" regarding the entry of collective commercial construction land into the market, Articles 37 to 43 of the "Regulations on the Implementation of the Land Administration Law" detail the conditions, scope, contracts, prices, and re-transfer of market entry. Among the contents of these seven articles, there are also relevant contents on the legal process of collective commercial construction land. The author will introduce the specific legal process of collective commercial construction land in detail in a subsequent special topic, which will not be repeated here. Compared with the compensated supply of state-owned construction land, the main differences between the two are reflected in:

 

(1) Different applicants. The applicant for collective commercial construction land is the land owner, while the applicant for state-owned construction land is generally the project construction unit.

 

(2) The production entities of the lease and transfer plans are different. The lease and transfer plans of collective commercial construction land are prepared by the land owner in accordance with the planning conditions, industrial access, and ecological environment protection requirements. The transfer of state-owned construction land use rights is carried out by the municipal and county people's governments in a planned and step-by-step manner, and is jointly drafted by the natural resource authorities of the municipal and county people's governments together with relevant departments.

 

(3) The transfer and lease plan of collective commercial construction land needs to be approved by more than two-thirds of the members of the villagers' meeting of the collective economic organization or more than two-thirds of the villagers' representatives.

 

(4) State-owned construction land needs administrative approval, which is mainly implemented by the natural resource authorities. Collective commercial construction land does not need administrative approval, but is filed with the government. The government plays an administrative guidance, supervision, and service role.

 

(5) The transferees of the transfer fee are different. In addition to paying the corresponding taxes and fees to the state, the transfer fee for collective commercial construction land is transferred from the land-using unit or individual to the land owner to obtain market entry income.

 

 

IV. Differences in the nature of transfer contracts

 

According to Article 2 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Agreement Cases", "The people's court shall accept administrative lawsuits filed by citizens, legal persons or other organizations regarding the following administrative agreements: ... (3) Transfer agreements for state-owned natural resource use rights such as mining rights; ... (6) Other administrative agreements." The judicial organs have not expressly included disputes over transfer agreements for state-owned construction land use rights in the scope of cases accepted for administrative agreement disputes. Then, is the transfer contract for state-owned construction land use rights directly defined as a civil contract? Article 351 of my country's "Civil Code" also only clarifies that "the construction land user shall pay fees such as transfer fees in accordance with the provisions of laws and regulations and the contract agreement", and only clarifies that the construction land user shall bear the corresponding liability for breach of contract if it fails to pay fees such as transfer fees, and does not address whether disputes arising between the state-owned construction land user and the transferor in the process of performing the transfer contract for other reasons (other than the construction land user's failure to pay fees such as transfer fees as agreed) shall be handled as civil disputes. In judicial practice, based on the special nature of the subject of the transfer of state-owned construction land and the content of the transfer, many local courts treat disputes over transfer agreements for state-owned construction land use rights as administrative agreement disputes. Different from the transfer contract for state-owned construction land use rights, there is no administrative management relationship between the land user and the land owner in the transfer contract for collective commercial construction land, and they are equal civil subjects. Regarding the liability for breach of contract in the performance of the transfer contract for collective commercial construction land, Article 41 of the "Regulations on the Implementation of the Land Administration Law" also clarifies that civil liability shall be borne in accordance with the law for losses caused by the performance of the transfer contract. It can be seen that the transfer contract for collective commercial construction land should belong to a civil contract in legal nature.

 

 

 

Concluding remarks

 

The entry of collectively-owned commercial construction land into the market, as a new addition to the "Land Management Law," is a major adjustment to the land system by the state following the "separation of three rights" reform. There are still many problems in its practical operation. By comparing the differences with the supply of state-owned construction land, we can have a deeper understanding of the entry of collectively-owned commercial construction land into the market.

 

 

 

He Caibin   Lawyer

 

Deputy Director of the Government Legal Counsel and Administrative Legal Affairs Department of the Law Firm

 

Master of Laws from Guangxi Normal University, focusing on legal services for government legal counsel and administrative legal affairs, expert in legal policy research of Guangxi Natural Resources Expert Database, and expert in the construction of real estate registration system of Guangxi Natural Resources Expert Database. He has served as legal counsel for many enterprises and government departments, and has conducted many special lectures on administrative legal affairs.