Preface

In the specific implementation of the market entry process, only a correct understanding and full understanding of the comprehensive conditions for market entry can ensure that the preparations before market entry meet the statutory requirements. Articles 63, paragraphs 1 and 2 of the "Land Administration Law" and Articles 37, 38, 39, 40, and 41 of the "Regulations for the Implementation of the Land Administration Law" roughly clarify the basic conditions for collective commercial construction land to enter the primary market. Through sorting and analysis, the author believes that the conditions for collective commercial construction land to enter the primary market can be divided into four categories, including: requirements for the market entry entity; land conditions; planning conditions, industrial access and ecological environmental protection requirements, and other conditions.

I. Regarding the Main Body of Entering the Market

According to Article 63, Paragraph 1 of the "Land Administration Law" and Article 38 of the "Regulations for the Implementation of the Land Administration Law", it is clear that the land owner can transfer the land to a unit or individual for use through transfer, lease, etc. It can be seen that the main body for collective commercial construction land to enter the primary market should be the owner of the collective land. Regarding the ownership of collective land, the law clarifies the main body of its operation and management. According to Article 11 of the "Land Administration Law", "Land owned by the farmers' collective shall be legally owned by the village farmers' collective, and shall be operated and managed by the village collective economic organization or the villagers' committee; if it already belongs to the farmers' collective of more than two rural collective economic organizations in the village, it shall be operated and managed by the respective rural collective economic organizations or villagers' groups in the village; if it already belongs to the farmers' collective of the township (town), it shall be operated and managed by the rural collective economic organization of the township (town)", it can be seen that the units that operate and manage the ownership of collective commercial construction land should also include villagers' committees, village collective economic organizations, villagers' groups, and township (town) rural collective economic organizations. In the actual operation of entering the market, regarding the main body of collective commercial construction land entering the market, pilot cities across the country show a diversified development trend in the process of entering the market, mainly divided into the following categories: The first category is villagers' groups, villagers' committees, township governments, and collective economic organizations as the main body of entering the market; the second category is that the farmers' collective entrusts and authorizes the land shares cooperative to be responsible for entering the market; the third category is that the collective economic organization is transformed into a land shares cooperative or a company established by the established cooperative is responsible for entering the market; the fourth category is that the villagers' groups, villagers' committees, township governments, and collective economic organizations directly entrust individuals to be responsible for the specific work of entering the market, as the main body of entering the market. The first and fourth categories are non-legal person market entry entities, and the second and third categories of market entry entities have legal person qualifications. From the perspective of legality, the main body of collective commercial construction land entering the market should obtain or be authorized to obtain land management rights in accordance with the law; from the perspective of the market-oriented operation requirements of the land market, corporate legal persons can independently enjoy civil rights and assume civil obligations, and can independently bear risks. It is an important part of the market. Based on the above, the author believes that the market entry entity with legal person qualifications should be the best choice.

II. Conditions for Entering the Market

(1) The nature of the land type entering the market should be construction land collectively owned.

According to Article 63 of the "Land Administration Law", "Collective commercial construction land that is determined as industrial, commercial and other commercial uses in the overall land use plan and urban and rural plans, and registered in accordance with the law, the land owner can transfer it to a unit or individual for use through transfer, lease, etc...." and the "Opinions of the CPC Central Committee and the State Council on Establishing a Sound System and Mechanism and Policy System for Integrated Urban-Rural Development" "Allow village collectives to transform the idle homesteads and abandoned collective public welfare construction land that have been compensated and recovered into collective commercial construction land for market entry on the premise of farmers' voluntariness and in accordance with the law; promote the legal and compliant renovation and market entry of land in urban villages, villages on the edge of cities, and village-level industrial parks and other areas that can be developed in contiguous areas...", the collective commercial construction land that can enter the market can be divided into recovered idle homesteads, abandoned collective public welfare construction land, collective industrial land, and collective commercial land.

Regarding whether agricultural land can enter the market, the author's answer is no. At present, China implements the strictest farmland protection system, and the "Land Administration Law" also clearly stipulates that the conversion of farmland to non-agricultural land is strictly controlled. If agricultural land and other agricultural land are allowed to be converted into collective commercial construction land for market entry, it will have a greater impact on farmland protection.

Image source: Xinhua News Agency

(2) The property rights of the construction land participating in the market are clear.

Article 38 of the "Regulations for the Implementation of the Land Administration Law" clearly stipulates that collective commercial construction land that has been registered for land ownership in accordance with the law is a prerequisite for its entry into the market. The ownership of collective commercial construction land that has been registered for real estate ownership is clear, the four boundaries and area of the land are accurate, and the possibility of ownership disputes is small, which can reduce the uncertainty caused by ownership disputes after entering the market. Article 63 of the "Land Administration Law" also clearly stipulates that the written contract signed by the land owner and the land user should state the boundaries and area of the land, and verifying the boundaries and area is a necessary procedure for handling real estate registration. The boundaries and area stated in the real estate registration certificate provide convenience for the smooth progress of the market entry work.

(3) Complete the preliminary development of the land according to the actual situation.

Preliminary land development is an important part of the state-owned construction land reserve work. For collective commercial construction land that is planned to enter the market, although land laws and regulations do not explicitly stipulate that completing the preliminary development of the land is a statutory condition for entering the market. However, in actual operation, the land owner and the government should complete the preliminary development of the land according to the actual situation, so that the collective commercial construction land can meet the requirements of transfer and lease such as "three connections and one leveling", which can realize land appreciation and provide convenience for the smooth progress of the market entry work.

III. Planning conditions, industrial access and ecological environmental protection requirements run through the entire process of the planned market entry

  According to Article 39 of the "Regulations for the Implementation of the Land Administration Law", "...the natural resources authorities of the municipal and county people's governments shall propose planning conditions for the transfer and lease of collective commercial construction land in accordance with the territorial space plan...the natural resources authorities of the municipal and county people's governments shall, together with relevant departments, propose industrial access and ecological protection requirements...", relevant departments shall propose planning conditions, industrial access and ecological environmental protection requirements before the construction land is planned to enter the market. According to Article 40 of the regulations, "...if the municipal and county people's governments believe that the plan does not meet the planning conditions or industrial access and ecological environmental protection requirements, they shall put forward amendments within five working days after receiving the plan...the plan for the transfer, lease, etc. of collective commercial construction land shall state the planning conditions, industrial access and ecological environmental protection requirements of the land...", it can be seen that planning conditions, industrial access and ecological environmental protection requirements are the statutory content of the plan for collective commercial construction land to enter the market. Article 41 of the regulations stipulates that "...if the planning conditions, industrial access and ecological environmental protection requirements are not included in the contract in accordance with the law, the contract shall be invalid...", the content of planning conditions, industrial access and ecological environmental protection requirements is one of the statutory conditions for whether the transfer and lease contract takes effect.

In the author's opinion, the planning conditions for the entry of collectively-owned commercial construction land into the market mainly include two aspects. On the one hand, the entry of collectively-owned commercial construction land into the market must meet the requirements of land use control to achieve the purpose of economical and intensive use. Before entering the market, the land to be entered into the market should comply with the overall plan of the territorial space plan; on the other hand, the entry of collectively-owned commercial construction land into the market should comply with the regulatory detailed plan. In the process of entering the market, it should comply with the restrictive conditions (including development intensity, traffic entrance and exit orientation, public facility control, etc.) and guiding conditions put forward by the natural resources authorities for the proposed construction project's regulatory detailed plan. Regarding the issue of industrial access, the entry of collectively-owned commercial construction land into the market should be used for industrial land that is not restricted and eliminated by the state. Regarding ecological and environmental protection, the entry of collectively-owned commercial construction land into the market can easily form various problems that are not conducive to ecology, which may lead to the destruction and functional degradation of agricultural land resources or soil erosion, and the deterioration of the natural environment. Clear ecological and environmental protection requirements and conditions are put forward for entering the market to ensure ecological safety.

IV. Other conditions

(1) Subject to collective democratic decision-making.

The entry of collectively-owned commercial construction land into the market is the disposal of major collective property and involves the fundamental interests of collective members. According to Article 63, Paragraph 2 of the "Land Administration Law", "The transfer and lease of collectively-owned commercial construction land as stipulated in the preceding paragraph shall be subject to the consent of 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." It can be seen that before entering the market, major matters to be entered into the market shall be decided by the collective economic organization through joint democratic decision-making. In other words, collective democratic decision-making is also a necessary condition for the entry of collectively-owned commercial construction land into the market.

(2) Sign a written transfer contract and file it for record.

The "Land Administration Law" and the "Implementation Regulations of the Land Administration Law" both clearly stipulate that the transfer and lease of collectively-owned commercial construction land shall be signed in a written contract, and the standard text of the transfer and lease contract shall be formulated by the competent natural resources department of the State Council. In addition, Article 41 of the "Implementation Regulations of the Land Administration Law" clarifies that the transfer and lease contract shall be filed with the natural resources department of the municipal and county people's government for record. It can be seen that the transfer and lease of collectively-owned commercial construction land entering the market requires the signing of a written contract and filing for record is also one of the entry conditions in the process of collectively-owned commercial construction land entering the market.

Concluding remarks

Through in-depth study of the specific provisions of the "Land Administration Law" and the "Implementation Regulations of the Land Administration Law", we can more accurately grasp the conditions for collectively-owned commercial construction land to enter the primary market and ensure the legality of "entry into the market".