Preface

The signing of a written contract between the land user and the land owner (primary market) or between land users (secondary market) is one of the important links in the process of collective commercial construction land entering the market for trading. Article 465, paragraph 1 of China's "Civil Code" clearly stipulates that legally established contracts are protected by law. In the process of collective commercial construction land entering the market, the signing of a written contract not only binds both parties to the contract and stipulates their contractual obligations, but also protects the legitimate rights and interests of all parties to the contract.

The grant and lease contract for collective commercial construction land entering the market is bound by the "Land Administration Law" and the "Regulations for the Implementation of the Land Administration Law". According to Article 63, paragraph 1 of the "Land Administration Law", "Collective commercial construction land that has been determined as industrial, commercial, or other uses in the overall land use plan and urban and rural plans and has been registered in accordance with the law may be handed over to units or individuals for use by the land owner through grant, lease, etc., and a written contract shall be signed, stating the land boundaries, area, construction commencement period, use period, land use, planning conditions, and other rights and obligations of both parties." The content of the grant and lease contract for collective commercial construction land shall include the specific content stipulated in the above laws, that is, the grant contract shall include the land boundary, area, construction commencement period, use period, land use, and planning conditions. Article 41 of the "Regulations for the Implementation of the Land Administration Law" further refines the content of the grant and lease contract for collective commercial construction land entering the market. In addition to the content stipulated in the Land Administration Law, the content of the contract shall also include transaction price payment, land delivery time, completion deadline, industrial access and ecological environmental protection, early recovery conditions, compensation methods, renewal of land use rights upon expiration, and the handling of attachments such as buildings and structures on the land, liability for breach of contract, and methods for resolving disputes.

According to Article 153 of China's "Civil Code", civil legal acts that violate the mandatory provisions of administrative regulations are invalid. It is worth noting that in the grant and lease contract for collective commercial construction land entering the market, planning conditions, industrial access, and ecological environmental protection requirements should be included in the contract, otherwise the contract will be invalid due to violation of the mandatory provisions of administrative regulations.

The transfer of collective commercial construction land use rights mainly refers to the re-transfer of collective commercial construction land after entering the primary market, that is, secondary market transactions. Generally, it includes several situations such as the transfer, exchange, investment, donation, and mortgage of collective commercial construction land use rights. According to Article 43, paragraph 1 of the "Regulations for the Implementation of the Land Administration Law", "If the collective commercial construction land use rights obtained through grant or other methods are transferred, exchanged, invested, donated, or mortgaged in accordance with the law, both parties shall sign a written contract and notify the land owner in writing." The two conditions for the legal transfer of collective commercial construction land use rights are the need to sign a written contract and notify the original land owner.

Regarding the question of whether failure to notify the original land owner during the transfer process will affect the validity of the written contract. The author believes that Article 43 of the "Regulations for the Implementation of the Land Administration Law" stipulates that the transfer of collective commercial construction land needs to notify the land owner in order to protect the land owner's right to know about the land, and will not affect the right of the collective commercial construction land user to possess, use, dispose of, and benefit from the construction land, and of course will not affect the legal effect of the transfer contract.

    Several matters needing attention regarding the signing of a written contract for re-transfer. Article 43, paragraph 2 of the "Regulations for the Implementation of the Land Administration Law" clearly stipulates that the lease of collective commercial construction land, the grant of collective construction land use rights and their maximum term, transfer, exchange, investment, donation, mortgage, etc., shall be implemented with reference to similar state-owned construction land. In practice, it should also be noted that: First, the planning conditions, industrial access, and ecological environment requirements at the time of the original market entry cannot be changed during the transfer process; second, the term of the collective commercial construction land use right agreed in the transfer contract is less than the term of the collective commercial construction land grant contract. In addition, according to Article 42 of the "Regulations for the Implementation of the Land Administration Law" "...the ownership of collective commercial construction land use rights and the buildings, structures and ancillary facilities built on collective commercial construction land in accordance with the law shall be applied for real estate registration in accordance with the law." and Articles 209 and 214 of the "Civil Code", the establishment, change, and transfer of collective commercial construction land use rights as real estate rights shall take effect after being registered in accordance with the law. Therefore, each transfer of collective commercial construction land use rights shall be applied to the administrative agency for change registration in accordance with the law.

Conclusion

In short, although the contracts for the transfer of collective commercial construction land in the primary and secondary markets have certain characteristics of administrative mandatory requirements, they still belong to the category of civil agreements, and are agreements between equal civil subjects to establish, change, and terminate civil legal relationships, and are adjusted by the "Civil Code".

About the Author

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 government legal counsel and administrative legal affairs legal services. He has served as legal counsel for a number of enterprises and government departments, and has conducted several special lectures on administrative legal affairs.