Preface

After the land user obtains the right to use collective commercial construction land in the primary market, how should this land be operated? Where does the funding for development and construction come from? The "Land Administration Law" and the "Regulations for the Implementation of the Land Administration Law" stipulate that the land user can re-transfer the right to use collective commercial construction land according to the law after obtaining it, which provides a legal basis for solving these problems and stimulates the development and construction of rural collective land through the secondary market.

According to Article 63, Paragraph 3 of the "Land Administration Law", "The right to use collective commercial construction land obtained through grant and other methods can be transferred, exchanged, contributed as capital, gifted, or mortgaged, unless otherwise stipulated by laws and administrative regulations or otherwise agreed in a written contract signed by the land owner and the land user." Article 43, Paragraph 1 of the "Regulations for the Implementation of the Land Administration Law" stipulates that "If the right to use collective commercial construction land obtained through grant and other methods is transferred, exchanged, contributed as capital, gifted, or mortgaged according to law, both parties shall sign a written contract and notify the land owner in writing." Re-transfer includes five methods, and this article specifically introduces one of the re-transfer methods: transfer.

Referring to Article 353 of the "Civil Code": "The user of construction land has the right to transfer, exchange, contribute as capital, gift, or mortgage the right to use construction land, unless otherwise stipulated by law." Article 2 of the "Guiding Opinions on Improving the Secondary Market for the Transfer, Lease, and Mortgage of Construction Land Use Rights" stipulates that "All acts that lead to the transfer of construction land use rights are regarded as the transfer of construction land use rights, including sales, exchanges, gifts, contributions as capital, as well as the transfer of construction land use rights involved in judicial disposal, asset disposal, and mergers or divisions of legal persons or other organizations." Article 19 of the "Provisional Regulations on the Grant and Transfer of the Right to Use State-Owned Land in Urban Areas" stipulates that "The transfer of the right to use land refers to the act of the land user transferring the right to use land again, including sales, exchanges, and gifts." Combining the original intention of listing transfer separately from exchange, contribution as capital, gift, or mortgage in the five re-transfer methods stipulated in the "Land Administration Law" and the "Regulations for the Implementation of the Land Administration Law", and the principle of compensated use of state-owned construction land, the transfer in re-transfer refers to the collective commercial construction land user transferring the right to use collective commercial construction land to the transferee through sales and other forms, and the transferee becomes the new collective commercial construction land user.

Referring to Article 21 of the "Provisional Regulations on the Grant and Transfer of the Right to Use State-Owned Land in Urban Areas": "When the right to use land is transferred, the rights and obligations stated in the land use right grant contract and registration documents shall be transferred accordingly." The transfer in re-transfer belongs to the transfer of the rights and obligations stated in the grant contract and lease contract signed by the collective commercial construction land user to obtain the right to use collective commercial construction land, and the transferee shall perform accordingly. The transfer contract generally includes the eight items listed in Article 470 of the "Civil Code", namely, name, object, quantity, quality, price, performance period, place and method, liability for breach of contract, and method of dispute resolution. In addition, it should also clarify taxes and fees, the rights and obligations of both parties to the contract, and the content of the change registration.

Regarding the issue of transfer price, referring to Article 26 of the "Provisional Regulations on the Grant and Transfer of the Right to Use State-Owned Land in Urban Areas": "If the transfer price of the right to use land is significantly lower than the market price, the municipal and county people's governments have the right of first refusal. When the market price of the transfer of the right to use land rises unreasonably, the municipal and county people's governments may take necessary measures." The special article "Special Topic 5 on the Legal Issues of Collective Commercial Construction Land Entering the Market - Understanding of Relevant Fee Issues" mentions that "Collective commercial construction land should achieve the same price as state-owned construction land, and the method for determining its land price should be consistent with that of state-owned construction land." The author suggests that the transfer price in re-transfer should not be significantly lower than the market price, and the market price should refer to the price of state-owned construction land.

There are three ways to grant land in China: bidding, auction, and listing. Bidding and auction are internationally accepted competitive trading methods, and listing is a first created in China. Referring to Article 2 of the "Regulations on the Grant of State-Owned Construction Land Use Rights by Bidding, Auction and Listing": "The grant of state-owned construction land use rights by listing referred to in these regulations refers to the act of the grantor issuing a listing announcement, publishing the transaction conditions of the proposed grant land parcel at the designated land transaction place within the period specified in the announcement, accepting the bidder's quotation application and updating the listing price, and determining the state-owned construction land user according to the bidding result or on-site bidding result at the end of the listing period." Collective commercial construction land users can also transfer the right to use collective commercial construction land by listing.

The grant and lease of state-owned land use rights in China shall be traded through public trading platforms in accordance with relevant national regulations, and shall be included in a unified public resource trading platform system. The trading platforms here mainly refer to the land transaction or natural resource asset transaction platforms of natural resource authorities at all levels. The "Guiding Opinions on Improving the Secondary Market for the Transfer, Lease, and Mortgage of Construction Land Use Rights" clearly requires "taking the establishment of a unified urban and rural construction land market as the direction" "all regions should build a unified urban and rural land market trading platform on the basis of the existing land transaction institutions or platforms of the municipal and county natural resource authorities, gather secondary land market transaction information, provide transaction venues, handle transaction affairs, and vigorously promote the construction of online transaction platforms and information systems" "form a modern land market system with coordinated development, standardized order, and intensive and efficient use of information in the primary and secondary markets".

Combining the above regulations on trading platforms, the author has a bold idea. At present, with the continuous improvement of China's socialist market economy system, property rights trading institutions have gradually expanded and serve the free circulation and market-oriented allocation of various factor resources. Many property rights trading institutions continue to enhance the two core functions of property rights circulation and financing services. Listing is one of the ways property rights trading institutions provide transaction services. Why not incorporate property rights trading institutions into the public resource trading platform system as a trading platform for the re-transfer of collective commercial construction land use rights? China's property rights trading institutions generally have fixed trading venues, sound trading systems and risk control systems, advanced full-process online electronic trading cloud platforms, extensive market channels and professional talent teams, which can meet the general requirements of the country for building a modern land market system, such as the Beibu Gulf Property Rights Exchange in Guangxi. It would be a good choice for collective commercial construction land users to transfer the right to use collective commercial construction land by listing on property rights trading institutions, which can not only obtain a wider range of bidding intentions, but also have professional, efficient and high-quality service guarantees!

About the Author

Xu Xiaoye Lawyer