Preface

The entry of collectively-owned commercial construction land into the market is one of the important components of the rural land system reform. The "Land Administration Law" implemented on January 1, 2020, and the newly revised "Implementation Regulations of the Land Administration Law" on July 2, 2021, clearly stipulate the conditions, procedures, and related taxes and fees for the entry of collectively-owned commercial construction land into the market. They also specify the legal responsibilities for violating laws and regulations. This article mainly introduces several common illegal situations and the corresponding legal responsibilities in the process of collectively-owned commercial construction land entering the market.

The "Land Administration Law" and the "Implementation Regulations of the Land Administration Law" clearly stipulate that land owners can transfer land to units or individuals for use through transfer, lease, etc., i.e., the main body for collectively-owned commercial construction land entering the primary market should be the owner of the collective land. Furthermore, according to Article 11 of the "Land Administration Law", "Land owned by the farmers' collective shall be operated and managed by the village collective economic organization or the villagers' committee if it legally belongs to the village farmers' collective; if it already belongs separately to two or more rural collective economic organizations within the village, it shall be operated and managed by each rural collective economic organization or villagers' group within 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)". Thus, the main bodies for collectively-owned commercial construction land entering the primary market generally include collective economic organizations, township governments or village committees, authorized third-party entities (land cooperatives, land specialized companies), and joint bodies of collective economic organizations, with collective economic organizations as the priority representative. If the land involved belongs to two farmers' collectives, each village collective economic organization shall jointly act as the transferor.

Article 64 of the "Land Administration Law" stipulates that users of collective construction land shall strictly use the land in accordance with the uses determined by the overall land use plan and urban and rural plans. In real life, driven by interests, land owners and users often fail to use land according to planned purposes, and situations of violating planned land use occur from time to time. Under the traditional model where state-owned land is the only legal source of commercial construction land and the government is the exclusive supplier of construction land, land use situations such as supplying land first and then completing procedures, or using land while completing procedures, i.e., "getting on the bus first and buying the ticket later", are common. Under the traditional land use model, because investors are "invited on the bus" by the government, the government has a strong willingness to "buy the ticket". However, in the case of using collectively-owned commercial construction land, investors and local governments are no longer a community of interests, and land owners are unable to complete land use procedures, and local governments do not have a strong willingness to "buy the ticket" for investors' illegal or non-compliant land use behaviors. Therefore, for investors, it is essential to use land according to planned purposes.

According to Article 63 of the "Land Administration Law", "Collectively-owned commercial construction land that is designated for industrial, commercial, and other commercial purposes in the overall land use plan and urban and rural plans, and that has been legally registered, may be transferred or leased to units or individuals by the land owner" and the "Opinions of the CPC Central Committee and the State Council on Establishing and Improving the System and Policy System for Integrated Urban-Rural Development", "Villages are allowed to legally put the compensated recovered idle homesteads and abandoned collective public welfare construction land into the market as collective commercial construction land on the premise of farmers' voluntary participation; promote the legal and compliant renovation and market entry of land in areas that can be developed contiguously, such as urban villages, villages on the edge of cities, and village-level industrial parks", the collectively-owned commercial construction land that can enter the market can be divided into several categories: recovered idle homesteads, abandoned collective public welfare construction land, collective industrial land, and collective commercial land. So, can agricultural land enter the market? The answer is no. Land is China's most valuable resource, and the state implements a strict land use control system, strictly controlling the conversion of agricultural land to construction land, controlling the total amount of construction land, and effectively protecting cultivated land.

According to the relevant provisions of the "Land Administration Law" and the "Implementation Regulations of the Land Administration Law", the right to use collective construction land must meet the conditions stipulated by law before it can be transferred or leased to units or individuals. Therefore, the main body for collectively-owned commercial construction land entering the secondary market must be the user who has legally obtained the right to use collectively-owned commercial construction land.

Legal responsibilities are divided into civil legal responsibility, administrative legal responsibility, and criminal legal responsibility. Most of the provisions on legal responsibilities in the "Land Administration Law" and the "Implementation Regulations of the Land Administration Law" are aimed at the administrative violations of the parties concerned. The ways to bear legal responsibility are mainly administrative penalties and sanctions. When administrative violations reach a certain degree of harm and constitute a crime, criminal responsibility shall also be investigated in accordance with the law.

Article 82 of the "Land Administration Law" clearly stipulates that if the provisions of this law are violated and collectively-owned commercial construction land is transferred or leased to units or individuals through transfer, lease, etc., the natural resources authorities of the people's government at or above the county level shall order correction within a time limit, confiscate illegal income, and impose a fine. Article 60 of the "Implementation Regulations of the Land Administration Law" further stipulates that if a fine is imposed in accordance with the provisions of Article 82 of the "Land Administration Law", the amount of the fine shall be 10% to 30% of the illegal income.

According to the "Criminal Law", in the process of collectively-owned commercial construction land entering the market, violations of land management laws and regulations that constitute a crime mainly include the following crimes.

1. Crime of illegally occupying agricultural land

The crime of illegally occupying agricultural land refers to the act of violating land management regulations, illegally occupying cultivated land, forest land, and other agricultural land for other purposes, in a large quantity, causing extensive damage to cultivated land, forest land, and other agricultural land. If this crime is constituted, a sentence of fixed-term imprisonment of not more than five years or criminal detention shall be imposed, and a fine shall also be imposed or imposed separately. The crime of illegally occupying agricultural land is an act that destroys land resources and damages ecological balance. It is a new type of crime and is one of the key targets of the "Criminal Law" under the background of advocating ecological and environmental protection.

2. Crime of illegally transferring and reselling land use rights.

The crime of illegally transferring and reselling land use rights refers to the act of violating land management regulations and illegally transferring and reselling land use rights for the purpose of making profits. If this crime is constituted and the circumstances are serious, a sentence of fixed-term imprisonment of not more than three years or criminal detention shall be imposed, and a fine of 5%-20% of the price of illegally transferred and resold land use rights shall also be imposed or imposed separately. If the circumstances are particularly serious, a sentence of fixed-term imprisonment of not less than three years but not more than seven years shall be imposed, and a fine of 5%-20% of the price of illegally transferred and resold land use rights shall also be imposed or imposed separately.

Illegal transfer and resale of collectively-owned commercial construction land constitute this crime only when the circumstances are serious. According to the relevant provisions of the \"Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases Involving the Destruction of Land Resources\" (Fa Shi [2000] No. 14) of the Supreme People's Court, \"serious circumstances\" include: (1) illegally transferring or reselling more than five mu of basic farmland; (2) illegally transferring or reselling more than ten mu of cultivated land other than basic farmland; (3) illegally transferring or reselling more than twenty mu of other land; (4) illegally obtaining profits of more than 500,000 yuan; (5) illegally transferring or reselling land close to the above quantity standards and having other bad circumstances, such as having been subject to administrative penalties for illegally transferring or reselling land use rights or causing serious consequences, etc. \"Particularly serious circumstances\" include: (1) illegally transferring or reselling more than ten mu of basic farmland; (2) illegally transferring or reselling more than twenty mu of cultivated land other than basic farmland; (3) illegally transferring or reselling more than forty mu of other land; (4) illegally obtaining profits of more than 1 million yuan; (5) illegally transferring or reselling land close to the above quantity standards and having other bad circumstances, such as causing serious consequences, etc.

In the process of collectively-owned commercial construction land entering the market, signing a written contract is one of the important links in the transaction process. My country's \"Civil Code\" clearly stipulates that legally established contracts are protected by law, and those who cause losses to the parties concerned shall also bear corresponding compensation liability.

Conclusion

The promulgation and implementation of the new \"Land Management Law\" have removed legal obstacles for the circulation of collectively-owned commercial construction land into the market, but it does not mean that the circulation of collectively-owned commercial construction land into the market can transcend or override the law and be arbitrarily carried out. Whether it is the owner of collectively-owned commercial construction land or the user of collectively-owned commercial construction land, they should know, study, and use the law, and conduct the circulation of collectively-owned commercial construction land into the market reasonably and legally.

About the Author

Chen Zhen Lawyer