On The Nature Of China's State-owned Land Use Right Transfer Contract

The land market of china is classified into two layers: the primary market of granting of the land-use right and the secondary market of transaction of the land-use right, including the transfer, lease and mortgage of the land-use right. As the first step for the land to enter into circulation as a commodity, the granting of the land-use right is a reflection of the commodity economic relationship between the State as the owner of the land and the user of the land. In recent years, the limitedness of the land resources and the rapid development of economy of our country have worked in combination to highlight the great gap between the supply of and demand for the land, leading to an increasing number of disputes in the area of land use. And a considerable proportion of these issues have been originated in the market for the granting of the land-use right, and have been mainly in the form of disputes over the contract for granting of the State-owned land. The nature of the contract for granting the State-owned land is the key to the determination for the judicial relief process applicable for the solution for the disputes on the granting contract. At present, the law of China has no specific stipulations on the nature of the contract for granting of the State-owned land, and there exist in the circles of legal theory mainly two different views: one looking on the granting contract as a civil contract, and the other taking it as an administrative contract. In the practice of judicial judgment, there are also two different recognitions of the granting contract—one as a civil contract and the other as an administrative contract—resulting in certain confusion in judicial practice. Therefore, a deep look into the nature of the contract for granting of the State-owned land is not only theoretically significant but is also important in its operational significance for the solution of the disputes over the granting contract. Starting from a thorough review of the concept, characteristics and historical development of the granting of the State-owned land, the Thesis analyses the civil law nature of the action of granting of the State-owned land, and discusses the nature of thecontract for granting of the State-owned land as a civil contract and the reasons for the inappropriateness to look on it as an administrative contract, reaching the conclusion that the contract for granting of the State-owned land falls into the category of civil contract. Then, the Thesis further elaborates on the rationality of the determination of the contract for granting of the State-owned land as a civil contract by way of an analysis of the choice of dispute solution mechanism to better protect the legitimate rights and interests of the parties concerned. Finally, the Thesis attempts to offer some useful suggestions on how to specify the civil contract nature of the contract for granting of the State-owned land in our legislative and judicial practice.