China's Urban Construction Land Use Rights Transfer System

Land is an important element of production and state owned resource. Weshall quite appreciate and rationally utilize the land to elaborate its maximumutility. But due to slower development of the system of our country's civic landpaid use and imperfection of relevant legal norm, there still exists many problemsin circulate system of the land-use right for construction. Whether the system isintegrity or not, directly influences the urban land resource whether beingrationally and effectively utilized. This paper proceeded systematic researches andproposed existing problems, then providing solutions. It might raise a tittle positiveaffection on utilizing urban land resource.The paper contents five parts as follows:The main content of the first part is, by introducing the concept, character andquality of the land-use right for construction, to reveal the system function madeby the land-use right for construction. That is, under the system of land stateownership, land can move so freely according to market laws by the carrier of'land-use right for construction' as to the conservative use of land resources.There are two ways of getting the land-use right for construction according toexisting laws and norms, they are 'to sell by State' and 'to allocate by State'. Thesecond part introduces separately the lawful characteristics of the land-use right forconstruction by the two ways. Then, it states the argument about the nature ofselling contract in academic circles, and it offers an opinion that the selling contractof land-use right for construction is a kind of civil legal contract.The third part started with relevant stipulations on selling mode of the existinglaw and statute, it indicated two large abuses on agreement. For landowners, thismay bring to the waste of land resources, running out of soil properties andcorruption. For land users, due to the absence of publication of negotiatingprocedure, it might not tell from who should take the responsibility of theresponsibilities from bilateral ones when the land price is too high or too low. Itmay be an excuse of the owner to overtum selling contract. Because thenegotiating mode still has its necessity to exist, it can't be cancelled. So it should beimproved. The way is to make an explicit standard of the lowest selling price todecrease subjective effection during the process. Finally, negotiating mode shall develop systematically and normatively.The land-use right for construction by allocate is an outcome of the plannedeconomy system which is against the current market economy system and causingmany problems. Such as the country can't have the ownership realized in economy,serious waste of urban land resources, lower utility of land, and corruption, thatcould promote the development of invisible market and disorder land marketmanagement etc. Therefore it is necessary to market the right to use constructionland by allotting. In accordance with the existing law, entering the marketcirculation should meet two conditions: first, approved by the land managingdepartment; second, complement the selling price. The general adoption of themarket way mainly has selling and leasing, evaluating to invest or be a shareholder.But these ways can't complete the marketed reform. Therefore, comparing amongthese different modes in this part is to perfect the marketed reform. To sellingshould be chosen as the final system of marketing the right to use construction landby allotting. But, considered our country's practical situation, in the present itdoesn't have the condition to thoroughly push this system. So the annual leasingsystem can be regarded as a transitive way.The fifth part includes transferring and leasing system of the land-use right forconstruction by selling and problems and integrity method in mortgage system.For transferring, the main problem is the limited stipulation in law. This stipulationbaffled the development of land market, which led land unused and waste. So thislimit should be cancelled. For leasing, the effection of leasing records shall be filedfor future reference instead of going into effect. For the mortgage of the right to useconstruction land by allotting, emphasized on the priority of realizing mortgageright and the selling price, the stipulation is that the selling price taking precedenceof mortgage right. It mismatches the essential characteristic of mortgage.Therefore, the paper considered that to realize the mortgage should takeprecedence of selling price.