Research On Land-Use Right Transfer In Shares Transfer Way

Real estate industry plays an important role in the demanders of the commercial land use, the development and prosperity of real estate makes the land primary market transactions active. In order to make a reasonable allocation of land among competitors in the land resources and elevate the overall land use efficiency, to ensure the smooth progress of real estate industry development, our country's law sets strict restrictions on the transfer of Land Tenure. The transfer of Land Tenure in the land secondary market must comply with relevant laws and regulations strictly also. Because of the government monopoly in land primary market and high cost in land secondary market transactions, the state-owned Land Tenure has become a kind of scarce resource; with rapid economic development stimulating demand for real estate, land value increasing quickly, access to Land Tenure means a important problem for real estate enterprises, which intensifies land speculation.In practice, the means of shares transfer has become the most common way for transfer of Land Tenure. This seemingly legitimate way has been intensifying the speculation of land transfer, which has seriously affected the order of real estate market. So far law experts have paid their attention to it in some degree. But we have not achieved an agreement on the nature of Land Tenure transfer. On the surface, the transfer of shareholders equity only means the alteration of shareholders, but the owner of Land Tenure has not been altered, and the shares transfer way is comply with "Company Law"; and not associated with the transfer of land use rights. Yet these differences do not reveal the essence of the problem. Real estate enterprise started to seek to the modes that avoid land market actively.Besides the introduction, the paper consists of three parts:Introduction chiefly presents the main purpose of the study, theoretical significance, practical value and the current research situation in related fields and research methods.ChapterⅠis the overview of Land-use Right transfer in shares transfer way, from the increase of land demand due to the economic development, set up strict laws of land-use right and transfer conditions, real estate developers strong desire of value to analyzes why Land-use Right transfer in shares transfer way is so commonly used. Then based on corporate reorganization theory, introduces five ways what the company often adopted:To establish a new company and transfer its shares; the real estate development enterprise buy other company's stock which business scope was not Real estate development, and then after change the land use, transfer it; the equity transfer land as a shareholder equity transfer, after new shareholder to the land use right after the asset increase endowment spread.ChapterⅡ, furthermore, I will analyze the illegality of Land-use Right transfer in shares transfer way. from real estate company shares transfer different with the average company equity transfer, shares transfer mans transfer Land-use Right two sides, I will challenge the "legality" claim which is insisted by some economists and practitioners. Then from the shareholders of a company use independent company personality realize land transfer and aerial estate management related laws and regulations; Escape Land VAT collection and disrupt the market transaction order three aspects that equity transfer mode, analyzes the transfer of land use illegal legal basis. The conclusion that action is illegal, then to equity transfer manner transfer of the right to use the land is analyzed, and the legal consequences that equity transfer contract shall be invalid, and discuss with considering whether to sell land use rights for the purpose of real estate project company founded the company law, apply for the first 214 regulation; And to involving land access, can apply the PRC state town transfer of state-owned land use right and transfer of the interim regulations on the 17th. Finally, discussed in the current law cases, how to determine the Revelant-organs and illegal cognizance of the subject undertake illegal responsibility.ChapterⅢis the measures to regulate Land Tenure transfer in stock transfer way, the proposed measures is to legislate for the increasing spread of the real estate company stock transfer. In legislation, to establish a transfer of real estate equity management agencies, and supervision of real estate share transfer, the implementation of share transfer reporting system, and the illegal transfer of the corporate equity Piercing. Administration, establishment of real estate investment and development project supervision system and strengthen supervision.