The Legal Effect And Practice Research Of The Transfer Of Construction Land Use Rights

This thesis analyses the legal effect of the transfer of the construction land use rights and of the transfer contract combining the practice research, basing on the theory and legislative achievement of the Real Right Law, and through the summary of the meaning and characteristic of the transfer of the construction land use rights. This thesis is focusing on the changing of jus ad rem mode of the Claim formalism to expound and prove the legal effect of the transfer of construction land use rights involved in the development does not meet the conditions, failing to obtain the land access card, and the legal effect of the transfer of the gratis construction land use rights.This thesis divides into three parts, besides the foreword:The first part summarizes the meaning and characteristic of the transfer of the construction land use rights and analyses its qualification of transfer. In the first place, according to Article135of Real Right Law the holder of the right to use construction land has the right to possess, use and seek proceeds from the land owned by the state, and shall be entitled to the construction of buildings, fixtures and their auxiliary facilities by making use of such land. Secondly, the transfer of the construction land use rights is that the creditor who obtains the construction land use rights legally transfer the construction land use rights of using, occupation, disposing of all income and transferring to the transferee and obtains the remuneration. Again, I believe that the transfer of construction land use rights is equality between the civil subjects of civil behavior; rights and obligations should be transferred in company; the transferring should follow the same principles of property rights; and the assignor shall obtain the purchase price. Finally, I believe that the construction land use rights can only be transferred to meet the statutory requirements.The second part analyses the legal effect of the transfer of the construction land use rights, In the first place, in the changing of jus ad rem mode of the Claim formalism, the stipulation of City real estate management law is not for construction land use right transfer contract itself, nor its entry into force elements. In addition, from the perspective of contract law, the stipulation of City real estate management law is not the validity of the mandatory provisions, so the transferring of the construction land use right and the transfer contract which is not meet the City real estate management law provisions of investment and development conditions are effective.Secondly, the transferring of land use right without the construction land use right certificates is the disposition without right, and this behavior in the transfer of the right disposition party fails to obtain land use right certificate or the approval by the government without the consent, for the effect to be determined behavior, whereby the transfer of the contract signed effect is unconfirmed. If when one of the parties submits a case to the court, the transferor has obtained land use right certificates or have the right of approval of the Government agrees, then the transfer is effective, while also effectively transfer contract shall be determined; the contrary, the acts of transfer and transfer contracts are null and void. Finally, the dominant view including the Supreme Court consider that without the approval of construction land use right transfer and the transfer of the contract violating the compulsory provisions of laws and administrative regulations is invalid. But I consider that this view is open to question.The third part, Improvement of construction land use right transfer system in China. China’s current laws and regulations for construction land use right transfer although are certain restrictions, but many provisions are not clear and specific, and limited to the administrative management practices in the general level, the legal effect of the transfer is not clearly defined.I believe that the principle of changing of jus ad rem of the Claim should be the transfer of construction land use rights embodied. City real estate management law should be clearly reflected the principle changing of jus ad rem and allow the both parties to sign the transfer contract and the contract should be effective, but only registration of real estate property changes limit behavior. In addition, under the conditions of market economy, the government should allow market players to seek interest through legal transactions, and should not restrict the transfer of construction land use right conditions for development investment. Finally, China’s relevant laws about the construction land use right transfer has taken the necessary regulatory measures,"the transfer of public listing" can not really play a role in regulating the market and transactions, but resulted in the complexity of the transaction and disorder to same extent. Therefore, the transfer of construction land use rights should allow free trade; the Government should not interfere too much.