Research On Private Law Consequences Of Breach Of Contract On The Right To Use State-owned Land For Construction Purpose

The land user breach the granting contract on the right to use state-owned land for construction purpose, the land competent administrative department of the people’s government may take back the right to use the Land, and then, it will bring a series of private legal consequences. As an important type of the system recovering the land, To recover for breach of contract on the right to use state-owned land for construction purpose, will not only deprive of the market main body’s private property rights, but also directly affect the rights and interests of relevant interested parties. This article will be on the basis of the logic of the real right change, then expatiate the legal nature, the remedies, the application of the law of recovering the land caused by breaching the grating contract, in order to withdraw the rights and obligations relations caused by recovered the land into Civil law system, including the Real Right Law, the Contract Law, to accordingly adjust relevant legal relationship.This essay mainly includes five parts:The first part mainly introduce the legal system of reclaiming the right to use state-owned land for construction purpose. First of all, describe the situations and types of reclaiming the land-use right by analyzing the current rules. Further, define the types of reclaim the land because of breaching of contract on the land-use right which is to discuss in this paper. The last, discuss the private law consequences of breaching of contract on the right to use state-owned land for construction purpose. Above of all, this paper analyze the types of reclaiming the land-use right caused by breaching the time limit for starting the development, unilaterally modify the land use purpose, not following the plans for land. But a land user who is default of paying the fee for the granting the land-use right may lead to terminate the granting contract, it is not the legal type of reclaiming the land-use right.The second part mainly determine the legal nature of reclaiming the right to use state-owned land for construction purpose causing by beaching the granting contract. This paper focuses on the analysis of three kinds of theories of he legal nature of recovering the land-use right because of beaching contract. The first, the legal nature of taking back the land-use right is civil liability for breach of contract based on violation of civil contract, so it should establish a complete civil responsibility system. The second, the nature of reclaiming the land right by the State without compensation is administrative punishment, then it is reasonable to apply the Administrative Penalties Law, the Land Management Law etc. to deal to deal with related legal relations. The third, some scholars believe that reclaiming the land-use right has the nature of the Public Law and the Private Law. As a result, it not only on the basis of the Contract law, but also relies on the the Land Administration Law, the Administration of the Urban Real Estate Law and so on to explain its legal consequences. To analyze the above theoretical point of view, it shall draw the conclusion that it is appropriate and systematic to establish a mechanism for the civil legal liability to explain the problems existing in the reclaiming the land-use right.The third part mainly discuss the remedial measures of land users. Although the land competent administrative departments have legitimacy basis of reclaiming the land-use right without compensation, its act shall be regulated. At the meanwhile, the land user shall be given reasonable justifications. Furthermore, after reclaiming the land-use right, the land user can file a claim for refunding the rest of the fees for granting the land-use right after the deduction of liquidated damage or compensating for losses. In addition, for the buildings on the state-owned land, the granting party pay appropriate compensation before obtaining the ownership of the building. In the same way, the transferee can demand the granting party to pay compensation which is equivalent to other spending reasonably, such as the payment of leveling land, installing pipes and so on.The forth part mainly discuss how to balance the interests of any bona fide third party. To distinguish the specific situations, this paper focus on analyzing if an advanced sale of commodity houses, the property that is sealed up, the state-owned land which is mortgaged or enterprise bankruptcy is prior to the government behavior of reclaiming the land-use right. When the land user obtain a permit of advance sales of commodities house by the real estate administration of the people’s government’s irregularities, the State can reclaim the land-use right although an advance sales. Meanwhile, in this case, the State has a duty to protect rights and interests of the buyers. However, the land competent administrative departments don’t right to reclaim the land-use right in condition of the property that is sealed up and enterprise bankruptcy. Of course, the obligee can apply to the people’s court for auctioning or selling off the property. In the same way, Where the right to use state-owned land for construction purpose is mortgaged, the land competent administrative departments should not recover the land-use right when the mortgagee has filed for judicial procedure to make the land-use right transfer into reality. Even if reclaim the land-use right, mortgage right of state-owned land should not be lost.The fifth part analyze the application of law that the land user breach the granting contract on the right to use state-owned land for construction purpose. The Land Administration Law characterized by administrative management has established the system of the real right of state-owned land, it directly provides legal basis in judicial practices in our country. However, based on the real right change and the interests of the compensation caused by reclaiming the land-use right, it is necessary to apply the Civil Law,such as the Real Right Law to explain the private law consequences of breach of the contract on the land-use right preferentially. Furthermore, it is important to establish the system in which the granting party shall have the right to terminate the land-use right unilaterally to explain the system of breach of the granting contract on the land-use right, then the right to use state-owned land for construction purpose shall have no legally binding force not from the very beginning but from the granting party terminate the contract.