Validity Of The Equity Transfer Of State-owned Land Use Rights Contract

Land is an important support for enterprise development, but under the land publicownership system in our country, positive law were strictly limited with the transfer ofstate-owned land use right now.In practice, real estate enterprises by equity transfer way toobtain the state-owned land use right generally. However, positive law does not defined theeffectiveness of equity for the transfer of state-owned land use right contract clearly, theoristshave not yet been determined, which resulting in judicial practice, the court decision is notuniform.The research object of this article is equity transfer contract effectiveness analysis ofstate-owned land access. The author through summarized the equity transfer of state-ownedland access mode of operation to generalize in practice, and summarized the judicial practiceand theoretical controversy for this type of contract effectiveness. By reviewing the court’sdecision, the author summarized our court about the equity transfer contract effectivenessjudgment of state-owned land access the defects of reason. The author through introduced theforeign contract effectiveness decision model and combined with illegal contract’s judge andinterest measure, determine the transfer contract is valid. In addition to the introduction, thefull text is divided into five parts:The first part introduces the equity transfer of state-owned land use right of way mode ofoperation. In practice, real estate enterprises generally used in the form of equity transfer ofstate-owned land access control. The author based on equity transfer and direct comparison ofstate-owned land access, induces the characteristics of the two transfer modes respectively.The second part analyzes the reasons for the equity transfer of state-owned land userights generally arise. Firstly, by way of equity transfer of state-owned land use right in thereal operation with low cost advantages, at the same time business subject to pursue benefitmaximization as the goal; Secondly, the equity owned land use rights with the program issimple, fast, etc., the real estate development of high efficiency, coupled with the current lackof legal provisions, so the real estate companies generally take in order to achieve equity byway of transfer of state-owned land use right.The third part analyzes the theory and practice for the equity transfer of state-ownedland use rights contracts are valid reasons. Firstly, the court is mainly on the basis of article38 of "Urban Real Estate Administration Law", article39and article40,"Contract Law" article52, and determination of tax revenue to the relevant provisions of the contract effectiveness ofthe tax law. Secondly, the author analyzes the current court determines validity of the contractmethod defects.The fourth part, the author explored the general principles regarding the determinationof the validity of the contract. The author through commented on the extraterritorial validityof the contract determination method to distinguish between monism and dualism method fordetermining the effectiveness of the contract. Our country’s position based on the theory ofinterpretation, is dualism determination methods. The author combines two contracteffectiveness determination methods, and expounds this article adopted methods, whichnamely illegality judgment and public and private interest measure.The fifth part to determine the equity transfer of state-owned land use right contractualeffect."Urban Real Estate Administration Law" article38, article39, article40defined theconditions for the transfer of land use rights does not affect validity of the contract. Theauthor analysis the equity transfer contract of state-owned land access whether harmed publicinterests or not. For contract effectiveness, in addition to legislative regulation analysis, alsoneed to identify by means of interest measure. Firstly, explore the interests of "Urban RealEstate Administration Law" article38, article39, article40of the legislative.Secondly,analysis state-owned land use right transfer of equity interest protected; Thirdly, to measurepublic and private interests. Finally, through the analysis of the legitimacy and interestmeasure come to the conclusion,which the equity transfer contract of state-owned land accessonly to obtain land use card or after approved by the relevant government departments.