Judicial Review Of The Contract Of The Assignment Of The Right To The State-owned Land Use

The assignment contract of the right to the state-owned land use is a method by which the government can utilize the limited land resource rationally according to the market economic law.It promotes the contract management of land administration,and achieves the maximum utilization efficiency of land economy by democratic operation of administrative management.However,when there occurs a dispute,it becomes a controversial issue to choose the judicial remedy approach after the new Administrative Procedure Law was passed.According to domestic regulations of judicial sources,specific provisions for the assignment contract of the right to the state-owned land use are mainly included in Law on Land Management,Land Act implementing regulations,Interim Regulations on the Assignment and Transfer of the Right to the State-owned Urban Land use,and other relevant local decrees.Disputes of the property and judicial remedy approaches of the assignment contract of the right to the state-owned land use has been existing in the academia.Some argue that it is a civil contract and belongs to civil remedy,while some others claim that it is a administrative contract and belongs to administrative remedy.Before the introduction of the new Administrative Procedure Law,people in the judicial circle mostly consider it as a civil contract.While courts at the provincial level take various approaches to conduct judicial remedy after the introduction of the new Administrative Procedure Law.Some still stick to the traditional approach,while others adopt administrative remedy approach.Disparities in dual-track system,trail basis and rules lead to different ways for judicial trials and damage judicial credibility.The paper,therefore,conducts an in-depth discussion on the assignment contract of the state-owned land use,rethinks the theoretical and practical problems in the settlement of disputes,and explores an uniform framework of judicial remedy and review for the assignment contract of the state-owned land use.The paper is divided into four sections.The first section takes dispute cases of the assignment contract of the right to state-owned land use and their arbitraments as a starting point,and presents the current dual trial situation of this kind of contracts,analyzes the existing problems and explores the underlying reasons that are unfolded in many aspects such as legislative conflict and lag,the absence of public power relief and the inequity of judicial rules.Then it puts forward there exist various ways of judgements and judicial relief approaches of contract disputes of state-owned land.In the second section,the paper gives a general introduction of the origin of internationallaw of administrative contract by means of the elaboration of historical changes,conception,controversial pointviews on the property of the assignment contract of the right to the state-owned land use and continental and Anglo-American administrative agreement system.On the analysis of related administrative agreement theory abroad and in Taiwan of China,the paper reaches a deep theoretical recognition that the property of state-owned land assignment contract is administrative protocol.In the third section,the paper starts with judicial relief divergence of dispute cases of the assignment contract of the right to the state-owned land use.After analyzing the feasibility and effect of administrative proceedings relief approaches and deficiency of civil action judicial relief,it draws a conclusion that administrative proceedings relief is the optimum method of solving disputes over the right to state-owned land use.In the fourth section,the author further rethinks the judicial review of the assignment contract of the state-owned land use by learning about the principles of judicial review and borrowing overseas judicial review systems.The author formulates a theoretical framework of judicial review in administrative proceedings which conforms to the disputes' property of the assignment contract of the right to the state-owned land use from four aspects including uniform judicial rules,complete judicial remedy approaches,judicial review for plaintiff's qualification and rules for administrative prior rights.