Judicial Empirical Study On The Validity Of Unapproved Transfer Contract Of Allocated Land Use Right

“The Land Administration Law of the People's Republic of China”(hereinafter referred to as “The Law of China's Land Administration”)“ The Real Estate Administration Law of the People's Republic of China ”(hereinafter referred to as “ The Law of Real Estate Administration”)“ The Interpretation of the Supreme People's Court on the Application of Laws in Hearing Disputes Involving State-owned Land Use Rights Contracts stipulates”(hereinafter referred to as “The Interpretation”)in our nation all stipulate that the transfer of the right to use the land needs to be approved and only Article 11 of the “The Interpretation ” specify the requirements of transfer contract.Under this,in the judicial practice,there are many disputes in this kind of case,and the court has three referees in such cases,that is,the transfer contract of the unapproved transfer of the right to the use of the land is the theory for invalidity,unenforced and effectiveness.The main reason for the "invalidity theory " is that the above-mentioned regulations belong to the effective mandatory provision stipulated in Article 52 of “The Law of Contract ”,and the contract is invalid without approval.The main basis of " unenforced theory " is: Article 9 of “The Law of Contract(Part One)” which contract without examination and approval is not enforced because of the lack of the effective elements of administrative approval.The basis of "effectiveness theory" is that the principle of distinction stipulated in Article 15 of “The Law of Property” distinguishes the contract effect from the contract performance,and the examination and approval belongs to the contract performance and has nothing to do with the contract effectiveness.The invalidity theory and the unenforced theory belong to the binding path between the approval and transfer of land use right,and effectiveness theory distinguish the contract effectiveness from the performance of the contract,which belongs to the administrative examination and approval and transfer contract effectiveness of transfer of land use rights distinction path.The two paths reflect two different value orientations in theory.In the binding path,they emphasize the particularity of the right to use state-owned land.It is considered that administrative examination and approval affects the effect of contract as the starting point of land management is accordance with the particularity of state-owned land.But usually it magnified the role of administrative approval,which caused to excessive intervention by the State to autonomy of the will.In the way of differentiation,we should follow up with the principle of proportion and respect the autonomy of the parties.Considering the practical factors,the binding path thinks that application for approval obligation can be carried out for the parties to perform in the unenforced contract,but in practice,the court will not separate the approval obligation from the contract to determine the validity of the contract.And in practice,the contract takes place before approval for the transfer of land use right,which also shows that the main basis of "invalidity theory" in the Article 11 of “The Interpretation” is not in accordance with the logic of life.To sum up the above theoretical and practical factors,first of all,the contract validity theory is more in line with the logic of life.The logic of "approval before transfer" in Article 11 of the current "interpretation" does not conform to the logic of the parties to enter into a contract.Secondly,it is more conducive to protecting the autonomy of the parties' will.The "effective theory" provides the entry point of the original state management and limits the scope of state intervention to changes in real rights.Finally,the "effective theory" is more conducive to preventing risks and protecting the parties.To prevent malicious break of contract.Therefore,this article believes that the transfer contract of the allocated land use right without administrative approval is effective.In order to prove the validity theory,we need to analyze its theoretical basis.Its theoretical basis lies in the distinction between the validity of contracts and the performance of contracts,drawing on the principle of distinction stipulated in Article 15 of the“ Property Law”.In theory,there are different understandings of the principle of distinction.First,it denies the independence of the act of real right and holds that it only distinguishes the act of cause from the result of the change of real right.In the judicial practice,the court has higher and higher recognition of the principle of distinction,and it has been clearly shown in the judgment of the Supreme Court that the principle of distinction distinguishes between acts of creditor's rights and acts of real rights.Therefore,based on the above theoretical basis,the article distinguishes the validity of the contract from the performance of the contract.Ordinarily,the contract becomes effective immediately.Under exceptional circumstances,the contract is formed but not enforced,and the binding force produced by the unenforced contract is not enough to produce the performance effectiveness,its effect is only to let the parties be bound by the expression of meaning.Therefore,the theory of contract validity has both theoretical support and is more in line with the logic of life.It is now the development trend of judicial practice in identifying this problem.