Study On The Nature Of The Contract For The Transfer Of The Right To Use State-owned Construction Land

With the development of public-private dualization and the implementation of the new Administrative Procedure Law in 2015,administrative agreements are explicitly included in the scope of administrative litigation.It is also based on this,the original category of civil disputes,the state-owned construction land use right transfer contract disputebegan to divide the legal relief approach of administrative litigation.The promulgation and implementation of the Provisions of the Supreme People's Court on Certain Issues in the Trial of Administrative Agreement Cases in 2020,once again,listthe relevant administrative agreements by summarizing the list and using the equivalent words as the bottom.However,when listing the third item,the representative state-owned construction land use right as the representative of the state-owned natural resources,this choice can not help but raise questions about whether the provision can be applied to the state-owned construction land use right transfer contract.Therefore,the dispute over the nature of the contract for the right to use state-owned construction land has become a hot topic in academic circles.Controversy over the nature of the contract for the transfer of the right to use the state-owned construction land is the inevitable product under the dual theory of public and private law,and the dual status of the administrative organ,the particularity of the source of the rights and obligations in the transfer contract and the abuse of the administrative benefit right by the administrative organ in the process of the contract fulfillment is the root cause of the dispute caused by the nature of the contract for the transfer of the right to use the state-owned construction land.Therefore,when we make a qualitative analysis of the contract of the right to use the state-owned construction land,we need to reasonably define the role of the administrative organ in the transfer contract,and objectively look at the administrative and civil factors in the transfer contract.In the contract of the right to use the state-owned construction land,the state administrative organ exercises the right as the land owner,and the land transferee is in an equal legal position,and the content of the contract reflects more of the relationship between civil rights and obligations.As for the act of the state government organ unilaterally exercising the right of extermination of the contract on the basis of the public interest or the restoration of land for reasons such as the expiration of the term of the transfer,idle land,etc.,the state government organ exercises the right of supervision over land use in accordance with the law outside the land transfer contract.In addition,the revision of China's Land Management Law for the first time in the legal level to clarify the collective operating construction land can directly enter the market,the state-owned construction land use right transfer contract as a civil contract in line with the state's reform of natural resources direction,but also conducive to the realization of the same right.Under the background of the compilation of the civil code,the part of the Civil Code of Real Rights still maintains the status quo,and the Civil Code Contract Book does not reflect the trend of expanding the contract for the right to use state-owned construction land,which obviously violates the principle of separation of property rights and claims.Based on the current state-owned construction land use right transfer contract legislative construction,the author put forward the following suggestions: First,the Property Law on the state-owned construction land use right transfer contract part of the withdrawal,in the "contract law" to establish an independent chapter on the state-owned construction land use right transfer contract provisions and refinement;Strengthen the regulation of administrative organs to exercise the right of administrative benefits in the process of land transfer.