Research On The Transferring Land Use Rights By Way Of Share Transfer

The subject of this paper is the transferring land use right by way of share transfer,which is a typical act of law evasion.Different from the method of usage hermeneutics of most scholars,who unilaterally study the contractual validity of law evasion.This paper which uses the method of economics and law hermeneutic method,and breaks through the single discipline,puts forward reasonable legislative,judicial and administrative governance through the study of reason of the transferring land use right by way of share transfer,civil and commercial law,tax law and criminal law interpretation.In view of the important position of the real estate industry in China's economic field,it is of great significance to study the effectiveness and legitimacy of the supply of land in the form of equity,which promote the steady development of the real estate market and guarantee the right of residence of the public.From a deeper level,the study of legal governance of law evasion can promote the effective play of the role of legal supervision,and appropriately maintain the institutional tension and don't stifle the innovative significance of market behavior.This paper argues that the transferring land use right by way of share transfer is a typical act of law evasion.Based on the analysis of the transaction mode,legal provisions and judicial practice of transferring land use right by way of share transfer,the author puts forward that it is the differentiated legal system that cau ses incomplete law.It provides an opportunity and condition for the "rational homo-economics man" as the market subject to evade laws and regulations by changing the transaction form and the transaction subject and so on to maximize personal interests based on the cost-benefit analysis.This leads to the increase of law evasion between legal and illegal.In this paper,we should firstly measure whether the evaded law belongs to the "good law" from the perspective of legislation.According to the cost-benefit analysis of Article 39 of Law of the PRC on Administration of Urban Real Estate,allowing the transfer of real estate by means of equity transfer can promote the flow of undeveloped land resources into the market and prevent the idle and wasteful land resources.The Article 39 not only cannot prevent the "speculation of land",but also some courts improperly apply Article 39and determine the transferring land use right by way of share transfer constitutes a crime,which will have a negative effect on the supply of real estate.The costs of implementation of Article 39 outweigh its benefits,and Article 39 should be repealed promptly.Secondly,under Notice of the Supreme People's Court on Issuing the Minutes of the National Court Work Conference for Civil and Commercial Trials and Civil Code,there will be no room for the application of "illegal intentions are concealed beneath an appearance of legality ",and " the mandatory provisions of laws and administrative regulations are violated "and " public order and good customs " will be the reasons to judge the invalidity of law evasion.In addition,the judgment of the effectiveness of law evasion should focus on the damage caused,which not only needs to measure the degree of damage,but also needs to consider the possible innovation and transaction cost.Finally,on the premise of incomplete law,it is necessary to reasonably allocate the remaining legislative powers of the administrative organs and courts to better govern the law evasion.When a evading behavior has great damages and can be standardized through administrative procedures,administrative supervision has more comparative advantages.This paper is divided into five parts.The first part mainly introduces the existing research literature about the transferring land use right by way of share transfer and law evasion,and holds that the existing research mainly uses jurisprudential hermeneutic method and focuses on the effectiveness of law evasion,but ignores the comprehensive disciplinary perspective and other research methods.The second part introduces that the transferring land use right by way of share transfer is a typical act of law evasion,and introduces the legal rules and practices of the civil and commercial law,criminal law and tax law about the transferring land use right by way of share transfer.The third part analyzes the subjective causes and objective conditions of law evasion from the theory of cost-benefit analysis and incomplete law.The fourth part mainly discusses the legislative regulation of the transferring land use right by way of share transfer.It considers that it is a false proposition to determine this behavior is harmful from the perspective of stabilizing the real estate supply,this part discusses how to levy land value increment tax on maintaining the legitimacy.The fifth part,from the judicial perspective,studies determine the main causes and considerations about law evasion,and put forward reasonable allocation of judicial power and executive power in the governance of law evasion under the theory of residual legislative power.