Research On The Legality Of The Government Return Land Grant

The return of land transfer money means that the local government returns the investor 's private enterprise in a legal form such as employee resettlement compensation and public infrastructure construction expenses,etc.This legal form obscures the “legitimate purpose of the government 's return of investment to the private enterprise after introducing private investment ".In the case of financial constraints and insufficient land reserves to carry out land development and consolidation,the local government authorized special legal persons to sign contracts with private enterprises through the form of investment attraction,and introduced private enterprise funds for land consolidation to meet the transfer criteria,and then the land The right to use is transferred through the bidding and hanging procedure.In order to prevent the investment of private enterprises from failing,the government first promised that private enterprises would obtain the land use right at a preferential price through the bidding,auction and listing procedures.However,the land use right transfer procedure has strict legal provisions,and the local government has no regulations to avoid it.China also stipulates that when private enterprises do not obtain the right to use land or obtain it at a price higher than the agreed price,the local government shall return the land transfer fee as the early investment return of the private enterprise.In the judicial practice,the legality of the return behavior is extremely controversial.Although this type of case falls into the category of civil cases,there are different perceptions of civil and administrative contracts in this type of case,resulting in inconsistent application of laws.In the absence of special laws and regulations to adjust such contracts,the government 's introduction of private enterprises 'investment funds for land consolidation and the repayment of land grants has been cut off,resulting in a large number of different judgments in the same case.The government stopped returning the land transfer fees,and investors' private enterprises were in trouble or even bankrupt.The reasons for the application of the law on the return of land transfer money in China are very complicated.First,the civil and administrative cross cases still lack a unified standard in the application of the law,which leads to the incompatibility of the application of law in these cases;second,the law when no special law is applicable Replaced by local regulations and policies to make adjustments,so that the income from land transfer payments actually becomes a guarantee for the return of landconsolidation funds;in the end,although the form of return of land transfer funds is legal,the behavior is not compatible with its purpose,resulting in it being recognized as Damage to public interest and invalid.Based on the social effects in practice and theoretical considerations,the land transfer payment is still a concrete manifestation of the advantages of the Chinese government 's “focus on power” system in terms of political and commercial cooperation;the land transfer payment is based on the civil subject,and the promise belongs to the expression of interest.The civil characterization of the return of land grants is more suitable for problem solving.From a legal point of view,this type of contract issue is related to the Civil Code(Draft),the Real Estate Management Law,the Land Management Law,and local regulations and policy documents,to improve the legal application of the land transfer fee return,at the legislative level A land transfer payment refund system should be established so that each refunded fund has legal support.At the judicial level,it should be clear that the administrative contract is applied as a special type of civil contract,so that the administrative contract and the civil bank cross contract have uniform application standards.Finally,combined with the latest relevant policy interpretations in case handling and the latest"Minutes of the Ninth People's Congress",the specific standards for the determination of the effectiveness of such contracts involving the return of land grants are clarified.The government is based on honesty and the officials do not compete with the people for profit Referee pointer for case handling.This article starts from the problems that still exist in the practice of government land transfer payments,combines judicial practice and policy minutes,and considers related theories,and discusses to solve this problem.The solution to the application of the law.Based on this,the article is divided into five parts:The first part is to analyze the connotation of the return of land transfer fees and the form of government's return of land transfer fees.Since China has no relevant legal definition of the land transfer fee return,the scope of the research object of this article is determined through an empirical analysis of the content and causes of the land transfer fee return.Then summarize the form of land transfer payment,understand how the land transfer payment is still implemented in practice,and set the stage for the following analysis.The second part points out the problems in the application of law in the disputes over the return of land transfer fees through case analysis.Firstly,it introduces the typical case of the return of land transfer fees from local governments,and statistically analyzes the determination of the return of land transfer fees by courts at different levels and regions.On this basis,the problems that exist in land transferpayments are still in judicial practice are explored.Due to the different recognition of civil contracts and administrative contracts,the application of the law is inconsistent,the introduction of land consolidation funds by the government and the causality of land transfer payments are split.Different judgments in the same case are regarded as typical problems,which provide a basis for the analysis of the problems below.The third part analyzes the causes of the application of the law on the return of land transfer fees.Analyze the cause of the problem in terms of the relationship between legal norms and local laws and policies,the placement of departmental laws,and the definition of public interest.The reasons for the application of the law on the return of land transfer funds are mainly due to the lack of uniform legal application standards and policies to replace the law in cross-bank cases,the use of land revenue as a guarantee for the return of land consolidation funds,and the use of legal forms to bypass the strict regulations of financial supervisionTo cover up the legitimate purpose.Provide ideas for the theoretical consideration of the return of land transfer fees below.The fourth part elaborates on the theoretical considerations of the law applicable to the disputes over the return of land transfer fees.The analysis of the return of land transfer funds reflects the system advantages of the government's “focusing efforts on major affairs” and the civil qualitative nature of the land transfer money return,which shows the rationality of the existence of the land transfer gold return and the civil qualitativeness.Point out the direction for the following legal application suggestions.The fifth part seeks to improve the countermeasures applicable to the law of the return of land transfer fees.Starting from the three aspects of legislation,judiciary,and case handling,a land transfer payment return system is established in legislation,and the land transfer payment related system is improved.Judicially,administrative contracts are clearly treated as special types of civil contracts.In the case,it explained the rationale in conjunction with the latest policies for the protection of private enterprises,recognized the legitimacy of the land transfer rebate clauses,and expressed the views in conjunction with the Minutes of the Ninth Meeting of the People 's Republic of China.In the next step,we will build a clean relationship between government and business with the image of government integrity and the rule of law,seek cooperation and development,ensure the survival and healthy development of private enterprises,and maintain the image of the rule of law and integrity of the government.