Study On The Issue Of Identifying The Crime Of Illegal Transfer Of Land Use Right

In recent years,China’s population has increased,the per capita land area is small,the utilization rate of land resources is low,and the phenomenon of waste is serious.The transfer of land use rights has improved land utilization and accelerated the process of urban-rural integration.However,with the progress of the times and rapid economic development,China’s land market has further expanded,and there has been a shortage of land resources.Some lawbreakers have taken advantage of this opportunity to illegally transfer land use rights for profit.Such criminal acts have severely damaged the land management system of our country and disrupted the socialist market economic order to a certain extent..The article is based on judicial practice,using literature analysis,comprehensive analysis,case analysis and other methods,on the basis of sorting out the elements of the crime of illegal transfer of land use rights,highlights the outstanding issues in the determination of the crime of illegal transfer of land use rights,and proposes legislation And judicial advice.In addition to the introduction and introduction,the body of the article is divided into four parts:The first part analyzes the legislative history and criminal characteristics of the crime of illegally transferring land use rights.Since the founding of our country,our country has been under the planned economic system for a long time.Land transfer is forbidden,and illegal transfer of land use rights is very rare.Therefore,the first Criminal Code of 1979 did not establish related offences.In order to better adapt to the laws of economic development and solve the problem of the transfer of land use rights,Article 2 of the 1988 Constitution Amendment stipulates that land use rights can be transferred according to law.With the deepening of reform and opening up,the rapid development of economic construction and the increase in land demand,the phenomenon of illegal elements using illegal land transfer methods to obtain benefits has become increasingly serious.In order to regulate such acts,the Criminal Law of1997 added 228 crimes of illegal transfer and resale of land use rights.The crime of illegal transfer of land use rights and the illegal resale of land use rights were added asthe crime of choice.In recent years,the incidence of the crime of illegally transferring land use rights has increased significantly,the amount of crime is huge,and the means of crime are diverse,and the circumstances of the cases have become more complicated.These crime characteristics put forward new requirements for our legislation and judicial research on the crime of illegally transferring land use rights.The second part discusses the constituent elements of the crime of illegally transferring land use rights,and lays the foundation for the outstanding issues in the later discussion of the crime of illegally transferring land use rights.The article holds that the object of crime in the crime of illegally transferring land use rights is China’s land management system.The objective aspect is that the actor violated the land management regulations and illegally transferred the land use right.The subject of crime is a general subject,including natural persons and units.The subjective aspect is direct intentional,and generally has a purpose of profit.The third part analyzes the prominent problems in the determination of the crime of illegally transferring land use rights.The transfer of land use rights in the name of equity transfer is generally considered a legal act in the civil and corporate law fields.However,the behavior of equity transfer is complicated,and it does not rule out that the actor suspected of covering the illegal purpose in a legal form.This is controversial in academic circles,and there is no uniform standard for the determination of such behavior in judicial practice;administrative permission is the transfer of land use rights Necessary procedures,but the means of obtaining administrative licenses also have a certain impact on the legality of the transfer of land use rights.Transfers that have been granted administrative licenses may not hinder criminal punishment.In recent years,village committees and villager groups have transferred collectives.There are more and more cases of land,and the relevant laws have not clearly stipulated whether they can become the subject of this crime.Village committees and village groups are playing an increasingly important role in villagers’ self-government.As the subject of illegal transfer of land use rights,it meets the needs of judicial practice;The Interpretation of Several Issues Concerning the Specific Application of Law in Cases "specifically explains the" seriouscircumstances "standard in this crime,in which the amount of illegal profits is an important criterion for measuring" serious circumstances ".However,there is no provision for the "illegal profit" calculation standard.Whether the land price and related expenses as the cost of transfer belong to the scope of "illegal profits",the article believes that it is necessary to analyze the purpose of the development and construction of the land by the actor.The fourth part is the legislation and judicial suggestions on the crime of illegally transferring land use rights.Based on the new features and prominent issues of the crime of illegally transferring land use rights,legislation should be further improved.The article proposes to integrate related crimes,merge the current crime of illegal resale of land use rights into the crime of illegally transferring land use rights,and integrate the choice of crimes into a single crime;fulfill the guilty convictions and change the current 228 simple guilts into mixed guilt;Supplement judicial interpretation to adapt to the new situation of illegal transfer of land use rights;do a good job of linking criminal law with other departmental laws,so as to improve the quality of justice and accurately determine the sentencing of crimes.