Empirical Study On The Nature And Effectiveness Of Land Preferential Agreements In Government Investment

Since the mid-to-late 1990 s,domestic investment has become an important way for local governments to develop the local economy.Whether in economically developed or less developed regions,investment has been carried out,and advanced technology and management experience at home and abroad have been actively introduced.And funds,with a view to achieving local economic development and catching up,some localities have achieved certain results through investment.In order to attract investment,local governments have begun to formulate a variety of preferential policies for investment and competition,among which land preferential policies are particularly extensive.With the country's stricter control over land revenues,many times the preferential policies for government investment may not be realized,so the number of disputes over local government investment and land investment preferences is gradually increasing.In judicial practice,most disputes involving land concessions for attracting foreign investment are tried as civil cases.Therefore,the empirical research on the land preferential agreement in government investment invitation from the perspective of civil trials has certain feasibility,and provides a theoretical basis for regulating local government investment invitation activities,and puts forward important suggestions for related trial practice.From 1995 to 2019,the analysis of the investment preferential policy documents published by local governments shows that the scope of local government's land preferential policies includes preferential policies directly related to land and other forms of preferential policies linked to fixed asset investment or land cost expenditure quotas(for example,Taxes,subsidies,etc.).It is specifically divided into five types of preferential types: first,the reduction of land costs,that is,the reduction of land transfer fees or land rents;the second is the preferential period for the payment of land costs,which refers to the type of preferential payment after the investor pays a portion of the land cost in advance;The third is subsidies,which are linked to fixed asset investment or land cost expenditures in a variety of forms within a certain amount or period of time,including various types of concessions,including direct land cost subsidies,operating construction subsidies,and technological innovation subsidies.And the tax is leviedfirst and then back;the fourth is the tax benefits,that is,the types of benefits that are reduced or exempted in the specified tax categories;the fifth is the sharing of land revenue,which means that after the investor participates in the early opening of the land reserve,the land revenue is shared with the local government Offer type.In judicial practice,the types of disputed land preferences are highly compatible with the typed land preference policies,with the most disputes involving subsidies.The cases mainly consist of contract disputes and contract disputes(unnamed contracts)for the transfer of the right to the use of construction land.In the data collection process,the author found that the determination of the nature of the legal relationship of the land preference agreement by the court is related to the document form(contract,meeting minutes,and policy documents)in which the agreement exists.It was judged to be of a civil nature;the court's determination of the validity of the land preferential agreement has some connection with the case.The land preferential agreement in the dispute over the contract for the transfer of the right to use the land for construction use is often found to be invalid or less effective than the legal relationship of the contract involved.Different types of land preferential agreements have different legal determinations on the nature and effectiveness of legal relationships.The issue of determining the nature of the land fee reduction and exemption agreement is mainly based on the theory of civil nature,but most of them are invalidated by the courts on the basis of damaging public interests and violating the provisions of the State Council General Office document.The nature of the land fee payment period preferential agreement is civil in judicial practice,and its validity has also been affirmed.Among the subsidy-type preferential agreements,the nature of the direct-refundable subsidy agreement is related to the form of its existing documents,and on the issue of effectiveness,it is often regarded as invalid by the courts on the basis of damaging public interests and violating the provisions of the State Council Office document.The issue of determining the nature of the business construction subsidy agreement is very controversial in practice,and it is related to the government's administrative powers and the form of the agreed documents.Under the premise of being recognized as civil,the court tends to recognize the agreement as valid;technology innovation subsidies Because it involvescomplicated review and approval procedures and national policy,it is considered administrative in nature,so it does not have the effect of civil law;the tax is levied first and then returned to the agreement.Because it is related to taxation,it is often recognized by the court as administrative.Its effectiveness is often found to be invalid for damaging the public interest.The tax preference agreement is of an absolute administrative nature,but has different effects before and after the publication of the State Council's Notice on Preferential Policies Concerning Taxation and Other Preferential Policies.Most of the land revenue sharing agreements are considered to be civil in nature,but they are often invalid due to damage to public interests and violations of the provisions of the State Council General Office document.The lack of relevant laws or administrative regulations has led to excessive application of policy documents and applicable legal principles by the courts in trial practice,and corresponding administrative regulations should be formulated.The court should not pay too much attention to the content of the land transfer in the contract.It should also consider whether there is a deeper legal relationship between the two parties in attracting investment.In cases that comply with the legal relationship in attracting investment,contract disputes,partnership agreement disputes,etc.should be the cause.At the same time,the form of land preference agreement should be fully analyzed.The land preference agreement in the contract signed by the two parties through equal negotiation and the minutes of the meeting that have been fully discussed and reached a consensus should be considered as a civil one;The content of the land concessions in the decision and the investment policy documents shall be deemed to be civil.Both the government and investors should be cautious,reduce the legal risks in the contract,ensure the smooth implementation of the project,and promote the healthy development of the local economy.