On The Judicial Determination Of Real Estate Company's Acquisition Of Land Equity By Share Transfer

In the current land trading market,real estate companies based on the pursuit of low-cost,high-efficiency,high-profit business model,generally use equity transfer to obtain land equity for project development.However,it is this widely used method that has been controversial in judicial practice,which makes it go to the edge of criminal law violation.This paper summarizes the tendency in judicial practice by sorting out and comparing the criminal cases in which the rights and interests of land are acquired by means of equity transfer.At the same time,refine and summarize the views of the academic community.At present,from the criminal field,the criminal law circles mainly divided into "guilty theory" and "not guilty theory" two camps.Combining with the judicial case reasoning part and the academic viewpoint,the guilty theory thinks that it should "look at the essence through the phenomenon ".The act of obtaining land rights and interests through the transfer of equity,which leads to which the land management system is overhead,the tax is evaded,and the market order is disturbed.Therefore,its illegal transfer should be pursued.The crime of reselling the right to the use of land.According to the theory of innocence,the transfer of equity does not lead to the change of land ownership,which belongs to different legal relations with the transfer of land use right,and applies different legal norms;it is difficult to evaluate the subjective aspects of crime;there is a violation of criminal law and legal principles,etc.If the conduct involves illegal matters,through administrative means can play a regulatory role,no need to deal with as a crime.Through the above analysis,I tend to identify with the view of criminal innocence in the criminal aspect.At this point,it does not stop to draw the conclusion of criminal innocence,but from the point of view of the unity and systematic analysis of the law,extending the innocent act to the civil field,through cases to demonstrate the civil effect of the innocent act,from which the conclusion: civil invalid judgment and the theory of guilt,civil effective judgment and the theory of innocence of the judicial view is basically consistent.To this,I identify the validity and legitimacy of the act in the civil aspect.On the basis of criminal innocence and civil effectiveness,it is further demonstrated that the practical feasibility of land rights and interests in the way of equity transfer from the current legal and social practice.And I try to put forward the corresponding legal regulation suggestions,in order to unify the judicial practice,stabilize the market order,and strengthen the real estate enterprise management confidence.