Research On The Crime Of Illegal Transfer And Reselling Of Land Use Rights

In China,land is owned by the state or collectives.Land ownership laws prohibit the transfer,and the right to use land can only be transferred according to law.The transfer of land use right refers to the act of transferring the land use right obtained according to law to another person.In order to prevent the malicious speculation and sale of land prices,curb the real estate bubble,and standardize the management order of the real estate market,the state restricts the transfer of land use rights,prohibits the illegal transfer of land use rights,and must comply with the conditions stipulated by law and comply with strict procedures for the transfer of land use rights.Otherwise,it is an illegal transfer.At the same time,article 228 of the Criminal Code criminalizes the illegal transfer and resale of land use rights.Some illegal real estate enterprises did not develop and build land in accordance with the time and conditions stipulated in the land transfer contract.They only transferred the right to land use in the form of transfer of equity through "circumventing" the land management law's transfer restrictions on land use rights.In academic circles and judicial practice,there is a great deal of controversy about the operation mode of indirect transfer of land use right through the transfer of equity.Some consider the mode of transfer to be lawful,while others consider the mode of transfer to be an offence.Therefore,from the two similar but different decisions of the case to make a comparative analysis of the real estate companies in our country to transfer and sell the right to land use.That is,the actor set up a target company to obtain the right to use the land in the name of the target company,and in the absence of full payment of land concessions and development and construction(not to reach the proportion of investment),he will transfer all the shares of the company.Operating mode,The right to the use of the land obtained by the company is used as the company's asset,transferred to the new land-use right holder with the transfer of equity,and the use right is indirectly transferred through the direct transfer of equity(virtual capital)torealize the transfer of the right to control(land use right)of physical assets.Through the comparative analysis of two cases,the focus of the dispute was demonstrated,and it was suggested that the legislature should not pay all the land transfer funds and not develop construction(not to reach the proportion of investment).It is a form of article228 of the Criminal Law to transfer land use right by the company's equity transfer operation mode,which provides a reference for conviction and legislation for judicial practice.