Research On The Adjustment Of Liquidated Damages In The Transfer Contract Of State-owned Land Use Rights

In the contract for the assignment of the right to use state-owned land,the agreement on the liability for breach of contract for overdue payment of the land transferee does not belong to the terms that both parties can reach through negotiation at will.The liability for breach of contract that the transferee shall bear for delay in payment of the land transfer fee originates from the provisions of administrative normative documents.In the judicial practice of disputes over the transfer contract of the right to use state-owned land in our country,conflicts on the judicial adjustment of liquidated damages for the transfer contract of the right to use state-owned land occur frequently.Different judgments of similar cases have affected the authority of judicial decisions and brought troubles to the judicial work in our country.Let's take the case guided by the Supreme People's Court-Guiyang Municipal Bureau of Land and Resources and Guizhou Taisheng Real Estate Development Co.,Ltd.as an example.In the dispute over the transfer contract of the state-owned land use right,after the land transferee delays in paying the land transfer fee,the land transferor will request the court to judge the land transferee to pay liquidated damages to the transferor at 1 ‰ of the amount owed per day.At this time,almost all the land transferees in similar cases will claim to the court that the liquidated damages are too high and request the court to reduce them.However,it reflects several common problems in the judicial adjustment of liquidated damages for overseas land use right transfer contracts through this guiding case and its similar cases.It is mainly in three aspects: alienation of liquidated damages under confusion of civil and administrative relations,obvious improper identification of the existing "excessive" standard of liquidated damages,and vague comprehensive measurement standard of liquidated damages adjustment.The terms of the land transferee's liability for overdue payment and breach of contract in the contract for assigning the right to use state-owned land in our country are not the terms reached by both parties through arbitrary negotiation,but the signing of the contract is indeed based on the autonomy of the will of both parties,and the adjustment of the contract is essentially an interference in the free will of both partiesand requires sufficient justifiable reasons.The judicial adjustment of liquidated damages in the transfer contract of state-owned land use rights in China should be guided by the balance of interests and honesty and compliance,and the fairness in the context of contract law should be taken as the legitimacy cornerstone of the adjustment of liquidated damages through the theoretical explanation of the legitimacy of the adjustment of liquidated damages in the transfer contract of state-owned land use rights.Compared with the general adjustment of liquidated damages in civil contracts,the adjustment of liquidated damages in the transfer contract of state-owned land use right in our country has its particularity,which is mainly manifested in the intersecting nature of civil and administrative rights and the particularity of commercial contracts in the transfer contract of state-owned land use right.Therefore,the adjustment standard of liquidated damages for the transfer contract of state-owned land use rights is different from that for general civil contracts.When the liquidated damages for such contracts are reduced with great probability in judicial practice,it will damage the national public interests and cause waste of state-owned land resources.In order to perfect the judicial adjustment of liquidated damages for the transfer contract of state-owned land use rights in our country,the available benefits should be included in the scope of losses.In civil litigation,legal and effective administrative normative documents can be applied by reference.The current "one size fits all" 30%liquidated damages adjustment standard or the bank loan interest rate for the same period should be abandoned as the reference standard.The adjustment of liquidated damages must consider comprehensive factors,such as the degree of contract performance and so on.