Study On The Judicial Application Of The Crime Of Illegal Transfer And Scalping Land Use Rights

As an important natural resource,land resources have a profound impact on all aspects of national life.In the development process of a country,land resources often play a decisive role,which is also the case for China.China’s land resources in the total amount is rich,but the per capita occupied land area in the world is still at a low level,this situation determines that China’s land management system must be perfect and in line with the national conditions.Early in the founding of new China,the land use right transfer is not allowed by law,this situation until after promulgated in the amendment to the constitution in 1988 is changed and the amendment of clear rules on the land use right may be transferred according to law,it is a landmark reform,to our country played a significant role in developing the socialist market economy.However,in judicial practice,criminals take advantage of the floating land price to transfer and resell the land-use right.Moreover,criminal means are diversified and it is difficult to effectively prevent and punish them.This kind of behavior has caused damage to China’s land management system and land resources.In order to effectively prevent and punish to sell land use right transfer,implications for crimes,protect land management system is able to run orderly,our country in 1997,"criminal law" the 228 th regulation the crime of illegal transfer,selling land use rights,the rule in the criminal law protection of land management system played a positive role,but with the rapid development of economic society.A series of new problems have appeared in the judicial application of this crime: First of all,whether the transfer of land use right by means of equity transfer constitutes the crime of illegal transfer and reselling of land use right.At present,there is a debate between "guilty theory" and "innocent theory" in the academic circle.Based on the analysis of these two viewpoints and the causes of this problem.Suggestions are put forward to solve this problem from the perspectives of unifying the standard of judicial application and strengthening the legal cohesion of departments.Secondly,whether the villagers committee can become the subject of this crime.The two representative viewpoints of the academic circle on this issue are "affirmative theory" and "negative theory".Based on the viewpoints of the academic circle and the specific situation in the judicial practice,this paper believes that the villagers committee should be identified as the subject of this crime.We should also strengthen the legal connection between departments and pay more attention to the crime of the villagers’ committee.According to the sorting of relevant data,this paper finds that a large number of sentences of this crime are applied to the suspension of sentence in judicial practice.Through this feature,it can be analyzed that there is a problem of disproportionate sentencing of this crime in judicial practice.In view of this problem,this paper argues that it should be solved from three aspects: standardizing the application of probation,restricting the discretion of judges and carrying out the case guidance system.All in all,this paper took a case analysis,literature analysis two kinds of research methods,through to the related cases in the judicial practice,summarizes the crime of illegal sell land use right transfer,the characteristics of judicial application based on this in combination with related literature,analyses the problems and causes of this crime in the judicial application.Finally,the author puts forward some concrete thoughts on the problems existing in the judicial application of this crime.