On The Characterization Of State-owned Land Use Right Assignment Contract

The most common way of land transfer in our country is to transfer the right to use state-owned land,and the premise and basis of obtaining the right to use state-owned land is to sign the contract for granting of the state-owned land.In view of the nature of the contract for granting of the state-owned land,the debate between the current theory and the practice field from administrative law and civil law has never stopped.There are mainly two views:"the administrative agreement theory"and "the civil contract theory".The nature of the contract for granting of the state-owned land is difficult to define,which leads to the disputes caused by the contract facing the situation of different judicial judgments,and it is very easy to damage the legitimate rights of natural resources authorities and investors,then affect the legal business environment.Therefore,it is necessary to clarify the nature of the contract for granting of the state-owned land.Compared with the general contract,the contract for granting of the state-owned land has unique legal characteristics:the particularity of the subject,the particularity of the establishment of the land use right,the particularity of declaration of will,and the particularity of the contract format.The purpose elements,the content of the contract or the rights and obligations of both parties,don't conform to the definition of administrative agreement.And the added administrative public welfare lawsuit in revised Administrative Procedure Law of the people's Republic of China does not prescribe the nature of the contract for granting of the state-owned land.According to The Civil Code of the people's Republic of China,when the contract for granting of the state-owned land meets the elements of the equality of subjects and civil legal relation,it fits the definition of civil contract.Civil contract is the basic legal relation of state-owned land use right.Real right alteration of acquiring state-owned land use right should be from legal act instead of public power.If the contract for granting of the state-owned land is defined as a civil contract,it can not only solve the disputes of land transfer contract normally,but also has the practical significance that the administrative agreement theory does not have,such as both parties have the qualification of plaintiff,"who advocate,who is the burden of proof"system of the burden of proof,the application of arbitration and the protection of usufructuary rights.