Way Out Of The Relief Trouble Of State-owned Land Use Right Transfer Contract Dispute

Abstract:In our country, the land is owned by the state and the collective. But the land is essential for people’s survival and development. People’s needs of using the land calls for the country as a land owner transferring the land use rights through certain ways. The state-owned land use right transfer contract is undoubtedly one of the most common practices of land use right transfer mode.However, when the two parties of a state-owned land use right transfer contract have dispute, it’s a major problem to remedy them. In practice, the remedy adopted by different courts are not the same. Some courts relieve by way of civil remedies, but some other courts relieve by way of administrative remedies. Some civil courts and administrative courts even pass the buck to each other. The reason is that such disputes are not within its scope of accepting cases. As a result, the interests of the parties can not be safeguarded. Besides, the credibility of the judiciary will be reduced. This paper intends to discuss truly effective solutions to this problem by analyzing root causes of the problem.In this paper, the discussion is started according to the logical thinking mode of "identify problems-analyze the reasons-propose path-verify that the path".The paper is divided into five parts. The first part is to identify the practical difficulties faced by the state-owned land use right transfer contract, including mixed contract content, contract system of civil contracts and administrative contracts exist side by side, and related legal specification is not clear. It is these reasons that lead to the existence of the dispute chaos of state-owned land use right transfer contract in practice.The second part indicates that the root cause of the remedy trouble of the state-owned land use right transfer contract dispute lies in the nature of the contract is uncertain. Some experts divide it into civil contract,but some other divide it into administrative contract. The paper tries to determine the nature of the contract by the theoretical standards which are used to distinguish civil contract and administrative contract. However, the result is that the two different qualitative both has its own rationality, it is difficult to make a choice by this standard. When the road is not workable, there’s no choice but to abandon the way of selecting the relief road by the qualitative way for the time being. Maybe, verifying the effect of administrative relief and civil relief is a better way to choose the way of remedy. The third part talks about the lack of the administrative relief in resolving the dispute of state-owned land use right transfer contract. Part IV analyzes the feasibility of the civil remedy from aspects of the theory and practice and then get a conclusion that civil remedy is the current alternative relief way.Selecting civil remedy means that state-owned land use right transfer contract is recognized as a civil contract. The nature’s rationality must be proved in order to prove that the use of civil remedies is feasible. The fifth part illustrates that recognizing the state-owned land use right transfer contract as a civil contract is reasonable from the macro and micro levels, then validates that the selection of civil remedy is the truly viable way to solve the problem.