Difficulties In The Practice Of State-owned Land Use Right Transfer Contract ——From The Perspective Of Three Cases

With the revision of "Administrative Litigation Law",the legislative pattern of administrative agreement has changed,and administrative agreement is clearly included in the scope of administrative litigation.The Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Administrative Agreement Cases issued in 2019 further clarify the types of administrative agreements.The provision enumerates the transfer agreements of mining rights by way of enumerating,and takes the words "etc" as the bottom line,but the land resources are usually considered as the more widely used state-owned natural resources,and the contracts for the transfer of state-owned land use rights based on land resources are not clearly enumerated.Whether this provision is applicable to the contract of state-owned land transfer has been widely discussed in the academic circles,and the dispute on the nature of the contract has been pushed to the forefront.As to the nature of the contract for the assignment of the right to the use of state-owned land,there are many disputes in the academic circles and the judicial circles,and this dispute has caused other issues in practice: whether a party should bring an administrative lawsuit on the ground of an administrative dispute,or turn its attention to the civil tribunal to seek civil remedies;whether the party can foresee the consequences of the act and the possible legal liability to be borne;what substantive rules and procedural rules shall be applied to the people’s court for the examination of the dispute over the contract for the assignment of state-owned land;and how should different courts understand the different judgment results for similar cases.The disunity of judicial remedy and applicable law rules leads to the difference of judicial trial ideas and seriously damages judicial authority.Therefore,on the basis of clarifying the legal nature of state-owned land transfer contract,this paper explores the construction of a unified judicial remedy and judicial review path.In addition to the introduction and conclusion,this paper is divided into three parts:The first part illustrates the problems existing in the practice of contracts for the assignment of state-owned land by starting from the cases where the people’s courts have different opinions,and sums up the focus of disputes,namely,the determination of the legal nature of contracts for the assignment of state-owned land,the people’s courts’ examination of the application of laws to the disputes arising from the unilateral termination of contracts for the assignment of state-owned land by administrative organs and the procedures for the unilateral termination of contracts for the assignment of state-owned land by administrative organs.The second part is a jurisprudential analysis,which focuses on the following three aspects: First,how to determine the legal nature of the contract for assignment of state-owned land;second,what legal norms shall be applied when the people’s court examines the administrative organ’s unilateral termination of the contract for assignment of land;third,what procedures shall be followed when the administrative organ’s unilateral termination of the contract for assignment of land is exercised.The third part is the conclusion and the suggestion.After the legal principle analysis to the dispute focal point,carries on the summary and proposes the suggestion.Firstly,the mixed nature of the contract for assignment of state-owned land shall be defined based on the two-stage theory,and different relief methods shall be applied according to the nature of the contract at different stages;secondly,a joint tribunal or a special court shall be set up;thirdly,the rules on the application of laws for the third unified judicial review shall be established;and fourthly,the procedural construction of administrative preferential rights shall be improved.