The Judicial Settlement Of The Dispute Of The Transfer Agreement Of State-owned Land Use Right

The state-owned land use right transfer contract plays an active role in promoting the marketization of land resources under the current system that the ownership of land resources belongs to the state and the collective.In the field of legislation,before the promulgation of the newly revised Administrative Procedure Law,the attitude of legislative documents concerning the legal nature,legal and judicial interpretation of state-owned land use right transfer contract has been changing between civil contract and administrative agreement.Although article 12 of China’s administrative Procedure Law,newly revised in 2015,provides for the scope of accepting cases of administrative litigation,including administrative agreement disputes into the way of dispute settlement of administrative litigation.However,article 12,Clause 11,of the new Administrative Procedure Law,provides a general regulation on the scope of administrative agreement cases in the form of enumerating and "etc." When the judicial interpretation fails to specify whether an agreement other than the one explicitly listed in this article belongs to an administrative agreement or whether administrative litigation can be carried out for dispute settlement,it is easy to lead to the defects that the judge’s trial cannot be relied on,too much reliance on legal principles,and insufficient reasoning in the judgment.On the one hand,the academic circles of administrative law are discussing the related issues in full swing;On the other hand,the judicial practice department would rather show the high and cold,but also do not want to bear the question of the judge made the law.Specifically,in practice,the nature of state-owned land use right transfer contract is not unified,legislative provisions conflict with each other,judicial relief results confusion,etc.The above problems greatly hinder the perfection of state-owned land use right transfer contract system itself.Therefore,it is of great theoretical and practical significance to study the nature of state-owned land use right transfer contract,timely solve legislative conflicts and establish effective judicial relief methods.Based on the current our country state-owned land use right transfer agreement dispute,the issues of theory and practice in our country,from the nature of the state-owned land use right transfer contract,the mainstream theory of state-owned land use right transfer contract,the said administrative agreement with the civil contract is analyzed,it is concluded that the state-owned land use right transfer contract essentially belongs to the administrative agreement,The unified conclusion of administrative proceedings shall be used.At the same time,the article draws lessons from the theories of some domestic scholars and the theoretical experience of foreign countries in dealing with related issues,using the method of case analysis,trying to find a reasonable standard in line with the qualitative nature of the agreement of state-owned land use right transfer,and on this basis,discussing its relief methods.It is hoped that some useful suggestions can be provided for the identification of the nature of state-owned land use right transfer contract and the judicial settlement of disputes.