Research On Judicial Review Of State-owned Land Use Right Transfer Contrac

The transfer system of state-owned land use right is the product of reform and opening up.In 1987,the "Shenzhen first auction" opened the prelude to the great development of state-owned land economy.In 1998,the "land use right can be transferred" was formally written into the Constitution.After more than ten years of exploration and practice,the transfer system of state-owned land use right has been deeply rooted in China’s reality and has played an important role in urban development and construction.The Constitution of the People’s Republic of China stipulates that the "owner" of land is a state or a collective.Before the promulgation and implementation of the Land Management Law,the transfer of state-owned land use rights generally refers to the local government’s natural resources department,in the capacity of land manager,entering into a contract with the transferee in the form of equality,negotiation,etc.for the state-owned land,The land shall be developed and utilized in accordance with the provisions of the law and the contract.The land transfer contract is different from the ordinary civil contract,and one of its subjects is special.The land resource management department should follow the relevant provisions of the law whether in advance of the bidding approval or after the supervision of the land use,and the land user does not fully follow the principle of autonomy of the will for the development and utilization of the land.Its rights must be limited to the public interest.The land transfer contract has both administrative and contractual attributes,Compared with ordinary civil contracts,the subjects of both parties are more constrained by legal norms in the performance of contracts.Before the amendment of the Administrative Procedure Law,it is difficult to resolve the disputes between the parties to the contract due to the one-way nature of the administrative litigation system in China,so the state-owned land transfer contract has always been applicable to the provisions of private law.However,with the revision of the Administrative Procedure Law and the promulgation of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Agreement Cases(hereinafter referred to as the Provisions on the Trial of Administrative Agreement),the concept of administrative agreement is determined in the form of legislation,and there are two ways to choose from for the judicial proceedings of the transfer contract disputes.There has been a heated discussion between the academic and practical circles about which way to handle the disputes over the transfer contract of state-owned land.With the amendment and implementation of the Land Management Law,it is possible to enter the market of collective land.Unifying the legal nature of the transfer contract of state-owned land and judicial proceedings may affect the "transfer of the right to use collective land".It is particularly important to clarify the legal nature and review rules of the transfer contract of state-owned land.On this basis,based on the analysis of judicial practice,this paper further discusses the nature of state-owned land transfer contract,expounds the advantages of public law review rules and discusses the improvement path of judicial review.The article is divided into four parts: In the first part,starting from the purpose,content and other elements of the administrative agreement,it demonstrates that the transfer contract is actually an administrative agreement with the administrative attribute taking advantage,and then discusses that the judicial review of the administrative agreement is different from the general administrative litigation due to the consideration of the administrative and contractual attributes.The court needs to break through the traditional "one-way litigation structure" and review the legitimacy and contractual nature of the administrative agreement;The second part mainly discusses the current situation of the judicial review of the transfer contract through the transfer contract cases in the past five years,as well as the data of the first instance,the second instance,the retrial,and the local administrative agreement legislation,and comes to the conclusion that there are different review modes,review rules,and different litigation structures in the trial of the transfer contract cases;The third part discusses the problems and causes of the judicial review of the existing transfer contract through the current situation of the judicial review,mainly including the legal nature of the transfer contract is not unified,the case is difficult to enter the substantive trial stage,the review mode is chaotic,and the review basis is not unified;The fourth part is the response to the existing problems of judicial review,which is based on how to try,what to try and the logical structure of the specific procedures during the review.First of all,write about the choice of judicial review mode for the trial of transfer contract disputes,which is the basic issue for the trial of transfer contract disputes,and then discuss the review object.Among them,the administrative priority of the administrative organ is the focus of attention.Finally,write about the judicial review during the trial of cases,mainly including the selection of review rules,legal basis and review rules.