Real Estate Perspective: Civil Agreement or Administrative Agreement? Analysis of the Nature of Land Use Right Assignment Contract
Published:
2021-10-29
Foreword
In the process of real estate development, there must be a link of acquiring land in the early stage, and the essential thing in this link is to sign the "Land Use Right Assignment Contract" of a certain plot to be developed. Regarding whether the contract is a civil agreement or an administrative agreement, the academic circles are unanimously controversial, and judicial practice is also different and different. The 2015 edition of the Administrative Litigation Law clearly included administrative agreements in the scope of administrative litigation. However, it did not completely solve the qualitative problem of the contract for the transfer of state-owned land use rights, but accelerated the courts at all levels and even the Supreme People's Court. Disputes over judicial remedies for such contract disputes. Therefore, it is of great significance to clarify the nature of the contract for the transfer of state-owned land use rights for the settlement of such contract disputes. The author of this paper through case analysis and other basic combing of this problem, in order to have some enlightenment to readers.
Part I Basic Differentiation
Part II Case Analysis
Case one:
Case No.:(2020) Supreme Law Application No. 13827
Trial court: Supreme People's Court
Nature of determination: civil agreement
The Court's view:The Interpretation of the Supreme People's Court on the Application of Law in the Trial of Cases Involving Contract Disputes over the Right to the Use of State-owned Land includes disputes over contracts for the transfer of the right to the use of state-owned land in the scope of civil litigation. Article 2 of the provisions of the Supreme people's Court on several issues concerning the trial of Administrative Agreement cases only includes the agreement on the transfer of the right to the use of state-owned natural resources, such as mining rights, into the scope of the administrative agreement, and does not include the contract for the transfer of the right to the use of state-owned land. The Provisions on the Causes of Action in Civil Cases also provide for disputes over contracts for the assignment of the right to the use of construction land as the cause of action. Therefore, the contract for the transfer of the right to the use of state-owned construction land is not an administrative agreement, which should be adjusted by the the People's Republic of China contract Law and other civil legal norms. The court of second instance determined that the case involved in the "State-owned Construction Land Use Right Assignment Contract" was an administrative agreement error, and the court corrected it.
Case two:
Case No.:(2018) Supreme Fa Min Shen No. 3167
Trial court: Supreme People's Court
Nature of determination: civil agreement
The Court's view:The transfer of state-owned land use right refers to the act that the state, as the land owner, transfers the land use right to the land user within a certain period of time, and the land user pays the land use right transfer fee to the state. The transfer of land use rights is generally implemented by government functional organs on behalf of the State. On the surface, there are some traces of administrative management between the transferor and the transferee, but in essence, when the government functional agency performs the land use right transfer behavior, it represents the country and appears as the land owner. Its legal status is only a civil subject, which is equal to the legal status of the transferee of the land use right. The conclusion of the land use right transfer contract also completely follows the principles of equality, voluntariness and compensation, the content of the contract is also the expression of the true will of the parties. It can be seen that the contract for the transfer of state-owned land use rights should belong to a civil contract, and the use of civil remedies to resolve disputes over the contract for the transfer of land use rights is also the proper meaning of the attribute of the contract. The government functional departments also have the power of supervision and management of land use, which is a concrete manifestation of their dual identity, but it cannot be considered that the rules applicable to the contract for the transfer of state-owned land use rights go beyond the scope of civil law rules. In addition to the agreement on the delivery and payment of land, the land transfer contract in this case also specifically defines the project construction progress, total investment in fixed assets, floor area ratio and other issues, and stipulates the corresponding liability for breach of contract.
Case three:
Case No.:(2020) Supreme Law Application No. 11753
Trial court: Supreme People's Court
Identified nature: administrative agreement
The Court's view:Whether this case falls within the scope of administrative litigation. According to the "the People's Republic of China Urban Real Estate Management Law" and the "Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns", the contract for the assignment of state-owned land use rights is an administrative agreement. From the perspective of the signing subject, the party signing the state-owned land use right transfer contract is the land management department, which is the administrative subject; from the perspective of purpose elements, such agreements are to realize the public interest or the state's management goal of reasonable and effective use of limited land resources; from the perspective of the rights and obligations of both parties, such agreements are closely related to the administrative agency's performance of administrative duties or completion of administrative tasks, in the signing and performance of the agreement, the administrative organ enjoys the right to unilaterally recover land on the basis of social public interests or statutory reasons. The court of first instance held that the contract for the transfer of the right to the use of state-owned construction land (hereinafter referred to as the contract involved in the case) signed by Hongyi company and Huludao Municipal Bureau of resources in July 2011 is an administrative agreement, which belongs to the scope of administrative litigation and conforms to the legal provisions.
Case four:
Case No.:(2016) Supreme Law No. 822
Trial court: Supreme People's Court (typical, guiding case)
The nature of the determination: mixed, the nature of the contract is an administrative agreement, but certain civil litigation content can be applied.
The Court's view:The Supreme People's Court held in the second instance that although the contract for the transfer of the right to the use of construction land has the content of rights and obligations in administrative law, according to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Administrative Litigation Law (hereinafter referred to as the Interpretation of the Applicable Administrative Litigation Law) Article 14 and Article 15 Paragraph 1 stipulate that matters related to the termination of the contract should still be dealt with by the contract law and other relevant laws. If Dafeng District Government fails to fulfill its obligation to deliver the land involved in the case after exceeding the time limit stipulated in the contract and after being urged, Ruihao Company shall have the right to terminate the contract in accordance with the law and the contract. After mediation, the two parties reached an agreement to terminate the transfer contract, and the Dafeng District Government returned the land transfer fee and interest to Ruihao Company, and paid liquidated damages totaling 0.249 billion yuan.
Typical meaning:The cause of this case is a dispute over the contract for the transfer of the right to use construction land. In accordance with the relevant provisions of the current law and the judicial interpretation of the Administrative procedure Law, the second instance not only determines that the contract for the transfer of the right to the use of construction land has the attribute of administrative agreement, but also respects the autonomy of the parties, and follows the civil procedure that the parties choose to apply and have carried out, which not only adheres to the unity of legal provisions and autonomy of will, but also embodies the principles of litigation economy and efficiency. It not only supervises the administration of administrative organs according to law, but also protects the legitimate property rights and interests of citizens and legal persons, and declares the judicial concept of the people's court to equally protect all parties in accordance with the law.
Part III Conclusion and Hints
Whether the contract for the transfer of state-owned land use rights is a civil agreement or an administrative agreement and how to characterize it is related to the court's trial thinking, the remedies of the parties to the contract and the way of rights protection. As an administrative agreement itself has administrative attributes, but at the same time, both the dual attributes of the contract also determines that in the process of dispute resolution can not be absolutely partial to its end. The mixed treatment and overall trial of the land use right transfer contract is also a trend of recent court decisions, which is conducive to retaining a certain degree of discretion in the handling of disputes over the transfer contract according to the circumstances of the case. this also puts forward higher requirements for the subject of the agreement to safeguard their legitimate rights and interests with the help of the existing adjudication rules.
Prompt 」:As the main developer, whether it is based on civil agreement or administrative agreement to claim rights, it has a certain degree of selectivity and initiative. On the one hand, it is necessary to analyze and determine the nature of the contract according to the content and circumstances of the contract. On the other hand, according to the appeal and the goal to be achieved, the cause of action and litigation ideas are determined. If you want to confirm administrative violations and government functional violations, you can sue through administrative agreements. If you want to apply contract termination clauses and claim compensation for breach of contract, you can sue through civil agreements. As the main body of the administrative organ, it will also face the problem of whether to deal with the relevant legal disputes according to the civil agreement or the administrative agreement. If the disputed matters can be handled in accordance with the civil agreement, the administrative agency can also claim rights from the opposite party of the agreement by filing a civil lawsuit; but if it must be handled in accordance with the administrative agreement, the administrative agency cannot sue the opposite party of the agreement as the plaintiff, and can only Urge the opposite party of the agreement to perform the agreement, and make a written decision to require it to perform the agreement if it fails to perform.
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