Real estate perspective: the summary and interpretation of the key provisions of the "Jinan City Collective Construction Land Management Measures (Trial)".
Published:
2021-10-18
Recently, the General Office of the Jinan Municipal people's Government issued the measures for the Administration of Collective Construction Land in Jinan (for trial implementation) (JZBF [2021] No. 21, hereinafter referred to as the "measures"). The aim is to further strengthen the management of collective construction land, standardize the examination and approval of the right to the use of collective construction land, prudently promote the entry of collective construction land into the market, and build a unified urban and rural construction land market. This paper attempts to interpret from the following aspects: Drafting background and process The "the People's Republic of China Land Management Law" (hereinafter referred to as the "Land Management Law") implemented on January 1, 2020 clearly stated for the first time the legal requirements for collective operating construction land to enter the market. Article 63 of the "Land Management Law" stipulates: "The overall land use planning, urban and rural planning (land and space planning) are determined as industrial, commercial and other operating uses, and the collective operating construction land is registered in accordance with the law, the owner of the land may hand it over to the unit or individual for use by means of transfer, lease, etc". The "Regulations on the Implementation of the Land Management Law" implemented on September 1, 2021 further refined and clarified the entry of collective operating construction land into the market. At the level of Jinan City, the 2021 "Government Work Report" included "improving the rural collective construction land management system and promoting the entry of collective operating construction land into the market" as a matter of deepening agricultural and rural reform in 2021. At the same time, in order to actively promote the entry of collective operating construction land into the market, Jinan City has also been actively establishing and improving the collective operating construction land management supporting system. In the above context, the Jinan Municipal People's Government closely combined with the actual situation of Jinan City, drafted the "Jinan City Collective Construction Land Management Measures (Trial)", the "Measures" has been by the Jinan Municipal People's Government Office on October 13, 2021 Officially issued, effective from December 1, 2021. Clarify the use scope of collective construction land In order to solve the problems of unclear use scope and weak operability of rural collective construction land in practice, the "Measures" further clearly define the use scope of collective construction land. Article 5 of the measures clearly stipulates the scope of project construction that can use collective construction land, namely: first, villager (resettlement) residential quarters (including supporting facilities); second, public welfare undertakings and public facilities projects; third, industrial storage, commercial, tourism, entertainment and other business projects; fourth, major (key) projects such as indemnificatory public rental housing determined by governments at or above the district and county level; the fifth is the bottom clause, that is, other construction projects that meet the requirements. Further standardize the approval process The second chapter of the measures stipulates the implementation scope, procedures, application materials and approval documents of the examination and approval of the right to the use of collective construction land. Article 8 of the "Measures" stipulates that the scope of examination and approval shall be other collective construction land except for collective business construction land such as industrial storage, commerce, tourism, and entertainment that enter the market in accordance with the law. Article 9 of the "Measures" and the application materials for land use shall be approved by the town government (sub-district office), the district natural resources department, and the district government in turn. Articles 10 and 11 of the measures further clarify the application materials and approval documents under the scope of examination and approval for the implementation of the right to the use of collective construction land. Detailed provisions on the entry of collective operating construction land into the market Chapter III of the measures specifies in detail the relevant concepts, implementation subjects, entry conditions and procedures to be performed for the entry of collective operating construction land into the market. Article 12 and Article 13 of the "Measures" respectively stipulate the concepts of collective operating construction land and collective operating construction land entering the market. Collective operating construction land refers to the collective construction land that is determined by the land space planning (overall land use planning, urban and rural planning) as industrial warehousing, commerce, tourism, entertainment and other operational uses, and the land ownership registration is handled in accordance with the law. The entry of collective business construction land into the market refers to the act that the land owner, through the open land market, hands over the land use right to other units or individuals for use in a certain period of time by means of transfer, lease, capital contribution (shareholding) and other paid means. Among them, the maximum service life of collective construction land shall be implemented with reference to state-owned construction land of similar use; the land lease period shall generally not be less than 5 years, and the maximum shall not exceed 20 years. Article 14 of the measures stipulates that the main body of collective business construction land entering the market is the land owner (collective economic organization), and Article 15 stipulates that the transfer methods of collective business construction land include competitive transfer methods such as bidding, auction and listing, and agreement transfer. Article 18 of the measures also clearly stipulates the conditions that should be met for the entry of collective business construction land into the market. The first is to meet the requirements of national industrial policy, land use, ecological environment protection, etc.; the second is to clarify the source of construction land, land property rights, clear boundary sites, and no ownership disputes; the third is to clean land or above-ground buildings, structures and other attachments The ownership is clear. It should be noted that the state's requirements for state-owned construction land must be "net land" transfer; fourth, it has the basic conditions required for development and construction. Article 22 of the Measures provides more detailed regulations on the procedures that should be performed for the entry of collective operating construction land into the market. In summary, there are mainly the following procedures: First, the main body of the market compiles the land entry plan; second, the land entry plan is submitted to the relevant departments for review; third, if the market is entered by agreement or lease, it needs to be reported to the district government for approval; if the market is sold in a competitive manner, after the corresponding approval, incorporate into the public resource trading platform, uniformly organize the public bidding of land, and the market entry subject issues the market entry transaction announcement as required; fourth, the market entry subject publicizes the land entry result or transfer result in accordance with the regulations; fifth, the market entry subject and the person who has obtained the land use right sign the "Collective Operating Construction Land Use (Lease) Contract". In addition, the right holder who has obtained the right to use collective construction land in accordance with the law can apply to the real estate registration agency in the district for registration of the right to use after paying the land price, related taxes and fees and value-added income. Clearly defined payment standards The Measures also stipulate the standards for the fees that should be paid for the entry of collective construction land into the market. Article 24 of the Measures clarifies that collective business construction land shall pay part of the land value-added income when entering the market, industrial storage land shall pay 20% of the net land income, and commercial service (commercial, tourism, entertainment, etc.) land shall pay 50% of the net land income. The net income from land shall be determined by the district governments with reference to the calculation method of the net income from similar state-owned construction land and in the light of the actual situation. In addition, Article 25 of the "Measures" stipulates that when collective business construction land enters the market, the person who obtains the land use right shall pay deed tax at 3% of the land transaction price. This provision is also a reference to the applicable tax rate for the payment of deed tax on the sale of state-owned land.
Recently, the General Office of the Jinan Municipal people's Government issued the measures for the Administration of Collective Construction Land in Jinan (for trial implementation) (JZBF [2021] No. 21, hereinafter referred to as the "measures"). The aim is to further strengthen the management of collective construction land, standardize the examination and approval of the right to the use of collective construction land, prudently promote the entry of collective construction land into the market, and build a unified urban and rural construction land market. This paper attempts to interpret from the following aspects:
Drafting background and process
The "the People's Republic of China Land Management Law" (hereinafter referred to as the "Land Management Law") implemented on January 1, 2020 clearly stated for the first time the legal requirements for collective operating construction land to enter the market. Article 63 of the "Land Management Law" stipulates: "The overall land use planning, urban and rural planning (land and space planning) are determined as industrial, commercial and other operating uses, and the collective operating construction land is registered in accordance with the law, the owner of the land may hand it over to the unit or individual for use by means of transfer, lease, etc". The "Regulations on the Implementation of the Land Management Law" implemented on September 1, 2021 further refined and clarified the entry of collective operating construction land into the market.
At the level of Jinan City, the 2021 "Government Work Report" included "improving the rural collective construction land management system and promoting the entry of collective operating construction land into the market" as a matter of deepening agricultural and rural reform in 2021. At the same time, in order to actively promote the entry of collective operating construction land into the market, Jinan City has also been actively establishing and improving the collective operating construction land management supporting system.
In the above context, the Jinan Municipal People's Government closely combined with the actual situation of Jinan City, drafted the "Jinan City Collective Construction Land Management Measures (Trial)", the "Measures" has been by the Jinan Municipal People's Government Office on October 13, 2021 Officially issued, effective from December 1, 2021.
Clarify the use scope of collective construction land
In order to solve the problems of unclear use scope and weak operability of rural collective construction land in practice, the "Measures" further clearly define the use scope of collective construction land. Article 5 of the measures clearly stipulates the scope of project construction that can use collective construction land, namely: first, villager (resettlement) residential quarters (including supporting facilities); second, public welfare undertakings and public facilities projects; third, industrial storage, commercial, tourism, entertainment and other business projects; fourth, major (key) projects such as indemnificatory public rental housing determined by governments at or above the district and county level; the fifth is the bottom clause, that is, other construction projects that meet the requirements.
Further standardize the approval process
The second chapter of the measures stipulates the implementation scope, procedures, application materials and approval documents of the examination and approval of the right to the use of collective construction land. Article 8 of the "Measures" stipulates that the scope of examination and approval shall be other collective construction land except for collective business construction land such as industrial storage, commerce, tourism, and entertainment that enter the market in accordance with the law. Article 9 of the "Measures" and the application materials for land use shall be approved by the town government (sub-district office), the district natural resources department, and the district government in turn. Articles 10 and 11 of the measures further clarify the application materials and approval documents under the scope of examination and approval for the implementation of the right to the use of collective construction land.
Detailed provisions on the entry of collective operating construction land into the market
Chapter III of the measures specifies in detail the relevant concepts, implementation subjects, entry conditions and procedures to be performed for the entry of collective operating construction land into the market.
Article 12 and Article 13 of the "Measures" respectively stipulate the concepts of collective operating construction land and collective operating construction land entering the market. Collective operating construction land refers to the collective construction land that is determined by the land space planning (overall land use planning, urban and rural planning) as industrial warehousing, commerce, tourism, entertainment and other operational uses, and the land ownership registration is handled in accordance with the law. The entry of collective business construction land into the market refers to the act that the land owner, through the open land market, hands over the land use right to other units or individuals for use in a certain period of time by means of transfer, lease, capital contribution (shareholding) and other paid means. Among them, the maximum service life of collective construction land shall be implemented with reference to state-owned construction land of similar use; the land lease period shall generally not be less than 5 years, and the maximum shall not exceed 20 years.
Article 14 of the measures stipulates that the main body of collective business construction land entering the market is the land owner (collective economic organization), and Article 15 stipulates that the transfer methods of collective business construction land include competitive transfer methods such as bidding, auction and listing, and agreement transfer.
Article 18 of the measures also clearly stipulates the conditions that should be met for the entry of collective business construction land into the market. The first is to meet the requirements of national industrial policy, land use, ecological environment protection, etc.; the second is to clarify the source of construction land, land property rights, clear boundary sites, and no ownership disputes; the third is to clean land or above-ground buildings, structures and other attachments The ownership is clear. It should be noted that the state's requirements for state-owned construction land must be "net land" transfer; fourth, it has the basic conditions required for development and construction.
Article 22 of the Measures provides more detailed regulations on the procedures that should be performed for the entry of collective operating construction land into the market. In summary, there are mainly the following procedures: First, the main body of the market compiles the land entry plan; second, the land entry plan is submitted to the relevant departments for review; third, if the market is entered by agreement or lease, it needs to be reported to the district government for approval; if the market is sold in a competitive manner, after the corresponding approval, incorporate into the public resource trading platform, uniformly organize the public bidding of land, and the market entry subject issues the market entry transaction announcement as required; fourth, the market entry subject publicizes the land entry result or transfer result in accordance with the regulations; fifth, the market entry subject and the person who has obtained the land use right sign the "Collective Operating Construction Land Use (Lease) Contract". In addition, the right holder who has obtained the right to use collective construction land in accordance with the law can apply to the real estate registration agency in the district for registration of the right to use after paying the land price, related taxes and fees and value-added income.
Clearly defined payment standards
The Measures also stipulate the standards for the fees that should be paid for the entry of collective construction land into the market. Article 24 of the Measures clarifies that collective business construction land shall pay part of the land value-added income when entering the market, industrial storage land shall pay 20% of the net land income, and commercial service (commercial, tourism, entertainment, etc.) land shall pay 50% of the net land income. The net income from land shall be determined by the district governments with reference to the calculation method of the net income from similar state-owned construction land and in the light of the actual situation.
In addition, Article 25 of the "Measures" stipulates that when collective business construction land enters the market, the person who obtains the land use right shall pay deed tax at 3% of the land transaction price. This provision is also a reference to the applicable tax rate for the payment of deed tax on the sale of state-owned land.
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