限制交易規則為什麼失靈? –– 解構國有土地使用權轉讓合同效力的裁判方法

Abstract

A long period after the founding of P.R.C, China’s policy did not allow land transfer. Until 1986, China promulgated its first "Land Management Law," the law still emphasizes that "any unit or individual may not invade, sell, lease, or otherwise illegally transfer land." In spite of this, China has begun to carry out reform experiments on the transfer of land use rights in Guangdong and Fujian provinces. On April 12, 1988, China promulgated the "Constitution Amendment" to affirm the land use rights transfer system for the first time in the form of national fundamental law. On December 29 of the same year, China amended the "Land Management Law." It added regulations on land transfer and paid use.

At that time, the "Land Management Law" allowed the transfer of state-owned land use rights, but did not make clear provisions on the specific content and procedures of transfer. In order to enable the land management law to be implemented，The State Council promulgated the "Provisional Regulations on the Granting and Transfer of State-owned Land Use Rights in Cities and Towns" and "Interim Measures for the Administration of Foreign Investment to Develop and Operate into Land" in 1990. These two administrative regulations make the transfer of land use rights have the legal basis for operation.

Even so, in the process of transfer of state-owned land use rights appeared a problem: Should there be certain conditions for the transfering of state-owned land use rights?

In 1994, Article 38 of the "Urban Real Estate Administration Law of the People's Republic of China" provided two conditions for the transfer of real estate: 1. the transferor has paid all the transferring-fees of the land use rights in accordance with the contract of land use rights grant and has acquired land use rights certificate, 2. at the time of land transfer, the real estate has been invested and developed, of which the part that belongs to the housing construction project should be completed more than 25 percent of the development of the total investment, if the land belong to the partial development, it should form conditions of industrial land or of other construction land.

At the same time, Article 37 of the Urban Real Estate Administration Law stipulates that real estate that does not meet the requirements of Article 38 shall not be transferred.

The above-mentioned laws make two prerequisites for the transfer of state-owned land use rights and housing property rights, namely, "conditions of acquisition" and "development conditions", those without such conformances shall not be transferred.

After the implementation of "Urban Real Estate Management Law", there are a large number of cases which do not have "conditions of acquisition" or "development conditions" for the transfer of state-owned land use rights in the practice, some cause disputes and appealed to the court.

The court's judicial position on such disputes has undergone two significant changes. The first stage:the land use rights transfer contract must abide by the rules of "conditions of acquisition" and "development conditions" of the "Urban Real Estate Management Law". On June 9th, 2003, in the reply of the Supreme People's Court to the Guangxi High Court, it was judged that the transfer contract was invalid if the two conditions stipulated in Article 38 of the "Urban Real Estate Management Law" were not simultaneously fulfilled.

The judicial position of the second stage is completely opposite. In 2004, the Supreme People's Court in its second instance concluded that in the case of the "contract dispute of the Guixinyuan company against Quanwei company about land use rights transfer" ruled that, inArticle 38 of the "Urban Real Estate Management Law" that the transfer of land investment should reach 25% of the total investment is the restrictive condition of the change of the real rights of the land use rights transfer contract.If the transfer of land did not get more than 25% of the investment, which is only the subject matter defects of the contract,it does not directly affect the legal effect of land use rights transfer contract. The provision of Article 38 of the "Urban Real Estate Administration law" is not a mandatory provision that determines the validity of the land use rights transfer contract.

Since then, the Supreme People's court has taken a variety of theoretical explanations on "development conditions" in similar cases. Until May 2009, the Supreme People's Court promulgated the "Contract Law Interpretation (II)", Article 14 of the Interpretation states that the "mandatory provision" under Article 52 (5) of the Contract Law refers to the mandatory provisionon validity.

After the promulgation of the interpretation, the Supreme People's court believes that "development conditions" of the "real estate management law" does not belong to the mandatory provisions, and declare that the relevant land use rights transfer contract is valid. In other words, the definition of the legal nature of the "development conditions" of the Supreme People's Court has returned to its starting point for mandatory provisions, but considers that the provision is not a mandatory provision on validity and therefore does not affect the validity of contract.

The change of position of the Supreme People's Court on the "development conditions", is due both to the influence of national macroeconomic policies and to changes in judicial perception. At the level of practice, it shows the wavering of the judgment reasons. The core question is: how do the mandatory provisions of affect the validity of contract?

Unlike the rich judicial practice, the theoretical study on the validity of the land use rights transfer contract is very scarce, and basically there is no systematic theoretical research.

The transfer of state-owned land use rights is of great significance to China's current economic and social development. How does the Legal Limitation Rule Play a Role in the Transfer of State-owned land use rights? It is not only related to the legitimacy of the transfer of state-owned land use rights, but also related to the legal guidance and control of China's current market economic behavior in the overall sense.

This thesis mainly adopts empirical analysis, legal hermeneutics and legal philosophy methods. From the perspective of empirical analysis, this thesis takes the research approach of typical case analysis.

On the one hand, this thesis collected 16 cases of civil judgments of Supreme People's court involving the contract conflict of the transfer of state-owned land use rights since 1994. These judgments generally reflect the two different positions of the Supreme People's Court on the relationship between the "development conditions" and the validity of contract in different periods.

Although the conclusions (positions) of these judgments since 2004 are consistent, the reasons are greatly different. In the reasons of the judgments which support the fact that the "development conditions" do not affect the validity of contract, there are five theoretical basis that are very representative: 1. "those subject defects that do not belong to the conditions of development do not affect the validity of contract"; 2. Article 38 of "City Real Estate Management law" is not a mandatory provision; 3. "the honesty and credit principle"; 4. "the distinguish principle between the reason behavior and the result behavior of the real rights alteration"; 5. Article 38 of "City Real Estate Management law" is not an effective mandatory provision.

On the other hand, this thesis also collected four criminal cases involving illegal transfer and reselling land use rights.These criminal cases demonstrate that the violation of the "development conditions" belonging to the transfer state-owned land use rights is illegal transfer behavior and reselling land use rights behavior, when the amount of profit reach to a certain standard it constitutes a crime.Therefore, these criminal judgments position and civil judgments "effective" position take the opposite stand.

Looking at the Supreme People's Court's civil adjudication method for the case of the contract for the use of state-owned land use rights transfer contract, it has experienced the change of formalism to functionalism to formalism.The initial "invalidity" civil verdict was based on legal formalism.That is to say, It start from the concept of legal rules and using judicial syllogism (deductive reasoning), and then conclude that the contract is invalid if it violates mandatory provisions.In the previous period,the civil judgment of "effective statement", set aside the formalism of the legal rules and turned to depended on the choice of law functions, including the subject matter theory, the principle of good faith, the principle of distinguishing of the reason and results for the change of the property rights , and so on. In order to arrive at conclusion of the contract is valid.

However, the above functionalist approach applies to such cases where there are one or more shortcomings.For example, when the subject matter defects theory is used to judge the effect of the change of real rights, the concept of the subject matter defects and the illegal acts of property rights are confused; when those judgments are based on the "honesty and credit principle", their premise is wrong (because bothsides are aware of the legal restrictions, if they conclude the contract without complying with the law, both sides are dishonest); applying "the distinguish principle between the reason behavior and the result behavior of the real rights alteration" ignores the previous contract behavior (land use rights granting contract) of the land use rights transfer contract. Therefore, the preliminary conclusion drawn from the normative analysis is that the reasons in the civil judgments of the past is not helpful to draw the conclusion that the contract is valid.

Perhaps because of this, in recent years, the "effective" judgments of the Supreme People's court no longer quoted those unsettled theories or principles like before, but limited the "mandatory provisions" of Article 52 (5) of the Contract Law to "mandatory provisions on validity" through the introduction of judicial interpretation.

In the land use rights transfer contract dispute case, the "development conditions" of the "Urban Real Estate Management Law" are excluded from the "mandatory provisions on validity" so that the fact that without "development conditions" is considered as not affect the validity of the contract. This judicial method shows that the Supreme People's Court has returned to the legal formalism. Unlike the formalism method adopted earlier, the concept of legal rules has been adjusted so that the judgment conclusions are the opposite.

However, such a legal interpretation still has two obvious problems: one is that the contract which violates "mandatory provisions on validity" will be invalid does not indicate that the contract which violates "mandatory provisions on administration" will be valid; the other one is, in the implementation of some "effective view" civil judgments, the real estate management department has the rights to refuse to change the registration of land use rights transfer which do not have the "development conditions", so that the judgment on the "continue to perform the contract" comes to nothing.

In this thesis, I adopted the strategy of "establishing after breaking": first of all, with the help of the description of the historical justice theory on the Supreme People's Court on the land use rights transfer dispute cases, we reveal the changes of civil justice theory and judicial position of such cases; secondly, through the theoretical analysis of the "effective theory" of the civil judgment, we point out the errors and shortcomings of the "effective view" judgment so as to undergo falsification on the "effective theory "; thirdly, this thesis points out that the relationship between the mandatory classification and the contract validity does not form a compelling correspondence relationship, and thus lacks the theory of self-consistency; finally, this thesis uses the theory of legal formalism and functionalism to point out that the limiting interpretation of mandatory provisions,and dividing the restricted trading rules into non-effective mandatory provisions, is a mechanical formalism method. This thesis carefully analyzes the interests of the parties involved in the transfer of land use rights through functionalist measures of interest. It proves that the binding of the "development conditions" on the validity of the contract. Based on this basis, I proposed that the restriction rules should have a general effect on the validity of the contract within the legal conditions.

Date of Award	20 Sept 2018
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Lei CHEN (Supervisor)