The fourth chapter

A lawyer to handle the mortgage the right to use construction land operation guidelines

 

The first day on set investigation and audit the mortgage of land use rights

 

The 184th article of the law should be set mortgage the right to use construction land - ownership of land survey

Lawyers for the customers for the right to use construction land mortgage procedures provide legal service, should first inform the mortgage (right), in the setting of construction land use right mortgage shall be investigated, to determine the construction land use rights have the legal condition of the mortgage. The investigation includes:

Whether the 184.1 mortgage people already receive warrants to the use of land for construction.

Are the same 184.2 construction land use of the content and the land registry files recorded content.

Whether the 184.3 mortgage is the right to use construction warrants the use of construction land.

184.4 will get way of mortgage of construction land use rights.

Construction of the 184.5 mortgage to transferring, transfer of land use rights, have to pay all the land leasing.

184.6 construction has made through transferring, transfer of land use rights mortgage, shall not violate the provisions of the construction land use right transfer contract; mortgage term shall not exceed the stipulated in the contract for assigning the remaining years of life expectancy minus the age after use.

Construction has 184.7 mortgage to the allocation of land use rights, land administrative departments to handle the mortgage registration, shall be regarded as has obtained the land administrative departments of the examination and approval authority for approval, shall not be mortgaged for the right to use construction land examination and approval procedures.

184.8 to mortgage the right to use construction land exists on buildings, other structures, as well as the ground buildings, other structures of property rights registration.

184.9 to mortgage the right to use construction land on the ground and buildings, other structures are rental. As has been leased, the mortgagor shall inform the lessee; to mortgage the right to use construction land and buildings on the ground, there is no other attachments has been set mortgage, if any, must first obtain the consent of the original mortgagee consent, shall also be mortgaged to inform new mortgage status.

184.10 to mortgage the right to use construction land is a subject with.

184.1l and signed in the construction land use rights other's approval of the mortgage contract, the meaning of the agreement that be in writing.

The 184.12 review intends to mortgage the right to use construction land without following the prohibition of mortgage:

(1) ruling, the judicial organs and administrative organs in accordance with the law, the decision to close or other restrictions on construction land use rights on the ground and buildings, other structures of rights;

(2) has been the relevant state authorities in accordance with the law to recover the land use right for construction;

(3) the ownership dispute;

(4) not to receive a registration certificate management authority;

(5) construction obtained by way of allocation of land use rights, not in accordance with the provisions of the State Council, shall be empowered people's government for approval.

(6) the law, administrative regulations from other circumstances mortgage.

184.13 examine construction mortgage transfers the way to obtain the land use right is in accordance with the "Provisional Regulations on urban state-owned land use right transfer and the transfer of" the provisions of the forty-fifth conditions.

 

The 185th lawyers should prompt clients to mortgage the right to use construction land premium assessment

185.1 counsel should inform the mortgagee the right to use construction land mortgage shall premium assessment, the assessment price as the basis of the mortgage contract signed.

The construction of 185.1.1 transferring to acquire land use rights, by the mortgagee premium assessment or by an agency land valuation qualification assessment and the mortgagee approved, signed a mortgage contract.

The construction of 185.1.2 allocated to obtain land use rights, the mortgagor entrusted with the intermediary land valuation qualification for premium assessment, the land management department to confirm, and approved mortgage, leasing amount approved after the signing of the mortgage contract.

185.2 quasi secured creditor cannot exceed to mortgage the right to use construction land value. The mortgage established right to use land for construction, the secured creditor shall not exceed the construction land use right value. After the mortgage, such as the right to use construction land value increase, the construction land use right is higher than the value of the balance of the secured claim can be mortgaged again, otherwise, exceed the balance has no effect of first refusal.

 

The 186th lawyers should be prompted to key client

The 186.1 lawyers to represent a client, the special investigation shall be carried out as follows

186.1.1 intends to mortgage the right to use construction land is a limited liability company, Limited by Share Ltd, a lawyer shall review the company's board of directors, shareholders Council agreed in writing to file the mortgage.

186.1.2 intends to mortgage the right to use construction land belonging to state-owned assets, a lawyer shall document of approval authority for examination of the government.

186.2 counsel should be reasonable that the mortgagee attention to mortgage the right to use the land for construction land use and land planning conditions. The right to use construction land mortgage, for the duration of the mortgage contract, the mortgagee must continue

To fulfill the transfer of construction land use right all the obligations stipulated in the contract.

 

 

The mortgage contract of construction land use rights in section second

 

The main contents of the 187th lawyers should prompt clients the right to use construction land mortgage contract should possess

187.1 the parties to the mortgage of the name or the name, domicile, contact;

187.2 construction land use rights, land area, site;

187.3 land use permit number, construction land use right transfer contract number;

187.4 scope of the guarantee, such as guarantees repayment of debt principal, interest and penalties, liquidated damages and related taxes and fees;

187.5 mortgage rights and obligations of the parties;

Treatment of force does not occur during the execution of the contract 187.6;

187.7 mortgage registration matters;

187.8 liability for breach of contract;

187.9 ways of dispute settlement;

Other matters agreed upon by the parties to the 187.10 mortgage.

 

The 188th lawyers should prompt clients in the matters needing attention in the course of the performance of the mortgage contract

188.1 mortgage contract deal with the principal obligation secured mortgage property types, expressly agreed.

188.2 the mortgage contract shall not stipulate in the debt discharge period mortgagee unpaid, construction land use rights transfer to the obligee.

188.3 in the period of mortgage, mortgage people's behavior to make mortgage the right to use construction land decreased in value, the mortgagee can request to stop the action, or provide and reduce the value of the collateral.

188.4 mortgage termination period shall not exceed the construction land use right transfer deadline.

The 188.5 period of mortgage, the mortgagor has handled the transfer of building mortgage registration of land use rights, it shall notify the mortgagee and inform the assignee has secured the transfer of materials.

188.6 the transfer of mortgage of land use rights price significantly less than its value, the mortgagee can request to provide a corresponding guarantee.

188.7 mortgage on income from the transfer of the mortgage of the right to use construction land price, should advance to pay off the guaranteed creditor's rights to the mortgagee or agreement and the mortgagee's third deposit.

 

The registration of mortgage the right to use the third day construction land

 

Article 189th a lawyer should note the mortgage (right) people the right to use construction land shall handle the registration of mortgage

Mortgage without the approval of the land administration department mortgage registration of construction land use right, legal effect cannot occur mortgages established and entered into force. Different mortgage, the original construction must go to the location of the land to the land use rights for the registration of mortgage registration authority. The mortgagor has actively cooperate with the mortgage registration obligations.

 

Important points to note the registration of mortgage the right to the use of land for construction of 190th lawyers to help the

190.1 make and issue the power of attorney to the land registration agencies, and for the legalization of attorney authorized in accordance with the relevant provisions.

190.2 counsel should carefully review the material is complete, true, and in the right to use construction land mortgage contract signed within 15 days after the timely processing of the original, the lawyer shall be properly kept, completed to promptly return the parties, so as to avoid loss of responsibility.

 

 

For realizing the right to mortgage the right to use the land for construction of the fourth day

 

The 191st article of the law shall inform the principal of realizing the mortgage right conditions

One of the following situations, the mortgagee has the right to dispose of collateral part or all of the right to use construction land, to pay off all debts:

(1) if the mortgagor fails to fulfill the obligations prescribed by the contract, and failed to reach the mortgagee delays in carrying out the agreement;

(2) the mortgagor dies or is declared dead according to law, the mortgagor's heir, legatee, the administrator refuses to perform the debt or without heirs, legatee generation the repayment of the debt;

(3) the mortgagor is declared the dissolution or bankruptcy.

 

The 192nd article of the law shall inform the principal of realizing the mortgage right way

192.1, the mortgagee may in the following way construction to dispose of the mortgaged land use right:

(1) commissioned intermediary sales;

(2) the auction agencies entrusted by the government designated auction;

(3) the other way the mortgage contract.

The right to use construction land mortgage, the mortgagee the mortgage right, the right and the right to use the land for construction and land buildings, other structures.

192.2 in accordance with the land use rights to build as collateral security in case of disputes, debt discharge period mortgagee is not repaid, through auction to construction land use rights realization. If the debtor can not cash, and no other property available for settlement, shall assess the right to use the land for construction. The people's court may land valuation results confirm the land management departments of the government, the right to use the land for construction of discount, upon consent of the mortgagee, will build the discount after the land use right compensation to the mortgagee, construction land use rights enjoyed by the mortgagee.

 

Item 193rd lawyers shall notify the clients the mortgagee to the mortgage process should pay attention to

193.1 the mortgagor disposes of the mortgaged construction land use right, should be prior written notice to the mortgagor and the interested parties; mortgage the right to use construction land for a total or rental, should also be written notification of people and the tenant. There are people and the lessee shall have the preemptive right.

193.2 the mortgagee and the mortgagor in construction land use rights stipulated in the mortgage contract, the mortgagee debt discharge period of unpaid, construction land use rights transfer is invalid for the mortgagee all content.

 

The 194th article of the law should terminate the situation told the principal mortgage the right to dispose of

194.1 mortgage who fulfilled all the debts.

194.2 the mortgagor or mortgagee has the mortgage contract to the people's court.

 

Article 195th a lawyer should order the right to use construction proceeds to inform the client to dispose of the mortgaged land allocation

195.1 payment to dispose of mortgage of land use rights fees.

195.2 excluding mortgage the right to use construction land should pay taxes.

195.3 repayment of the mortgagee's interest and liquidated damages.

195.4 of the remaining amount is returned to the mortgagor.

Construction land use right is obtained by mode of allocation, to dispose of the right to use the land for construction, from the proceeds to pay the equivalent of the construction should pay the land use right transfer payment amounts, the mortgagee shall be priority.

 

 

The fifth chapter lawyer for leasing the right to the use of land for construction of business operation guidelines

 

Investigation and audit section to be set for construction land use rights

 

The 196th lawyers to be set for construction land use right of land ownership in earlier stage

196.1 whether the lessor has receive warrants to the use of land for construction.

Are the same 196.2 construction land use of the content and the land registry files recorded content.

Whether the 196.3 lessor is the right to use construction include state-owned land use certificate of land.

Way of obtaining 196.4 quasi rent of land use rights.

The construction of 196.5 rental to transferring, transfer obtained land use rights, rights to perform the transfer, the transfer of contractual obligations.

196.5.1 construction land use rights have to pay land leasing or transfer of gold.

196.5.2 is transferring the contract terms and conditions of the investment in the development, utilization of land.

196.6 taxi to transfer to the construction way of obtaining land use right, is in accordance with the State Council, shall be empowered people's government for approval, signed the transfer contract, the construction of transferring to acquire land use rights stipulated in the transfer contract of transferring age has been used less residual life years after the rental period is longer than the limit.

196.7 taxi to transfer to the construction way of obtaining land use right, is in accordance with the State Council, shall be empowered people's government for approval, sign the lease contract, pay land leasing or with the approval of the people's government agreed to lease the right to receive proceeds in the construction land use right transfer.

196.8 the lessor has the right to use land for construction to the way, whether it has legal rental rights, including whether it has leased his right certificate, the original rental contract is allowed to lease, or rent is obtained the consent of the lessor.

The 196.9 proposed lease the right to use construction land exists on buildings, other structures, as well as the ground buildings, other structures the registration of property rights, leasing the right to the use of construction land, the above ground buildings, other attached Wu Suizhi rental.

The 196.10 proposed lease construction land use rights on the ground and buildings, other structures are rental. If rental, may not rent.

The 196.11 proposed lease the right to use construction land and buildings on the ground, there is no other attachments has been set mortgage. If there is, the mortgagor shall inform the lessee the right to use the land for construction has been secured, if not written to inform the lessor shall bear the liability for compensation, caused by the lessee to lease mortgage losses.

The 196.12 proposed lease the right to use construction land is a subject with.

196.13 any other's approval in the signing of construction land use right rental contract, the meaning of the agreement that be in writing.

The 196.14 review intends to lease the right to use construction land without prohibiting the rental situation.

196.14. the same method organ and administrative organ in accordance with the law ruling, the decision to close or other restrictions on construction land use rights on the ground and buildings, other structures of rights.

196.14.2 has been the relevant state authorities in accordance with the law to recover the land use right for construction.

196.14.3 ownership dispute.

196.14.4 not to receive a registration certificate management authority.

The construction of 196.14.5 allocated to obtain land use rights, not in accordance with the provisions of the State Council, shall be empowered people's government for approval.

196.14.6 legal, administrative regulations prohibiting the rental of other circumstances.

196.15 examine the construction of rental allocated to obtain land use rights is in accordance with the "Provisional Regulations on urban state-owned land use right transfer and the transfer of" the provisions of the forty-fifth conditions.

 

The 197th lawyers suggested that clients should pay attention to the other side of the subject qualification

197.1 quasi rent construction land use right of the lessor is a limited liability company, Limited by Share Ltd, a lawyer shall review the company's board of directors, shareholders Council agreed in writing to file for rent.

The 197.2 proposed lease the right to use construction land lessor State-Owned Company, lawyer, the approval document shall be competent departments for examination and government.

 

The 198th lawyers should prompt clients in matters (bearing) for construction land use rights should be paid attention to

198.1 the lessor should know use the lessee the use of land is in accordance with the grant contract agreement in the signing of a lease contract before.

198.2 lessee really needs to change the land use right transfer contract land use, should ask the lessor to land management departments to local municipal, county people's government to apply for change of land use, and according to the examination and approval authority prescribed by the land administrative department and the city planning department approval, in accordance with the relevant provisions of the re signing of the right to the use of construction land transfer contract, the adjustment of construction land use right transfer payments, and go through the formalities of registration. In the formalities completed, before the signing of a lease contract of construction land use right and the lessor.

 

In section second, the right to use construction land lease contract

 

The 199th article of the law shall inform the main content of the principal contract leasing the right to the use of land for construction

Leasing the right to the use of land for construction shall be concluded in written form, the construction land use right rental contract, mainly including:

(1) for the name, domicile, contact;

(2) the right to use land for construction site, area, four areas;

(3) of the number, the use of construction land construction land use rights transfer contract number;

(4) land use;

(5) the leasing period;

(6) and the way of rent and payment deadlines;

(7) for the rights and obligations of the parties;

(8) the priority purchase right agreement;

(9) after the expiration of the lessee in the lease of land on the new buildings are given compensation;

(10) the contract processing does not occur in the process of force majeure;

(11) the rental registration matters;

(12) the liability for breach of contract;

(13) the dispute settlement method;

(14) other matters stipulated by the parties concerned rental.

 

The 200th article of the law can guarantee of leasing the right to the use of land for construction of transaction safety advice to clients

All the rent 200.1 do not agree in the contract to pay the lease period, as agreed to pay rent, to prevent the lessor in the performance of the contract unilaterally rescind the contract and make the lessee to recover the unearned rent paid.

200.2 in the contract agreed time longer lease period, the lease period is too short to prevent lead at the expiration of the lessor not to renew the contract after the lessee can not continue to use the land, and the lessee pre investment funds and expected business losses.

200.3 of the land leasing can be divided into short-term rental and leasing, short-term lease is generally not more than 5 years, long-term lease shall not exceed the provisions of the State Council of the construction land use rights transfer maximum period.

 

 

The third section construction land use rights leasing registration

 

The 201st lawyers should prompt (bearing) rental registration

201.1 construction land use rights and land buildings, other structures rental, did not apply for registration in accordance with the relevant provisions, the rental invalid.

201.2 in the 15 days after the termination of land rights, should supervise and urge the lessee or dear self-sustaining contract or the relevant supporting information to the land management department to apply for cancellation of registration by the lessor.

 

The 202nd article of the law agent construction land use right rental registration points

The registration process involved in the construction of 202.1 leasing the right to the use of the guidelines in the land, refers specifically to the lessee the right to use land for construction directly from the national land management department. Construction of transfer, transfer and rent the land use right to the rental situation, no relevant normative documents registration process.

202.2 lawyers charge construction land use rights leasing registration or cancellation of registration, should be made and issued by the party's power of attorney to the land registration agencies, and for the legalization of attorney authorized in accordance with the relevant provisions. A lawyer should carefully review the material is complete, true, and in a timely manner for rental registration within 15 days of use right of construction land lease after the signing of the contract, the lawyer for the original to the proper custody, completed promptly returned to the party, so as to avoid loss of responsibility.

 

 

 

The sixth chapter

The lawyer for the investment cooperation business the right to use construction land operation guidelines

 

Investigation and audit the first section of the planned investment of construction land use rights and investment cooperation projects

 

The construction of 203rd lawyers to be investment in land use rights to provide preliminary land ownership investigation

203.1 whether investors have receive warrants to the use of land for construction.

Are the same 203.2 construction land use of the content and the land registry files recorded content.

Whether the 203.3 investment is the right to use construction of the use of construction land.

203.4 will get investment of construction land use rights.

The construction of 203.5 transferring to acquire the right to use land for investment, to perform the transfer of contractual obligations:

(1) have paid all leasing of land;

(2) are in accordance with the sale contract agreed to complete the development of the corresponding construction investment.

Transfer service building 203.6 transferring to acquire land use rights.

Construction has 203.7 the allocation of land use rights for investment and cooperation, in accordance with the provisions of the State Council, shall be empowered people's government for approval.

The construction of 203.8 allocated to acquire land use rights for investment and cooperation, is in accordance with the allocation for the project directory.

203.9 plans to invest the construction land use rights the existence of ground buildings, other structures, as well as the ground buildings, other structures the registration of property rights, the right to use construction land for investment, cooperation, the above ground buildings, other structures should be dealt with together.

203.10 construction land use rights on the ground and buildings, other structures of whether the rental.

203.11 plans to invest the construction land use rights on the ground and buildings, other structures have not set mortgages his right, if any, investment cooperation should first get right person to agree.

203.12 where the right to use construction land approval consent before investment, the meaning of the agreement that be in writing.

Construction of the 203.13 review planned investment, cooperation of land use right for the following investment cooperation with and without obstacles:

(1) ruled that the judicial organs and administrative organs in accordance with the law, the decision to close or other restrictions on the right to use construction land on the ground and buildings, other structures of rights;

(2) has been the relevant state authorities in accordance with the law to recover the land use right for construction;

(3) the ownership dispute;

(4) not to receive a registration certificate management authority;

(5) construction obtained by way of allocation of land use rights, not in accordance with the provisions of the State Council, shall be empowered people's government for approval;

(6) the law, administrative regulations from investment, cooperation and other circumstances.

 

The 204th article of the law should be to assist the client to examine the investment and project

The 204.1 body is established restructuring state-owned enterprises, or in cooperation with private capital or foreign investment company.

204.2 plans to invest the construction land use right is a limited liability company, Limited by Share Ltd, a lawyer shall review the company's board of directors, shareholders Council agreed written document contribution.

The construction of 204.3 to be funded in the land use right belongs to the state or collective property, a lawyer shall document of approval authority for examination of the government.

204.4 the right to use construction land and foreign investors to set up enterprise investment, land use or operation of the project shall be examined whether relates to national security, military security, compliance with foreign investment policies.

204.5 review of investment cooperation projects in compliance with land allocation list.

204.6 review of investment cooperation projects have changed the land use, or the use of planning, if there is any change, should prompt the parties shall be submitted for examination and approval, and to pay land leasing or land use fee.

 

Investment cooperation contract the right to use the second day construction land

 

The 205th article of the law shall inform the main content of the principal investment cooperation contract the right to use the land for construction

The right to use construction land for investment, cooperation, investment, cooperation contract shall enter into a written form of the right to use construction land, the lawyer client should review the contract, the contract shall have the general investment cooperation contract should have the terms and conditions, should also have the right to use construction land content:

(1) the right to use land for construction site, area, four areas.

(2) the right to use construction land access and tenure; whether to pay land leasing, by which one party to pay.

(3) the use of planning and planning conditions of construction land use right.

(4) investment cooperation construction land use right to life.

(5) investment cooperation, the right to use construction land.

(6) the delivery and acceptance of construction land use right date, delivery method.

(7) the right to use the land for construction exists on the ground buildings, other structures, and its processing method.

(8) the relevant agreement submitted to the government for examination and approval.

(9) treatment investment agreement during the meeting the government expropriation of land.

(10) transfer investment, cooperation in investment and cooperation during the ownership of the land.

(11) investment, cooperation after the expiration of the land ownership and the buildings on the ground.

(12) investment, cooperation and agreed upon by the parties and other relevant land use matters.

 

The 206th lawyers should prompt attention points the client to sign investment contract land use rights

206.1 attention to construction investment cooperation between the land use right of land use and land planning.

206.1.1 investment partners should understand the use of land use is in accordance with the grant contract agreement.

206.1.2 investment cooperation person really needs to change the land use right transfer contract land use, shall go through the alteration formalities in accordance with the law.

206.2 lawyers should be prompted to invest in land pricing a party to fulfill the obligation of capital contribution, the construction land use rights transfer to the new company name and the land will be delivered for use, or should bear the liability for breach of contract by the false.

206.2.1 has handled the land transfer procedures but did not deliver the land. Belonging to the breach of the obligation of capital contribution, constituted an infringement of the interests of the company and the interests of shareholders in fact. So investors to the company and other shareholders default responsibility, have complementary funding obligations. At the same time, the creditor is not enough to pay off the debt on the property of the company, have the right to appeal to the land compulsory execution.

206.2.2 has delivered the land but not for land registration. In this case, although the company obtained the possession and use of real property interests in land, but this has not been the possession and use of legal recognition and protection, this kind of capital is in fact investment rather than legal capital contribution obligation, which does not fulfill the behavior, because of, the company or other shareholders have the right to the contributive person perform land transfer registration obligations, and the investor's refusal of registration, or even to do not register on the grounds to reclaim land behavior is typical malicious breach of contract, the parties can also be through the proceedings for judicial relief, compulsory registration request.

206.2.3 did not deliver the land, also fails to go through the land transfer procedures. This situation is completely fails to perform the obligation of capital contribution of land acts, such acts constitute violations in the company law, and generates the corresponding legal responsibility, including the shareholders to continue investment obligation, other shareholders or promoters of the company joint contribution of liability and compensation liability caused by damage to the company. However, in this case, the investor agreed for the investment of land there is neither control in fact, also does not have any real sense of rights, thus could not pass real right and litigation and obtained the right to the use of land, and can only be obtained through claims litigation relief.

 

Land use rights transfer construction section third investment cooperation

 

207th when the company established the construction of transfer of land use rights

The company was founded in 207.1 when the construction to be transferred to the new company under the name of land use rights.

207.1.1 the right to use construction land company investment, cooperation, the right to use the land for construction should be transferred to the new company name.

207.1.2 construction land use rights transfer to the new company, and the project planning approval documents, such as the right to use the land for construction related should be the relevant alteration formalities.

207.1.3 investment cooperation projects, land use, land use must be consistent with the planning and city planning, such as change, shall be subject to administrative departments of land and planning department approval.

207.2 of the land price evaluation. Lawyers should be prompted to investors, the right to use construction land for investment, should be in accordance with relevant state regulations, the evaluation agency with land assessment qualifications through the legal program evaluation, determined by the land market price at the time of pricing. The evaluation results must be approved by the land administration department of the people's government at or above the county level to confirm.

The transfer of 207.3 of land use rights.

207.3.1 investment cooperation for the right to use construction land transfer procedures should be submitted to the following information use:

(1) warrants the use of land for construction;

(2) the two sides signed the "investment, cooperation agreement";

(3) the approval document issued by the relevant authority;

(4) land valuation report;

(5) the land supply side and the new company's business license file;

(6) the right to change the use of land for construction applications;

(7) other documents required.

A 207.3.2 transfer the registration audit time and warrants:

(1) a lawyer shall inform the parties: according to the provisions of the registration agencies shall accept the construction land use rights transfer to complete the examination within 20 days of the date of application for registration. To meet the requirements, should be recorded in the register transfer matters, and notify the Transferee "warrant" for the use of land for construction; do not meet the requirements, it shall not be registered, and inform the applicant in writing.

(2) the time of collection of the transferee (or agents) are required to carry identity documents (original) and paid taxes, fees, registration fees, stamp duty receipts and accepted the receipts (original), carefully check the "warrant" construction land use registration and application for registration is not consistent.

207.3.3 lawyers charge registration. Lawyers for construction land use rights transfer registration procedures, to make and issue the power of attorney to the land registration agencies, and for the legalization of attorney authorized in accordance with the relevant provisions. A lawyer should carefully review the material is complete, true, and the construction land use rights transfer contract signed within 15 days after the timely processing. Lawyers for the original to the proper custody, completed promptly returned to the party, so as to avoid loss of responsibility.

 

The 208th investment cooperation at the termination of the right to use construction land revolution

208.1 land investment exit but cooperative enterprise and no termination. Composition of corporate joint venture partnership or joint venture of one party or several parties in the pool during the withdraw from the pool, if the pool is not dissolved, shall return the withdrawing party as investment investment property.

208.2 cooperative enterprises, the termination of the liquidation. Construction if the investors hope to recoup its investment in investment, cooperation after the termination of the land use right, should be a clear agreement on the matter in the investment, cooperation contract. The agreement shall contain the following contents:

(1) the liquidation of investment, cooperation. Investment cooperation due to the expiration of the contract, termination of the liquidation or bankruptcy liquidation, shareholders shall be handled include land use rights and other assets debt construction.

(2) rotary construction land use rights. Cooperation in investment, bankruptcy and liquidation due in advance or disposed of debt, the right to use construction land belongs to the shareholders may assign the rights. If the parties have agreed on the right rotary investors, investors continue to use the land in the remaining land use period. For the transfer of registration of ownership should turn right to the use of construction land.

 

In section fourth, the right to use construction investment cooperation in dealing with common problems using

 

Treatment of 209th lawyers can prompt the client to the allocation of state land use right as the capital contribution of shareholders

209.1 if the allocated state-owned construction land use right as capital contribution, to the real estate management authority for the transfer of construction land use rights declaration, registration, registration shall provide photocopies of the following documents:

(1) land for construction (Planning) permits, construction land ratification, land ownership certificates and related documents;

(2) all of the housing;

(3) the feasibility study report approved by the competent department of project;

(4) the establishment of the joint venture, cooperative enterprise contract text;

(5) approval authorities about to set up a joint venture, cooperative enterprises;

(6) land planning and utilization of design conditions.

209.2 after review in accordance with the relevant provisions and procedures in place, after being approved in accordance with the law to sign or retroactive construction land use right transfer contract, by the national land management departments in accordance with the provisions of the law review, and the investors should according to the provisions of the national land management departments to pay the right to use construction land leasing, the construction the right to land value converted into equity, we can as a capital contribution of the shareholders.

 

Treatment of 210th lawyers can prompt the principal investment land or its attachments have rental

If the ground buildings, other structures of the rental, investment cooperation should first obtain the consent of the lessee. To lift, investment cooperation by investing the lifting of the lease relationship. The lease relationship cannot remove, effect of construction land use right on the ground and buildings, other structures of investment shall not affect the original lease contract, new construction land use rights of people on the ground and buildings, other structures of ownership shall continue to perform the original lease contract. How to deal with the lease, investment cooperation contract should be agreed.

 

The 211st article of the law can prompt attention client processing cooperative development of real estate contract disputes

211.1 the cooperative development of real estate contract, refers to the contract to provide construction land use rights, such as investment funds, profit sharing, risk sharing in cooperative development of real estate as the basic contents of the agreement. On the cooperative development of real estate contract practice (hereinafter referred to as the "contract") Nature:

(1) provide the construction land use right parties did not bear the risk of operation stipulated in the contract, only a fixed interest, shall be regarded as the construction land use right transfer contract.

(2) the contract to provide funds to the parties did not bear the risk of operation, only the allocation of a fixed number of housing, should be identified as housing sales contracts.

(3) the contract to provide funds to the parties did not bear the risk of operation, only a fixed amount of money, should be identified as the loan contract.

(4) the contract to provide funds to the parties did not bear the risk of operation, only to lease or other forms of housing use, should be identified as housing lease contract.

211.2 real estate development cooperation profit distribution disputes

211.2.1 investment amount in excess of the contract, to increase the ratio of the amount of investment, if the parties fail to agree, in accordance with the parties to determine fault; unable to determine the reason not attributable to the parties to the cause or the fault of the parties, in accordance with agreed investment ratio determined; no stipulation investment ratio, determined in accordance with the distribution of profits the proportion of agreement.

211.2.2 housing actual construction area of less than the contract, allocation proportion of the actual construction area of the housing, if the parties fail to agree, in accordance with the parties to determine fault; unable to determine the reason not attributable to the parties to the cause or the fault of the parties, determined in accordance with the agreed profit distribution ratio.

211.2.3 houses the actual construction area beyond the planning building area, the approval of the competent departments of the people's governments have the right of approval by the parties after, not the housing distribution beyond proportionate part of the negotiation, determined in accordance with the agreed profit distribution ratio. To increase the ratio of the amount of investment, if the parties fail to agree, in accordance with agreed investment ratio determined; no stipulation investment ratio, determined in accordance with the agreed profit distribution ratio.

The 211.2.4 parties in violation of planning the development and construction of housing, by the administrative department of the people's Government approved the demolition order confirmation on right for illegal construction, the parties to assume the losses if no agreement is reached through consultation, determine the responsibility in accordance with the party at fault; fault cannot be determined in accordance with the contract, determine the responsibility of the investment ratio; no stipulation investment ratio, determine the responsibility according to the distribution of profits the proportion of agreement.

211.2.5 contract only with the amount of investment ratio to determine the distribution of profits, if not paid in full capital contribution, distribution according to the actual proportion of investment profit.

 

 

The Sixth Series

A lawyer to handle the legal business operation guidelines in foreign land

 

First chapter

Regulations

 

The related concept of 212nd foreign land legal service definition

212 / 1 this part referred to the "foreign investment in real estate" in the "foreign" in which foreign investors, refer to foreign enterprises, institutions and individuals, and has Chinese legal person qualification of the enterprises with foreign investment. To Hong Kong and Macao investors legal business land, with reference to the provisions on foreign investors and the applicability of this chapter.

212.2 this part referred to the "foreign investors", including foreign investors and investors in Hong Kong and macao.

212-3 this part refers to the "real estate enterprises with foreign investment" refers to the ordinary residential, apartments, villas and other types of residential, hotels (hotel), resort, office building, business exhibition center, commercial facilities, theme park construction, or the project construction as the land to development or plots of development project of foreign investment enterprises.

 

Article 213rd the coding scope

213 / 1 the series is mainly suitable for lawyers to engage in non litigation legal services for foreign land business, including lawyers for overseas investors land project: drafting, review, amendment, intention investment contracts and other related legal documents; legal due diligence and other special legal service; negotiation; provide legal advice the book stage or the whole process of legal services.

Related cases 213.2 lawyers legal services concerning foreign investment in real estate, this guideline reference corresponding.

213 / 3 this part mainly focuses on foreign land legal business operation guidelines, not related to the content, can refer to the operating instructions fifth.

 

214th for the foreign land legal business the main legal basis

The detailed rules for the implementation of foreign enterprises in the people's Republic of China "214 L" (hereinafter referred to as the "implementation rules" foreign investment enterprise law).

214.2 "Interim Provisions on investment of foreign funded enterprises in China".

214.3 "people's Republic of China foreign exchange management regulations" (hereinafter referred to as "foreign exchange management regulations").

214.4 "foreign investment projects approved by the Interim Measures for the administration".

214.5 "on the norms of the real estate market of foreign capital and management advice," quasi.

214 · 6 "(notice on implementing access to and administration of foreign investment in the real estate market related issues notice").

214 · 7 "on the further strengthening of norms, notice of foreign direct investment in the approval and supervision of".

214.8 "foreign acquisitions of foreign exchange registration on the relevant issues concerning the right to use construction land" territory.

214.9 "concerning foreign investment in the real estate industry work notice".

214.10 "on the acquisition of domestic enterprises by Foreign Investors Provisions".

214.11 "on regulating the administration of foreign exchange of the real estate market notification".

214.12 "Industrial Catalog for foreign investment (2007 Revision)".

 

Classification of the provisions of article 215th of foreign investment in the real estate field

215.1 encouraged project. (foreign investment in real estate field has not encouraged project)

215.2 projects in the restricted category

215.2.1 plots of land development (limited to joint venture, cooperation).

215.2.2 high-grade hotels, villas, high-grade office building, business building and the International Convention and Exhibition center.

215.2.3 two levels of the real estate market and the real estate intermediary or Broker's Firm.

215.3 prohibited categories of projects: construction, operation of the golf course.

 

Article 216th the principle of commercial presence

Foreign organizations and individuals in the purchase of non self use real estate, the purpose is for sale, rental and other business activities, which belongs to the investment behavior, according to "the people's Republic of China Law on Sino foreign equity joint ventures", "the people's Republic of China on Chinese foreign cooperative enterprises", "law of the people's Republic of China Law on foreign funded enterprises" and other provisions should be in accordance with the law, an application for the establishment of foreign invested enterprises, and conduct business activities within the approved scope of business operations. Foreign investors are not in accordance with the provisions of foreign investment law has "approval certificate" and "business license" enterprises with foreign investment, not for real estate development and operation activities.

So, foreign investors in the China investment in the real estate industry, must follow the principle of commercial presence, the establishment of a foreign investment Real Estate Company.

 

The 217th principle of item company

The foreign development and management in real estate in Chinese within the territory of China, the application for the establishment of the Real Estate Company, must follow the principle of "item company", namely first obtained the right to use land for construction, the ownership of real estate, or already and land management departments, land developers, real estate building owners signed or real property construction land use right transfer the appointment, purchase agreement. If the condition does not exist, the examination and approval department will not be approved the establishment of foreign-invested Real Estate Company.

 

The second chapter

Foreign investors have the right to use construction land sold

 

Special requirements for foreign participation in the construction of the first section of the tender, auction, listing of land use right

 

 

There are three main types of 218th obtained the right to the use of land for construction ways: to sell, transfer and allocation. Among them, in order to obtain the right to use construction land bidding, auction, listing and the agreement transferring the four forms of transferring. In general, foreign through participation in the tender, auction, listing obtained the right to the use of land for construction.

 

219th foreign made the state-owned construction land use right and domestic enterprises, individual difference is in the form of transfer, according to the "Regulations on foreign exchange administration", "on the norms of the real estate market foreign exchange management notice" and other normative documents, foreign businessmen to the territory of the land management sector organizations "strokes, shooting, hanging" sold special provisions of the leasehold of construction land is, foreign investors need to apply for "temporary land security deposit account".

 

The 220th lawyers acting for foreign investors in the right to use construction land "strokes, shooting, hanging" related business matters needing attention

220.1 temporary land security deposit account funds settlement shall be approved by the foreign exchange bureau shall, upon application is limited to purchase the right to use the land for construction and surface adhesion property, specific audit materials by the local administration of foreign exchange under the provisions of the actual situation.

220.2 foreign investors in the building has been the acquisition of land use rights registered economic entities, not to the construction land use rights, engaged in rental resale, mortgage and other business activities within the territory of china.

220.3 foreign investors in paying the land security deposit, if not the establishment of foreign-funded enterprises, should be to the foreign exchange bureau for closing the temporary land security deposit account, account surplus funds and return the land margin approved by the administration of foreign exchange remitted abroad.

220.4 foreign investors into the foreign exchange funds a temporary land security deposit account as the future FIEs after the establishment of the investment (registered capital).

 

The right to use construction land investment to establish a real estate development enterprise second foreign

 

Foreign transferring to acquire state-owned construction land use rights, should be based on the principle of commercial presence requirements, apply for the establishment of foreign investment in real estate development enterprise, a lawyer should pay attention to the following aspects in handling the relevant business.

 

Article 221st of registered capital and investment in the establishment of the real estate enterprises to foreign investment total requirements

According to the "Chinese foreign equity joint ventures registered capital and the total investment proportion of the Interim Provisions", "City real estate development and management regulations", "on the norms of the real estate market access to foreign capital and management advice", "on the implementation of (on the norms of the real estate market access to foreign capital and management advice notice" provisions) issues related to the establishment of the real estate business, registered capital and total investment of foreign investment requirements, can be summarized as follows:

(1) the minimum registered capital of a real estate development enterprise is 1000000 RMB (please note that the local government may have higher requirements), other types of real estate enterprises refer to the "company law" and other relevant laws, namely, the minimum registered capital owned enterprises is 100000 yuan; the minimum registered capital of two enterprises is 30000 yuan.

(2) the total amount of investment of under $3000000 (including $3000000), its registered capital shall be the total amount of investment of not less than 70%.

(3) the total amount of investment at $3000000 to $4200000, its registered capital shall not be less than $2100000.

(4) a total investment of $4200000 (including $4200000) or more, its registered capital shall be the total amount of investment of not less than 50%.

 

Article 222nd the establishment of a real estate enterprise of investment return on investment requirements

Foreign investment in real estate investment parties may agree to not receive bonus according to their investment proportion (Sino foreign joint venture investment parties may not agree not to receive bonus according to their investment proportion), may not agree to ensure any charge a fixed return or a fixed return clause.

 

Article 223rd the establishment of foreign real estate enterprises to foreign investment foreign exchange requirements

According to the "on the norms of the real estate market access to foreign capital and management advice", "on the norms of the real estate market foreign exchange management notice", "on Further Strengthening the regulation of foreign direct investment, the real estate industry the approval and supervision of the relevant provisions of the notice":

(1) from the beginning of September 1, 2006, foreign institutions and individuals through the transfer of equity mergers and acquisitions and other forms of real estate enterprises, or the acquisition of the Chinese equity joint venture with its own capital, must be a one-time payment of all transfers, or the foreign exchange bureau shall not handle the registration of foreign exchange income equity.

(2) foreign investment in real estate enterprises foreign investment parties, not in the contract, articles of association, the equity transfer agreement or other document, which promises a fixed return to the other party or a fixed return clause, or the foreign exchange bureau shall not handle the registration of enterprises with foreign investment or registration.

(3) from the beginning of May 23, 2007, foreign investment in real estate enterprise has the following two kinds of circumstances, can not handle the foreign exchange settlement procedures: the unfinished business of the archival filing formalities; ② not passed the joint annual inspection of foreign-invested enterprises.

 

The third chapter

Foreign acquisitions of domestic enterprises engaged in real estate development

 

General requirements for the first day of foreign investors M & A

 

The Foreign Investors Merger and acquisition of domestic real estate development enterprises mainly in two ways: one is the equity mergers and acquisitions, item company equity transfer in common sense; two is the acquisition of assets, that is universal in the sense of the project assignment.

 

Article 224th for the Foreign Investors Merger and acquisition of domestic real estate enterprises transfer payment request

Foreign investors through the transfer of equity mergers and acquisitions and other forms of real estate enterprises, should be the proper placement of workers, to deal with bank debt, and since the issuance of the business license of enterprises with foreign investment within 3 months from the date of its own funds, the one-time payment of the full transfer payments.

 

Requirement 225th to foreign investors merging domestic real estate enterprises transfer subject

To have a poor record of foreign investors, not allowed to conduct any of the aforesaid equity merger and acquisition of assets in China (project transfer) activities.

 

The 226th acquisitions of domestic real estate enterprises to foreign investors to ensure

Investors should be submitted to fulfill "the state-owned construction land use right transfer contract", "construction land planning permit", "construction planning permits", the letter of guarantee.

 

The 227th article of the law should be reminded the principal, the relevant approval, registration and other formalities, shall be handled in accordance with the "company law" and the relevant requirements.

 

Article 228Th the return on investment should carry out examination and approval procedures

The territory of 228.1 domestic companies, enterprises or natural person with its outside the legally established or control the name of a company merger and its related, should be reported to the Ministry of Commerce for approval.

228.2 the parties shall in the domestic investment of a foreign-funded enterprise or other ways to avoid the foregoing requirements.

 

Disposal of claims and debts in 229th foreign investor mergers and acquisitions of domestic real estate enterprises

229.1 foreign investors to make equity merger, the foreign-funded enterprise established after the merger of domestic company inherited the claims and debts of the merged.

229.2 foreign investors, domestic enterprises asset merger, sale of assets shall assume its original claims and debts.

A separate agreement by 229.3 foreign investors, mergers and acquisitions of domestic enterprises, creditors and other parties may, debt claims on the territory of the merged enterprise disposal, but the agreement shall not damage the interests of third person and the social public interest.

229.4 the disposition of the claims and debts shall be submitted to the examination and approval authorities approved the agreement.

 

M & a 230th of the Foreign Investors Merger and acquisition of domestic real estate enterprises demand

Foreign acquisitions of the need for the establishment of foreign investment in real estate development enterprises, or need to be merged enterprise change is a foreign-funded enterprise, the foreign investment in real estate development enterprises should meet the second section of the second chapter "requires the establishment of real estate development enterprises for foreign investment".

 

More than 231st foreign investment mergers and acquisitions of domestic enterprises engaged in real estate development process, as foreign M & a subject matters that need special attention, other matters needing attention, please refer to the operating instructions and sixth related contents of the third chapter.

 

For the second day of foreign equity merger and acquisition of domestic real estate development enterprises

 

232nd foreign-invested equity mergers and acquisitions of domestic real estate development enterprises, the following documents to the examination and approval authority shall be submitted to the examination and approval authority with the corresponding:

(1) the merged domestic shareholders of a limited liability company agreed to equity merger and acquisition by foreign investors or resolution, the merged domestic Limited by Share Ltd agreed to the resolution of the general meeting of shareholders equity merger and acquisition by foreign investors.

(2) the merged domestic companies to change the set for the application of foreign invested enterprises.

(3) the foreign investment enterprise established after the merger of the contract, articles of association.

(4) foreign investors to buy the shareholder equity of the domestic company or purchased by the company investment agreement, the share purchase agreement. The increased capital of a domestic company agreement shall be governed by China laws, and shall include the following contents:

The agreement of the parties involved, including the name (name), domicile, legal representative, position, nationality etc.;

The purchase of shares or subscription share and price;

The protocol performance period, method of performance;

The parties rights, obligations;

The liability for breach of contract, dispute resolution;

The agreement signed in the time, place.

(5) the financial audit report of the domestic company merged last financial year.

(6) have been notarized and certified in accordance with the law of the investors of the identification certificate or proof of registration and credit certificate.

(7) description of the merged domestic companies of the enterprises invested by the.

(8) the business license of the merged domestic companies and investment companies (copy).

(9) plans for staff of the acquired Chinese company.

(10) debt disposal agreement.

(11) the asset appraisal institution of the equity interest to be transferred or the sale of assets assessment results.

(12) if an association exists between the parties that M & A.

(13) the foreign investment enterprise established after the merger of the business scope, scale, the right to use construction land acquisition, involves permits from other relevant governmental departments, the relevant permit documents shall be submitted.

 

For the third day of foreign assets in mergers and acquisitions of domestic real estate development enterprises

 

233rd foreign-invested asset acquisition of real estate development enterprises (the overall project assignment or transfer of land), the following documents to the examination and approval authority shall be submitted to the examination and approval authority with the corresponding:

(1) the domestic enterprise property rights holder or authority agreed to sell the asset resolution.

(2) the application for the establishment of enterprises with foreign investment.

(3) the foreign investment enterprise to be established in the contract, articles of association.

(4) the foreign investment enterprise to be established and the domestic enterprise assets purchase agreement signed by the foreign investors and the domestic funded enterprises, or assets purchase agreement signed by the. Asset purchase agreement shall apply China laws, and shall include the following contents:

The agreement of the parties involved, including the name (name), domicile, legal representative, position, nationality; ② to list price, the purchase of assets;

The protocol performance period, method of performance;

The parties rights, obligations;

The liability for breach of contract, dispute resolution;

The agreement signed in the time, place.

(5) in its articles of association, business license (copy) of mergers and acquisitions.

(6) prove that domestic enterprises notice, announcement creditor by M & A and the creditor whether objection that.

(7) proof of identity authentication notarized and according to law or business certificate of the foreign investors, the related credit certification.

(8) within the enterprise workers placement plan merger.

(9) debt disposal agreement.

(10) the asset appraisal institution of the equity interest to be transferred or the sale of assets assessment results.

(11) if an association exists between the parties that M & A.

(12) in accordance with the provisions of the preceding paragraph domestic enterprises purchase and operation of assets, involves permits from other relevant governmental departments, the relevant permit documents shall be submitted.

 

The fourth chapter

Other foreign land legal services

 

The first section of foreign investment projects approved

 

234Th foreign investment projects approved by the authority

234.1 the State Council approval authority. The total investment of USD 500000000 and above encouraged, permitted projects and a total investment of US $l and above the restricted projects, by the national development and Reform Commission for the project application report submitted to the State Council for approval after examination.

234.2, the national development and Reform Commission approval authority. The total investment (including capital amount, the same below) of $100000000 or more encouraged, permitted projects with total investment of USD 50000000 and above restricted projects, by the national development and Reform Commission approved the project application report.

Development and reform department 234.3 local approval authority.

234.3.1 encouraged, a total investment of US $100000000 below the permitted projects with a total investment of $50000000 under restricted projects, approved by the development and Reform Department of the local, the local government according to the actual situation of division of local governments at all levels of approval authority.

234.3.2 restricted projects can only be approved by the Provincial Department of development and reform, the approval authority shall not be delegated.

 

Range 235th bar examination and approval of foreign investment projects

According to the "measures" provisions approved foreign investment projects, the need for approval:

(1) the foreign investment the new Sino foreign joint ventures, Sino foreign cooperation, wholly foreign-owned enterprises;

(2) acquisition of domestic enterprises by foreign investors;

(3) for enterprises with foreign investment capital, the capital project approval authority, the division is to add the amount of investment shall be;

(4) by enterprises with foreign investment and investment;

(5) foreign investment enterprises to apply for other new projects.

 

Article 236th the application of foreign investment project approval documents, documents

The foreign investment project approval shall submit a project application report and accessories, including the following documents and certificates:

The project application report 236.1. The project application report shall include the following contents:

(1) the basic situation of the project name, duration of operation, investment square;

(2) the project (including the scale of construction, the main construction contents and products, the main technology and process, the product target market, plan number of workers);

(3) the location of the project, the land, water, energy and other resource demand, and the consumption of main raw materials;

(4) environmental impact assessment;

(5) prices of public products and services;

(6) the project total investment, registered capital and investment amount, investment and financing, the need to import equipment and the amount of;

Application report item 236.2 accessories. The project application report Annex shall include the following contents:

(1) of all parties to the investment enterprise registration certificate (Chinese: business license I Xi P: business registration certificate);

(2) audited financial report the latest enterprise (including the balance sheet, income statement and cash flow statement);

(3) issued by a bank to prove financial credit;

(4) investment intent;

(5) the book issued by a bank financing intention;

(6) opinions issued by provincial or national environmental impact assessment of the competent administrative department of environmental protection;

(7) site selection opinions issued by provincial planning departments of the plan;

(8) issued by the administrative department of land and resources at the provincial or national project for the pre-trial opinion;

(9) the state-owned assets or land use rights, needs a confirmation document issued by the relevant competent departments.

 

The second section of enterprises with foreign investment approval authority

 

Countries to establish examination and approval system for foreign investment enterprises, namely the establishment or change of the establishment of foreign-invested enterprises (M & A) before, should first report of Department of Commerce Authority (Department of foreign trade and economic cooperation) approval, obtain "approval certificate" enterprises with foreign investment, we can set up or change registration, registration, the establishment of foreign invested enterprises.

Foreign investment, mergers and acquisitions of domestic enterprises, and investment restricted foreign investment industries, all in accordance with the needs of the establishment (change) the examination and approval system requirements, achieve "approval certificate" enterprises with foreign investment; encouraged, permitted foreign investment industries investment, does not need the approval of the establishment of.

 

The examination and approval authority for foreign investment enterprises before 237th March 5, 2009

The Ministry of Commerce of the examination and approval authority 237.1. A total investment of US $100000000 (including $100000000, including a single capital) more encouraged, permitted; and more than $50000000 in restricted items.

The examination and approval authority for 237.2 local commerce authorities. The encouraged category, a total investment of 100000000 US dollars below the permitted; $50000000 (including $50000000, including a single capital increase) and restricted projects following the.

The examination and approval authority in accordance with the provisions of different places around, classification standards are different.

 

238th capital letter [2009]7 on enterprises with foreign investment approval authority to change

In March 5, 2009, the Ministry of Commerce of the people's Republic of China issued the "Circular on further improvement of the examination and approval of foreign investment" (the capital letter No. [2009]7), to further improve the authority of examination and approval of foreign investment, mainly reflected in the following aspects:

(1) foreign investment enterprises in the Ministry of Commerce within the audit authority encouraged without the need for national comprehensive balance establishment, capital, contract / charter and alteration, by the province, autonomous region, or municipality directly under the central government, cities specifically designated in the state plan, Xinjiang production and Construction Corps, deputy provincial City Business Director of audit departments and national economic and Technological Development zone.

(2) the establishment of foreign-invested enterprises approved by the Ministry of Commerce, in addition to the above Reform Commission by the National Development approved limit capital items and control from the direction of the transfer of items, other items by the local commerce administrative departments audit.

(3) mergers and acquisitions of domestic enterprises by foreign investors and foreign invested enterprises, encouraged, permitted mergers and acquisitions of $100000000 and below, restricted transaction volume of $50000000 and below, by the local competent department of Commerce jointly with the industry and commerce, taxation, foreign exchange and other related departments according to the provisions of the relevant laws, regulations and rules on foreign investors "" mergers and acquisitions of domestic enterprises audit.

(4) expansion of the examination and approval authority deputy provincial commercial departments of city and state level economic and Technological Development Zone foreign investment approval management matters, the Ministry of Commerce has delegated to the Provincial Department of Commerce, deputy provincial commercial departments of city and state level economic and Technological Development Zone will enjoy the same management authority for approval.

 

239th March 5, 2009, the authority of examination and approval of foreign invested enterprises

The Ministry of Commerce of the examination and approval authority 239.1

239.1.1 invested a total of $100000000 (including $100000000) or more encouraged, to national overall balance.

239.1.2 invested a total of $100000000 (including $100000000) above the permitted category.

Examination and approval projects in the restricted category above 239.1.35000 million.

239.1.4 the total amount of investment (including the amount of capital increase, the same below) for $100000000 and above are encouraged, permitted items and the total investment of USD 50000000 and above restricted projects, as well as holding right from the direction of the transfer of items.

Does not include encouraged, permitted transactions amounted to 100000000 US dollars, restricted transactions amounted to 50000000 US dollars, holding the right not to change.

The examination and approval authority for 239.2 local commerce authorities. Local commerce authorities refers to the competent departments of commerce at the provincial level, provincial departments in charge of Commerce City and state level economic and Technological Development zone.

239.2.1 a total investment of more than $100000000 to encourage class and does not need the national comprehensive balance.

239.2.2 a total investment of 100000000 US dollars below the permitted projects.

239.2.35000 million (including $50000000) and restricted projects following the.

Total investment (including capital 239.2.4 addition amount) alterations of USD 100000000 and above are encouraged, permitted items and the total investment of USD 50000000 and above restricted projects in capital items and holding outside right from the direction of the transfer of items.

Including encouraged, permitted transactions amounted to 100000000 US dollars, restricted transactions amounted to 50000000 US dollars, holding the right not to change.

 

Examination and approval within the third day of enterprises with foreign investment and investment

 

240th of the territory of foreign investment enterprises to invest encouraged, permitted the field of real estate, do not need approval.

 

And the territory of 241st enterprises with foreign investment and investment limits the field of real estate

241.1 foreign investment enterprises in the restricted area to set up companies, or purchase the equity of the invested company, should be the investment company departments of foreign trade and economic cooperation at the provincial level (Department of Commerce) where to apply, and shall provide the following materials:

(1) resolution of the foreign investment enterprise on the investment agreement adopted by the board of directors.

(2) the foreign investment enterprise approval certificate and business license (copy).

(3) the registered capital verification report issued by a statutory capital verification institution has been paid in full.

(4) the foreign investment enterprise audited balance sheet.

(5) proof material to pay income tax deduction or exemption of income tax of enterprises with foreign investment.

(6) investors signature, stamped by the investment company's articles of association, articles of association shall include the following items:

The company name and domicile;

The business scope of the company and the product domestic and foreign sales ratio;

The registered capital of the company;

The name or the name of the investor;

The rights and obligations of the investors;

The way of investment and investment;

The investor capital transfer conditions;

The organizations of the company and its production method, authority, the rules of procedure;

The legal representative of the company;

The dissolution of the company's reasons and clearing method;

Other matters deemed necessary by the investors.

241.2 provincial departments of foreign trade and Economic Cooperation (Department of Commerce) received the above application, according to the business scope of the company is investment, or solicit the national industry management departments, and receipt of Counseling Department agree or disagree opinions within 10 days, make a written reply.

 

In section fourth, foreign investment in real estate enterprise

 

In July 1, 2008, the Ministry of Commerce issued the "notice" on foreign investment in the real estate industry regulation work, specially for foreign investment in the real estate industry work.

 

242nd foreign-invested real estate enterprise record check items

The competent department of commerce at the provincial level according to the relevant requirements of the legitimacy, authenticity, accuracy of material check:

(1) the construction company to provide the right to the use of the land, the ownership of real estate, or the signing of the construction land use right or real property for transferring / Purchasing Agreement and other documents are made in accordance with the law, real and effective, in conformity with the relevant provisions;

(2) investment to set up (capital) company complies with the principle of item company, investment (including capital) is limited to a single real approved real estate projects;

(3) the registered capital of the company accounted for the proportion of total investment of not less than 50%;

(4) provide material proof of foreign shareholders do not belong to a domestic company and natural person company established abroad; there is no association between the shareholders of the company, do not belong to the same actual controller;

(5), Chinese and foreign investment and the parties fails to conclude a guarantee a fixed return to the other party or a fixed return clause;

(6) investment in accordance with the construction progress of the project stage investment company, fund use and acceptance stage investment.

 

Effect of 243rd foreign-invested real estate enterprise record

By the Ministry of Commerce for the record, publish the list of foreign investment in real estate enterprises completed registration. Without the approval of foreign investment in real estate enterprises shall not handle the formalities for foreign exchange registration etc.. And, in May 23, 2007, the Ministry of Commerce, the State Administration of foreign exchange "," on Further Strengthening the notice to regulate foreign direct investment in real estate the approval and supervision of foreign exchange management department, also rules, the designated foreign exchange banks of foreign investment in real Unfinished Business Department filing procedures of real estate enterprises, not for the capital settlement procedures.

 

 

The seventh series

A lawyer to handle the operational guidelines of rural collective land use right

First chapter

Summary

The first section of legal system of rural collective land

 

Article 244th the collective land refers to the land owned by peasant collectives, also called the collective ownership of land. Collective land is a form of land ownership system in our country. China's implementation of the socialist public ownership of land, ownership of land in all countries (including the ownership by the whole people and collective ownership by the working people) in two forms.

 

Article 245th the statutory form

"People's Republic of China Constitution" (hereinafter referred to as "the constitution") the tenth stipulation: "the land in rural areas and the outskirts of the city, as stipulated by relevant laws other than those owned by the state, all belonging to the collective; house sites and private plots, remain mountain oneself, also belong to the collective."

"Land administration law": rural residential land and allotments, hilly, belongs to peasants' collective ownership.

 

Article 246th the collective land management

All of the 246.1 peasants' collective land to the peasants of the village collective all, the village collective economic organizations or villagers' committee management, management.

246.2 already belong to the more than two peasants collective economic organizations of the village collective all, the rural collective economic organizations or villagers' groups, business management.

246.3 have a township (town) peasants' collective ownership by the township (town), the rural collective economic organization management, management.

 

Article 247th the collective land expropriation and requisition. Countries in need of public interest, can expropriate the land and give compensation in accordance with the law.

 

All the 248th collective land can be contracted by the collective or individual business, engaged in agriculture production.

 

The second section of cultivated land protection system

 

Article 249th of cultivated land is the most important natural resources in china. The strictest arable land protection system in our country, especially to take criminal responsibility way, ensure that the relative reduction of cultivated land. Arable land protection system is refers to the "constitution", "land management law", "PRC Criminal Law" (hereinafter referred to as the "criminal law" and its implementing regulations). A series of relevant land management laws, regulations.

China's "criminal law" provisions of the crime of illegal occupation of land. It is a violation of the laws and regulations on land management, illegal occupation of farmland for other uses, the amount is larger, causing a lot of damage behavior of arable land.

249.1 violations of land management laws and regulations, refers to the violation of the "land management law", the NPC Standing Committee on Revising ("the PRC Land Management) decision", the "PRC Land Management Law Implementation Regulations" (hereinafter referred to as the "land management law implementation rules"), "land reclamation Regulations" "stop, on rural housing land emergency circular", "Regulations on the protection of basic farmland", "national construction land acquisition regulations", "the people's Republic of China soil and water conservation law" (hereinafter referred to as the "water and soil conservation law") and "the people's Republic of China agriculture law" (hereinafter referred to as "agricultural law"). Legal, regulations related to land management.

249.2 illegal occupation of cultivated land, is that without the statutory procedures for approval, registration, the issuance of the certificate, confirmation of land use rights, and the occupation of cultivated land act. Usually:

(1) unauthorized occupation of cultivated land, the national land management authority without trial verification, and with the approval of the people's government, unauthorized occupation of cultivated land;

(2) grant more for less farmland, which occupied part of the cultivated land is legally approved, but more than the approved amount, and the large amount of arable land;

(3) for approval of the occupation of cultivated land, mainly provides false documents, false use or borrow, on behalf of others for such deceptive means approval procedures and the occupation of cultivated land, and a large amount of.

249.3 for other uses, land use change refers to the cultivation and use of other aspects, such as starting a business, residential construction, road construction, mining, quarrying, mining, mining River dumping waste soil.

The examination and approval authority for 249.4 rural collective land expropriation

(1) outside the basic farmland, the basic farmland over 35 hectares of arable land, other land exceeding 70 hectares, approved by the state council.

(2) outside the provisions of the land expropriation, approved by the provincial, autonomous region, or municipality directly under the central government, and submitted to the State Council for the record.

(3) number of violations of the relevant land administration examination and approval procedures or stipulated and requisition, the use of farmland for behavior, is the illegal occupation of cultivated land in violation of the land administrative law behavior.

249.5 and also in the judicial practice according to the size, quality of the cultivated area status, number of comprehensive measure of the illegal occupation of arable land is large.

249.6 caused a lot of damage farmland, refers to the illegal occupation of arable land to cropland loss of the basic functions, such as land, desertification, salinization caused by compaction, soil and water loss, soil fertility.

The 249.7 main crime of illegal occupation of land can be a natural person, also can be the unit.

249.8 laws prohibit any unit or individual illegal occupation of land. However, any entity or individual may not violate the relevant protection of cultivated land management system and the premise of the normal approval procedures, in accordance with the law of land occupied, enjoy the land use rights, and accept the administration and supervision of state.

In 249.9 rural residential village, by the township (town) people's government audit, approved by the people's government at the county level; wherein, relates to the occupation of agricultural land, approved by the provincial, autonomous region, or municipality directly under the central government. Any violation of the program to a large number of cultivated land occupied residential, may constitute the crime of illegal occupation of land.

249.10 units of illegal occupation of cultivated land, mainly refers to the unit of land, in national construction unit of the construction and development of township (town) village construction land in the process, in violation of the regulations on land management, illegal occupation of farmland for other uses, the amount is larger, causing a lot of damage behavior of arable land. Here the unit, including state owned company, enterprise, institution, including collective all companies, enterprises, institutions and joint venture or sole proprietorship, privately owned company, enterprise and national levels of power organs, administrative organs, judicial organs, procuratorial organs, people's organizations and social groups.

249.1l illegal occupation of cultivated land are various motives, but does not affect the constitution of a crime. On the crime of illegal occupation of land, is less than 5 years imprisonment or criminal detention, or be fined.

 

Section third defines the basic concept

 

Article 250th of agricultural land, refers to the land used for agricultural production, including cultivated land, woodland, grassland, farmland land, aquaculture water surface etc..

The 250.1 property, which exists in the exclusive rights of land completely, is the sum of all the rights of the land property.

250.2 land property including land ownership, land use rights, land lease, mortgage, inheritance of land right, easement and many other rights.

250.3 the land usufructuary right, refers to the rights in accordance with the others of the immovable property or movable property possession, use and income rights. Such as the right to the contracted management of land, the right to use construction land, the right to use homestead.

The right to the use of 250.4 rural homestead, refers to the rural villagers to build houses shall apply, the use right of homestead made after approval.

250.5 rural land contracting right of management, is refers to the citizen, legal person in accordance with the law on collective or state all the land under collective use in accordance with the law and the legal time limit, by signing contracts with the employer way the possession, use, income rights.

250.6 right circulation, that the subject has a right to be all or part of its rights through the transfer, lease, stock, assign, transfer of civil rights.

250.7 collective land expropriation and requisition.

250.7.1 land expropriation, refers to countries in need of public interest, in accordance with the law, the collective ownership of land will be turned into state ownership and compensation act.

250.7.2 land requisition, refers to countries in need of public interest, in accordance with the law to mandate the use of collective land, after use and then a land returned to the collective behavior.

250.7.3 both in the public interest, must go through the statutory procedures, will be compensated according to law. But the distinction between these two concepts is also very obvious.

250.8 the land use regulation is "to strengthen the basic system of land resource management to determine the land management law". By strictly in accordance with the overall land use planning to determine the use and land use plan for land use, strictly control the occupation of agricultural land especially farmland, realize reasonable allocation, rational use of land resources, so as to ensure the stability of the cultivated land.

The occupation of cultivated land for non-agricultural construction in various types of 250.8.1, should be strictly in accordance with the overall land use planning and annual plans for land, strictly agricultural land conversion, land requisition approval customs control, strict implementation of land "a compensation", in strict accordance with the land and the implementation of compensation for land acquisition system.

250.8.2 land use planning is to implement the use control basis, and use control is to implement the means and measures of land use planning.

250.9 villages, refers to the process of development in the city, in whole or in part due to the rural land expropriation, the rural collective members from the identity transformation of farmers for identity, still live in the original village, a state and is surrounded by the city.

 

The second chapter

Rural collective construction land

 

Article 251st the legal basis

251.1 "land management law".

251.2 "on deepening the reform of strict land management decision".

251.3 "on deepening economic reform in 2005.".

"On deepening economic reform in 2005.".

 

The first section of the rural collective construction land use rights

 

The 252nd condition is obtained

252.1 township (town) the village public facilities, public welfare basic construction land.

252.1.1 rural collective economic organizations according to law for the collective economic organizations of public welfare activities of the non farm land enjoy land use rights.

252 / 1.2 the rural collective economic organizations established according to law schools and other public organizations can also land use rights for the engaged in public welfare activities of the non farm land to enjoy.

252.2 rural township (Village) to set up enterprises or joint ventures with.

252 · 3 according to the "security law", when the use of rural collective land of realizing the mortgage right, allows the use of rural land.

252.4 farmers homestead.

 

253rd operation tips

253.1 according to the current "land management law", the use of rural collective land, the law only to the above four cases is the legitimate use of rural land in the form of. In addition, the current national laws are not allowed.

253 · 2 existing local regulations have to break this situation, concrete analysis of concrete problems to the actual operation.

 

Article 254th termination of collective land use rights. Statutory termination condition:

(1) state expropriation of collectively owned land.

(2) township (town) village building public facilities and public welfare undertakings need to recover the use right of collective land.

(3) land withdrawal, transfer and stop the use of collective land.

(4) land illegal or default by the owner of collective land to recover the land use right. For example, according to the "land management law" in article thirty-seventh, contract land units or individuals for two consecutive years of abandoning farmland, the original contract shall terminate the contract, recover the land.

 

255th operation tips

255 · 1 because the first case to terminate the use right of collective land, the collective economic organizations shall land compensation and resettlement fees for, in accordance with the provisions of relevant laws, administrative regulations, pay for the right to use collective land people as compensation, or in some other way of the original collective land use rights for compensation and resettlement.

255 / 2 due to the above-mentioned second kinds of situations to terminate the use right of collective land, the rural collective economic organization of the original collective land use rights to give appropriate compensation. The right to land contractual management in case of termination and the legal consequences, also should be based on the provisions of the rural land contract law determine.

 

Article 256th township (town) principles for the use of land for construction

256.1 township (town) shall comply with the overall land use planning. Township (town) the overall land use planning is a village, town and other rural infrastructure construction with the highest planning, all the rural construction must obey. In accordance with the "law on land management" of the township (town), the overall land use planning will be divided into land use area, according to the land use conditions, identify each piece of land uses, and shall make a public announcement. Township enterprises, township (town), the village public facilities and public welfare undertakings and rural villagers to build residential, should use the land within the region overall land use planning of village and town construction, rural roads, water conservancy facilities, require the use of village and town construction area of foreign land, shall comply with the requirements of land use, otherwise it will be considered a violation of the overall land use planning, is not allowed.

256.2 in line with the annual land use plan. The state will annually by the annual plan of land utilization, control of construction land supply, town and township enterprises, township (town), the village public facilities and public welfare undertakings, rural residential construction, also cannot break the control indexes of the annual land use plan determined.

256.3 in accordance with the planning of villages and market towns. According to the provisions of the State Council promulgated the "Regulations on the management of village and town planning and construction of villages", refers to the rural villagers live and produce settlements, Ji is refers to the people's governments of townships, nationality townships is located and the people's government at the county level confirmed by market development and become, as non towns of certain rural area economy, culture and life service center. In the village and town planning construction area shall be subject to the planning of villages and market towns, and villages and market towns planning department approval, may apply for a land.

256.4 adhere to the rational layout, comprehensive development, supporting the building of.

256.4.1 reasonable layout, refers to the overall land use planning, the planning of villages and market towns on the various facilities to make reasonable arrangements, so that the land use more reasonable, improve the land utilization rate, improve the function of the villages and towns.

256.4.2 integrated development, is refers to the villages, market towns in the District, township enterprises, township (town) public facilities, public welfare and housing construction in rural areas should be made by the township (town) village, unified development, unified arrangement of land, the main use of existing construction land.

256.4.3 supporting construction, refers to the rural housing and public facilities, public facilities should be synchronized construction, so that it can play its village and town function, convenient life, improve the environment, improve the formation of production and life service system.

The 256.5 relates to agricultural land, for agricultural land conversion and land examination and approval according to law. Township enterprises, township (town), the village public facilities and public welfare undertakings and rural villagers to build residential must go through the formalities for examination and approval of construction land in accordance with the law, relates to the occupation of agricultural land, agricultural land conversion approval must also handle.

 

The second section of rural collective construction land use rights transfer

 

The 257th common forms of circulation

257.1 the right to use construction land for the conditions of the pool and shares.

257.1.1 rural collective economic organizations can accord with the township (town) land use non-agricultural business overall planning of land use right pricing shares or capital and the form of joint venture and other units or individuals, the establishment of the company, partnership, land use rights enjoyed by the enterprise, resulting in the transfer of land. But illegal people associated enterprises, land use rights by the collective economic organizations have.

257.1.2 non is established with the investment of the rural collective economic organizations of enterprises, can not apply for the obtained or made by the following non-agricultural land use rights shall be made in accordance with the law, or by the following made the use right of state-owned land.

257.2 to the collective construction land use rights as a condition of rental housing

257.2.1 rural economic organization party declaration formalities for construction, self built or by the lessee funded housing, the right to the use of housing and the site will be leased to the lessee. Investors to inject funds to start demolition, land leveling, the rural collective economic organization party is responsible for the declaration procedures for land use right obtained land planning permission, so for this condition, the investment side cover housing, property unchanged, such housing tenants longer, generally after the expiration of lease. Upon expiration of the lease term, such as the two sides not to continue leasing, is funded building party leases housing to the right to the use of the site.

257.2.2 operation tips

(1) in the form of rental housing circulation of rural land right of use should be the non-agricultural construction land;

(2) the house is not illegal construction, or occupation of land, the construction of illegal buildings rental is prohibited by law.

257.3 collective housing site at the same time as collateral in circulation.

257.3.1 rural economic organizations according to the "security law", with all its housing as collateral, when mortgage expires, the mortgagee exercising mortgages, housing and change their name corresponding land use rights, resulting in the circulation of the rural collective land use right.

257.3.2 operation tips

(1) mortgaged housing should have planning and construction procedures;

(2) shall handle the mortgage registration formalities at the competent department of the government;

(3) multiple mortgages, the mortgage amount generally should not exceed the value of housing, the parties unless agreed;

(4) the transfer in general to change the nature of land, by the rural collective ownership of state-owned.

257.4 rural economic organization and other associates, shares of the enterprise bankruptcy liquidation, lead to circulation of the collective construction land use rights.

Collective construction occurred 257.5 Chengzhongcun transformation with others in the building housing the land.

Rural collective construction allows 257.6 local regulations for public "strokes, shooting, hanging" the circulation.

257.7 operation tips

257.7.1 when the lease and rental not existing rural housing space, but is new, to the expansion of the housing lease. Should pay attention to:

(1) only when the land, housing formalities complete, the completion of the project, housing lease contract to fulfill, or it may mean that the contract is invalid or cannot continue to perform from first to last.

(2) the contract early investors (generally is the lessee) greater risk, coping with the examination and approval of the project study seriously, careful choice. The Lessor will consider the case of land acquisition and resettlement countries, benefit balance of the rental income and relocation compensation, should be clearly stipulated in the terms of the contract related compensation attribution, avoid post conflict.

257.7.2 when the above 257.3, 257.4, 257.5 cases of transfer, at present most of the city is the first rural collective land is state-owned, and the land use (non rural collective economic organizations shall) signed transferring state-owned land use right transfer agreement, thus completing the formalities of land use rights.

257.7.3 lawyers in different regions of the agricultural land business, pay attention to the legal standards of different places

Documents, suit one's measures to local conditions, flexible.

(1) the rural collective construction at present land directly entering into market level, open to the public "local pilot strokes, shooting, hanging", local laws and regulations as the basis, although is the transfer of the rural collective land, but not the nature of land ownership changes.

(2) without changes in the rural collective construction land use right circulation of rural collective ownership, should pay attention to the succession relationship between collective members and the corresponding collective organization and co ownership, rights.

 

The third section of non-agricultural construction land

 

258th people the right to use non farm land rights and law application

258.1 of land possession right, use right, the right of return to the applicable provisions of company law, partnership enterprise law, the law of contract.

258.2 lack of legal provisions, in accordance with the contract management.

258.3 non-agricultural construction land use right shall not be transferred, leased, but because the enterprise bankruptcy, merger, separation in the case of land use right may be transferred by law.

258.4 because of bankruptcy, merger, separation in the case of land use rights transfer, following the acquisition of land use rights do not belong to the enterprises invested by rural collective economic organizations of enterprises, shall carry out the national land acquisition and sale of state-owned land procedures, turned over to the state land use rights leasing. Thus, bankruptcy, merger, division of subsequent made by the state-owned land use right transfer of land use rights of enterprises.

258.5 non-agricultural construction land use rights can be mortgaged together with plant.

258.5.1 mortgage shall be subject to the collective land owners agree, and issue a written certificate.

The auction, the sale of collateral 258.5.2 mortgage, must apply for a national land acquisition and sale of state-owned land procedures.

258.5.3 auction, the price should be deducted from the proceeds, land compensation and resettlement fees paid to the collective land owners (owners of collective land to give up this right mortgage except in the proof), and deduct the leasing turned over to the state, in accordance with the "security law" provisions of the balance of the disposal.

 

Article 259th the use of rural collective land for land pre

259.1 in the overall plan to determine the city construction land use land, a separate site construction projects for the use of rural collective land, the construction unit shall put forward the land administrative departments of the city, the county people's government, the location of the land to the land application. Construction units for the application, should fill out the "construction land application form", and attach the relevant materials.

The land administrative departments of the 259.2 City, county people's Government on the construction materials, in line with the conditions of the application, shall accept the application, and in receipt of the application within 30 days from the date of the preparation of agricultural land conversion plan, scheme, additional land expropriation of land programme and programme, site preparation construction projects reported statement, upon examination and approval the people's government at the same level, a newspaper land administrative departments review.

259.2.1 agricultural land conversion plan, shall include the types of agricultural land occupation, position, size, quality etc..

259.2.2 added arable land, should include additional land or fill the position, size, quality is basic farmland, supplementary terms, funds, together with the corresponding map.

259.2.3 land acquisition programme, shall include the scope, types, area, land ownership, land compensation and resettlement subsidies standards, the need for personnel placement means.

259.2.4 for the programme, should include the manner, area, use, the land use fee standards, such as the amount of.

(1) construction occupies only state-owned agricultural land (such as state-owned farm), land administrative departments of the people's Government of the city or county, only the preparation of agricultural land conversion programme, supplementary land programme and programme.

(2) the construction only take the rural collective construction land, land management departments of the people's Government of the city, county, only to land acquisition programme and programme.

259.2.5 construction projects for the reporting instructions. The construction project for the reporting instructions shall include the project land arrangements, intends to use the land, and shall be accompanied by the following materials:

City, county land (1) approved by the overall plan and land use maps, occupancy basic farmland, should also be provided at the township level overall land use plan;

(2) submitted by the construction unit, the unit qualified certificate issued by the surveying and map and survey report;

(3) the cadastral data or other land management authority proof material;

(4) in compensation for the land, should also provide initial compensation for the use of land contract and instructions and related documents;

(5) for the implementation of city planning and village, town planning occupation of land, should also provide the city plan and village, town planning graph.

259.3 construction land review. Approval of the competent department of land administration of the people's Government shall complete the examination within 30 days from receipt of agricultural land conversion plan, reported to the supplement of arable land, and for land acquisition programme to plan and shall seek the opinions of the relevant parties after.

259.3.1 construction land review shall adopt the system of internal documents land administrative departments.

259.3.2 agricultural land conversion plan, approved by the people's Government of cultivated land supplement plan, land acquisition programme and programme have the right of approval by the competent department of land administration at the same level, should be in receipt of approval within 5 days after the approval issued.

259.3.3 is not required to pay for new construction land use fees paid, not to approve construction sites.

259.4 schemes of organization and implementation. Agricultural land conversion plan, approved supplementary cultivated land expropriation of land programme, the programme and programme, the people's Government of a city, county, the location of the land by the implementation of the organization.

259.4.1 compensation scheme of plow land approval issued, location alone in the overall land use planning to determine the city construction land outside the scope of the project, by the people's Government of the city, county land administrative departments responsible for the supervision and implementation.

259.4.2 in the overall plan to determine the city and village, town construction land use of the land within the limits of, for the implementation of city planning and village, town planning occupation of land, by the province, autonomous region, or municipality directly under the central government land administrative departments responsible for the supervision and implementation.

259.4.3 in the overall plan to determine the city construction land within the land used for city planning, land occupation, after the approval in accordance with law, land administrative departments of the people's Government of city, county shall publicize the planning requirements, set the using conditions, determine the using ways, and organize the implementation.

 

260th operation tips

260.1 construction projects for the pre-trial documents valid for two years, since the date of ratification.

The 260.2 is through the use of pre-trial projects, such as the need to land use, construction projects such as the siting of a major adjustment, should re apply for prequalification.

260.3 in addition to infrastructure projects in accordance with the relevant government departments on the set up preparatory work related infrastructure projects, other construction projects in the approval or approval, shall finish the preliminary examination in accordance with the provisions hereof, without the pre-trial or pre-trial did not pass, shall not be approved or approved construction projects, shall not apply for agricultural land conversion, land expropriation for the procedures.

 

261st construction units apply for prequalification procedure

261.1 belong to the government investment project management program:

261.1.1 project proposal and feasibility study report to separate approval, in accordance with the following procedures:

(1) an application to the administrative department in charge of development and reform, his request to accept and examine the construction units to declare the project proposal (project report);

(2) the development of the reform of the administrative department in charge of writing to seek planning planning administrative departments of the administrative department of planning, development and reform plan reply competent administrative department;

(3) the development of the reform of administrative departments approved project proposals, which should be clearly planning to determine the administrative department in charge of construction projects for the relevant properties, scale and layout of views;

(4) the construction units to the project proposal (project) approved materials to apply for the pre-trial to the competent administrative department of land and resources.

261.1.2 project proposal and feasibility study report and approval, in accordance with the following procedures:

(1) an application to the administrative department in charge of development and reform, his request to accept and examine the construction units to declare the project proposal (generation of feasibility study report) or approval of materials, leading to approval of preliminary hearing;

(2) the development of the reform of the administrative department in charge of writing to seek planning planning administrative departments of the administrative department of planning, development and reform plan reply competent administrative department;

(3) the Department in charge of development and reform administrative to construction units issued project management for the pre-trial notice, which shall clearly planning to determine the administrative department in charge of construction projects for the relevant properties, scale and layout of views;

(4) the construction unit holders project notice such materials to the administrative department of land and resources to apply for prequalification.

261.2 belong to the class of construction project investment approval of non government management program (261.1.2).

261.3 belong to the class of construction project investment for non government, in accordance with the following procedures:

261.3.1 development and reform administrative departments acceptance and filing of project construction, project filing form issued by the;

261.3.2 construction unit project filing form for planning submissions to the planning department;

261.3.3 planning issued by the competent administrative department for planning submissions.

 

262nd construction land units to apply for prequalification, shall submit the following materials

262.1 construction projects for the pre-trial application form;

Application report for the pre-trial 262.2 construction projects;

262 · 3 required the approval of construction projects, according to the following requirements:

(1) the project proposal (project) and the feasibility study report to separate approval, provide the project proposals and feasibility study report approved;

(2) the project proposal and feasibility study report and approval, provide development and reform administrative departments issuing the project for land pre notice and project proposals (generation of feasibility study report);

(3) for approval of construction projects, provide development and reform administrative departments issuing the project management for the pre-trial notice;

(4) required for construction projects, planning departments issuing opinions issued by providing development and reform administrative project for the table and the administrative departments of planning.

 

Article 263rd the use of pre-trial procedures including:

(1) application and acceptance, the construction unit to the competent administrative departments of land and resources to apply.

(2) for examination and decision, the administrative department of land and resources in accordance with the law on land units for review.

(3) period, the administrative department of land and resources shall complete the examination within 20 working days after accepting the application for preliminary examination date. Completed in 20 working days can not, be responsible for the administrative department of land and Resources Administration approval, can be extended to 10 working days, and shall inform the applicant of the reason for extension of time limit..

 

264th the main contents of the use of pre-trial

264 · 1 construction projects for the location is in accordance with the provisions of the land management law, regulations and conditions, are consistent with the overall land use planning;

Whether the 264.2 construction project conforms to the national land supply policy;

264.3 construction projects for the standard and total compliance with the relevant provisions of scale;

264 / 4 the occupation of farmland for construction projects, the preliminary scheme of supplementary cultivated land is feasible, funding is guaranteed.

 

265th city planning area collective all land, the statutory conditions should have

265.1 by the state to levy;

The first 265.2 transfer to the state;

265.3 agreed to the collective land owners;

265.4 of the members of the collective economic organizations 2 / 3 more than the consent of the.

 

The third chapter

Rural Homestead

 

The 266th main legal basis

Some provisions of 266.1 "to determine land ownership and use right".

266.2 "the general office of the State Council on strengthening the management of land transfer notice of land speculation is prohibited".

266.3 "the Supreme People's Court on the implementation of the policy issues of civil law".

266.4 "rural housing land Ordinance".

 

The right to use homestead category 267th

267.1 land use right of homestead right of use, right of possession, usufruct and limited right of disposition.

Dispute over the right to use homestead is 267.2, between civil subjects on the homestead right of use the right disputes or disputes.

267.3 lawyers handling agent for parties to take.

267.3.1 negotiation. As long as the parties agreed to negotiate, not only can be resolved through consultation before the proceedings, but also can be resolved through consultation during litigation or litigation.

267.3.2 administrative solutions. According to the provisions in the second paragraph of "land management law" sixteenth request relevant government organs to solve. This is a statutory procedures. Enjoy the homestead right of use to a party, if without the approval of relevant government ownership, not to the tort party filed a civil lawsuit to the people's court, the people's court cannot accept.

267.3.3 proceedings. According to the "administrative review law" and the "land management law", the parties on the homestead right of use rights disputes, if one party or both parties to the government's decision, may apply for administrative reconsideration, or in receipt of government decision within 30 days of notification, bring an administrative lawsuit to the people's court. To apply for administrative reconsideration, the parties accept the decision on administrative reconsideration, it may bring an administrative lawsuit to the people's court.

 

268th operation tips

268.1 processing the countryside homestead right disputes, should be realistic and historical status, reference land use status, the original foundation, foundation and evidence to comprehensive analysis and judgment, and according to the legal procedures for the right procedure.

268.2 processing the countryside homestead right infringement dispute, should be based on the residential land ownership certificate (land use permit) as the main basis to judge infringement, if there is no proof of ownership, should first solve the problem of ownership.

 

The fourth chapter

The contracted management right of rural land

 

The 269th main legal basis

269.1 "the people's Republic of China rural land contract law".

269.2 "rural land contracting right of management circulation management approach".

269.3 "the people's Republic of China right to contracted management of rural land management measures".

269.4 "the Supreme People's Court on the law applicable to the rural land contracting Dispute Cases Interpretation".

 

The first section of the right to land contractual management

 

Article 270th the way

270.1 original acquisition. The family of contracted land is currently hold the peasants and the collective, agriculture and industry, rural and city is the most important link, is the government able to influence and control of rural, ensure its policy was implemented tool, is the employment of farmers, subsistence security system, is also the main way for farmers to increase income.

The original refers to members of the collective economic organizations or outside of the collective economic organization by units or individuals according to law, conclude a contract has the right to land contractual management.

270.2 transfer made and ways.

270.2.1 signed by the parties have the right to the contracted management of subcontracts.

270.2.2 the parties through the transfer contract, get right to the contracted management of land from the original contractor.

270.2.3 the parties through the rental contract, get the right to the contracted management of land from the original contractor.

270.2.4 shares through the cooperation contract parties, get the right to the contracted management of land from the original contractor.

 

Protection of 271st of the contract system

271.1 within the duration of the contract, the employer shall generally not take back the contracted land. To take back the contracted land, the contractor of its investment in the contract on the ground and improve the production capacity of the land, have the right to obtain appropriate compensation.

271.2 within the duration of the contract, the employer shall generally not readjust the contracted land.

The special case of 271.3 due to natural disasters, serious damage to the contracted land, and to contract for individual adjustment, adjustment of the contracted land, must be approved by the villagers meeting 2 / more than 3 members, or 2 / 3 village representatives agreed, and subject to approval by the township (town) the approval of the people's government at the county level people's government and the agriculture administration department.

The agreement in the contract shall not be adjusted, in accordance with the contract.

 

Article 272nd the land contracting right of management circulation

272.1 general ways: subcontract, transfer, lease, purchase, exchange.

272.2 other forms of contract

272.2.1 barren hills, barren, barren hills, wasteland can be contracted through bidding, auction and public consultation.

(1) by tender, auction contract, the contracting fees through open bidding, bidding to determine;

(2) for public consultation and contract agreed by the parties, the contract fee;

(3) no matter what kind of contract management, must sign the contract.

272.2.2 the whole piece of land contract management right pricing shares, distributed to the members of the collective economic organization, then contracted or joint-stock cooperative business operation.

 

The second section of circulation of contractual operation right of rural land

 

Article 273rd the circulation of the statutory form

273-1 subcontract, refers to the contractor will be contracted land transfer contract for the new contract, the original contractor to the subcontractor, the contractor for the new assignee. Land contracting by the assignee can continue to enjoy and the rights and obligations of the contract, and provide a certain number of subcontracting costs to the subcontractor. If required by the employer for the record, but not only upon the consent of the party.

Subcontract is only applicable to household contract.

273.2 rental, refers to the contractor will lease the land to other citizens, legal persons or other organizations use, contracted by the direction of the lessor to pay rent, only need to send package file can be.

The Contractor within a certain period of time will be part of or all the land management rights transfer or lease to another person, the subcontractor or the lessor does not withdraw from the land contract, the same relationship between contractor and the employer, the contract obligations directly to the employer.

273 / 3 interchange, contractors for the convenience of farming or their needs, to belong to the same collective economic organizations of the right to the contracted management of land exchange. Swap is a reciprocal contract. Reciprocity, swap sides against the right to land contractual management, the loss of their original land contract management right. Both sides reached a swap contract farmers, but also with the employer to change the original land contract.

273.3.1 the two sides exchanged, does not require the consent of the employer, but swap contract shall be approved by the employer for the record.

273.3.2 interchange is not registered, not confrontation goodwill third person.

273.4 shares, refers to the land quantity of shares, the right to the contracted management of land into equity, implement a joint-stock cooperative management transfer.

The current law of our country only to one of the legal person shares as a way of circulation "4 barren" the right to land contractual management, the household contract land contracting right of management does not give the legal status.

The transfer of 273 · 5, refers to the right to land contractual management in the future the right to land contractual management in a certain way and conditions of paid transfer to other citizens, legal persons or other organizations in a rural land circulation.

The right to land contractual management of the object can be a member of the collective economic organization, can also be individuals and institutions of the collective economic organization, the members of the collective economic organization has the right of first refusal.

273.5.1 after the transfer, the land contracting right of management transfer, the transferee to the employer obligations, the original contractor completely withdraw from the contract relations.

The transfer of 273 · 5.2 contracting by households to obtain the right to land contractual management, must be approved by the employer agreed.

273.5.3 transfer of unregistered, not confrontation goodwill third person.

273 · 5 · 4 of the right to land contractual management of the object can be a member of the collective economic organization, can also be individuals and institutions of the collective economic organization, but the members of the collective economic organization has the right of first refusal.

273 · 6 mortgage of land contract management right, refers to the contractor to ensure the implementation of debt to themselves or others, without transferring the possession of land and provide a corresponding guarantee. When the debtor does not fulfill the debt, the creditor has the right to land contractual management for sale or discount compensation, so as to realize the transfer of land contract and management rights.

Our current law allows only "4 barren" mortgage of land contract management right, while a large number of family contracted land contracting right of management is not allowed to mortgage.

273.7 inheritance, "4 barren" refers to the right to the contracted management of land and the forest family contractual operation right, the Contractor's death, by his heirs in accordance with the law in the contract period inherited the right to land contractual management.

Inheritance of the right to the contracted management of state law does not give in addition to woodland and "4 barren" to the family of the contracted land.

273.8 contract, refers to the contractor in the contract period in accordance with the contracted land may be entrusted to the third people (i.e., their party) temporarily for business behavior.

No matter what kind of way to transfer, the transfer shall not exceed the remaining term of the original contract period.

 

274th other forms of contract

274.1 direct through bidding on barren hills, barren, barren hills, wasteland (referred to as "wasteland"), the implementation of the contract.

274.2 through public auction, the implementation of the contract on barren hills, barren, barren hills, wasteland.

274.3 through public consultation, the implementation of the contract on barren hills, barren, barren hills, wasteland.

274.4 the whole piece of land contract management right pricing shares, distributed to the members of the collective economic organization, then contracted or joint-stock cooperative business operation.

 

275th operation tips

275.1 tender, auction contract "4 barren", the contracting fees through open bidding, bidding to determine.

275.2 to the public consultation contract "4 barren", contract agreed by the parties.

275.3 no matter what kind of contract management, must sign the contract.

275.4 the circulation of rural land contracted management right circulation of four copies of the contract, each party holds one, the employer and the township (town) people's Government in a rural land contract and management departments for the record.

275.5 the contractor will land to others through not more than 1 years, no written contract.

275.6 the contractor commissioned by the employer or the intermediary service organizations transfer their contracted land transfer contract shall, by the contractor or its written entrustment agent signing.

275.7 the circulation of rural land contracted management right party may apply to the township (town) people's government rural land contract management department for the contract, but the township (town) people's government rural land contract management department shall not compel the parties to accept the land contracting right of management circulation.

 

Article 276th of the contracted land management rights transfer contract shall include the contents of

276.1 lawyers can inform the client including but not limited to the following contents:

(1) the parties name, domicile;

(2) the transfer of land to, is located, area, quality grade;

(3) the term of circulation and dates;

(4) the circulation mode;

(5) transfer the use of land;

(6) the rights and obligations of both parties;

(7) the transfer price and payment;

(8) treatment structures and related facilities in circulation after the expiry of the contract;

(9) the liability for breach of contract.

276.2 operation tips

The 276.2.1 draft the contract management right of contracted land circulation, can refer to the management of the agricultural administrative departments at the provincial or municipal people's government to determine the contracted management of rural land contract right transfer in text format.

276.2.2 lawyers should prompt clients the rural land management rights transfer contract shall be in accordance with the law to register.

276.2.3 for the transfer of contracted land management rights, should receive the right to the contracted management of land certificates and Diploma in forestry to relevant departments according to law, and at the same time, submitted to the township (town) government for the record.

276.2.4 transfer contract without registration, take the way the transfer of land contract management right transfer of the assignee may not be against the third person.

 

277th common circulation business operation procedure

277.1 land management rights transfer program

277.1.1 contracted by subcontractors to subcontract the direction issued advice and consultation signed land management rights transfer contract.

277.1.2 will land management rights transfer contract submitted to the employer for the record.

277.1.3 subcontractors management of rural land contract law.

277.1.4 contracts after the expiration of the period, the land returned to the subcontracting side, management of rural land contract by the contractor in accordance with the law.

277.1.5 operation tips

(1) land management rights transfer, shall be submitted to the employer for the record.

(2) the transfer of the remaining term of contract for a period of not more than, should sign, short-term contracts, renewal. Change so as to cope with this objective, the performance of the contract in favor.

277.2 the right to land contractual management rental procedures

277.2.1 contracting direction the lessee a contractual operation right of land rental advice.

277.2.2 the lessor and the lessee consultation of contracted management right of rural land rental contract.

277.2.3 the lessor and the lessee shall sign a written form of the rural contracted management rights of land lease contract.

277.2.4 contracted management right of rural land rental contracts to the employer for the record.

277.2.5 tenant management of rural land contract law.

277.2.6 contracting direction of the lessor to fulfill the requirements of contracted management right of rural land rental contract, general

Annual performance, including the payment of rental price to the lessor.

277.2.7 contracting direction the employer to fulfill the real nature of the land contracting right of legal obligations and to fulfill the contract

The provisions of the contract and other contractual obligations.

277.2.8 lease after the expiration of the time period, operation of rural land contract by the contractor in accordance with the law.

Not to mention the 277.2.9 operation

(1) the right to land contractual management lease, the lessor (that is, the original contractor) the property nature of the right to land contractual management still exist between the party and the contractor, the contractor relationship unchanged, the lessee has the only obligation of rural contracted land lease right.

(2) during the lease term, the lessee has the autonomy of production and management, product disposal and the product gains the right to.

(3) during the lease term, not abandoning, shall not damage the farmland water conservancy facilities, no land to cause permanent damage; agricultural properties and uses of land ownership can not change the land, without approval, contracted land may not be used for non-agricultural construction.

(4) the lease period shall not exceed the remaining term of contract period, a period not exceeding 20 years.

(5) the lessor shall transfer the right to the contracted management of land, the lessee is the farmer, the lessee has the priority right to the transferee under the same conditions. Between the employer and the contractor when the contract and the contractor and the lessee of the rural contracted land lease and destroy.

(6) the Contractor shall transfer the right to the contracted management of land, not destroy operation right of lease, the Contractor shall take over the original contractor (the lessor) continue to perform the original contractual operation right of land lease contract. This is the embodiment of the principle of transfer does not break lease.

(7) if the lessor of voluntary employer or intermediary transfer of the land contract, if the agreement without banned relet clause, the lessor may issue a power of attorney, the entrusted matters, power and time limit, and signed or sealed by the principal.

(8) the lessee in the lease period for investment and improve the production capacity of the land, the land lease contract expires or is not due to take back the contracted land according to law by the lessor, the lessee is entitled to obtain appropriate compensation. The specific measures for compensation may be stipulated in the contract for the right to land contractual management or resolved through negotiation by the two parties.

(9) the land lease period, the lessee will land re circulation, must obtain the written consent of the lessor.

277.3 the land contracting right of management exchange program

277.3.1 by one party to the other the right to land contractual management swap proposal. ·

277.3.2 the two sides negotiated the right to land contractual management swap contract.

277.3.3 the two sides shall sign a written form of the right to the contracted management of land swap contract.

277.3.4 the right to land contractual management contract to the employer for the exchange of.

277.3.5 the two sides should apply for registration to the local people's government at or above the county level, without registration may not be against a bona fide third party.

277.3.6 benefit need to recharge the other swap spread.

277.3.7 land contracting operators to operate after the exchange of rural contracted land.

277.3.8 the right to land contractual management to the employer shall perform the swap after the property nature of the right to land contractual management legal obligations and the other about contract obligations.

277.3.9 operation tips

(1) to two by family contract to obtain property nature of the right to land contractual management effective existence.

A lawyer to handle the legal business operation guidelines of land 219

(2) exchange of the right to land contractual management parties, limited to the employer within the household (i.e., the collective economic organizations of farmers).

(3) the right to the contracted management of exchange can be equivalent, also can not exchange of equal value, in unequal exchange situation, benefit must supply the other swap spread.

 

The third section of the right to land contractual management and the dispute settlement

 

Article 278th definition

278 / 1 the contracted land disputes between civil subjects, is has the right to land contractual management rights disputes or disputes.

Way to solve 278.2 contracted land disputes

278 · 2 · l negotiation mediation. For land contract disputes, the parties can be resolved through consultation, or request the villagers' committees, township (town) people's government mediation.

278 · 2 · 2 arbitration. If the parties are unwilling to consultation or mediation, or the consultation or mediation fails, to the rural land contract arbitration institution for arbitration.

278 · 2 · 3 litigation. If the parties are unwilling to consultation or mediation, or the consultation or mediation fails, you can directly to the people's court.

278 / 3 if a party refuses to accept the arbitration of rural land contract arbitration award, received the award at the date of 30 days to a people's court. Late not to prosecute, ruling that the book takes legal effect.

278.4 attorneys operating tips

278 · 4 · 1 if a party has the right to register, the person enjoys is a kind of property rights; the other has not been registered in accordance with the law only contract rights, in the nature of creditor's rights. Compared with both, the former is preferred.

278 · 4 · 2 if not registered in accordance with the law, two rights belong to the creditor's rights, should be in accordance with the contract in force at that time has identified.

278 · 4 · 3 as determined not according to the above method, according to the legal possession of the contracted land fact identified contractual operation right of land ownership.

278 · 4 · 4 has the dispute, in forced preemption before the disputes shall not be sure of the right to land contractual management basis.

The fifth chapter

Legal problems of city village renovation

 

The 279th main legal basis

279.1 "city housing demolition management regulations".

279.2 "the Supreme People's Court on the admissibility housing demolition, compensation, resettlement cases the reply".

279.3 "on issues related to the enforcement of the administrative tribunal of the Supreme People's Court Reply".

279.4 "the Supreme People's Court on the parties fail to reach an agreement on compensation and resettlement compensation and relocation dispute filed civil action with the people's court should accept reply problem".

279.5 "the Supreme People's Court Administrative Tribunal on issues related to housing demolition compensation for the expropriation of rural collective land on the ground after the reply".

 

The legal relationship between the first day of village in city reconstruction

 

Villages in the city and the transformation of 280th

After the reform and opening up 30 years, city some economic developed area of built-up area expanded rapidly, originally located in the city surrounding rural was incorporated into the city territory, surrounded by many-storied buildings, a "city of villages".

With the Department of urban and rural villages, with low jam illegal buildings, the environment dirty, chaotic, poor infrastructure, free from the city management system, city into the problem, the transformation of the village be imperative.

 

Common mode 281st Chengzhongcun transformation

The 281.1 is dominated by the government, is mainly the government completed the preliminary land development, and then take the market tender auction. This way because of the early resettlement cost is high, the government is difficult to achieve the balance of the funds, the government limited financial capital, at present there is no large-scale development of such land.

281.2 villagers in the government guidance and support, self raised funds, completed the transformation of self. This model requires the support of the government is relatively large, such as infrastructure, public facilities and funds, apply to the village collective and villager financing ability, village smaller case.

281.3 developer oriented development model. The developer fund is abundant, the development experience, can alleviate the pressure of government funds, the funds can be put into infrastructure and public welfare undertakings more, and can avoid the administrative intervention, reduce the social problem, this model is now more conscious transformation model.

 

The legal relationship of 282nd village in city reconstruction

282.1 civil legal relationship.

282.1.1 was taken with the removal of people of relocation compensation contract

(1) in the demolition process, which occurs between the demolition and the demolition of civil relations are mainly demolition compensation and resettlement issues, the parties can be taken to the demolition compensation and resettlement agreement form to determine the rights and obligations of both parties. Demolition compensation and resettlement agreement is agreed between the parties in civil demolition of relations between right and obligation of contract, application of "general rule of the civil law" and "contract law of PRC".

(2) according to the law of minimum compensation settlement agreement, legally binding on the parties. The parties shall perform their respective obligations in accordance with agreed, shall not alter or terminate the agreement.

(3) the following ways of compensation and resettlement:

Exchange of property right;

The monetary compensation.

(4) by removing people are entitled to the compensation and resettlement mode selection, compensation and resettlement agreement must meet to compensation and resettlement mode selection units. Otherwise, the contract is invalid.

282.1.2 removal and village in the legal relationship of property, should pay attention to:

(1) the rental housing residents, the relationship between compensation and lease.

(2) the "Regulations" City Housing Units management twenty-seventh stipulates: "the demolition of rental housing, housing tenant was taken with the lifting of the lease relationship, or who were residents of a housing tenant placement, removal of people who were relocated compensation. Housing tenant was taken with the lifting of the lease relationship no agreement, residents should be relocated to the housing property exchange. The property housing units by the original lessee, the demolition should sign a new lease contract with the housing the original lessee."

(3) the rental housing residents should consider two factors:

The protection of legitimate rights and interests of housing ownership, compensation mode of ownership can choose monetary compensation and property right exchange;

To protect the legitimate rights and interests of the people. It should be said, the rental housing residents resettlement compensation and termination of the contract to two legal relations. Two legal relations on the surface is independent, but in fact are linked, so in the treatment of two legal relationships should be considered together.

The legal relationship between 282.1.3 removal and the mortgagee, should pay attention to:

(1) were taken to set up mortgage housing, should deal with the relationship between compensation and mortgage.

(2) mortgage and housing demolition compensation between the mortgagee and the demolition of the main are two independent method

Law relationship.

(3) in the establishment of mortgage housing should pay attention to the following two points:

The protection of legitimate rights and interests of housing ownership. As people were taken at the same time is the duty of the mortgagee, have the right to compensation for the demolition of the form to make a choice, not only take orders from the relocation of people.

The maintenance of the legitimate rights and interests of the right of mortgage. If the housing ownership choice property transfer, mortgage agreement signed by the mortgagee and the mortgagor to. If the housing ownership people choose monetary compensation, the mortgagee has priority right on the money.

The 282.1.4 removal and the legal relationship between people, should pay attention to:

(1) the indirect beneficiary of the demolition of housing is in essence, the demolition of houses have expectation interest.

(2) the demolition and the legal relationship between the people, is the actual subject to nominal subject in the rights of the inherited relationship.

The legal relationship between 282.1.5 removal and Demolition Company, should pay attention to:

(1) between residents and commissioned by the housing Demolition Company is the principal-agent relationship.

(2) the demolition of buildings themselves according to the law, but in practice generally entrusted with the minimum qualification certificates housing Demolition Company to implement the demolition compensation and resettlement work. Demolition Company can own name and relative units, signed compensation agreements.

282.1.6 operation tips

(1) the demolition refers to the housing ownership, land ownership or land use right. The lessee or contractors involved in relocation (refer to rural enterprises contractor) not be taken, unless the demolition agreement, residents who can't throw the demolition and the lessee or the contractor signed the demolition compensation and resettlement agreement.

(2) the Demolition Company under the Commission, a form of the demolition of the relative person. Legal dispute of the demolition, resettlement agreement disputes is the Demolition Company, not the Real Estate Company or the municipal construction department.

282.2 administrative legal relationship.

282.2.1 land legal relationship.

(1) the land expropriation refers to the state on the basis of public interest reasons, all made of rural collective land, a little carelessness may cause serious damage to the legitimate property of citizens and legal persons, so must by law legal conditions imposed strict rules.

(2) the statutory conditions imposed on the three:

1. For the purposes of public interest;

The program must be strictly in accordance with the law;

We must be fair compensation.

282.2.2 demolition administrative license law relationship.

(1) the demolition permit application and issuance of the program requirements:

According to law, the demolition of housing units permits obtained housing units, before the implementation of the demolition. The application for administrative license is front procedures housing units.

The demolition permit applications for housing, housing should be the seat of the people's Government of the city, County Housing Units management department to apply for.

The residents should submit the following documents:

The approval document of A. project;

Land use planning permit B. construction;

C. the use right of state-owned land approval document;

D. removal and relocation plan scheme;

Issued by financial institutions deposit business of the E. that the minimum compensation for funds.

Management Department of the people's Government of the city, county housing units, should be within 30 days from the date of receiving the application, examine the application matters; upon review, eligible, a housing units permits.

(2) the administrative punishment for illegal construction.

The compulsory demolition. "The people's Republic of China urban and rural planning law" sixty-eighth article: "the competent department of urban and rural planning shall be ordered to stop construction or dismantle the decision, the party concerned refuses to stop building or overdue dismantling of the construction project, the local people's government at or above the county level where can be instructed to relevant departments to take up the construction site, the forced demolition and measures.

The mandatory removal measures must be submitted to the people's court with enforcement of the law enforcement departments. The local people's Government in the exercise of this right, to fully protect the legitimate, lawful rights. Dissatisfied with the administrative punishment, the party may bring a lawsuit to still.

(3) the demolition. Was taken to remove people without justified reasons, the people's government at or above the county level shall be ordered to make a decision taken, overdue removal by the people's government at or above the county level, instructed relevant departments to mandatory removal, or removal from housing authorities to apply to the people's court for compulsory removal.

(4) the city housing units administrative adjudication.

Was taken with the removal of people on the compensation forms and the amount of compensation, resettlement housing area and resettlement sites, the relocation of the transition mode and the transition period, the consultations fail to reach an agreement, the demolition of housing units units departments ruling. Parties to accept the award, received the award at the date of 15 days to a people's court.

The 282.2.3 award is pre litigation procedure. According to the State Council's "City Housing Demolition Management Regulations" and the Supreme People's court in 2005 ninth judicial interpretations, demolition resettlement compensation disputes without ruling direct lawsuit, the court shall not accept the.

 

The legal services section second Chengzhongcun transformation process

 

Confirmation of the 283rd land use rights and ownership of the ground attachments

The scope of land use status to survey, including:

(1) the transformation range of land ownership, collective land, the allocation of state land, state owned land (including time) range, area, location, use (such as the use of housing land market, land, township enterprises land) and so on, to illustrate.

(2) provide land certificate copy. At the same time the ground objects attached to the land shall be confirmed by the actual ownership, provide the corresponding proof of ownership and summarized the attachment, and then by the land administration department of the local audit to determine compensation standards.

The government and the village collective economic organizations or developers signed the framework agreement demolition.

 

Article 284th the government and village collective economic organizations or developers signed the framework agreement on the framework agreement of demolition and reconstruction of meaning

Confirmation of 284.1 on the village collective economic organizations or developers transform status.

284.2 of the village collective economic organizations or the rights of developers and project properties to determine. Only signed a framework agreement related to the transformation, the transformation of the recognized status.

284.3 to confirm the nature of the transformation plan. Because the normal development of real estate funds and urban village reconstruction project funding sources have obviously different at the same time, for the land price and related projects, has largely discount, while the lawyers involved, is to help draft the transformation protocol related, and coordinate the relevant legal relationship.

 

285th demolition of the determination of the subject qualification and demolition permits

285.1 determine the minimum subject. Demolition demolition project involving behind, is the basic condition of transformation, for the demolition permit to what subject, and how to handle these concerns, civil rights and obligations of the principal, need careful consideration. A lawyer shall provide legal advice and to assist the client to handle related.

Reconstruction of the joint-stock cooperative enterprises self construction and cooperation with others.

(1) the self transformation. Its characteristic is the self declaration, subject clear, self financing enjoy preferential policies, single component accelerated placement, convenient management. Self demolition or commissioned by the Demolition Company relocated.

(2) and CO transformation. The lawyers should be at least:

Making a clear benefit distribution and division of responsibility and how to assume the risk of.

The lawyer to provide legal opinions and establish relevant agreement concerns.

The negotiations focus clear.

285.2 outside the village of other agencies involved in the legal problems in the process of the transformation of the auction:

285.2.1 shall sign to the drafting of tender documents and tender or listing successful protocol.

The legalization of 285.2.2 focus on the bidding process.

 

286th demolition in the preservation of evidence

The following 286.1 city housing demolition process should pay attention to the preservation of evidence

286.1.1 on the unclear property rights to the property taken.

(1) the demolition of housing property is not clear, residents should make compensation for resettlement programmes, agreed to housing demolition management department after the implementation of the demolition.

(2) removal, relocation should be taken on matters related to housing to legalization organs for evidence preservation.

286.1.2 of the escrow Housing Preservation of evidence.

(1) the administrator also belongs to the demolition, but because the escrow housing units to be no ownership, the right of disposition, the owner is not in the case, the person should be taken by the demolition of housing area, building materials, housing recency, relevant evidence preservation.

(2) if the administrator is the Department in charge of housing demolition, compensation, resettlement agreement must be notarized by notary organs, and for the preservation of evidence.

286.1.3 on a property dispute Housing Preservation of evidence.

(1) the demolition of housing property in dispute, deadline announced departments in housing units within the unresolved disputes, the demolition of the compensation and resettlement plan, approved by the people's government at or above the county level after the implementation of the demolition of housing units departments.

(2) units, housing units shall organize the demolition of demolition of houses for inspection records, and legalization organs for evidence preservation.

286.1.4 has mortgages Housing Preservation of evidence.

(1) the property transferred to the demolition of housing with mortgage, the mortgagee and the mortgagor shall be re signed

Collateral agreement.

(2) if the deadline for the two sides announced departments in housing units within can not reach an agreement, by removing the implementation of buildings according to property disputes, and carries on the corresponding evidence preservation work.

286.1.5 of the rental housing preservation of evidence.

(1) the removal of residential housing rental, should be a property transfer, the original lease relationship continue;

(2) caused by the demolition changes Yuanzulingetong provisions, should be amended accordingly;

(3) to the original lease contract, property right change book, after the change of the lease contract for the preservation of evidence necessary.

 

287th of the pollution caused by production, the closure of the economic compensation

287.1 for the removal of non residential housing cause shutdown, closure, relocation of people should be given appropriate compensation.

287.1.1 scope is limited in the property rights exchange.

287.1.2 proper compensation standards specified by the country, the actual operation can be commissioned assessment agencies for assessment.

287.1.3 making compensation by the assessment organization in mind when evaluating the economic loss caused by the demolition.

 

Article 288th guarantee housing demolition

288.1 if the mortgage housing units, the monetary compensation, shall be the mortgagee and the mortgagor shall negotiate to mortgage or pay the debt, the mortgage housing mortgages disappeared, the demolition can receive compensation to the residents.

288.2 if the new mortgage agreement with the mortgagor and mortgagee cannot or unable to repay debts that are due, the people have the right not to pay the minimum compensation.

288.3 in accordance with the relevant provisions of the "contract law", the demolition and removal are timely notify the mortgagee's obligations. In some places, there are specific provisions, not in the period to the mortgagee to the establishment of collateral or settlement of the original debt, keeping the compensation by the residents who pay notary organs or demolition of housing management escrow, or generation.

288.4 the relocation compensation to the mortgaged property of metal. Housing mortgages for housing demolition and destroy, the compensation as the mortgaged property, the mortgagee's interests are protected.

 

289th mortgage housing units by property transfer operation.

If the mortgage housing demolition, the property exchange, the compensating operation should pay attention to the following points:

(1) the mortgagor and the mortgagee shall have property replacement housing as housing mortgage re mortgage contract signed. New mortgage contracts must be in accordance with the law and the establishment of effective registration. Otherwise, the dismantler shall not been taken with a minimum compensation settlement agreement, even if the contract is for violation of the provisions of the guaranty law of invalid.

(2) the mortgagee and the mortgagor in the period to the new mortgage agreement, the housing as property controversial housing, the demolition of the compensation and resettlement plan, agreed to housing demolition management department after the implementation of the demolition. Demolition of the former, house demolition management department shall organize residents who were relocated to housing survey records, and the removal to legalization organs for evidence preservation.

(3) mortgage housing demolition have reached a new agreement, the mortgagee shall promptly filed a lawsuit claims, to avoid frustration. Of course, residents can also take the initiative to indictment, asking the court to confirm the original mortgage contract invalid or revoked the original mortgage contract, safeguard the legitimate rights and interests of their own.

 

A total of 290th buildings housing operation

290.1 of the demolition of the co owners confirm.

290.1.1 residential housing units, the division standard of street is to the housing property certificate, in accordance with the division of housing all the warrants on share, compensation.

290.1.2 live together but the property permits not marked, such as long-term residence, individual bank, can be used as independent of the use of housing compensation.

290.1.3 the common people is not taken within the framework of long-term residence, or the housing can not be used independently, or no individual bank, can only give the house owner compensation.

 

291st common lawyer business content

291.1 due diligence, providing legal advice.

The 291.2 generation for the government and legal procedures.

291.3 of the project development financing to provide legal advice, drafting, review the financing agreement, participating in business negotiation and contract signing, to assist in dealing with disputes in the process of financing.

291.4 the project resettlement compensation issue legal opinions, participate in the relocation compensation negotiation, drafting, review the demolition compensation and resettlement agreement, to assist in dealing with compensation disputes.

291.5 issued by the cooperative construction scheme and risk control legal advice, credit investigation of partners involved in construction, cooperation negotiation, drafting, review the cooperation in the construction contract.

291.6 of residents with partners new joint development company, providing legal services from the company, set up institutions to apply for the whole process of industrial and commercial registration.

Registration, apply for a confirmation of property procedures to provide services for 291.7 of illegal buildings.

291.8 the project land use rights issues, the drafting, review the "land use rights transfer contract", to assist in the procedures for transferring.

291.9 project planning, construction permits and provide legal advice.

291.10 the project management, environmental protection, the public security, civil affairs and other administrative licensing matters, to provide legal advice, participate in relevant formalities.

Supplementary articles

Article 292nd the guidelines based on the June 20, 2009 National promulgated the implementation of laws, administrative regulations, rules and regulations, judicial interpretation and other related documents, combined with the current law for land operation strategy. If the change laws, regulations and normative documents state, should be based on the laws, regulations and normative documents on the basis of the new.

(the guidelines by the national Lvxie civil professional committee responsible for drafting, main author: Li Xiaobin, Liu Zhengdong, Cheng Jianping, often thrush, Zhou Sheng, Zhang Qinghua Mann, Meng Fansheng, Xu Xihua, Jess Zhang, Xiao Xiao)