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From a pay huge amount of land leasing events

2008Years1Month1The people's Republic of China urban and rural planning law, beginning of the implementation of the "" (hereinafter referred to as "the" town planning law "") to strengthen the transfer of land planning and design conditions of regulation and supervision, planning and design conditions including the plots of land area, the nature of land use, floor area ratio, building density, building height, parking, the main entrance, green ratio, must configure the public facilities and municipal infrastructure, construction, development time requirements. China's existing laws, rules and regulations are clearly defined in the construction units must be in accordance with the construction planning and design conditions, shall not alter, but shall not exceed the planning and design of construction. But in practice, due to reasons of all kinds of subjective and objective, especially the construction unit for interest, the existence of a large number of "change (arbitrarily change the nature of land) two super (super size, super capacity rate)" phenomenon. Especially in recent years, the construction units over the volume of construction, which could not be normal for the use of land and the legal disputes emerge in an endless stream. Such disputes often because of the lack of clear, the authority of the normative documents as the basis, and often involves many property buyers, it is very difficult to. The current rapid development of China's city construction, the development zone construction activity is be just unfolding, very much in the development zone for the construction of the construction unit to change the planning design conditions, including legal, there are illegal. Because some construction units do not pay attention to the legal conditions change the planning design conditions and legal procedures, are not fully aware of after the change of design conditions may need to bear the legal responsibility and risk, often lead to the construction unit should bear huge fines and/Or pay a huge land leasing, seriously affect the normal production and operation activities of the construction unit.

This paper from the pay huge amount of land leasing the event, to explore and analyze the legal responsibility of the construction unit to change the planning design conditions need to bear, to the construction unit(including the development zone construction unit)The correct analysis and prevention due to changes in planning and design conditions may need to bear the legal liability and risk and provide suggestion.

The basic situation of events:

In order to solve the question of development company must start from the provisions of Chinese laws and regulations and departmental rules and local, thorough research and analysis.

   Law, China's land planning design conditions and requirements

"Urban and rural planning law" in the clear provisions on the transfer of land planning and design conditions, the law the thirty-eighth regulation: "in the city, town planning area in the form of transfer provides the right to use state-owned land, the use right of state-owned land sold before the competent department of urban and rural planning, city, county people's government should be based on detailed planning control, the plots of land use nature, position, development intensity, planning conditions, as part of the state-owned land use right transfer contract." Article forty-third stipulates: "the construction unit shall carry out the construction in accordance with the planning requirements; in the case of any change, must apply to the competent department of urban and rural planning city, county people's government. Change the content does not comply with the regulatory detailed planning, shall be approved by the competent department of urban and rural planning. The competent department of urban and rural planning of the people's Government of the city, county planning conditions in accordance with the law shall timely notify the competent department of land after the change at the same level and publicity. The construction entity shall file the change after the competent department of land planning conditions shall report to the relevant people's government for the record." Article forty-fifth stipulates: "the competent department of urban and rural planning of the local people's governments at or above the county level according to the regulations on the construction project is in compliance with the planning conditions to be verified. Unverified or after verification does not meet the planning requirements, the construction unit shall organize the final acceptance." Rule sixty-fourth: "did not obtain construction permits planning or failing to conduct the construction in accordance with the provisions of the construction project planning permit, the competent department of urban and rural planning of local people's governments at or above the county level shall be ordered to stop building; can take corrective action to eliminate the effect of the implementation of the plan, to correct within a prescribed time limit, construction project cost five percent less than ten percent fine; unable to take corrective action to eliminate the effect of, dismantle, can not be removed, the confiscation of the kind or illegal income, can impose a fine of less than ten percent of the construction project cost." The "urban and rural planning law" stipulates the choice and change of land planning and design conditions, and from the land sale, transfer contract is signed, to apply for construction land planning permits, the construction project planning permits, construction, completion and acceptance of verification, legal responsibility so as to ensure determined in accordance with the planning conditions can be implemented and the implementation of practical.

In the "before" urban and rural planning law, "real estate management law of the people's Republic of China (hereinafter referred to as the" real "city" City real estate management law "") has been clearly defined the construction unit (land) land use change of legal procedure, the provisions of the act of eighteenth: "the land users need to change the land use agreement the contract for assigning the right to the use of land, must be made that transferring party and the city, the county people's government, the competent department of City Planning Administration agreed, signed land use right transfer contract or agreement to change the land use right transfer contract signed, the corresponding adjustment of the leasing of land use rights." Rule forty-fourth: "to obtain land use rights transfer, the transfer of real estate, the transferee of land use change agreed upon in the contract for assigning the right to the use of land, must obtain the transferor and the city, the county people's government, the competent department of City Planning Administration agreed, signed land use right transfer contract or agreement to change signed the contract of assignment of land use rights, the corresponding adjustment of land use Quande Saiki." But this method is not the legal responsibility of the construction unit and change of land use should bear the legal responsibility to make specific provisions, nor to the construction unit to change the land use other than the planning design conditions shall bear made clear, this is not a defect.

Some Circular of the State Council, the Ministry of Construction issued in original is defined by the construction unit to change the planning design conditions of the procedure and subsequent legal liability. Such as the state to2001Years5Month30Issued the "notice on strengthening management of assets of state-owned land" (Guo Fa [2001]15No. second): "the provisions of the land users need to change the original approval of land use, such as the volume of, must be approved by the people's Government of a city, county. To the original allocation of land, because land transfer, lease or change of use is no longer consistent with the allocation of land area, should be compensation for the use of the transferring of land, in accordance with the law; where changes in land use, the volume rate, should be required to pay land for different uses and the volume difference." The former Ministry of construction in the2002Years12Month26Issued "on the strengthening of planning and management of state-owned land use right transfer notice" (Building Regulations [2002]270No. fourth) stipulates: "the transferee made the use right of state-owned land, must be in accordance with the" contract "transferring state-owned land use rights and construction planning design conditions specified in the permit land for development and construction, the general may change the planning design conditions; if due to special reasons, it is necessary to change the planning design conditions, should be put forward change the planning design conditions shall apply to the administrative department of urban and rural planning, approval before implementation. Urban and rural planning and administrative departments in accordance with legal procedures and modify the control detailed planning, and approval of construction land planning design conditions, it shall inform the Department of land administration shall be in accordance with the law; land leasing, the transferee shall pay in accordance with the relevant provisions." Ministry of housing and urban rural development in2008Years12Month13Released "on the strengthening of the construction land cubage rate management and supervision and inspection notice" (Building Regulations [2008]227Number) of construction land floor area ratio adjustment procedure and legal responsibility is made clear.

In addition, the relevant departments of the State Council formulated and issued by the state-owned land use right transfer contract demonstration text of state-owned land assignee to change the planning design conditions procedure and legal responsibility also has the corresponding agreement. The Ministry of land and resources, the State Administration for Industry and Commerce2000Years10Month31Released the "state-owned land use right transfer contract" model text (GF-2000-2601Seventeenth) stipulates: "in the transfer period, the assignee must be in accordance with the provisions of this contract the land use and land use conditions of land use as stipulated in this contract, need to change the land use and land use conditions, must apply for the relevant approval procedures in accordance with the law, and to the assignor assignor agrees to apply for, obtain, the signing of the land use right transfer contract or agreement to change the land use right transfer contract signed, the corresponding adjustment of the leasing of land use rights, land registration." The Ministry of land and resources, the State Administration for Industry and Commerce2006Years4Month19Released the "state-owned land use right transfer contract supplemental agreement" model text (for Trial Implementation) fifteenth stipulates: "in the transfer period, the assignee requests to change the" land use contract "provisions of the transferring of land use conditions, both sides agreed to in accordance with the provisions of article Paragraph: (a) for the people to recover the land use right, according to law, re sold. (two) in accordance with the "transfer contract" seventeenth for the agreement to change the land use and land use approval, by the transferee in accordance with the approved changes when the case of new and old land use conditions of land price difference to pay the leasing of land use rights."

According to the notice issued the law, the State Council and relevant government departments and state-owned land use right transfer contract model text, the construction units (state-owned land assignee) must be in accordance with the construction planning and design conditions determined in accordance with the law, it is necessary to change the planning design conditions, must comply with the statutory conditions, and in accordance with legal procedures and obtain relevant government the approval of the competent authorities, and their subsequent appropriate legal obligations (such as re signed the transfer contract or agreement to change, signed a contract transferring land leasing and etc.).

In practice, the construction unit to change the transfer of land planning and design conditions for the existence of the following two kinds of circumstances:

(1) the construction units have been in accordance with the above provisions in accordance with the law for the planning changes to the design conditions of procedures, in this case, the legal liability is mainly involved the construction unit to pay land leasing the right to the use of the problem.

(2Construction units are not in accordance with the above provisions) shall handle the formalities planning changes to the design conditions, in this case, the construction unit may face legal responsibility for administrative penalty.

The following will distinguish between the above two kinds of circumstances to the construction unit may need to bear legal responsibility for specific analysis and discussion.

Two the legal responsibility, construction units to change the planning design conditions shall bear

Although the current law clearly stipulates that the construction unit must be in accordance with the construction planning and design conditions determined in accordance with the law, but to meet the requirements, the construction unit can still be procedures for change of design conditions in accordance with the law. Such as the Ministry of housing and urban planning [2008]227Notice in the provisions of the program to adjust the volume fraction index; the Construction Department of Jiangsu Province, Department of supervision on2007Years4Month27Issued "on strengthening the operating rate of planning management and supervision and inspection plot notice" (Su Jiangui [2007]150Number) in the provisions of the conditions and procedures for adjusting the volume rate index;2010Years1Month20The day of release of Nanjing city "Nanjing City, the use right of state-owned land sold after the planning conditions change management regulations" in the provisions of the change of planning conditions shall be in accordance with the conditions and procedures.

Legal liability of construction units to set conditions and program planning changes to the design of the general conditions shall bear the main is how to pay land leasing problem. The planning design conditions more content, the change of land use, land area and the volume of which may be related to the payment of land leasing issues, such as the development of Nanjing City Land Resources Bureau "to change the original land use conditions of land leasing implementation details" in the volume rate, change of land use and over the area of land to pay land leasing issues have made clear stipulations.

At present, changes in the planning design conditions on the content, the construction units over the volume of construction phenomenon is most prominent, but the parties to the construction unit construction of super volume rate pay gold land sale (including should do and how to do), knowledge is not a controversial, the main reason is they are not on the construction unit to adjust the volume rate should pay land leasing issues clearly defined in the current law and the administrative rules and regulations, only clearly defined land change rate of volume notice issued by the State Council and the relevant departments of the State Council, shall be paid a different volume rate of land price. And the Circular of the State Council and the relevant departments under the State Council in only adjust the volume fraction required to pay land leasing issues principles, namely only solved should pay leasing land, not to pay land leasing issues clearly defined. How to pay land leasing issues, by the relevant departments of the State Council urged all localities to make specific provisions, clear. Such as the Ministry of housing and urban rural construction, Ministry of supervision "on strengthening the building plot ratio management and supervision and inspection notice" (Building Regulations [2008]227No.) asked: "has not yet been established building plot ratio management system of the province (area, city), to set up the plot ratio management system construction, the specific conditions, specify the volume rate adjustment approval procedures and management practices, clear responsibilities of relevant departments, and according to the needs of the work, to help set the corresponding mechanism." Ministry of housing and urban rural construction, Ministry of supervision "on the real estate development in violation of planning changes, adjust the volume fraction of special rectification notice" (Building Regulations [2009]53No.) asked: "all according to the" Ministry of housing and urban rural construction, Ministry of supervision on strengthening the building plot ratio management and supervision and inspection notice "requirement, make to the specific conditions, adjusting the rate of land in the region building approval procedures and management measures stipulated explicitly, to improve the relevant system volume rate management." Notice in the above requirements, some areas have established local volume ratio regulations[1][1]. But the rate of volume around the management regulations in the volume rate adjustment conditions, approval procedures and how to pay land leasing and other differences, and even very large differences, lead to controversy and criticism.

On the adjustment of the volume of land leasing, looking around the provision, mainly has the following several ways:

(a) according to the original of the contract for the assignment of the floor price for the standard calculation should be paid for the land leasing. Such as: "Notice of Jiangsu Changzhou city on clear super capacity back to the land leasing standards on construction projects","The volume adjustment measures for the management of land use planning in downtown Yongzhou city commercial construction","Management measures rate plot business building in the city of Yueyang".

(two) approved by the adjusting the volume rate of old and new conditions of land market price difference should pay the amount. Such as:Bengbu Municipal People's government "on the adjustment of state-owned land such as the volume of the planning conditions and payment of land leasing.","The volume adjustment management for planning of Xuzhou city commercial construction (for Trial Implementation)","The volume adjustment management regulations" land planning of Chaoyang City business building, Nanning City, "land" Interim Measures to improve the volume rate.

(three) for approval to adjust the volume of the original transfer time and time span required different processing method:Not more than a certain number of years, calculated in accordance with the original transfer floor price should pay the amount; more than a certain number of years, according to article (two) ways of calculating amount should be paid. Such as:The Construction Department of Fujian Province, the office of land and resources "on the strengthening of the real estate development project volume rate management advice", "volume rate adjustment management regulations" land use planning of Wuxi city business building, Nanjing City Land Resources Bureau "to change the original land use conditions of land leasing rules".

(four) according to the land price assessment to the land department procedures required when calculation should be paid for the land leasing. Such as:"Haikou City Super volume ratio regulations" land, "Jinhua business district with increased volume of planning management Interim Provisions".

(five) making a similar benchmark land price to pay land leasing standards, calculated according to standard should be pay paid amount. Such as "Yinchuan city construction projects to increase the volume of the back of the land sold in the Interim Provisions" according to different regions (Xingqing, Jinfeng District, Xixia District), different uses (commercial service, office, residential) respectively specified the per square meter back to the land sold gold standard.

From the top we can see, while adjusting the volume rate provisions of land leasing problem is difference. Because of the (a) method is simple in calculation, and has no need of land price assessment, the cost is relatively low, so the earlier formulation volume ratio regulations place the more. But with the soaring land prices in recent years, the state and local strengthening of the regulatory and governance capacity rates, more and more local gradually stipulated in the article (two), (three) method, which is in accordance with the original of the contract for the assignment of the floor price for the standard calculation should pay land leasing and gold place less and less, and in accordance with the approved adjust the volume rate difference calculation and under the conditions of the land market price should be paid for the land leasing more and more gold. Before the national unified regulations, after the construction units to the statutory conditions and procedures, adjust the volume fraction, only according to the relevant regulations stipulated by the country to determine what should be paid for the land leasing.

To adjust the volume of land leasing issues, a problem that needs to be noted that the volume rate adjustment pay land transfer special provisions of the industrial.2004Years10Month21The State Council issued "on deepening the reform of strict land management decision" (Guo Fa [2004]28No.) states: "in the Development Zone (Park) the promotion of multi-storey standard factories. Of industrial land in the prerequisite of meeting planning, do not change the use of land, improve the utilization ratio and increase the volume, no charge or adjust land use fees paid principle."2008Years1Month3Released the "State Council on promoting the economical and intensive land use notice" (Guo Fa [2008]3No.) provides that: "to encourage the development and utilization of underground space. For the existing industrial land, in line with the premise of planning, do not change the use of land, improve the utilization ratio and increase the volume, not to increase the land price; on the new industrial land, to further improve the industrial land use control targets, plant construction area of more than the volume of control index of the part, not to increase the land price." According to the provisions of the State Council, some places also clearly stipulates the industrial land adjustment provisions of volume rate need not pay land leasing. Such as the Bengbu Municipal People's government "on the adjustment of state-owned land such as the volume of the planning conditions and payment of land leasing advice", "Xiangtan city urban planning area of land for construction volume rate adjustment management approach". Therefore, to obtain the land for industrial use (including the development zone of industrial land) of the construction unit, can make full use of the national and local relevant industrial land to adjust the volume of land sold gold to pay for the special provisions, in accordance with the statutory conditions ("in accordance with the planning, do not change the purpose") volume rate increased and the legal the program, in order to increase the efficiency of land use and value.

   Three the legal responsibility, the construction units illegal planning changes to the design conditions shall bear

To the construction unit should bear legal responsibility of illegal alteration of planning design conditions, "urban and rural planning law" article sixty-fourth provisions were made very clear. According to the regulations, the construction unit does not carry out construction in accordance with the provisions of the construction project planning permit, illegal to change the planning design conditions, may take the following legal liability:

1, correction within a prescribed time limit and impose a fine, for illegal construction projects can be taken to correct the measures to eliminate the influence on planning the implementation of (a violation of planning and design conditions of the construction project, the same below), the amount of the fine to the construction project cost5%Above10%Following.

2, dismantle and may be concurrently fined, can not apply to take corrective action to eliminate the influence and illegal construction projects can be removed, the amount of the fine to the construction project cost10%Following.

3The confiscation of illegal income in kind, or may be concurrently fined, for illegal construction projects fail to take corrective measures to eliminate the influence of and can not be removed, the amount of the fine to the construction project cost10%Following.

Thus, "urban and rural planning law" provisions of the construction units illegal planning changes to the design of legal responsibility of construction shall be borne by the extremely harsh, but there is no construction unit can pay the fine and pay land leasing, re planning procedures make illegal planning changes to the design conditions "legalization". At the same time, Ministry of housing and urban rural construction, Ministry of supervision "on strengthening the building plot ratio management and supervision and inspection notice" (Building Regulations [2008]227No.) also clearly stipulates the construction completion of the construction area of over planning permission allows the construction of buildings in the area, the construction unit shall organize the final acceptance. Urban and rural planning departments shall timely for the illegal construction of punishment, the demolition of illegal construction part, confiscate the illegal income, and impose a cost on illegal construction10%Fine.

With the "urban and rural planning law" and building regulations [2008]227Different provisions in the notice, some places are provided by (in the construction unit can accept the punishment and pay land leasing, relevant fees after re planning procedures), before the construction units illegal planning changes to the design of conditions on the behavior of "legalization". As the Construction Department of Fujian Province, the office of land and resources "on the strengthening of the real estate development project management advice," volume fourth, "Haikou City Super volume rate of land management regulations," article seventh "Laiwu city urban construction land planning management Interim Provisions" volume thirteenth. In these places, the city planning and city landscape impact is not serious (or lighter) and in accordance with the illegal construction project related technical standard, the construction units can be re planning procedures, but the construction units need to also undertake the following legal liability:

1The relevant government departments, to accept the punishment (mainly is fine);

2Payment of relevant fees, super capacity rate according to the provisions of part of the (municipal facilities fees);

3According to the times, pay the volume rate of land leasing, such as Fujian Province, according to the provisions of the original floor price of the land3Fold back, the provisions of Haikou city and Laiwu city according to the evaluation procedures to re submit the floor price2Fold back.

Visible, even these provisions of the construction unit may have a planning procedures, but the construction units need to pay hefty fines and land leasing.

Based on the introduction and analysis of the above, the construction unit planning changes to the design conditions need to undertake what kind of legal liability depends on the construction unit is to change the design conditions:

According to the law of change of planning design conditions, the construction unit shall assume legal responsibility is mainly according to the provisions of land leasing, but because the planning changes to the design conditions of China has not yet to establish a national unified to pay land leasing regulations, the construction units should be in accordance with the relevant provisions of the country to determine what should be paid for the land leasing. To remind the owner's attention is, at this time should be timely to the Department of Land Management land leasing procedures, particularly in those provisions of the land price assessment by completing the formalities of the calculation should be paid for the land leasing place, because the way along with the rise of land prices, the later for the need to pay land leasing amount would the higher the.

The illegal planning changes to the design requirements, the construction unit must undertake the legal liability and the risk is relatively large, because according to the "Regulations" urban and rural planning law, the construction unit not only through illegal planning changes to the design conditions to obtain any benefits, but also by the administrative punishment and suffered huge losses; even if the construction units in accordance with the provisions of some places in the acceptance of punishment and to pay land leasing and related fees after completing planning procedures, the construction unit should also pay a relatively high price.

    After the analysis, the article at the beginning of the sell gold back event because it is in accordance with the law case, and according to local regulations should be in accordance with the difference to pay land price adjustment, it should be2006Years of planning approval adjust the volume rate premium price to pay. Therefore, to solve the problem of development to pay the company may face higher costs. But one can imagine that, with the country of illegal planning changes, adjust the regulatory volume rate and control is more and more strong, the construction units illegal planning changes to the design conditions will become "The loss outweighs the gain." or even "a disadvantages without the".