“以股权转让方式转让土地使用权”行为的司法认定

Judicial Determination of the Conduct of “Transferring Land Use Right by Way of Share Transfer”

以股权转让名义将不符合法定转让条件的土地使用权予以实质转让,该行为从公司法角度看是合法的,从刑法角度分析却可能符合我国《刑法》第228条"非法转让、倒卖土地使用权罪"。从实践看,此类案件既有有罪判决,也有无罪甚至从民商角度认定为合法的判决,两者呈现明显冲突。从理论上看,无罪说主要以公司法中的"股权转让不同于公司财产转让"为依据,有罪说主要以"透过现象看本质"为基础,双方回避了争论焦点。刑法与民法冲突和刑法与商法冲突呈现诸多差异。在承认刑事实质违法相对独立于民商合法外观的前提下,对于民事和商事领域应有不同的考察规则,即与在刑民交叉领域认定刑事违法相比,在刑事与商事交叉领域,认定刑事违法应更为谨慎。以股权转让方式转让土地使用权的行为,不宜认定为犯罪。

The conduct of substantial transfer of land use right in incompliance with statutory transfer conditions in the name of share transfer is legal from the perspective of company law, but may constitute the crime of Illegally Transferring or Scalping Land Use Right of Article 228 of Criminal Law of China from the perspective of criminal law. In practice, for such cases, there are not only guilty judgments, but also innocent judgments even judgments determining the legitimacy from the perspective of civil and commercial law, showing obvious contradiction. Theoretically, the doctrine of innocence is mainly based on the rule that the share transfer is different from the transfer of company property in the company law, while the doctrine of guilt is mainly based on the concept of “seeing through the appearance to perceive the essence”. Both sides avoid the focus of dispute. There are many differences between the criminalcivil law conflict and the criminalcommercial law conflicts. On the premise of admitting that the substantial criminal law violation is relatively independent from the lawful appearance in civil and commercial law, there shall be different examining rules in the civil and commercial fields, that is to say, it shall be more prudent to find guilty in the overlapped fields of criminal law and commercial law compared to that in the overlapped fields of criminal law and civil law. It is not suitable to determine the conduct of transferring land use right by way of share transfer as a crime.