论国有土地使用权出让合同的民事定性——兼评76号指导案例

On the Civil Nature of the Transfer Contract of State-owned Land Use Right——Comment on No.76 Guiding Case

新《行政诉讼法》及76号指导案例公布以来,国有土地使用权出让合同的性质再次呈现巨大争议。基于合同定性标准的有效性及适用性,法国采取的合同主体、合同目的及行政优益权标准不宜作为我国出让合同的定性标准,出让合同的性质应以德国采取的合同标的标准判断。出让合同以创设用益物权并取得对价为内容,可根据双阶段理论与前阶段的行政许可区分开来,具有民事定性的合理性。而且,将出让合同定性为民事合同在出让合同纠纷解决、受让方权益保护、法律连续性保持以及民法典制度完善方面具有优越性。在原两审法院未明确出让合同性质的情况下,76号指导案例提炼出出让合同属于行政协议的裁判要旨脱离了原案事实和裁判本意,有超越司法适用权限之嫌。

Since the new administrative procedure law and the No.76 guiding case have been issued, the nature of transfer contract of state-owned land use right once again becomes highly controversial. For the validity and applicability of the qualitative standard of contract, it’s not suitable for China to take the subject of contract, the purpose of contract, or the beneficial right as qualitative criteria for transfer contract as France do.The nature of transfer contract should be judged by the subject of contract adopted by Germany. The transfer contract is to create usufructuary right and obtain consideration, and can be distinguished from the administrative act in the transfer process based on the two-stage theory, it is reasonable to affirm its civil character. Furthermore, transfer contract defined as civil contract has advantages in resolving disputes related to transfer contract, protecting the rights and interests of transferee, maintaining legal continuity and perfecting the civil code system. Under the circumstances that the courts of first and second instance haven’t identified the nature of transfer contract, the judgment gist that the transfer contract belongs to the administrative agreement extracted by No.76 guiding case is divorced from the facts of the original case and the original intention of the judgment, and is suspected of surpassing judicial authority.