国有建设用地使用权出让合同性质界定

Definition of the Nature of the Contract for Granting the Right to Use State-Owned Construction Land

建设用地使用权出让合同发展至今已成为一类不可忽视的合同类型,在当下影响最大且价值最高。然而,国有建设用地使用权出让合同性质界定不仅在理论界一直存在争议,而且,法律规定不明晰、混乱,导致不同地区、不同层级法院单在定性问题上就达不成统一意见,更不论其他。性质界定关系到其法律部门以及诉讼程序选择与权利义务分配,所以将出让合同从行政合同与民事合同方向展开论述,通过各自理由分析得出出让合同性质,使其合法理、制度并充分解决纠纷,符合市场经济发展趋势。同时,提出区分合同履行与行政处罚,在土地资源管理部门下特设出让合同管理部门,不同情形做出不同处理。

The development of construction land use right transfer contract has become a type of contract that can not be ignored, which has the greatest impact and the highest value at present. However, the definition of the nature of the state-owned construction land use right transfer contract has not only been controversial in the theoretical circle, but also, the legal provisions are unclear and chaotic, resulting in different regions and different levels of courts can not reach a unified opinion on qualitative issues alone, let alone other. The definition of nature is related to its legal departments, the selection of litigation procedures and the distribution of rights and obligations. Therefore, the transfer contract is discussed from the direction of administrative contract and civil contract, and the nature of the transfer contract is obtained through the analysis of their respective reasons, so as to make it legal, systematic and fully resolve disputes, which is in line with the development trend of market economy. At the same time, it is proposed to distinguish between contract performance and administrative punishment, and set up a special transfer contract management department under the land resource management department, and make different treatment in different situations.