Transfer of Land Use Right by Equity Transfer:Criminal-Civil Relationship and Crime Determination——Centered on the Guiding Case No.1451 of Criminal Trial Reference
Whether the transfer of land use right by way of equity transfer constitutes the crime of illegal transfer of land use right,there is a dispute between the theory of guilt and innocence.The innocence theory advocates that the transfer of equity and the transfer of land use right should be strictly differentiated,and that the ap-plication of criminal law cannot intrude into the demarcation of civil and commercial affairs,as well as the viewpoints that the transfer of equity belongs to the civil lawful behavior,etc.,respectively,there exists a misinterpretation on the appearance of civil rights and civil lawfulness concept,and neither the appearance of civil affairs nor the lawfulness/effectiveness of civil affairs can be the reason for the blocking of crime.Whether the transfer of equity constitutes a crime should be judged around whether the behavior causes the harmful results of the crime of illegal transfer of land use rights.If the perpetrator obtains the land use right through auction,and the transfer of land use right by way of equity transfer does not affect the payment of land premium and the development and utilization of the land parcel,then it will not be dealt with as a crime;if the perpetrator obtains the land use right by way of allocation or unlawful means,and if the govern-ment supplies the land to realize a specific purpose,and if the transfer of land use right by way of equity transfer results in a serious disruption of the order of the land market,then it constitutes an illegal transfer of land use right and a crime.If the result is to seriously jeopardize the land market order,the transfer of land use rights by way of equity transfer constitutes the crime of illegal transfer of land use rights.
Equity TransferTransfer of Land Use RightCriminal-civil Law RelationshipHarmful Outcomes
NETL
NSTL
万方数据
