(Adopted at the 1334 session of the Judicial Committee of the Supreme People's Court)
In accordance with the provisions of such laws as the General Principles of Civil Law of PRC, the Contract Law of PRC, the Land Administration Law of PRC and the Administrative Law of the Urban Real Estate of PRC and in combination with practices in civil trials, with respect to the matters concerning the law application in the trial of the disputes arising from contract for right to use the state-owned land, this Interpretation is thus promulgated.
1. The disputes arising form the contract for consignment of land-use right
Article 1 The contract for consignment of land-use right referred to in this Interpretation is the agreement in which the municipal people's government or the people's government of a county, as the assignor, assigns the right to use the state-owned land to the assignee for a certain term while the assignee pays the fees for assignment.
Article 2 The contract for assignment of land-use right concluded by the administrative committee of development zone as a assignor and the assignee shall be determined to be invalid.
Where the contract for assignment of land-use right concluded by the administrative committee of development zone as a assignor and the assignee prior to the implementation of the this Interpretation is recognized retroactively by the land administration authorities of municipal people's government or the people's government of the county shall be determined to be valid.
Article 3 Where the land-use right is assigned by way of agreement as approved by the municipal people's government or the people's government of a county and the fees for assignment is lower than the lowest price prescribed by the state at the time of the conclusion of the contract, the price clauses as agreed in the contract for assignment of land-use right shall be determined to be invalid.
Where the party concerned requires paying the fees for assignment of the right to use land in accordance with the market evaluation price at the time of the conclusion of the contract, the party shall be supported. Where the assignee disagrees to compensate in accordance with the market evaluation price and requires rescinding the contract, the assignee shall be supported. The losses thus caused shall be born by each party in accordance with respective fault.
Article 4 Where the assignor in the contract for assignment of land-use right fails to deliver the land because the approval procedures of assignment of right to use land has not been gone through and the assignee requires rescinding the contract, the assignee shall be supported.
Article 5 Where the assignee, after the approval of the city layout authorities in municipal people's government or the people's government of a county, changes the purpose of the land as agreed in the contract for assignment of land-use right, the party concerned requiring adjustment of the fees for the assignment of land-use right in accordance with the fees for the assignment of right to use the land of same purpose at the time when the litigation is instituted shall be supported.
Article 6 Where the assignee changes without authority the purpose of the land as agreed in the contract for assignment of land-use right, the assignor requiring rescinding the contract shall be supported.
2. The disputes arising from the contract for the transfer of land-use right
Article 7 The contract for transfer of land-use right as referred to in this Interpretation is the agreement in which the owner of the land-use right, as the transferor, transfers the land-use right to the transferee while the transferee pays the fees thereof.
Article 8 After the owner of the land-use right concludes the contract for transfer of land-use right with the transferee, either party requiring for the determination of the invalidity of the contract because that the parties have not conducted registration procedures of the change of the land-use right shall not be supported.
Article 9 Where the transferor who doesn't obtain the certificate of land-use right concludes contract with the transferee and obtains the certificate of land-use right or the people's government that has the approval authority agrees to the transference before the litigation is instituted, the contract shall be determined to be valid.
Article 10 Where the owner of land-use right, as the transferor, concludes more than one transfer contracts for one land-use right, and the transfer contracts are valid and all transferee requires the performance of the contract, it shall be dealt with in accordance with the following circumstances:
(1) The transferee that has gone through the registration procedures for the change of land-use right and requires the transferor to perform such contractual liabilities as delivery of land shall be supported.
(2) Where non has gone through the registration procedures for the change of land-use right and the transferee that has already legally occupied and invested for development of the land requires the transferor to perform such contractual liabilities as the registration for the change of land-use right shall be supported.
(3) Where non has gone through the registration procedures for the change of land-use right and legally occupied and invested for development of the land, the transferee that has already paid the land transfer fees and requires the transferor to perform such contractual liabilities such as delivery of land and registration for the change of land-use right shall be supported.
(4) Where all contracts are not performed and the transferee in the contract that is established at the earliest time requires the performance of the contract, the transferee shall be supported.
Where the transferee that has not obtained the land-use right requires rescinding contract and damages, it shall be dealt with in accordance with relevant provisions of the Contract Law of PRC.
Article 11 Where the owner of land-use right failing to be approved by the people's government that has the approval authority concludes contract with the transferee to transfer the allotted land-use right, the contract shall be determined to be invalid. Where before the litigation is instituted the people's government that has the approval authority approves the transfer of land-use right, the contract shall be determined to be valid.
Article 12 Where the owner of land-use right concludes contract with the transferee to transfer the allotted land-use right and before the litigation the people's government that has the approval authority approves the transfer thereof and the transferee conducts the land-use right transfer formalities, the contract between the owner of the land-use right and the transferee may be treated as the contract with compensation nature.
Article 13 Where the owner of the land-use right concludes contract with the transferee to transfer the allotted land-use right and the people's government that has the approval authority, before the litigation is instituted, decides not to conduct the transfer formality of the land-use right but to allot the land-use right directly to the transferee, the contract between the owner of the land-use right and the transferee may be treated as the contract with compensation nature.
3. Disputes arising from the contract for cooperative development of real estate
Article 14 The contract for cooperative development of real estate as referred to in this Interpretation is the agreement concluded between parties to provide the transference of land-use right or fund as cooperative investment to develop real estate, to share profits and take risks together.
Article 15 Where one party to the contract for cooperative development of real estate has the qualification for real estate development and operation, the contract shall be determined to be valid.
Where all parties do not have the qualification for real estate development and operation, the contract shall be determined to be invalid. Where one party has obtained the qualification for real estate development and operation or a real estate development enterprise with qualification for real estate development and operation is established by cooperation before the litigation is instituted, the contract shall be determined to be valid.
Article 16 Where the owner of land-use right concludes contract with others to develop real estate together, with the allotted land-use right as investment without the approval of the government that has the approval authority, the contract shall be determined to be invalid. Where the approval procedure is gone through before the litigation is instituted, the contract shall be determined to be valid.
Article 17 Where the investment amount exceeds what has been agreed in the contract for cooperative development of real estate, and parties concerned are not able to determine the share rate of the extra amount by mutually consulting, the share rate shall be determined based on the fault of the parties. Where it is because of the reasons non-attributable to the parties or the fault of the parties can't be ascertained, the determination shall be made according to the agreed investment rate. Where there is no agreed investment rate, the determination shall be made according to the agreed profit sharing rate.
Article 18 Where the actual construction acreage of the house is less than that agreed in the contract for cooperative development of real estate, and parties concerned are not able to determine the allocation rate of the actual construction acreage of the house by mutually consulting, the rate shall be determined based on the fault of the parties. Where it is because of the reasons non-attributable to the parties or the fault of the parties can't be ascertained, the determination shall be made according to the agreed profit sharing rate.
Article 19 Under the following circumstances, the request of the parties to the contract for cooperative development of real estate for the allocation of the proceeds of the real estate project shall not be accepted and those that have been accepted shall be rejected:
(1) The real estate construction project that needs approval in accordance with law is not been approved by relevant authority of the people's government that has the approval authority;
(2) The real estate construction project does not obtain the layout certificate for construction project;
(3) The layout of the construction project has been changed without authority.
Losses caused because the parties conceal the fact that the layout of the construction project has been changed shall be born by the parties based on their fault.
Article 20 Where the actual construction acreage of the house is more than the construction acreage in the layout and parties concerned are not able to determine the share rate of the extra amount of the house by mutually consulting, the share rate shall be determined based on the agreed profit sharing rate after the approval the people's government that has the approval authority. Where parties concerned are not able to determine the share rate of the extra amount of investment by mutually consulting, the share rate shall be determined based on the agreed investment rate, and where there is no agreed investment rate, the determination shall be made according to the agreed profit sharing rate.
Article 21 Where the house the development and construction of which violate the layout is determined by the authority of the people's government that has the approval authority to be illegal construction and ordered to be removed and the parties can't determine the bearing of losses by mutual consulting, the bearing of the losses shall be determined based on the fault of the parties. Where the fault of the parties can't be ascertained, the determination shall be made according to the agreed investment rate. Where there is no agreed investment rate, the determination shall be made according to the agreed profit sharing rate.
Article 22 Where the contract for cooperative development of real estate stipulates that the determination of profit sharing rate is to be made based on the investment amount and the party does not pay full investment, the profit shall be shared based on the actual investment.
Article 23 The parties to the contract for cooperative development of real estate requiring for profit sharing with the payment in advance sales of the house deducting the investment shall not be supported.
Article 24 The contract for cooperative development of real estate stipulating that the party providing land-use right will not bear operation risk and only accept fixed proceeds shall be determined to be contract for transfer of land-use right.
Article 25 The contract for cooperative development of real estate stipulating that the party providing fund will not bear operation risk and only be distributed with fixed number of houses shall be determined to be contract for sale of house.
Article 26 The contract for cooperative development of real estate stipulating that the party providing fund will not bear operation risk and only accept fixed money shall be determined to be contract for sale of house.
Article 27 The contract for cooperative development of real estate stipulating that the party providing fund will not bear operation risk and only use the house by way of lease or otherwise shall be determined to be contract for lease of house.
4. Other Provisions
Article 28 This Interpretation shall be implemented as of August 1, 2005; the first instance case thus accepted after the implementation thereof applies this Interpretation.
Where the judicial interpretation promulgated by the Supreme People's Court before this Interpretation is in conflict with this Interpretation, the latter shall prevail.
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杨春宝一级律师简介
杨春宝一级律师，大成上海高级合伙人、资本市场部主任、国资基金研究中心主任，大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年，长期从事私募基金、投融资、并购重组法律服务，尤其对对赌研究颇深且具有非常丰富的实战经验，并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单，代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团，具有上市公司独立董事任职资格，系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
投资并购中如何进行尽职调查？
投资并购尽职调查应涵盖以下方面：1）法律尽职调查——核查目标公司的设立及存续、股权结构、重大合同、知识产权、诉讼仲裁、劳动用工、合规经营等情况；2）财务尽职调查——审查财务报表、资产负债、收入结构、关联交易、税务合规等；3）商业尽职调查——分析行业前景、市场竞争、商业模式、客户供应商集中度等。建议委托专业律师和会计师共同进行，重点关注隐性债务、或有负债、知识产权权属瑕疵、劳动用工风险等潜在隐患。杨律师团队在投资并购领域具有丰富经验，可提供全流程法律服务。
公司并购有哪些法律风险？
公司并购主要法律风险包括：1）股权权属瑕疵风险——股权被质押、冻结或存在代持关系；2）隐性债务和或有负债风险——目标公司存在未披露的担保、保证、未决诉讼等；3）劳动用工风险——员工安置、补偿方案、社保欠缴等；4）知识产权风险——核心专利、商标、著作权的权属不清或存在侵权纠纷；5）反垄断审查风险——达到申报标准的并购需向国务院反垄断执法机构申报；6）税务风险——历史欠税、税务筹划不当等。建议在交易前进行全面尽职调查，并在协议中设置适当的陈述保证条款和赔偿机制。
并购交易中如何设计交易结构？
并购交易结构设计需考虑以下因素：1）股权收购vs资产收购的选择——股权收购继承目标公司全部权利义务（含隐性债务），资产收购可选择性收购但需办理资产过户手续；2）支付方式——现金支付（简单直接）、股权支付（换股收购，可延迟纳税）、混合支付（现金+股权+ Earn-out）；3）分步交易安排——先收购部分股权，再根据经营情况决定是否收购剩余股权；4）税收筹划——合理设计交易结构以降低整体税负（如特殊性税务处理）；5）风险分配机制——通过陈述保证、赔偿、托管、分阶段付款等方式分配风险。建议由律师、税务师和财务顾问共同参与设计。
以上内容仅供参考，不构成法律意见。如需专业法律服务，请联系杨春宝一级律师：chambers.yang@dentons.cn
