Legal information

Article introduction: How does the Land Management Law punish the sale and other illegal transfer of land? Article 73 of this Law clearly stipulates this.

Part One: Original text of the law

Article 73 of the "Land Management Law of the People's Republic of China" stipulates that "if land is purchased, sold or illegally transferred in other forms, the illegal gains shall be confiscated by the land administration department of the people's government at or above the county level; if agricultural land is converted into construction land without authorization in violation of the overall land use plan, the newly built buildings and other facilities on the illegally transferred land shall be demolished within a time limit and the land shall be restored." If the land is in its original condition and conforms to the overall land use plan, newly built buildings and other facilities on the illegally transferred land shall be confiscated; fines may be imposed; the directly responsible person in charge and other directly responsible persons shall be given administrative sanctions in accordance with the law; if a crime is constituted, criminal liability shall be investigated in accordance with the law. "This article is a penalty provision for the sale and purchase of land and other forms of illegal transfer of land.

Part 2: Interpretation of legal provisions

The illegal acts of buying, selling or illegally transferring land in other forms as stipulated in this article, based on the content of the illegally transferred land rights, can be summarized as follows:

1. The act of buying, selling, and illegally transferring ownership of state-owned land and farmers’ collective land. According to the provisions of our Constitution and Article 2 of this Law, the state implements socialist public ownership of land, that is, ownership by the whole people and collective ownership by the working people; except for the transfer of land use rights in accordance with the law, no unit or individual may appropriate, buy, sell, or otherwise illegally transfer land. According to the provisions on land ownership and use rights in Chapter 2 of this Law, land ownership in my country is legally owned by the state or farmers’ collectives. Therefore, any unit or individual can only obtain the right to use land in accordance with the law, and is not allowed to buy or sell the land it uses or transfer land ownership in other forms.

2. Illegal transfer of state-owned land use rights. The Urban Real Estate Management Law makes specific provisions on the transfer of state-owned land use rights. The transfer of land use rights refers to the behavior of land users to transfer land use rights again, including sale, exchange and donation. In order to maintain the order of the land market and national interests, the Urban Real Estate Management Law, the Interim Regulations on the Assignment and Transfer of Urban State-owned Land Use Rights and other laws and regulations stipulate that land use rights shall not be transferred under the following circumstances. Any illegal transfer shall constitute an illegal transfer of land use rights as stipulated in this law. Specifically, the circumstances under which land use rights acquired through transfer shall not be transferred include: (1) Failure to pay the entire land use right transfer fee and obtain a land use right certificate in accordance with the transfer contract; (2) Judicial and administrative organs make rulings, seal up or otherwise restrict real estate rights in accordance with the law; (3) Recover land use in accordance with the law (4) Shared real estate without the written consent of other co-owners; (5) Failure to invest in development and utilization of land in accordance with the time limit and conditions stipulated in the land use rights transfer contract; (6) Dispute over land ownership; (7) Failure to register in accordance with the law and receive ownership certificates; (8) Other circumstances prohibiting transfer as stipulated in relevant laws and administrative regulations. Circumstances in which land use rights acquired through allocation shall not be transferred include: (1) When transferring real estate, the approval of the people's government with approval power is not reported in accordance with the provisions of the State Council; (2) The people's government with approval power decides not to go through the transfer procedures of land use rights in accordance with the provisions of the State Council, but the transferor fails to turn over the land income from the income from the transferred real estate to the state or make other arrangements in accordance with the provisions of the State Council.

3. The act of illegally transferring the use rights of farmers' collective-owned land refers to the act of transferring the use rights of farmers' collectively-owned land for non-agricultural construction in violation of the provisions of Article 63 of this Law.

Part 3. Punishment for illegal acts

1. The illegal perpetrators shall be punished by confiscation of their illegal gains. The illegal income here refers to the entire price obtained from the sale or illegal transfer of land. But it does not include the land itself, that is, it does not include confiscated land. According to the provisions of this article, the penalty decision on confiscation of illegal income shall be made by the land administration department of the people's government at or above the county level. The counterparty to this punishment is the party who has obtained illegal gains from the activities of buying, selling or illegally transferring land. This penalty does not apply to those who have no illegal gains.

2. For those who illegally convert agricultural land into construction land in violation of the overall land use plan, the newly built buildings and other facilities on the illegally transferred land shall be demolished within a time limit and the land shall be restored to its original condition. If the land is in compliance with the overall land use plan, the newly built buildings and other facilities on the illegally transferred land shall be confiscated. This is a penalty for building new buildings on illegally acquired land. Ying Ting believes that this penalty measure is imposed on the transferee of illegally transferred land. The illegally transferred land is often engaged in certain construction activities. The construction activities are illegal according to the provisions of this article. However, the newly constructed buildings or other facilities on the illegally transferred land shall be dealt with on a case-by-case basis in accordance with the requirements of the relevant land use master plan: (1) Buildings and other facilities newly built in violation of the land use master plan shall be demolished. The relevant land administration department shall make a penalty decision to demolish the illegal buildings and restore the land to its original condition within a time limit, that is, determine a certain period of time, require the offender to demolish illegal buildings and other facilities within the specified period, and ensure that the occupied land is restored to its original condition within this period. The purpose of requiring offenders to demolish illegal buildings is to restore illegally occupied land to the state it was in before it was occupied. (2) If it meets the requirements of the overall land use plan, it does not need to be demolished and will be confiscated by the land administration department.

3. Fines. According to the provisions of this article, the land administration department may make the decision to impose a fine concurrently while making the aforementioned penalty decisions on both parties involved in the illegal transfer of land. Whether to impose a fine at the same time shall be decided by the land administration department based on the circumstances of the specific case. For example, when there is no illegal income from the illegal transfer of land, in order to educate and punish the offender, a fine can be decided. Alternatively, if the specific circumstances of the illegal conduct are relatively serious, a decision may also be made to impose a fine.

4. Administrative sanctions. This penalty is stipulated for the situation where the offender is a unit. If a unit violates the law, while relevant administrative penalties are imposed in accordance with the provisions of this article, the person in charge and other directly responsible personnel directly responsible for the unit shall also be given administrative sanctions by the unit where they work or their superior competent department, or by the administrative supervision department in accordance with the law.

5. Criminal punishment. This article stipulates that if the sale or illegal transfer of land in other forms constitutes a crime, criminal liability shall be investigated in accordance with the law. Article 228 of my country's Criminal Law stipulates that any person who violates land management regulations and illegally transfers or resells land use rights for the purpose of profit shall constitute a crime if the circumstances are serious. According to this provision, the illegal transfer of land constitutes a crime and must meet the following conditions:

(1) The subjective aspect is intentional and for the purpose of profit, that is, for the purpose of obtaining economic benefits.

(2) The criminal subject can be an enterprise, an institution, or an individual.

(3) Objectively, it must be an act of reselling or illegally transferring land use rights. The criminal law does not clearly stipulate the sale or illegal transfer of land ownership. Since the right to use is based on ownership, from the essence of the illegal transfer of land, the illegal transfer of land ownership and the transfer of its use rights should also constitute this crime.

(4) The harmful consequences of the behavior are serious. According to the relevant provisions of the criminal law, if the circumstances are obviously minor, it does not constitute a crime. The so-called "serious circumstances" mainly refer to illegal transfers and reselling of large land areas and quantities; huge gains from illegal transfers; or illegal transfers that severely damage land, especially cultivated land, and cause other adverse effects. Ying Ting learned that according to the provisions of Article 228 of the Criminal Law, specific penalties are applicable to crimes in two levels depending on the circumstances: (1) If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined not less than 5% but not more than 20% of the value of the illegal transfer or resale of land use rights. The amount of the fine is calculated based on the price of the illegal transfer of land use rights. (2) If the circumstances are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 5% but not more than 20% of the value of the illegally transferred or resold land use right. If a unit commits a crime, the unit shall be fined, and the unit's directly responsible person in charge and other directly responsible personnel shall be sentenced to the penalties specified in this article.

Yingting reminds you:

If you encounter similar problems, you can consult a lawyer specializing in land acquisition and demolition, or ask a lawyer to intervene and provide you with legal advice using professional legal knowledge.