Illegal transfer or reselling of land use rights

I. Concept of the Crime of Illegal Transfer and Reselling of Land Use Rights (Article 228 of the Criminal Law) The crime of illegal transfer and reselling of land use rights refers to the act of illegally transferring and reselling land use rights in violation of land management regulations for the purpose of making profits, and the circumstances are serious. Second, the constitution of the crime (1) Object Elements The object of this crime is the land management system of the country. The first session of the Seventh National People's Congress passed the constitutional amendment, which stipulated: "No organization or individual may occupy, trade or illegally transfer land in other forms. Land use rights can be transferred according to law. " Land belongs to the state or collective, and the state prohibits the transfer of land in any form, but the land use right can be transferred according to law. Illegal transfer or reselling of land use rights is obviously a serious violation of the national land management system. (II) Objective Elements This crime is objectively manifested as illegal transfer and reselling of land use rights in violation of land management laws and regulations, and the circumstances are serious. L, it is definitely a violation of land management regulations. Land management laws and regulations refer to a series of land management laws and regulations represented by land management law. For example, the Land Management Law (adopted on February 29th, 1988/KLOC-0), the Notice of the State Council on Transferring the Approval Right of State-owned Land Use, the Provisional Regulations on Transferring and Transferring the Right to Use State-owned Land in Cities and Towns, and the Regulations for the Implementation of the Land Management Law. 2. It must be illegal transfer or reselling of land use rights. The Land Management Law stipulates that People's Republic of China (PRC) implements socialist public ownership of land, that is, ownership by the whole people and collective ownership by the working people. No unit or individual may occupy, trade or illegally transfer land in other forms, and the right to use state-owned land and collectively-owned land may be transferred according to law. The transfer of land use rights shall be carried out in strict accordance with the law. The transfer of land use right refers to the behavior of land users to transfer land use right again, including buying, selling, exchanging and giving. The land use right shall not be transferred if it is not invested and developed according to the time limit and conditions stipulated in the land use right transfer contract. A transfer contract shall be signed for the transfer of land use rights. After the land use right is confirmed, the rights and obligations stipulated in the land use right transfer contract and registration documents will be transferred accordingly. When the land use right is transferred, the transfer of ownership of the above-ground buildings and other attachments shall be registered in accordance with the regulations. The division and transfer of the land use right and the ownership of buildings and other attachments on the ground shall be approved by the land management department and real estate management department of the people's government of the city or county, and the transfer registration shall be handled according to law. The transfer of land use rights must comply with the above provisions, otherwise it is illegal transfer. The so-called reselling of land use rights refers to the illegal sale of land use rights to others, or the purchase or lease of land use rights from others for the purpose of sale, and some of them are clearly marked for sale; Others cover up the sale of their land in some form, such as buying someone else's factory openly and buying the land use right occupied by the factory secretly; Take it for yourself in the name of buying someone else's house. This crime belongs to the crime of circumstances, and illegal transfer or reselling of land use rights can only constitute this crime if the circumstances are serious. The so-called serious circumstances mainly refer to the repeated implementation of this crime; Illegal transfer or reselling of land use rights is relatively large; Seek greater illegal interests; Causing serious damage or desolation to the land; Wait a minute. (III) Subject Elements The subject of this crime is the general subject. Anyone who has reached the age of criminal responsibility and has criminal responsibility ability can become the subject of this crime. According to article 23 1 of this section, a unit can also constitute this crime. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article. (IV) Subjective elements This crime is intentional subjectively, and it is for profit, not for profit, and does not constitute this crime. Profit-making is not only the actor's pursuit of economic interests, but also the actor's pursuit of other illegitimate interests, such as applying for a passport abroad and striving for promotion. 3. Whoever commits the crime of this article shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined 5% to 20% of the amount of illegal transfer or reselling of land use rights; If the circumstances are especially serious, he 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 price of illegal transfer or reselling of land use rights. Four. Law and Judicial Interpretation [Criminal Law Provisions] Article 228 Whoever, for the purpose of making profits, illegally transfers or resells land use rights in violation of land management regulations, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 5% but not more than 20% of the price of illegally transferring or reselling land use rights; If the circumstances are especially serious, he 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 price of illegal transfer or reselling of land use rights. Article 231 Where a unit commits the crimes specified in Articles 221 to 230 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of each article of this section. [Related Laws] Article 73 of the Land Management Law, if land is bought or sold or illegally transferred in other forms, the illegal income shall be confiscated by the land administrative department of the people's government at or above the county level; In case of converting agricultural land into construction land without authorization in violation of the overall land use planning, the newly built buildings and other facilities on the illegally transferred land shall be demolished within a time limit to restore the land to its original state. In line with the overall land use planning, the newly built buildings and other facilities on the illegally transferred land shall be confiscated and a fine may be imposed; The directly responsible person in charge and other directly responsible personnel shall be given administrative sanctions according to law; If a crime is constituted, criminal responsibility shall be investigated according to law. [Judicial Interpretation] the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Destruction of Land Resources (2000.6. 19 Law Interpretation [2000]14) is to punish criminal activities of destruction of land resources according to law. According to the relevant provisions of the criminal law, some issues concerning the specific application of law in the trial of such cases are explained as follows: Article 1: For the purpose of making profits, it violates land management. Illegal transfer or reselling of land use rights is "serious" under any of the following circumstances, and shall be convicted and punished for the crime of illegal transfer or reselling of land use rights in accordance with the provisions of Article 228 of the Criminal Law: (1) illegal transfer or reselling of basic farmland of more than five acres; (2) illegally transferring or reselling more than 10 mu of cultivated land other than basic farmland; (three) illegal transfer or reselling of other land of more than twenty acres; Illegal profits of more than 500,000 yuan; (5) Illegal transfer or reselling of land close to the above-mentioned quantity standard and other bad circumstances, such as having been subjected to administrative punishment or causing serious consequences for illegal transfer or reselling of land use rights. Article 2 In the process of implementing the provisions of Article 1, illegal transfer or reselling of land use rights is "especially serious" in any of the following circumstances: (1) illegal transfer or reselling of basic farmland of more than 10 mu; (2) illegally transferring or reselling more than 20 mu of cultivated land other than basic farmland; (three) illegal transfer or reselling of other land of more than forty acres; (four) illegal profits of more than one million yuan; (five) illegal transfer or reselling of land is close to the above quantitative standards and has other bad circumstances, such as causing serious consequences. Article 8 The conviction and sentencing standards for the crime of illegal transfer or reselling of land use rights and the crime of illegal occupation of cultivated land by units shall be implemented in accordance with the provisions of Articles 1, 2 and 3 of this Interpretation. Article 9 Those who repeatedly implement the provisions of this Interpretation shall be investigated for responsibility according to law, or those who repeatedly implement the provisions of this Interpretation within one year have not been dealt with, and shall be punished according to the cumulative quantity and amount.

Legal objectivity:

1, it must be a violation of land management regulations. Land management laws and regulations refer to a series of land management laws and regulations represented by land management law. For example, the Land Management Law (adopted on February 29th, 1988/KLOC-0), the Notice of the State Council on Transferring the Approval Right of State-owned Land Use, the Provisional Regulations on Transferring and Transferring the Right to Use State-owned Land in Cities and Towns, and the Regulations for the Implementation of the Land Management Law. 2. It must be illegal transfer or reselling of land use rights. The Land Management Law stipulates that People's Republic of China (PRC) implements socialist public ownership of land, that is, ownership by the whole people and collective ownership by the working people. No unit or individual may occupy, trade or illegally transfer land in other forms, and the right to use state-owned land and collectively-owned land may be transferred according to law. The transfer of land use rights shall be carried out in strict accordance with the law. The transfer of land use right refers to the behavior of land users to transfer land use right again, including buying, selling, exchanging and giving. The land use right shall not be transferred if it is not invested and developed according to the time limit and conditions stipulated in the land use right transfer contract. A transfer contract shall be signed for the transfer of land use rights. After the land use right is confirmed, the rights and obligations stipulated in the land use right transfer contract and registration documents will be transferred accordingly. When the land use right is transferred, the transfer of ownership of the above-ground buildings and other attachments shall be registered in accordance with the regulations. The division and transfer of the land use right and the ownership of buildings and other attachments on the ground shall be approved by the land management department and real estate management department of the people's government of the city or county, and the transfer registration shall be handled according to law. The transfer of land use rights must comply with the above provisions, otherwise it is illegal transfer. 3. The so-called reselling of land use rights refers to the illegal sale of land use rights to others, or the purchase or lease of land use rights from others for the purpose of sale, and some are clearly marked for sale; Others cover up the sale of their land in some form, such as buying someone else's factory openly and buying the land use right occupied by the factory secretly; The fact that the right to use other people's homesteads is occupied in the name of buying other people's houses. 4. The crime of illegally transferring or reselling land use rights belongs to the crime of circumstances, and only serious circumstances can constitute the crime of illegally transferring or reselling land use rights. The so-called serious circumstances mainly refer to the crime of illegal transfer and reselling of land use rights for many times; Illegal transfer or reselling of land use rights is relatively large; Seek greater illegal interests; Cause serious damage or desolation of land, etc.