中國 會社法上 土地使用權 出資에 관한 연구

중국 회사법상 토지사용권 출자의 법적 쟁점을 연구한다.

The basic concept formed by the 1988 amendments to the Constitution is the separation of land use rights from the ownership of land. Subsequently, a series of laws and regulations have been promulgated to perfect the legal framework of China' s land use system. According to the Constitution, all land located in urban areas is owned by the State, while the land in mal and city suburban areas is collectively owned. Collective owners of land generally include farmer economic collectives, village communities or township farmers collectives. In other words, all land is publicly owned by either the State or the collectives.

On the other hand, land use rights are distinguished as type of intangible property, and may be sold by the State to various land users including companies, enterprises, organizations, or individuals for value. Land users who have acquired land use rights from the State may, in a further step, sell or transfer in some other way, the land use rights to third parties, but the land always remains in public ownership. It is critical for investors to locate a good site and acquire legally transferred land. As detailed above, the land use rights may be obtained mainly by means of transfer, lease, allocate, purchase or equity contribution.

Each method involves different legal implication, requirements and procedures. Therefore, foreign investors have to take all necessary precautions to examine the origin of land and distinguish the nature of transfer. It must be ensured that all necessary legal procedures have been gone through and every land-related document is in place.