Why should buyers and sellers be punished for buying farmland and building hotels?

Reading Tip: Sign a land transfer agreement with the village committee to build a hotel without the approval of the land administrative department. Should the illegal parties be punished as illegal land occupation or illegal transfer? [case]

In August 2005, Yang Jun signed a land transfer agreement with a village without the approval of the land administrative department, and agreed to transfer 25 mu of collective land (cultivated land) from the village for hotel construction at one time, which was completed that year.

After being reported by the masses, the land management department handled it according to Article 76 of the Land Management Law of the People's Republic of China, ordered the party Yang Jun to dismantle the newly-built buildings on the illegally occupied land within a time limit, and imposed a fine of 30 yuan per square meter.

[analysis]

On the surface, the application of the law in this case is correct, but the author thinks it is wrong. It confuses the concepts of illegal occupation of land and illegal transfer of land.

Illegal occupation of land is a unilateral act, that is, acquiring land without any buying and selling relationship, with the purpose of unilateral illegal occupation. Selling and illegally transferring land are dual acts. Although the form of land acquisition is illegal, it is indeed obtained through paid means. That is, the act of buying, selling or transferring land directly with the land owner or land use right holder without the approval of the land administrative department (allocation). This behavior should be punished according to the provisions of Article 73 of the Land Administration Law of the People's Republic of China.

Article 73 of the Land Administration Law of the People's Republic of China is a punishment for both the transferor and the transferee. Confiscation of illegal income is a punishment for the transferor. Confiscation of new buildings and other facilities that conform to the overall land use planning, and demolition within a time limit that does not conform to the overall land use planning, is an administrative punishment for the transferee.

In the above cases, the land transfer between Yang Jun and the village committee should be defined as illegal land transfer according to Article 73 of the Land Administration Law of the People's Republic of China, and should not be defined as illegal land occupation.

In practice, most of these cases are punished by illegal occupation of land according to Article 76 of the Land Administration Law of the People's Republic of China, and the law is incorrectly applied. In such cases, if the parties file an administrative lawsuit, the land and resources department will inevitably lose the case. Therefore, in law enforcement practice, land administrative law enforcement personnel must correctly distinguish the types, concepts and legal application of illegal acts, safeguard the legitimate rights and interests of land owners and land users according to law, and punish offenders correctly and legally.