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Laoshan Branch of Land and Resources of Qingdao Land, Resources and Housing Administration v. Qingdao Qiankun Wood Industrial Co., Ltd. (A case about dispute over contract on assignment of land use right)
青岛市国土资源和房屋管理局崂山国土资源分局与青岛乾坤木业有限公司土地使用权出让合同纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Property
  • Legal document: Judgment
  • Judgment date: 11-30-2007
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 5,2008

Laoshan Branch of Land and Resources of Qingdao Land, Resources and Housing Administration v. Qingdao Qiankun Wood Industrial Co., Ltd. (A case about dispute over contract on assignment of land use right)
(A case about dispute over contract on assignment of land use right)
青岛市国土资源和房屋管理局崂山国土资源分局与青岛乾坤木业有限公司土地使用权出让合同纠纷案

Laoshan Branch of Land and Resources of Qingdao Land, Resources and Housing Administration v. Qingdao Qiankun Wood Industrial Co., Ltd.
(A case about dispute over contract on assignment of land use right)

 

青岛市国土资源和房屋管理局崂山国土资源分局与青岛乾坤木业有限公司土地使用权出让合同纠纷案

Supreme People's Court 【裁判摘要】
Civil Judgment 一、对于双方当事人意思表示真实,约定内容不损害国家、集体和第三人的合法权益,且已经过公证的合同,应认定已经成立。
No.84 [2007], Civil Division I, Final 二、根据合同法的相关规定,依法成立的合同,自成立时生效。法律、行政法规规定应当办理批准、登记等手续生效的,依照其规定。
Judgment Summary 三、合同部分内容无效,但不影响其他部分效力的,应当认定合同其他部分内容有效。
1. A notarized contract shall be deemed established if its content reflects the true intention of both parties and does not cause damage to legitimate interests of the state, collective organizations or any third party. 最高人民法院
2. Under relevant provisions of the Contract Law, a contract which is established in accordance with the law takes effect as of the time of its establishment. Where according to laws or administrative regulations, approval, registration and/or other procedure must be accomplished before the contract takes effects, such provisions shall be followed. 民事判决书
3. Where partial invalidation of a contract does not affect the validity of the remaining part, the remaining part of the contract shall be deemed valid. (2007)民一终字第84号
BASIC FACTS 
Appellant (defendant in original trial): Laoshan Branch of Land and Resources of Qingdao Land, Resources and Housing Administration (former Bureau of Land and Resources of Laoshan District of Qingdao City), residing at: 3/F., Office Building of Residents' Committee of Shilaoren Community, Laoshan District, Qingdao City, Shandong Province. 上诉人(原审被告):青岛市国土资源和房屋管理局崂山国土资源分局(原青岛市崂山区国土资源局),住所地山东省青岛市崂山区石老人社区居委会办公大楼3楼。
Legal representative: Yang Hao, director of this branch. 法定代表人:杨浩,该局局长。
Attorney: Meng Fansheng, lawyer of Beijing Zhongjing Law Firm. 委托代理人:孟凡胜,北京市中经律师事务所律师。
Attorney: Zhao Shanke, staffer of this bureau. 委托代理人:赵汕可,该局工作人员。
Appellee (plaintiff in original trial): Qingdao Qiankun Wood Industrial Co., Ltd., residing at: Gouya Village, Beizhai Sub-district Office, Laoshan District, Qingdao City, Shandong Province. 被上诉人(原审原告):青岛乾坤木业有限公司,住所地山东省青岛市崂山区北宅街道办事处沟崖村。
Legal representative: Jiang Guofeng, chairman of the board of directors of this company. 法定代表人:江国锋,该公司董事长。
Attorney: Ma Xu, lawyer of Jinan Branch of Beijing Dacheng Law Firm. 委托代理人:马旭,北京大成律师事务所济南分所律师。
The appellant, Laoshan Branch of Land and Resources of Qingdao Land, Resources and Housing Administration (“Laoshan Branch of Land and Resources”), for disputes over a contract on assignment of land use right with the appellee, Qingdao Qiankun Wood Industrial Co., Ltd. (“Qiankun Co.”), appealed the civil judgment (No.8 [2006], Civil Division I, First Instance) of the Higher People's Court of Shandong Province to this court. This court formed a collegiate bench according to law, and on October 24, 2007, held a trial of this case. The attorneys of Laoshan Branch of Land and Resources, Meng Fansheng and Zhao Shanke, and the legal representative and attorney of Qiankun Co., Jiang Guofeng and Ma Xu, appeared in court. So far, the trial of this case has been concluded. 上诉人青岛市国土资源和房屋管理局崂山国土资源分局(以下简称崂山国土资源分局)因与被上诉人青岛乾坤木业有限公司(以下简称乾坤公司)土地使用权出让合同纠纷一案,不服山东省高级人民法院 (2006)鲁民一初字第8号民事判决,向本院提起上诉。本院依法组成合议庭,于2007年10月24日开庭审理了本案。崂山国土资源分局的委托代理人孟凡胜、赵汕可,乾坤公司的法定代表人江国锋、委托代理人马旭到庭参加诉讼。本案现已审理终结。
Through trial, the court of the first instance found that: on May 29, 2000, the People's Government of Laoshan District of Qingdao City submitted a Request of the People's Government of Laoshan District of Qingdao City for Instructions on the First Batch of Land Used for Urban Construction in 2000 to the People's Government of Qingdao City, stating that: according to the Overall Plan on the Use of Land in Laoshan District, this district would transform, for construction use, by batches, the farmland of 126,666 square meters in Gouya Village and 6,667 square meters in Hongyuan Village of Beizhai Sub-district Office, totally 133,333 square meters. The above land had been determined as urban construction land in the Overall Plan on the Use of Land in Laoshan District. After such land had undergone the formalities for transformation of farmland into construction land and been nationalized, This district would examine and approve the land use according to its land examination and approval powers and specific construction projects. Later, the People's Government of Qingdao City submitted an Request for Instructions on the First Batch of Land for Urban Construction in Laoshan District in 2000 (No 267 [2000], Qingdao Government, Land) to the People's Government of Shandong Province. 一审法院经审理查明:2000年5月29日,青岛市崂山区人民政府向青岛市人民政府报送《青岛市崂山区人民政府关于 2000年度第一批城市建设用地的请示》。该请示称:根据《崂山区土地利用总体规划》,我区拟批次转用北宅街道办事处沟崖村园地126 666平方米、洪园村园地6667平方米,合计133 333平方米。上述用地在《崂山区土地利用总体规划》中已确定为城市建设用地。该批次土地办理农转用手续和征归国有后,我区将按照土地审批权限和具体建设项目另行审批。后青岛市人民政府向山东省人民政府报送青政地发 [2000]267号《关于崂山区2000年度第一批城市建设用地的请示》。
On February 28, 2001, Qiankun Co. and Beizhai Sub-district Office concluded an Agreement for Assignment of Land Use Right, agreeing that Beizhai Sub-district Office should assign the right to use the land of about 150 mu in Beizhai Industrial Area (west to Songling Road, north to Maigou Road) to Qiankun Co. with the duration of use being 50 years, the land use price being 68,800 yuan per mu and the total price being 10,320,000 yuan. After conclusion of this agreement, Qiankun Co., according to the relevant documents of the People's Government of Laoshan District of Qingdao City in 1999, respectively on April 20, 2001 and September 5, 2001, paid 1,800,000 yuan and 500,000 yuan, as the deposit for assignment of land use right, to the Land Planning and Mineral Resources Management Station of Beizhai Sub-district Office of the People's Government of Laoshan District (“Land Management Station”), which was a dispatched agency of the former Bureau of Land and Resources of Laoshan District , and the Land Management Station issued a receipt of payment to it. On August 25, 2001, Qiankun Co. paid 2,580,000 yuan by check to the Land Management Station, and the Land Management Station issued a receipt of payment of 2,580,000 yuan to it. This payment was actually transferred to the Land Management Station on March 27, 2003. 2001年2月28日,乾坤公司与北宅街道办事处签订《土地使用权出让协议》。该协议约定,北宅街道办事处将北宅工业区内土地约150亩(松岭路以西、麦沟路以北)的土地使用权出让给乾坤公司,使用期限50年,每亩地价为6.88万元,总价款约为人民币1032万元。合同签订后,乾坤公司依据1999年青岛市崂山区人民政府的有关文件,分别于2001年4月20日和 2001年9月5日,向原崂山区国土资源局的派出机构--崂山区人民政府北宅街道办事处土地规划与矿产资源管理所(以下简称土管所)缴纳土地出让定金180万元和50万元,土管所为其开具收款收据。 2001年8月25日,乾坤公司给付土管所 258万元支票一张,土管所向其开具258万元收款收据一份。该款实际于2003年3月27日划转至土管所。
On September 10, 2001, Qiankun Co. received a Notice of the Site Environment Protection Assessment of a Construction Project (No. 10 [2001], EP, Laoshan, Qingdao) issued by the Bureau of Environment Protection of Laoshan District of Qingdao City. On September 28, 2001, Qiankun Co. received a Notice of the Site of a Village or Town Construction Project in Laoshan District of Qingdao City (No. 045 [2001], Village, Laoshan, Qingdao) issued by the Office of Village and Town Planning and Development of Laoshan District of Qingdao City. On September 29, 2001, Qiankun Co. obtained a Planning Permit for Construction Land (No. 045) issued by the Office of Village and Town Planning and Development of Laoshan District of Qingdao City, affirming that this land use project was consistent with the requirements of urban planning and approving of handling the formalities for land requisition and allocation. On the same day, Qiankun Co. obtained a Notice of the Requirements for Planning and Design of a Village Planning and Construction Project of Laoshan District of Qingdao City (No. 045 [2001]) issued by the Office of Village and Town Planning and Development of Laoshan District of Qingdao City. On September 30, 2001, the Bureau of Development and Planning of Laoshan District of Qingdao City, upon an application of the Economy and Trade Office of Beizhai Sub-district Office for establishment of a project, issued an Official Reply on Approving the Establishment of the Project of Construction of New Plant Buildings of Qingdao Qiankun Wood Industrial Co., Ltd. (No. 96 [2001], Project, Planning, Laoshan). On the same day, the Bureau of Land and Resources of Laoshan District issued a Statement on the Land to Be Used by Qiankun Wood Industrial Co., Ltd., which stated that: regarding the industrial land of 150 mu to be used by Qingdao Qiankun Wood Industrial Co. Ltd. located in Beizhai Industrial Area, due to adjustments to the planning of Beizhai Industrial Area, upon application of Beizhai Sub-district Office, this Bureau agreed to adjust the land to be used by the company to 215 mu, and the land formalities were being handled by the company. 2001年9月10日,乾坤公司取得青岛市崂山区环保局下发的[2001]青崂环预定字第10号《建设项目定点环保审核通知书》。2001年9月28日,取得青岛市崂山区村镇规划建设管理办公室下发的青崂村规定字[2001]第(045)号《青岛市崂山区村镇建设项目定点通知书》。2001年9月29日,取得青岛市崂山区村镇规划建设管理办公室下发的崂建村字第(045)号《建设用地规划许可证》,明确本用地项目符合城市规划要求,准予办理征用划拨土地手续。同日,取得青岛市崂山区村镇规划建设管理办公室下发的青崂村规设字[2001]第(045)号《青岛市崂山区村镇规划建设项目规划设计要求通知单》。同年9月30日,青岛市崂山区发展计划局依据北宅街道办事处经济贸易办公室的立项申请,下发崂计项字 [2001]96号《关于同意青岛乾坤木业有限公司新建厂房项目立项的批复》。同日,崂山区国土局出具《关于青岛乾坤木业有限公司用地的说明》,该说明载明:青岛乾坤木业有限公司位于北宅工业园的150亩工业用地,因北宅工业园规划调整,经北宅街道办事处申请,我局研究同意将该公司用地调整为215亩,现该公司土地手续正在办理之中。
On January 31, 2002, the People's Government of Shandong Province issued an Official Reply of the People's Government of Shandong Province on the Land for Urban Construction in Laoshan District of Qingdao City (No. 35 [2002]), stating that: the Land Management Bureau of Laoshan District of Qingdao City proposed to requisition farmland of 133,333 square meters (equivalent to 200 mu) of two villages including Gouya Village of Beizhai Sub-district Office as land reserve for construction in Laoshan District of Qingdao City; upon examination, this batch of land was consistent with the overall plan on the land use of Laoshan District of Qingdao City, and had been included in the annual plan on land use of Qingdao City; the submitted farmland transformation scheme and land requisition scheme were feasible and practicable, and this Government approved of this batch of land. 2002年1月31日,山东省人民政府下发鲁政土字[2002]35号《山东省人民政府关于青岛市崂山区城市建设用地的批复》称:青岛市崂山区土地管理局拟征用该区北宅街道办事处沟崖村等2个村园地 133 333平方米(折合200亩),作为青岛市崂山区政府建设储备用地。经审查,该批次用地符合青岛市崂山区土地利用总体规划,并已纳入你市土地利用年度计划,上报农用地转用方案和征用土地方案切实可行,同意该批次用地。
On January 16, 2003, the former Bureau of Land and Resources of Laoshan District of Qingdao City and Qiankun Co. concluded a Contract on Assignment of Right to Use State-owned Land (No. 4 [2003], Land, Laoshan, Qingdao), agreeing that the Bureau of Land and Resources of Laoshan District should assign the land lot of 175,907 square meters, located at Gouya Village of Beizhai Sub-district Office, north to Maigou Road and west to Songling Road, to Qiankun Co., among which the area of assigned land should be 146,383 square meters. The purpose of the assigned land under this contract should be for industrial use. The duration of the assigned land use right under this contract should be 50 years. The assignment cost of the land use right under this contract should be 103.20 yuan per square meter, totally 18,153,602.40 yuan. Within 60 days after the conclusion of this contract, the assignee should pay off the above assignment cost in a lump sum ... They also agreed under the contract: the assignee should, within 30 days from the full payment of the assignment cost for the land use right under the contract, on the strength of this contract and the certificate of payment of the assignment cost for the land use right, apply to the assigner for handling land registration according to the legal provisions, collect the License for Use of State-owned Land, and acquire the land use right of the assigned land. The assigner should, within 30 days from the application for registration of the assigned land, handle the registration of the assigned land use right for the assignee according to law, and issue the License for Use of State-owned Land. The Assignee should, according to the contract, pay the assignment cost for the land use right as scheduled. If the assignee failed to pay the assignment cost for the land use right, the assignee should, from the date of delay in payment, pay to the assigner an overdue fine at a rate of 3 ‰ of the delayed payment for each day. If the delay in payment exceeded six months, the assigner should have the right to terminate the contract and take back the land, the assignee should have no right to require the refund of deposit, and the assigner should also have the right to require the assignee to compensate for other losses incurred due to the default. The land lot assignment scheme under the contract should be subject to the approval of the People's Government of Shandong Province, and the contract should come into force on the day of approval of the People's Government of Shandong Province. The matters not included in this contract should be decided by agreement of both parties, which, as an annex to this contract, should be equally authentic as this contract. On the same day, the two parties concluded a Supplementary Agreement on the areas of and expenses for the vicariously requisitioned roads and green belts. On February 18, 2003, they jointly applied to the Notary Office of Qingdao City for notarization of the above contract and agreement. On March 26, 2003, Qiankun Co. paid 3,000,000 yuan by check to the Land Management Station, and the Land Management Station issued a payment receipt of 3,000,000 yuan to it, but did not actually transfer this amount. Laoshan Branch of Land and Resources admitted having actually accepted a total of 4,880,000 yuan of the land assignment cost from Qiankun Co. Thereafter, Qiankun Co. did not pay the remaining land assignment cost. Of the assigned land of 146,383 square meters involved in the above contract, some had been transformed into construction land upon approval in Document No.35 [2002] Land, Government, Shandong. 2003年1月16日,原青岛市崂山区国土资源局与乾坤公司签订青崂土合字 [2003]4号《国有土地使用权出让合同》,其中约定,崂山区国土局出让给乾坤公司的宗地位于北宅街道沟崖村麦沟路北、松岭路西,宗地面积为175 907平方米,其中出让土地面积为146 383平方米。本合同项下出让宗地的用途为工业。本合同项下的土地使用权出让年限为50年。本合同项下的土地使用权出让金为每平方米103.20元,总额为18 153 602.40元。本合同签订之日起60日内,受让人一次性付清上述土地使用权出让金……。合同还约定,受让人在按合同约定支付全部土地使用权出让金之日起30日内,应持本合同和土地使用权出让金支付凭证,按规定向出让人申请办理土地登记,领取《国有土地使用证》,取得出让土地使用权。出让人应在受让土地登记申请之日起30日内,依法为受让人办理出让土地使用权登记,颁发《国有土地使用证》。受让人必须按照本合同约定,按时支付土地使用权出让金。如果受让人不能按时支付土地使用权出让金的,自滞纳之日起,每日按迟延支付款项的3‰向出让人缴纳滞纳金,延期付款超过6个月的,出让人有权解除合同,收回土地,受让人无权要求返还定金,出让人并可请求受让人赔偿因违约造成的其他损失。本合同项下宗地出让方案尚需经山东省人民政府批准,本合同自山东省人民政府批准之日起生效。本合同未尽事宜,可由双方约定后作为合同附件,与本合同具有同等法律效力。同日,双方签订《补充协议》,就代征道路及绿化带面积、费用作出约定。2003年2月18日,双方共同申请,对上述合同和协议在青岛市公证处办理了公证。同年3月26日,乾坤公司向土管所交付300万元支票一张,土管所向其开具300万元收款收据,但未实际划转该300万元。现崂山国土资源分局认可实际收取乾坤公司土地出让金共计488万元。此后,乾坤公司未缴纳剩余土地出让金。上述合同涉及的146 383平方米的出让土地中,部分土地经鲁政土字 [2002]35号文批准转为建设用地。
On June 6, 2005, the former Bureau of Land and Resources of Laoshan District of Qingdao City, for reasons that Qiankun Co. failed to pay in full the assignment cost for the land use right as agreed on under the contract and the use of land under the project violated Document No.95 [2003] of the Government of Qingdao City, made a Decision of the Bureau of Land and Resources of Laoshan District on Canceling the Contract on Assignment of Right to Use State-owned Land (No.139 [2005]), deciding to cancel the Contract on Assignment of Right to Use State-owned Land signed with Qiankun Co. on January 16, 2003, and requiring Qiankun Co. to handle matters related to the cancellation of this contract at this bureau within ten days after receipt of this decision, on the strength of the original Contract on Assignment of Right to Use State-owned Land. The matters on refund of payment should be handled at the Construction Services Center of Beizhai Sub-district Office (former Land Management Station of Beizhai Sub-district Office). On June 7, 2005, the former Bureau of Land and Resources of Laoshan District of Qingdao City served the above decision on Qiankun Co. by express mail. 2005年6月6日,原青岛市崂山区国土资源局以乾坤公司未按合同约定如期缴纳全部土地使用权出让金以及项目用地违反青岛市政府[2003]95号文件为由,作出崂国土[2005]139号《崂山区国土资源局关于撤销国有土地使用权出让合同的决定》,决定撤销与乾坤公司2003年1月16日签订的《国有土地使用权出让合同》,并要求乾坤公司自收到本决定之日起10日内持《国有土地使用权出让合同》原件到该局办理解除合同相关事宜,已交款项的退还事宜到北宅街道办事处建设服务中心 (原北宅街道办事处土管所)办理。2005年 6月7日,原青岛市崂山区国土资源局通过特快专递将上述决定送达乾坤公司。
On March 13, 2006, the Bureau of Land and Resources of Laoshan District of Qingdao City was renamed to Laoshan Branch of Land and Resources. 2006年3月13日,青岛市崂山区国土资源局更名为青岛市国土资源和房屋管理局崂山国土资源分局。
During the trial of first instance, Laoshan Branch of Land and Resources provided the court of the first instance with a “current map” of the involved land, indicating that all the parts with black lines on the map were the relief map after the signing of the contract on assignment of land use right, while the parts with red lines were the relief map after the approval of farmland transformation. Upon cross-examination, Qiankun Co. raised no objection to this evidence. 一审审理期间,崂山国土资源分局向一审法院提交涉案土地“现状地形图”一张,载明图中全部黑线部分为签订土地使用权出让合同后的地形图,图中红线圈定的部分为农转用获批准的部分。经质证,乾坤公司对此证据没有异议。
For the unilateral cancellation of contract by Laoshan Branch of Land and Resources, Qiankun Co. failed to acquire the land use right under the contract after making partial payment for the assignment cost. Qiankun Co. considered that Laoshan Branch of Land and Resources violated the contractual provisions, and caused the company to suffer various economic losses of over 12,000,000 yuan. Therefore, it brought an action in the court of the first instance, requiring the court to order Laoshan Branch of Land and Resources to perform the Contract on Assignment of Right to Use State-owned Land (No.4 [2003] Land, Laoshan, Qingdao) and deliver all the land under the contract to Qiankun Co. 由于崂山国土资源分局单方解除合同,乾坤公司交付部分出让金后未能受让合同项下的土地,乾坤公司认为崂山国土资源分局违反合同约定,给其造成各项经济损失1200余万元,故向一审法院起诉,请求判令崂山国土资源分局履行青崂土合字[2003]4号《国有土地使用权出让合同》,向乾坤公司交付合同项下的全部土地。
PROCEDURAL POSTURE 
The court of the first instance was of the opinion that: some land involved in the Contract on Assignment of Right to Use State-owned Land signed by both parties had undergone the formalities for approval of transformation from farmland into construction land, and according toArticles 43 and 44 of the Land Administration Law, Laoshan Branch of Land and Resources should have the right to assign the right to use such land. Other land without such approval of the people's government should still be rural collective land of which Laoshan Branch of Land and Resources should have no right to dispose. Hence, part of the Contract on Assignment of Right to Use State-owned Land signed by both parties was effective. As for the land assignment cost paid by Qiankun Co., prior to the signing of the contract, Qiankun Co. had paid a total of 4,880,000 yuan of land assignment cost to Laoshan Branch of Land and Resources. On March 26, 2003, Qiankun Co. delivered a bank check of 3,000,000 yuan to Laoshan Branch of Land and Resources, and Laoshan Branch of Land and Resources issued a receipt of payment to it. The above series of acts indicated that Qiankun Co. had been performing its obligations under the contract all along, and for lack of supporting evidence, the court of the first instance should not adopt the arguments of Laoshan Branch of Land and Resources that this bank check of 3,000,000 yuan was a rubber check and transfer could not be made. As for whether the Contract on Assignment of Right to Use State-owned Land should be continuously performed, because some land under the contract had obtained the approval of the People's Government of Shandong Province and met the performance requirements, and the relevant project of Qiankun Co. on the land involved in this case had obtained the approval of the relevant department of the government and passed the examination and approval formalities for project establishment, planning and environment protection, Laoshan Branch of Land and Resources should deliver such land to Qiankun Co. The defense grounds of Laoshan Branch of Land and Resources for the cancellation of contract had no legal basis, and should not be supported by the court of first instance. 一审法院认为,双方当事人签订的《国有土地使用权出让合同》涉及的土地中有部分履行了农用地转为建设用地的批准手续,根据《土地管理法》第四十三四十四条的规定,崂山国土资源分局对该部分土地有权进行出让,其余部分未经人民政府批准,仍然为农村集体土地,崂山国土资源分局对此无权处分。因此,双方签订的《国有土地使用权出让合同》部分有效。关于乾坤公司缴纳的土地出让金问题。签订合同之前,乾坤公司已向崂山国土资源分局缴纳土地出让金共计488万元。2003年3月26日,乾坤公司向崂山国土资源分局交付 300万元银行转账支票,崂山国土资源分局为其开具收款收据。上述一系列行为表明,乾坤公司一直在履行合同义务,对崂山国土资源分局辩称该300万元银行转账支票是空头支票、无法划转的理由,没有证据支持,一审法院不予采纳。关于《国有土地使用权出让合同》应否继续履行的问题。因合同项下的该宗土地部分获得山东省人民政府批准,该部分土地具备履行条件。鉴于乾坤公司涉案土地的相关项目已经政府有关部门批准,获得了项目立项、规划、环保等审批手续。故崂山国土资源分局应当向其交付该部分土地。崂山国土资源分局主张合同解除的抗辩理由,没有法律依据,一审法院不予支持。
In conclusion, part of the Contract on Assignment of Right to Use State-owned Land concluded by both parties was effective, and for Qiankun Co. had partly performed its obligation of payment, Laoshan Branch of Land and Resources should, within the scope of land approved to be transformed from farmland into construction land, deliver the land involved in this case to Qiankun Co. The claims of Qiankun Co. for Laoshan Branch of Land and Resources to perform the Contract on Assignment of Right to Use State-owned Land (No.4 [2003], Land, Laoshan, Qingdao) and deliver all the land under the contract to it were partly tenable. According to Articles 8, 56 and 107
谨防骗子
of the Contract Law of the People's Republic of China, the court of the first instance ruled that: (1) The defendant, Laoshan Branch of Land and Resources should, within 30 days after the effective date of this judgment, deliver the land having been approved to be transformed from farmland into construction land under the contract to the plaintiff, Qiankun Co. (subject to the Official Reply of the People's Government of Shandong Province on the Land for Urban Construction in Laoshan District of Qingdao City (No. 35 [2002], Land, Government, Shandong) and the red line coordinates in the current relief map); (2) Other claims of the plaintiff, Qiankun Co., should be rejected. Of the case acceptance fee of 160,778 yuan, Qiankun Co. should pay 130,070 yuan, and Laoshan Branch of Land and Resources should pay 30,708 yuan.
 综上所述,双方当事人签订的《国有土地使用权出让合同》部分有效,乾坤公司亦部分履行了付款义务,崂山国土资源分局应在政府批准的农用地转建设用地范围内向乾坤公司交付涉案土地。乾坤公司请求崂山国土资源分局履行青崂土合字[2003] 4号《国有土地使用权出让合同》,向其交付合同项下的全部土地的主张部分成立。一审法院依据《中华人民共和国合同法》第八条、第五十六条北大法宝、第一百零七条之规定,判决:(一)被告崂山国土资源分局于本判决生效后三十日内向原告乾坤公司交付合同项下已经审批转为建设用地的土地(具体以山东省人民政府鲁政土字[2002]35号《山东省人民政府关于青岛市崂山区城市建设用地的批复》及现状地形图红线坐标为准);(二)驳回原告乾坤公司其他诉讼请求。案件受理费160 778元,由乾坤公司承担130 070元,崂山国土资源分局承担 30 708元。
Laoshan Branch of Land and Resources considered that the judgment of the first instance was wrong in the fact finding and improper in the application of law, and filed an appeal with this court, requiring this court to quash the judgment of the first instance, reject the claims of Qiankun Co. according to law, and order Qiankun Co. to pay the litigation costs for both trials of the first and second instances, on the following grounds: 崂山国土资源分局认为一审判决认定事实错误,适用法律不当。向本院提起上诉,请求二审撤销一审判决,依法驳回乾坤公司的诉讼请求,一、二审诉讼费由乾坤公司承担。理由是:
1. It was incorrect for the judgment of the first instance to determine that part of the Contract on Assignment of Right to Use State-owned Land concluded by the appellant and the appellee was effective. (1) The subject matter under the contract in this case, land lot, was indivisible, and the partial validity or invalidity in quantity should not apply to it. (2) The appellant had no right to dispose of the land, and the assignment of right to use the land in this case should be subject to the examination and approved by the People's Government of Qingdao City. (3) The land use right assignment scheme under the contract still needed the approval of the People's Government of Shandong Province, and the contract should come into force on the day of approval by the People's Government of Shandong Province. Because the land in this case had not fully undergone the formalities for transformation of farmland into construction land, the conditions for submitting the draft assignment scheme to the people's government for approval had not been met, the assignment contract in this case had yet to take effect, and the appellee only had an expected right. (4) The court of the first instance ruled that the appellant should assign some land to the appellee, which violated the planning of the People's Government of Qingdao City. On November 11, 2003, the People's Government of Qingdao City approved the area planning including the land involved in this case. According to the planning, the high-tech industrial area should “appropriately extend northeast to Lisha Road but be strictly prohibited from extending into Laoshan Scenic Spot”, and the land under the assignment contract in this case was located in the no-construction area prescribed by the government of Qingdao City. The approval documents obtained for the transformation of 84 mu of land in this case had lapsed according to law. 1.一审判决认定上诉人和被上诉人双方签订的《国有土地使用权出让合同》部分有效是错误的。(1)本案合同中的标的物--宗地为不可分物,不适用量上的部分有效、部分无效。(2)上诉人对土地没有处分权,本案土地的出让要经过青岛市人民政府审批。(3)本合同项下宗地出让方案尚需经山东省人民政府批准,本合同自山东省人民政府批准之日起生效。由于本案项下的土地还没有完全办理农转用手续,所以不具备拟定出让方案报人民政府批准的条件,本案中的出让合同还不具有法律效力,被上诉人只具有一种期待权。(4)一审判决上诉人出让部分土地给被上诉人,违反了青岛市人民政府的规划。青岛市人民政府于2003年11月11日批准了包括本案宗地在内的地区规划。根据该规划,高新产业区“适当往东北方向发展延伸至李沙路,严禁继续往崂山风景区内延伸”,本案出让合同中的土地在青岛市政府规定的不准建设区域内。本案已经办理农转用的 84亩土地的批准文件依法已经自动失效。
2. It was incorrect for the court of first instance to determine that “the defense grounds of Laoshan Branch of Land and Resources for the cancellation of contract had no legal basis”. The appellant questioned the amount of land assignment cost paid by the appellee, which only accounted for 43% of the total land assignment cost even if it was 7,880,000 yuan as determined in the trial of first instance. The appellee, within six months after the signing of the contract, failed to pay off the land assignment cost. The appellant should, according to Articles 9 and 31 of the contract in this case, have the right to cancel the contract, and Qiankun Co. had received the written decision on cancellation of contract. According to Article 96 of the Contract Law, the Contract on Assignment of Right to Use State-owned Land concluded by both parties should be cancelled when Qiankun Co. received the written decision. Because the contract had no provisions on when the appellant may exercise the right of cancellation, after a condition for cancellation was satisfied, the appellant may exercise the right of cancellation at any time. 2.一审法院认定“崂山国土资源分局主张合同解除的抗辩理由,没有法律依据”是错误的。上诉人对被上诉人交纳的土地出让金数额有异议,即使按一审认定的788万元,也只占土地出让金总数18153602.4元的43%。被上诉人在合同签订后超过6个月没有付清出让金,上诉人依据涉案合同第9条和31条,具有解除合同的权利,且乾坤公司已经收到解除合同的决定书。依据《合同法》第九十六条的规定,双方签订的《国有土地使用权出让合同》自乾坤公司收到该决定书时解除。由于合同没有约定上诉人行使解除权的时间,在解除条件构成后,上诉人可以随时行使解除权。
3. The determination in the judgment of the first instance of the amount of land assignment cost paid by the appellee was incorrect. In the judgment of the first instance, the amount of land assignment cost having been paid by Qiankun Co. was determined as 4,880,000 yuan, which was incorrect and inconsistent with actuality of this case. After deduction of 3,813,357 yuan which was deducted earlier from the land assignment cost by the People's Court of Laoshan District, the land assignment cost having been paid by Qiankun Co. should be 1,066,643 yuan. 3.一审判决关于被上诉人所交出让金数额的认定是错误的。一审判决认定乾坤公司所交土地出让金为488万元是错误的,不符合本案实际。扣除崂山区人民法院扣划的土地出让金3 813 357元,应认定乾坤公司所交的土地出让金为1 066 643元。
Qiankun Co. argued that: (1) The determination in the first instance that part of the alleged contract was effective had both factual and legal basis, and the results of disposal were correct. Under the contract in this case, it was agreed that Laoshan Branch of Land and Resources should deliver 215 mu of land to Qiankun Co., but in fact, only 84 mu of land had met the conditions for assignment, which was in compliance with a circumstance of partial invalidity of a contract. Laoshan Branch of Land and Resources claimed that the power of examination and approval had been taken back by its superior, which, however, occurred after the signing of the contract, and taking back the power of examination and approval by a superior should not affect the validity of the contract. As for the government's new planning emphasized by Laoshan Branch of Land and Resources, it meant that after the planning the high-tech industrial area should not extend to the scenic spot, which did not affect a previous contract. (2) It was correct for the court of the first instance to determine that the defense grounds of Laoshan Branch of Land and Resources for the cancellation of contract were untenable. The failure of Qiankun Co. to make a full payment was caused by Laoshan Branch of Land and Resources. At that time, the deposit in the bank check account of Qiankun Co. was as high as over 7,000, 000 yuan, but the Land Management Station ceased to accept the land assignment cost, which resulted in the performance failure of Qiankun Co. The condition for unilateral cancellation of the contract by Laoshan Branch of Land and Resources was not satisfied. The deduction from the land assignment cost by the People's Court of Laoshan District occurred before the cancellation of the contract, and was irrelevant to this case. Laoshan Branch of Land and Resources should continue performing the contract. 乾坤公司辩称:1.一审认定涉案合同部分有效具有事实和法律依据,处理结果正确。涉案合同约定崂山国土资源分局向乾坤公司交付215亩土地,但实际上只有 84亩具备了出让条件,符合合同部分无效的情形。崂山国土资源分局所称审批权上交是合同签订后发生的,审批权上交不影响合同的效力。至于崂山国土资源分局强调的政府新规划,是指规划后不再向风景区延伸,并不影响之前的合同。2.一审认定崂山国土资源分局主张解除合同的抗辩理由不成立是正确的。乾坤公司没有全额付款的原因在崂山国土资源分局,当时乾坤公司的银行支票账户内存款多达700余万元,但土管所却停收土地出让金,致使乾坤公司履约不能。崂山国土资源分局单方解除合同的条件未成就。崂山区人民法院扣划土地出让金发生在合同解除之前,该行为与本案无关,崂山国土资源分局应当继续履行合同。
In the trial of second instance, this court finds that: the bank check provided by Qiankun Co. to the Land Management Station on March 26, 2003 had a blank date of issuance and a blank payee, to which neither of the parties raised any objection. This court is of the opinion that: according to Article 85 of the Law on Negotiable Instruments, the date of issuance should be a necessary matter recorded on a check, involving the commencement of use duration of the check, and a check without the date of issuance should be deemed as an invalid check. 二审查明:乾坤公司于2003年3月26日向土管所提交的银行转账支票未记载出票日期和收款人,双方当事人对这一事实均无异议。本院认为,根据《票据法》第八十五条的规定,出票日期是支票的必要记载事项,涉及支票使用期限的起算,无出票日期的支票应认定为无效支票。
The other facts found in the trial of second instance are identical with those founded in the trial of the first instance. 二审查明的其他事实与一审查明的事实相同。
DISPUTED ISSUES 
This court is of the opinion that: this case involved three focal disputes: (1) the determination of validity of the Contract on Assignment of Right to Use State-owned Land; (2) whether the amount of land assignment cost having been paid by Qiankun Co. as determined in the judgment of first instance was correct; and (3) whether Laoshan Branch of Land and Resources had the right to cancel the contract. 本院认为,本案涉及三个争议焦点: (一)关于《国有土地使用权出让合同》效力的认定;(二)一审认定乾坤公司交纳土地出让金的数额是否正确;(三)崂山国土资源分局是否有权解除合同。
1. The determination of validity of the Contract on Assignment of Right to Use State-owned Land. The contract provided that the contract should come into force upon the approval of the People's Government of Shandong Province, but before the signing of this contract, 84 mu of the land under the contract had been approved by the People's Government of Shandong Province to be transformed from farmland into construction land. So, the validity of this part of the contract on such land should not be affected by the absence of examination of approval of the entire contract; the other part of the land under the contract had not undergone the examination and approval formalities for transformation of farmland into construction land, and as agreed on, when the contract had not come into force, the right to use such land should not be assigned. Laoshan Branch of Land and Resources contended that the contract had been formed but had not come into force and should not be determined to have partial validity. This court was of the opinion that: the contract in this case represented the true intention of both parties, the content of which did not prejudice the legal rights and interests of the state, collective and third party, was notarized, and should be determined as having been formed. Article 44 of the Contract Law 北大法宝provides that: “A contract formed according to law shall be effective upon formation. If a law or administration regulation provides that a contract shall be effective only after it has undergone the formalities for approval, registration, etc., such a law or administrative regulation shall apply.” Article 44 of the Land Administration Law provides that: “Where the land occupied for construction involves the transformation of farmland into construction land, the examination and approval formalities for transformation of farmland into construction land shall be conducted.” Therefore, this court determines that the part of the contract concerning the land without the government's approval of transformation of farmland into construction land in this case was invalid. According to Article 56 of the Contract Law, the invalidity of any part of a contract shall not affect the validity of the rest of the contract, and the rest of the contract shall remain valid. In this case, the determination of invalidity of a part of the contract will not affect the validity of the rest of the contract. Hence, it should be determined that the assignment of right to use the land of 84 mu with the government's approval was effective, the assignment of right to use the land of 131 mu without the government's approval was ineffective, and the other clauses of the contract remained effective. The claim in appeal of Laoshan Branch of Land and Resources that the assigned land under the contract in this case was indivisible and the partial validity or invalidity in quantity did not apply should not be supported by this court. (一)关于《国有土地使用权出让合同》效力的认定问题。本合同虽约定合同须经山东省人民政府批准方可生效,但在合同签订前,合同项下的84亩土地已经山东省人民政府批准,由农业用地转为建设用地,故这部分土地未经审批不影响相应部分的合同效力;合同项下其余部分土地尚未办理农用地转用审批手续,按约定合同尚未生效,依法不得出让。崂山国土资源分局认为合同已经成立但未生效,不应认定部分有效、部分无效。本院认为,涉案合同是双方当事人的真实意思表示,内容不损害国家、集体和第三人的合法权益,且已经过公证,应认定已经成立。我国《合同法》第四十四条小词儿都挺能整规定:“依法成立的合同,自成立时生效。法律、行政法规规定应当办理批准、登记等手续生效的,依照其规定。”《土地管理法》第四十四条规定:“建设占用土地,涉及农用地转为建设用地的,应当办理农用地转用审批手续。”据此认定本案中未经政府批准农转用土地的部分合同无效。根据《合同法》第五十六条的规定,部分合同无效,不影响其他部分效力的,其他部分仍然有效。就本案情况看,认定部分合同无效,不会影响其他部分的效力。因此,应当认定合同中经过政府批准的84亩土地使用权出让有效,未经政府批准的131亩土地使用权出让无效,其他合同条款仍然有效。对于崂山国土资源分局关于涉案合同项下转让的土地是不可分物,不适用量上的部分有效、部分无效的上诉主张,本院不予支持。
2. Whether the amount of land assignment cost having been paid by Qiankun Co. as determined in the judgment of first instance was correct. The court of first instance determined that Qiankun Co. had paid 7,880,000 yuan of land assignment cost to Laoshan Branch of Land and Resources, to which Qiankun Co. had no objection. Laoshan Branch of Land and Resources only admitted having received 4,880,000 yuan of the land assignment cost from Qiankun Co., from which 3,813,357 yuan was deducted by the People's Court of Laoshan District, and only 1,066,643 yuan was left. The main divergence between both parties was whether the check of 3,000,000 yuan paid by Qiankun Co. to the Land Management Station on March 26, 2003 should be counted in the land assignment cost. This check bore no date of issuance, and should be deemed as invalid. The Land Management Station could not transfer the bank deposit of Qiankun Co. with this invalid check. The act of issuing the check of Qiankun Co. should be determined as an invalid civil act. Although the Land Management Station issued a receipt after receiving the check, due to the invalidity of the check, the receipt issued by the Land Management Station did not mean that it had received or was able to receive the land assignment cost of 3,000,000 yuan. Qiankun Co. also did not make correction of the check subsequently. In fact, Laoshan Branch of Land and Resources did not receive this payment. Because Qiankun Co. was liable for the invalidity of the check, Qiankun Co. should not be deemed as having paid the land assignment cost of 3,000,000 yuan simply by delivery of the check. The defenses of Laoshan Branch of Land and Resources on the invalidity of the check had both factual and legal basis, and should be supported by this court. The land assignment cost of 7,880,000 yuan having been paid by Qiankun Co. to Laoshan Branch of Land and Resources as determined in the judgment of first instance was wrong and should be corrected. (二)关于一审认定乾坤公司交纳土地出让金的数额是否正确的问题。一审认定乾坤公司已向崂山国土资源分局交纳土地出让金788万元,乾坤公司对此不持异议。而崂山国土资源分局只承认收到乾坤公司的土地出让金488万元,且被崂山区人民法院划走3 813 357元,目前仅剩1 066 643元。双方当事人的主要分歧在于2003年3月26日乾坤公司向土地管理所交付的一张300万元的支票应否算作已付土地出让金。鉴于该支票因无出票日期而被认定为无效,凭无效支票不能划转乾坤公司的银行存款。乾坤公司的出票行为应被认定为无效民事行为。尽管土地管理所收到这张支票后出具了收据,但因支票无效,土地管理所出具的收据并不意味着已经或者能够收到300万元土地出让金,事后乾坤公司也未对这张支票进行补正。事实上崂山国土资源分局也未收到此笔款项。由于乾坤公司对这张支票的无效具有过错,不能认定乾坤公司提交这张支票即视为其支付了 300万元土地出让金。崂山国土资源分局关于该支票无效的抗辩具有事实和法律依据,本院应予支持。一审认定乾坤公司已向崂山国土资源分局支付土地出让金788万元有误,应予纠正。
To execute the civil rulings (No. 297 and No. 1162 [2004], Execution, Laoshan), on March 25, 2005, the People's Court of Laoshan District forcibly transferred 907,528 yuan and 2,905,829 yuan into the account of the court from the land assignment cost paid by the party subject to execution, Qiankun Co., to Beizhai Sub-district Office. On March 29, Beizhai Sub-district Office sent a letter to Qiankun Co., stating that the People's Court of Laoshan District forcibly deducted 3,813,357 yuan from the financial funds of Beizhai Sub-district Office, and Beizhai Sub-district Office had paid 4,866,230,000 yuan from the land assignment cost of 4,880,000 yuan paid by Qiankun Co. So, the judgment of the first trial was correct to determine the amount of land assignment cost having been paid by Qiankun Co. as 4,880,000 yuan. The land assignment cost which should be paid by Qiankun Co. should be calculated according to the area of assigned land under the valid part of the contract. The land assignment cost to be paid by Qiankun Co. should be 5,782,089.60 yuan (84mu × 667 square meters × 103.2 yuan = 5,782,089.60 yuan). Because the paid 4,880,000 yuan was lower than the due land assignment cost, it should be determined that Qiankun Co. failed to pay off the land assignment cost under the valid part of the contract. 为执行(2004)崂执字297号、1162号民事裁定书,崂山区人民法院于2005年3月25日扣划被执行人乾坤公司在北宅街道办事处的出让土地定金907 528元、 2 905 829元至该院账户。同月29日,北宅街道办事处致函乾坤公司称,崂山区人民法院强行扣划北宅街道办事处财政款 3 813 357元,北宅街道办事处已从乾坤公司交付的土地出让金488万元中支付 486.623万元。因此,一审判决认定乾坤公司交纳的土地出让金为488万元是正确的。乾坤公司应交纳的土地出让金应按照合同有效部分的土地出让面积计算,乾坤公司应交纳的土地出让金为5 782 089.6元(84亩×667平方米×103.2元=5 782 089.6元),所付488万元低于应付的土地出让金数额,故应认定乾坤公司未交齐合同有效部分的土地出让金。
3. Whether Laoshan Branch of Land and Resources had the right to cancel the contract. The precondition to the cancellation of a contract is that the contract has come into force. Article 31 of the Contract on Assignment of Right to Use State-owned Land in this case provided that where the assignee delayed in payment of the land assignment cost for over six months, the assigner should have the right to cancel the contract. In the contract, they did not agree on the time limit for exercising the right to cancel the contract, and did not agree that the assigner should make prompting before cancellation of the contract. Considering that part of the contract was valid, Qiankun Co. should, within the extent of the valid part of the contract, perform it obligations. The contract involved in this case was signed on January 16, 2003, and by March 26, 2003, Qiankun Co. had paid 4,880,000 yuan of the land assignment cost to Laoshan Branch of Land and Resources, lower than the total land assignment cost of the land of 84 mu. Hence, the condition for cancellation of the contract was satisfied. Laoshan Branch of Land and Resources, according to Article 93 (2) of the Contract Law, exercised the right to cancel the contract, and notified Qiankun Co. of the cancellation. Laoshan branch of Land and Resources did not make a prompting to Qiankun Co., which, however, did not constitute a breach of contract. The claim of Laoshan Branch of Land and Resources that it had the right to cancel the contract because Qiankun Co. did not pay off the land assignment cost as scheduled under the contract should be supported by this court. The claim of Qiankun Co. that Laoshan Branch of Land and Resources had no right to unilaterally cancel the contract because the condition for cancellation of the contract was not satisfied should not be supported by this court. (三)崂山国土资源分局是否有权解除合同。解除合同的前提是合同已经生效。涉案《国有土地使用权出让合同》第31条约定,受让人延期支付土地出让金超过6个月的,出让人有权解除合同。该合同未约定行使合同解除权的期限,也未约定出让方在解除合同前要进行催告。鉴于该合同部分有效,乾坤公司应在合同有效部分的范围内履行义务。涉案合同于2003年1月 16日签订,截至2003年3月26日,乾坤公司向崂山国土资源分局交付土地出让金 488万元,未达到84亩土地的出让金总额。因此,解除合同的条件已经成就。崂山国土资源分局根据《合同法》第九十三条第二款的规定,行使了合同解除权,且已经通知了乾坤公司。其未对乾坤公司进行催告,并不构成违约。对崂山国土资源分局关于乾坤公司没有按期付清合同项下全部土地出让金,其有权解除合同的主张,本院应予支持。对乾坤公司关于解除合同的条件未成就,崂山国土资源分局无权单方解除合同的主张,本院不予支持。
JUDGMENT 
In conclusion, this court is of the opinion that according to the provisions of the contract on assignment of right to use state-owned land between both parties, the part of the contract with the government's approval should be valid and the part without the government's approval should be invalid. The valid part of the contract should be performed by both parties. Qiankun Co. failed to perform its obligation of payment of the land assignment cost under the valid part of the contract within the period of time as set out in the contract, the condition for cancellation of the contract had been satisfied, and the act of cancellation of the contract of Laoshan Branch of Land and Resources was effective. After cancellation of the contract, Laoshan Branch of Land and Resources should no longer perform the obligation of assigning the right to use 84 mu of land. The appeal of Laoshan Branch of Land and Resources is reasonable, and should be supported by this court. The facts found by the court of first instance were unclear, the application of law by the court of first instance was improper, and the judgment of first instance should be quashed. According to Article 153 (1) (c) of the Civil Procedure Law of the People's Republic of China, this court rules as follows: 综上,本院认为,根据双方当事人在土地出让合同中的约定,涉案合同经过政府批准的部分有效、未经政府批准的部分无效。对于合同的有效部分,双方当事人均有义务履行。乾坤公司未在合同约定的期限内履行合同有效部分的交纳土地出让金的义务,解除合同的条件已经成就,崂山国土资源分局解除合同的行为有效。合同解除后,崂山国土资源分局不再履行向乾坤公司出让84亩土地使用权的义务。崂山国土资源分局的上诉有理,本院予以支持。一审法院认定事实不清,适用法律不当,应予改判。依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(三)项的规定,判决如下:
The claims of Qingdao Qiankun Wood Industrial Co., Ltd. shall be rejected. 驳回青岛乾坤木业有限公司的诉讼请求。
The case acceptance fee for the trial of the first instance, 160,778 yuan, and the case acceptance fee for the trial of the second instance, 192,586.01 yuan, shall be paid solely by Qingdao Qiankun Wood Industrial Co. Ltd. 本案一审案件受理费160 778元,二审案件受理费192 568.01元,均由青岛乾坤木业有限公司负担。
This judgment shall be final. 本判决为终审判决。
Presiding judge: Han Yanbin 审 判 长 韩延斌
Judge: Zhang Jinxian 审 判 员 张进先
Acting judge: Song Chunyu 代理审判员 宋春雨
November 30. 2007 二OO七年十一月三十日
Clerk: Wei Da

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