中国房地产投资——外资参与的法律问题及其分析（英文）
Real Estate Investment in China—Legal Review and Analysis of Foreign Investors’ Participation
李寿双
【关键词】房地产 外资 Real Estate
【全文】
Real Estate Investment in China
—Legal Review and Analysis of Foreign Investors’ Participation
In recent years, China’s real estate market has been in a rapid development. The annual growth rate of real estate development and investment as well as the floor space of houses completed has been at 20 percent for successive years. There are 500 million urban people in China now. 5.5 million Sets of houses are built each year, of which marketable house built by developers account for about 45 percent. As a pillar industry for the national economy, China’s real estate industry contributes 1.9-2.5 percentage points to the GDP. China’s real estate market will remain 20 year prosperity due to the need of macro economy development, the requirement of full construction of a fairly well-off society, the promotion of accelerated urbanization, and the promotion of China’s WTO accession.
Legal Analysis on Foreign Investment in Chinese Real Estate Industry
Legal framework of a land use system
Separation of a land use right and land ownership
Private ownership of land has been abolished in China. Under article 10 of the 1982 Constitution, urban land belongs to the state, with rural land owned by the collectives. Since the rural collectives are administratively subject to the leadership of the central and local governments, it can be generally construed that all land ownership is commanded by the state.
Although private ownership of land is not available in China, article 2 of the Constitution’s Amendment Act 1988 provides that a land use right is allowed to be transferred. Under this context, a land use right becomes divisible from land ownership, thus making it likely for the former to be privatized. Transfer of a land use right has accounted for most of the business activity in the primary real estate market. It is actually a kind of administrative practice by the land administration authority which, on behalf of the government, takes charge of granting permission to prospective land users who have already paid the required land transfer fees.
However, it was not until the amendment of the Constitution in 1988 that a land use system had been able to be established on a leasehold basis, which means for a fixed term. Most Chinese organizations in the past were administratively assigned free properties for the purpose of their business use. Because of this historical reason, a dual land use system is still operational at present. In the instance of a wholly foreign invested enterprises, foreign investors have to pay for the use of the required site. When it comes to the joint venture enterprises, many local Chinese entities are in possession of the right to use and control the land obtained free from the state, and may transfer such right to other parties or contribute them as an investment substitute in equity or co-operative joint ventures. Although in theory the land owner, that is, the state, is entitled to claim back part of the profits from the local entities in question, a lack of legal provisions in the existing legislation has exempted them from being asked to do so. That is why some foreign investors, when talking about real estate business, often grumble at the current uneven footing in competition with local counterparts.
