China: 土地二级市场将走向制度化和规范化

Last Updated: 26 July 2019
Article by Li Deting
Most Read Contributor in China, August 2019

2019年5月29日,中央全面深化改革委员会第八次会议审议通过《关于完善建设用地使用权转让、出租、抵押二级市场的指导意见》,2019年7月6日国务院办公厅正式发布《关于完善建设用地使用权转让、出租、抵押二级市场的指导意见》(下称"《指导意见》"),建设用地二级市场建设过程中又一重大里程碑。

一、《指导意见》的出台背景

土地二级市场是相对于土地一级市场而言。土地一级市场是指国有建设用地出让市场(下称"土地一级市场"),即在土地主管部门管理、组织下通过招拍挂或者协议出让的方式出让国有建设用地使用权的市场。相应地,土地二级市场是指出让国有建设用地的转让、出租、抵押土地再交易行为所形成的市场(下称"土地二级市场")。

长期以来,土地一级市场是我国土地市场建设的重点,制度比较完善,政府监管比较严格,因此也相对比较规范。不同于土地一级市场,传统上,土地二级市场交易主要是市场主体的自发行为,政府介入和监管较少,配套制度不健全,土地二级市场上的违法违规交易行为较为普遍;而另一方面,现阶段土地二级市场服务体系不健全,缺少信息发布平台和交易信息系统,导致信息不对称,交易不透明,不利于监管和调控。

随着我国土地一级市场土地供应量的减少,二级市场土地交易变得越发频繁,健全完善二级市场有利于优化土地资源配置、盘活利用存量建设用地、促进土地节约集约利用。因此,近年我国政府开始规划土地二级市场建设。2017年1月22日国土资源部(现为自然资源部)印发《关于完善建设用地使用权转让、出租、抵押二级市场的试点方案》(下称"《试点方案》"),在全国34个市、县开展土地二级市场试点工作,并于2018年第三季度陆续对全国34个市、县土地二级市场试点成果进行了验收。

此次《指导意见》是在总结前期试点工作经验基础上,将土地二级市场制度化建设推向全国。

二、《指导意见》的重点内容

《指导意见》从"总体要求"、"完善转让规则,促进要素流通"、"完善出租管理,提高服务水平"、"完善抵押机制,保障合法权益"、"创新运行模式,规范市场秩序"、"健全服务体系,加强监测监管"及"保障措施"几个方面对土地二级市场建设提出了要求。我们将在下表中将社会投资人普遍关心建设用地使用权转让、出租、抵押等重点内容予以介绍。

三、《指导意见》的影响

《指导意见》很好地体现了"放、管、服"行政管理体制改革总体要求。在放权方面,完善交易规则,简化交易程序,实施差别化的税费政策,促进生产要素流通;在管理方面,建立和完善监测监管信息系统,将土地二级市场交易行为纳入统计、监测和管理,完善土地二级市场的价格形成、监测、指导、监督机制,防止交易价格异常波动。强化土地一、二级市场联动,加强对土地市场的整体调控,维护市场平稳运行;在服务方面,搭建平台,发展互联网政务,精简办事程序,压缩办理时间,提高办事效率和服务水平,提供专业支持,营造良好的交易环境。

通过"放、管、服"相结合,一方面不规范的二级市场交易行为将得到遏制,另一方面,规范的二级市场交易行为能够更加便利的进行,有利于促进土地生产要素的流通,增加二级市场土地的供应量,盘活存量建设用地,促进土地节约集约利用。

文中备注

1.《中华人民共和国城市房地产管理法》第三十九条规定:以划拨方式取得土地使用权的,转让房地产时,应当按照国务院规定,报有批准权的人民政府审批。有批准权的人民政府准予转让的,应当由受让方办理土地使用权出让手续,并依照国家有关规定缴纳土地使用权出让金。以划拨方式取得土地使用权的,转让房地产报批时,有批准权的人民政府按照国务院规定决定可以不办理土地使用权出让手续的,转让方应当按照国务院规定将转让房地产所获收益中的土地收益上缴国家或者作其他处理。

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