As the most important natural resource, land transaction at the national level has strict legal regulations and market supervision. As far as the right to use construction land is concerned, it can only be transferred according to law if certain conditions are met. Whether it is the Constitution, the Land Management Law, or other laws, or administrative regulations such as the Provisional Regulations on the Assignment and Transfer of the Right to Use Urban State-owned Land, it is prohibited to buy, sell, or illegally transfer land in other forms. The establishment of the crime of illegally transferring or reselling land use rights in Article 228 of the Criminal Law is the most severe punishment for illegal transfer of land. In practice, there is a very common phenomenon that company shareholders implement equity transfer with land use rights as the content. So, under the current legal system in China, can this situation be recognized as the crime of illegally transferring or reselling land use rights in criminal law?

1、 Judicial Practice Observation

Based on the author's experience in handling cases and the search of judicial cases, it is found that there are both guilty and innocent judgments for this type of behavior, which can reflect the apparent contention of views on this issue.

The main argument of the guilt theory is that the actor transfers the land use right under his control to another person in the form of transferring equity to seek benefits, which is in violation of land management regulations and covers up the purpose of illegal transfer and reselling of land use rights in the form of equity transfer. Criminal responsibility should be investigated for the crime of illegal transfer and reselling of land use rights. Such as (2020) Zhe 03 Xing Zhong No. 327, (2016) Zhe 0324 Xing Chu No. 578, (2013) Jin Yi Xing Chu Zi No. 1257, (2016) Zhe 0727 Xing Chu No. 00094, (2020) Ji 06 Xing Zhong No. 313, (2019) Xiang 1222 Xing Chu No. 123, (2017) Wan 04 Xing Zhong No. 13, (2017) Wan 1824 Xing Chu No. 126, (2009) Wu Xing Chu Zi No. 89, (2008) Hu Yi Zhong Xing Chu Zi No. 312, (2016) Nei 2501 Xing Chu Zi No. 27, and other cases.

The main argument of the theory of innocence is that the transfer of corporate equity and the transfer of land use rights have different legal natures and are two independent legal relationships. There are no mandatory provisions in current laws and regulations prohibiting the transfer of land use rights or real estate projects through the transfer of company equity. After the equity transfer, although the shareholders of the company have changed, the company that holds the land use right has not changed. The equity transfer does not necessarily result in serious disruption of the local land use right market order. Therefore, the act of transferring the land involved in the equity transfer together should not be included in the scope of criminal law as a crime. Such as: (2019) Lu 02 Xing Zhong No. 204 (this case was compiled as the "Criminal Trial Reference" guidance case No. 1451), (2018) Gan 0191 Xing Chu No. 3, (2017) E 02 Xing Zhong No. 40, (2017) Gan 0483 Xing Chu No. 93, (2017) Qian 2701 Xing Chu No. 49, and other cases.

2、 The viewpoint of this article: The transfer of equity based on land use rights should not be recognized as the crime of illegally transferring or reselling land use rights

Based on the fundamental differences between equity transfer and land use right transfer, the principle of legality for crimes, the nature of serious social harm caused by criminal crimes, the correct understanding of the criminal motives of commercial profits and illegal profits, the reality and common sense of the real estate market, the unique normative value and functional positioning of company law, the principle of unity of legal order, and the principle of modesty in criminal law, we should uphold a prudent attitude and pay attention to the essence of the criminal constitution, The transfer of equity based on land use rights should not be recognized as a criminal offence.

（1） There is a fundamental difference between equity transfer and land use right transfer, and equity transfer does not lead to the transfer of land use right

A company is a subject with independent legal personality and has independent legal property. The shareholders of a company and the company belong to different legal entities. Once the shareholders have completed their capital contributions, they are no longer allowed to freely dispose of the assets of the completed part of the capital contributions. Land use rights and equity have different legal natures. When a company enjoys land use rights, the transfer of equity will only result in changes in the company's shareholders' industrial and commercial registration level, but the subject of ownership of land use rights has never changed in law. However, as a crime of illegally transferring or reselling land use rights, as the name suggests, it requires that the ownership of land use rights must be transferred. Therefore, since there has been no transfer of the subject of land use rights, this situation should not be included in the scope of regulation of this crime.

（2） There is a fundamental difference between the ownership of company property and the indirect control and usufruct of shareholders over company property. Treating the transfer of shareholders' equity as the transfer of land use rights violates the basic principle of legality in criminal law
The ownership of all physical properties of the company belongs to the company. The acquisition of equity by shareholders means that they have obtained a certain degree of indirect control over the company's property, participation rights, and income distribution rights, rather than ownership of a specific entity's property. The rights and interests of specific property can only be recognized when the company's property is divided. The equity of a company itself is a virtual capital nature, and the transfer of equity is different from the transfer of specific physical assets.

The ownership of land use rights belongs entirely to the company's main body, and the transfer of land use rights is a transfer of the right to control specific physical assets, which is fundamentally different from the transfer of equity. When a company's equity is transferred, it is objectively inevitable that the rights of the company such as income from assets, participation in major decisions, and selection of managers will be transferred from the transferor to the transferee. However, the land use right as a company's physical asset is still registered in the company's name, and the nature of the company's legal person property of the land use right has not changed. It cannot be considered that as long as land use rights are involved in equity transfer, the nature of shareholder equity transfer becomes the transfer of land use rights.

According to Article 19 of the Provisional Regulations of the People's Republic of China on the Assignment and Transfer of the Right to the Use of Urban State-owned Land, the transfer of the right to the use of land refers to the act of land users to retransfer the right to the use of land, including sale, exchange, and gift. Strictly in accordance with the textual interpretation, the so-called sale, exchange, and gift should refer to the "direct" transfer of land use rights in the sense of real rights. The principle of a legally prescribed punishment for a crime is one of the most basic principles of criminal law, and is the life of criminal law. Strictly implementing written legalism and prohibiting analogical interpretations are the core principles of the principle of a legally prescribed punishment for a specified crime. As mentioned earlier, land use rights and shareholder equity are two completely different things, and the ownership of company property is also completely different from the indirect control and usufruct of shareholders over company property. Equity transfer is also completely different from the direct sale, exchange, and gift of land use rights. If an equity transfer with land use rights as its content is arbitrarily expanded to a transfer of land use rights, it clearly belongs to an analogy explanation, Serious violation of the principle of legality.

Criminal law and civil law certainly have different thinking logic, which is often said to be "civil law pays more attention to formal judgment, while criminal law pays more attention to substantive judgment.". To a certain extent, the criminal essence can pierce the appearance of civil and commercial affairs, which is also an important foothold for the guilty theory to believe that "equity transfer with land use rights as the content is actually a form of equity transfer to implement the real transfer of land use rights.". However, we must also strictly and soberly grasp the point that no matter how the criminal essence penetrates the appearance of civil and commercial affairs, it is absolutely not allowed to violate the most basic principle of legality in criminal law.

Therefore, the author believes that the basic viewpoint of guilt theory cannot be established.

（3） The transfer of equity does not substantially undermine the legal benefits of land management and does not have serious social harmfulness

The crime of illegally transferring or reselling land use rights belongs to administrative crimes. From the perspective of the relationship between administrative law and criminal law, we should adhere to the relatively independent judgment of criminal law, and this judgment is substantive. Constituting this crime must be premised on violating the laws and regulations related to land management, but it is by no means necessary to constitute this crime as long as the administrative law norms are violated. In fact, in judicial practice, the reason why there are quite a number of phenomena that identify "equity transfer behavior with land use rights as the content" as a crime is, to a certain extent, due to the improper tendency to equate administrative illegality with administrative crime, ignoring the substantive legal boundary between administrative illegality and crime. On the issue of land use right transfer, both administrative laws and regulations and criminal law regulate the land use right management system, aiming at protecting state-owned land resources, but the two are laws at different levels of protection. Therefore, on the issue of how to distinguish between administrative illegality and crime, criminal justice must comprehensively analyze whether such acts have materially violated the legal interests of land use right transfer management, whether they have serious social harm, and make a substantive judgment on whether they constitute a crime, based on the circumstances of the crime, the cause of the act, the consequences of the act, and the business environment. In fact, generally speaking, in the transfer of equity based on land use rights, neither the state's planning for land management nor irreparable damage has been caused to the land itself, nor has state-owned land resources been lost, nor has the act itself seriously harmed public interests. On the contrary, for some land that has not been developed in a timely manner due to various reasons, the transfer of equity has instead played a role in promoting investment, development and construction, accelerating and improving the efficiency of land use, and promoting the optimal allocation of the land resource market. Therefore, this indicates that this behavior does not have serious social harm in essence and is not worthy of punishment.

（4） Correctly grasp the difference between the criminal motives of commercial profits and illegal profits

Land is a rare resource that generally only increases in value under current market economic conditions. Therefore, in the equity transfer with land use rights as the content, the actor often objectively makes profits more or less, even at a high amount. This is easily associated with the "profit-making purpose" of the crime of illegally transferring and reselling land use rights. On the issue of crime and non crime, it is particularly important to correctly grasp the difference between the criminal motives of commercial profits and illegal profits.

Commercial activities themselves focus on profitability, with the pursuit of efficiency as their value goal. There is no problem with the commercial profits brought about by the objective market environment. There is nothing wrong with the profit-seeking nature of businessmen. In the process of equity transfer, on the premise of not violating existing legal provisions, the equity premium and value-added benefits objectively obtained by shareholders as actors due to the maintenance and appreciation of the company's land still belong to the expected commercial benefits allowed by the market economy, which is the result of the role of the law of market economy value, and there is no justification, There should be no illegal identification of legitimate commercial profit-making actions by shareholders. On the contrary, as the subjective element of the crime of illegally transferring or reselling land use rights, the "purpose of making profits" must be the purpose of intentional crime, which is completely different from the commercial profits allowed by the market economy. Therefore, it is necessary to strictly grasp the difference between legitimate commercial profits and criminal profits, and beware of criminal judicial errors that interfere with market economic behavior.

（5） Identifying the transfer of equity as a crime of illegal transfer or reselling land use rights violates the reality and common sense of the real estate market

Perhaps it is easier for people to focus on external transfer of equity, even in extreme cases, such as companies with only land use rights. However, the following two situations cannot be ignored, and in fact are also widespread. The first is the transfer of equity between shareholders within the company; The second is the situation where a company transfers a large amount of its equity (including two types: (1) real estate enterprises and non real estate companies implement a large amount of equity transfer; (2) A large number of equity transfers carried out by listed companies every day. As a real estate enterprise, land use rights are a very important asset, so in these two types of equity transfers, there are bound to be a large number of situations that include land use rights. If these acts are recognized as crimes, it means that once a real estate company is established, all equity transfers and shareholder movements, including land use rights, must be prohibited before the development is completed in full accordance with the land management regulations. This is not in line with the objective laws of the market economy, but also completely deviates from the legislative purpose of the company law. At the same time, the negative consequences for the national economic construction will also be immeasurable.

Therefore, criminalizing and punishing the transfer of equity based on land use rights is not consistent with the reality of the real estate market, but also contrary to common sense. In addition, if only some cases are investigated for criminal responsibility, there is an obvious problem of selective law enforcement, which also deviates from the track of socialist modernization and the rule of law.

（6） The unique technical normative value of commercial law must be considered in the criminal law evaluation of commercial acts

Equity transfer is a commercial act, and company law is a special law of commercial law. As a core component of private law, company law embodies the essential requirements of the market economic system. Commercial law has a strong technical normative characteristic and is a well-designed economic system, unlike civil law, which focuses more on general knowledge and social ethics. The construction of a series of rules in the company law, such as the independent positioning of the company's main body, the design of the articles of association, and the equity mechanism, reflects the priority of efficiency, protects fairness and transaction safety, and pursues a good business environment, thereby promoting the sustainable and high-quality development of China's social economy. Therefore, to evaluate such commercial transactions as the intersection of land use rights and equity transfer in criminal law, it is necessary to consider the unique technical normative value and functional positioning of commercial law.

Equity transfer is a legal act in company law, and equity transfer does not lead to changes in the subject of land use rights. And as mentioned above, the transfer of equity based on land use rights does not belong to the transfer of land use rights explicitly prohibited by law. Therefore, under the consideration of a legally prescribed crime and punishment, as well as the unique technical normative value and functional positioning of commercial law, the transfer of equity based on land use rights should naturally not be criminalized.

（7） Based on the principle of unity of law and order, the basic position of civil justice cannot be ignored

The basic position of civil law and civil judicial activities is that since the transfer of equity based on land use rights does not violate the mandatory effectiveness provisions of land management laws and regulations, such equity transfer contracts are legal and effective. Although the legal effectiveness of civil acts is not a decisive factor affecting the evaluation of criminal law, based on the principle of the unity of legal order, in the face of criminal law evaluation of special acts such as equity transfer, it is natural to not ignore the basic position of civil law, and the purpose is also to maintain the security and stability of the market and promote economic development.

（8） Based on the principle of modesty in criminal law, priority should be given to the application of other departmental laws to adjust this type of behavior

Criminal law is the law that regulates crimes and penalties, the "safeguard law" and "backing law" of other departmental laws, and the last line of defense for safeguarding society. One of the main points of the principle of modesty in criminal law is that it is necessary to use criminal law to convict and punish only when the application of other sanctions is insufficient to curb illegal acts and protect legitimate rights and interests. The principle of modesty in criminal law embodies the boundaries of criminal law and the temperature of justice, highlights humanistic care, and needs to avoid mechanical application of the law. When evaluating the criminal law for situations where legitimate equity transfer behaviors are intertwined with land use rights issues, it is necessary to focus on the degree of social harm of the behavior and whether commercial or administrative laws are sufficient to regulate it. "If it cannot be proved that such an act of equity transfer has caused serious disruption to the management order of land use rights, and does not have serious social harm, of course, it should not be recognized as a crime.".

To sum up, under the legislative model of Article 228 of the Criminal Law, which provides for the crime of illegal transfer and reselling of land use rights with blank counts, the criminal evaluation of equity transfer with land use rights as the content cannot be separated from the analysis of concepts such as equity transfer and land use rights transfer, corporate property ownership and shareholder rights, commercial profits and illegal profits, as well as the principle of legality in criminal law Correct and reasonable understanding and comprehensive consideration of the social harmful nature of criminal crimes, the reality and common sense of the real estate market, the unique normative value and functional positioning of company law, the unity principle of legal order, and the principle of modesty and restraint in criminal law. Only in this way can the issue of crime and non crime of this type of behavior be accurately defined in a modern legal system and under the guidance of modern social governance and market economic adjustment issues.

3、 Risk warning for this type of equity transfer behavior

"Legal equity transfers should be protected in accordance with the law, but the details of different cases may vary greatly, and any case must be analyzed and comprehensively grasped.". At the same time, attention should also be paid to effectively preventing the occurrence of land speculation and actively preventing and controlling various criminal and legal risks.

When formulating merger and acquisition plans for real estate projects, it is necessary to optimize the equity structure, establish a multi-level equity layout, and reduce or avoid criminal legal risks.

If it is indeed impossible to invest in the development and utilization of land within the prescribed time limit and conditions, it is necessary to return the land to the country in accordance with the law and regulations, avoid autonomous transfer, and actively prevent potential criminal risks.