Article 1
These Measures are formulated for the purpose of attracting foreign investment for the development and management of tracts of land (hereinafter referred to as "tract development") so as to intensify the construction of public works, improve the environment for investment,introduce foreign-invested technically advanced enterprises and export-oriented enterprises and develop the export-oriented economy.
Article 2
The term "tract development" as used in these Measures means that after obtaining the right to the use of state-owned land, the investors shall carry out, as planned, comprehensive development and construction on the land, including levelling the ground and constructing such public works as water supply and drainage systems, power and heat supply systems, roads and communications networks, and communications facilities, so that conditions shall be created for the land to be used for industrial or other construction purposes. The investor shall then transfer the right to the use of the land for operating public utilities, or proceed to construct such above-ground buildings as industrial houses and the supporting facilities for production and everyday life services and engage in the business activities of transferring or leasing these above-ground buildings.
Definite development targets shall be specified for tract development and there shall be definite construction projects that are intended to make use of the developed land.
Article 3
With respect to a project to attract foreign investment for tract development, the municipal or county people's government shall organize the drawing up of a tract development project proposal (or a feasibility study report, the same hereinafter).
With respect to a tract development project which is to make use of 1,000 mu or less of arable land or 2,000 mu or less of other land and whose amount of investment for comprehensive development falls within the limits of powers for examination and approval of the people's government of the province, autonomous region or municipality directly under the Central Government (including the people's government or administrative committee of a special economic zone, the same hereinafter), the project proposal shall be submitted to the people's government of the province, autonomous region or municipality directly under the Central Government for examination and approval.
With respect to a tract development project which is to make use of more than 1,000 mu of arable land or more than 2,000 mu of other land and whose amount of investment for comprehensive development exceeds the limits of powers for examination and approval of the people's government of the province, autonomous region or municipality directly under the Central Government, the project proposal shall be submitted, through the people's government of the province, autonomous region or municipality directly under the Central Government, to the State Planning Commission for examination, verification and overall balancing and then to the State Council of the People's Republic of China for examination and approval.
Article 4
Foreign investors who intend to invest for tract development shall, in accordance with the respective provisions of the Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures, the Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures and the Law of the People's Republic of China on Foreign-Capital Enterprises, form a Chinese-foreign equity joint venture, or a Chinese-foreign contractual joint venture or a foreign-capital enterprise (hereinafter referred to as a "development enterprise") to engage in the development and management of the tract of land.
Development enterprises shall be governed and protected by the law of China and all their activities shall abide by the laws and regulations of the People's Republic of China. Development enterprises shall have the right to act on their own in business operations and management in accordance with the law, but they shall have no administrative power in their development areas. The relationship between a development enterprise and other enterprises shall be of a commercial nature.
The State encourages the state-owned enterprises to form development enterprises with foreign investors by using the right to the use of state-owned land as investment or condition of co-operation.
Article 5
Development enterprises shall obtain the right to the use of the state-owned land in their development areas in accordance with the Law.
In assigning the right to the use of State-owned land to a development enterprise, the people's government of the municipality or county where the development area is located shall, in accordance with the laws and administrative rules and regulations of the State on the administration of land, rationally specify the bounds of the tract of land, the purpose of its use, the term of assignment, the assignment fee and other conditions, sign a contract for assigning the State-owned land and submit it for approval in accordance with the limits of powers for examination and approval with respect to the assignment of the right to the use of State-owned land.
Article 6
After the right to the use of State-owned land has been assigned, the resources and objects buried thereunder shall continue to be owned by the State. If it is necessary to exploit and utilize them, the exploitation and utilization shall be administered in accordance with the pertinent laws and administrative rules and regulations of the State.
Article 7
A development enterprise shall draw up a tract development plan or a feasibility study report which shall specify the overall targets and respective targets for different stages, the specific details and requirements in the actual development, and the plan to utilize the developed land.
The tract development plan or feasibility study report shall, after examination and verification by the municipal or county people's government, be submitted to the people's government of the province, autonomous region or municipality directly under the Central Government for examination and approval. The examining and approving authorities shall organize the competent authorities concerned to provide co-ordination concerning the construction and management of the relevant public works.
Article 8
If the development area is within the limits of a planned urban area, the various items of development and construction shall be in conformity with the requirements of city planning and be submitted to the administration of the planning.
The various items of construction in a development area shall be in conformity with the laws, administrative rules and regulations and standards of the State concerning environmental protection.
Article 9
A development enterprise may transfer the right to the use of the state-owned land only after it has carried out the plan of tract development and satisfied all the conditions prescribed in the contract for assigning the right to the use of the state-owned land. No development enterprise that fails to invest for the development of the land in accordance with the conditions prescribed in the contract for assigning the right to the use of the state-owned land and the requirements of the plan for tract development may transfer the right to the use of the state-owned land.
The transfer or mortgage of the right to the use of state-owned land by development enterprises and other enterprises, and the termination of the right to the use of state-owned land shall be handled in accordance with the laws and administrative rules and regulations of the State on the administration of land.
Article 10
A development enterprise may attract investors to the development area to make investment, accept the transferred right to the use of state-owned land and launch enterprises. Enterprises with foreign investment shall be established in accordance with the respective provisions of the Law of the People's Republic of China on Chinese-Foreign Equity Joint Ventures, the Law of the People's Republic of China on Chinese-Foreign Contractual Joint Ventures and the Law of the People's Republic of China on Foreign-Capital Enterprises.
The launching of enterprises in the development areas shall be in conformity with the State policy concerning the investment in industries.
The State encourages the launching of technically advanced enterprises and export-oriented enterprises.
Article 11
The postal and communication undertakings in the development areas shall be placed under the unified planning, construction and management of the postal department. Or they may, with the approval of the province, autonomous region or municipality directly under the Central Government, be constructed with investment by a development enterprise; or the
development enterprise and the postal department may pool their investment for the construction of communications facilities, which, in either case, shall be transferred, after completion, to the postal department for operation, with financial compensation to be given to the development enterprise in accordance with the contract signed between the two parties.
Article 12
Development enterprises that invest in public utilities of their own such as power stations, heat stations and water plants within the development area may operate the business of power, water and heat supplies within the development area or hand them over to the local enterprises of public utilities for operation. If the capacity of the public utilities is in surplus, which renders it necessary to be supplied to places outside the development area or to be connected to a network outside the development area for operation, the development enterprise shall sign a contract with the local enterprises of public utilities in accordance with the pertinent
provisions of the State and operate in accordance with the conditions prescribed in the contract. If it is necessary for a development area to use water and power resources from outside, the business thereof shall be operated by the local enterprises of public utilities.
Article 13
If a development area covers a coastal port or bay, or a river port sector, the coastline or riverside line shall be placed under the unified planning and administration of the State. The development enterprise may construct and operate a special port area and wharf in accordance with the unified planning of the competent state communication authorities.
Article 14
No business activities or social activities that are banned by the laws and administrative rules and regulations of the State may be engaged within the development areas.
Article 15
If special administrative measures are required in respect of import and export administration and Customs administration for a development area which is mainly intended for the operation of export processing enterprises, these shall be submitted to the State Council of the People's
Republic of China for approval and specific measures of administration shall be formulated by the competent authorities of the State.
Article 16
The general administration, judicial administration, port administration and Customs administration in a development area shall be organized and exercised respectively by the competent authorities of the State, the people's government of the locality where the development area is situated, and the judicial organs that have jurisdiction.
Article 17
Tract development with investment by firms, enterprises and other economic organizations or individuals from the regions of Hong Kong, Macao and Taiwan shall be governed with reference to these Measures.
Article 18
These Measures shall be put into effect within the limits of the specific economic zones, the open coastal cities and the open coastal economic zones as of the date of promulgation.
相关法律服务
杨春宝一级律师简介
杨春宝一级律师,大成上海高级合伙人、资本市场部主任、国资基金研究中心主任,大成中国区私募基金专业带头人、科技与文化法律研究中心联合牵头人。执业30余年,长期从事私募基金、投融资、并购重组法律服务,尤其对对赌研究颇深且具有非常丰富的实战经验,并专注于金融机构股权投资业务。2004年起多次入选The Legal 500"私募基金"和"公司与商业"等境内外各类律师榜单,代理的中国法院首例适用外国法律审理外国公司的董事损害小股东权益纠纷案入选上海高院发布的《上海法院域外法查明典型案例》和威科先行"要案头条"。入选上海涉外法律人才库、上海市司法局鼎新法治人才库、上海国有企业改制法律顾问团,具有上市公司独立董事任职资格,系多家知名高校的兼职教授或兼职研究生导师及上海市商务委跨国经营人才培训班讲师。出版《私募股权投资基金风险防控操作实务》等16本投融资法律专著。了解更多常见法律问题
外商成片开发土地需要满足什么前置条件?
前置条件主要包括项目审批、企业设立与用地取得三个层面。法律层面,成片开发是指投资者依法取得国有土地使用权后,按计划开展土地综合开发,包括平整土地及建设供水、排水、供电、供热、道路、通信等公共设施,以形成工业或其他建设用途的条件。项目须由所在市、县人民政府组织编制项目建议书或可行性研究报告,并按用地面积和投资额分级报批。若使用耕地不超过一千亩或其他土地不超过二千亩且投资额在省级审批权限内,由省级政府批准;超出上述规模或权限的,须经国务院计划主管部门审核平衡后报国务院审批。外商投资者须依中外合资经营、中外合作经营或外资企业法律规定,设立相应的开发企业(即合资、合作或独资企业),方可从事成片开发。取得土地使用权须通过政府签订国有土地使用权出让合同,明确土地范围、用途、出让年限、出让金等条件,并按照批准权限报批。此外,开发企业还应制定包含总体目标、分期目标、开发细节和利用计划在内的成片开发规划或可行性报告,经市县审核后报省级政府批准。
开发企业在成片开发中有哪些权利限制?
从权利边界看,开发企业虽是依法设立的外商投资企业,享有法律赋予的自主经营权和自主管理权,但其权利有明确限制。首先,开发企业在其开发区域内不拥有行政管理权,它与区域内其他企业的关系属于商业关系而非行政隶属关系,这意味着开发企业不能行使政府职能,不能对区内企业实施行政命令或处罚。其次,土地使用权项下的地下资源和埋藏物仍属国家所有,若需开发利用,必须依照国家有关法律和行政法规另行办理审批手续,开发企业不能因取得土地使用权而一并获得地下资源所有权。再次,开发企业的开发建设行为须符合城市规划要求和环境保护法律、行政法规及标准,特别是在开发区域位于城市规划区内时,各项建设活动必须服从规划管理,不能突破规划限制。最后,企业自主经营只限于合同约定的开发范围和经营内容,不能超越土地出让合同和批准的开发规划擅自改变土地用途或开发条件。总体而言,开发企业的权利是经营性权利而非主权或行政性权利,其行使受国家土地管理法、城市规划法、环境保护法以及出让合同的多重约束。
开发企业何时可以转让国有土地使用权?
转让国有土地使用权的核心条件在于必须完成既定的开发投入和满足合同约定的全部条件。按照办法规定,开发企业只有按照成片开发规划和国有土地使用权出让合同的要求完成土地开发,使土地具备出让合同所设定的转让条件后,才可以依法转让土地使用权。也就是说,未按照出让合同规定的条件投入开发,也未按开发规划实施建设的企业,不得将土地使用权转让给他人。这一规则旨在防止土地投机,确保土地真正得到开发利用。除了转让外,开发企业将土地使用权用于抵押或发生土地使用权终止情形时,同样须依照国家有关土地管理的法律和行政法规办理。实务中,此条件常常表现为地块达到‘三通一平’或‘七通一平’等标准,具体以出让合同中的约定为准。此外,转让的对象可以是其他投资者,受让方可在开发区域内投资设立企业,若受让方为外商,还需按照外商投资企业设立程序办理相关手续。开发企业转让土地使用权后,其原承担的与土地开发相关的义务是否随之转移,须根据出让合同和转让合同约定,并遵守国家土地管理法律法规的相关规定。
以上内容仅供参考,不构成法律意见。如需专业法律服务,请联系杨春宝一级律师:chambers.yang@dentons.cn




