According to its sources, the land that state-owned enterprises enjoy the right to use can be divided into three types: land that has obtained the right to use by allocation, land that has obtained the right to use by allocation, and land that has obtained the right to use by lease. The land use right obtained by transfer or allocation is the usufructuary right set on the land owned by the state; The land use right obtained by leasing is the land use right of others based on the contract, not the usufructuary right. State-owned enterprises can obtain land use rights with usufructuary rights in the above ways.

Article 7 of the Urban Real Estate Management Law stipulates: "The transfer of land use right refers to the act that the state transfers the state-owned land use right (hereinafter referred to as land use right) to land users within a certain period of time, and the land users pay the land use right transfer fee to the state." Article 19 stipulates: "The land use right legally obtained by land users shall not be taken back by the state before the expiration of the service life stipulated in the transfer contract; Under special circumstances, according to the needs of social public interests, it can be recovered in advance in accordance with legal procedures, and corresponding compensation will be given according to the actual service life of the land and the actual situation of land development. " According to the current laws and administrative regulations of our country, the land use right obtained by means of transfer can be transferred, leased and mortgaged according to law, and the land use right obtained by means of transfer becomes the subject of transaction without restriction and is an independent property right. The state shall not take back the land use right obtained by state-owned enterprises due to transfer, except that it is necessary for public interests.

Article 22 of the Urban Real Estate Management Law stipulates: "The allocation of land use rights refers to the act of the people's government at or above the county level, with legal approval, handing over the land to the land users after paying the compensation and resettlement fees, or handing over the land use rights to the land users free of charge. If the land use right is obtained by allocation in accordance with the provisions of this Law, there is no restriction on the term of use unless otherwise provided by laws and administrative regulations. " "Urban Real Estate Management Law" has no special restrictions on the land use right obtained by allocation, except for certain restrictions on the conditions of use and transfer. On the contrary, it stipulates that this land use right is a right without a term of use. China's current laws and administrative regulations do not stipulate that the state can recover the land use right obtained by allocation. The reality should be that once the state-owned land is allocated, the land use right holder will use it permanently in principle. It should also be noted that China's laws and administrative regulations do not stipulate that the state can recover the land use right acquired by state-owned enterprises due to allocation when state-owned enterprises go bankrupt, so the state cannot recover the allocated land use right on the grounds of bankruptcy of state-owned enterprises.

According to the above-mentioned legal provisions, allocation is only a different way to obtain land use rights, which does not mean that land use rights obtained by allocation are not independent property rights. Therefore, there is no difference in nature between the land use right obtained by state-owned enterprises due to transfer and the land use right obtained due to allocation, although they are obtained in different ways. China's laws have some special restrictions on the use and transfer of land use rights acquired by state-owned enterprises due to allocation, and do not deny the right to dispose of allocated land use rights enjoyed by state-owned enterprises. For example, Article 50 of the Urban Real Estate Management Law stipulates: "The land use right mortgaged by real estate is obtained by allocation. After the real estate is auctioned according to law, the mortgagee can get priority compensation only after paying the amount equivalent to the payable land use right transfer fee from the auction price. " According to the above provisions, state-owned enterprises can mortgage the land use right obtained by allocation to realize the disposal of the exchange value of land use right, which is not essentially different from the mortgage of land use right obtained by transfer. Therefore, the land use right acquired by state-owned enterprises due to transfer and allocation belongs to the usufructuary right of the same nature and is the responsibility property of state-owned enterprises.

In order to implement the planned merger and bankruptcy measures of state-owned enterprises, the State Council stipulated in Article 2 of the Notice on Issues Related to the Trial Bankruptcy of State-owned Enterprises in Several Cities (Guo Fa [1994] No.59): When an enterprise goes bankrupt, the land use right legally obtained by the enterprise is mainly sold by auction or bidding, and the proceeds from the sale are first used for the placement of employees of bankrupt enterprises; If there is any surplus after the employees of the bankrupt enterprise are resettled, the remaining part will be uniformly included in the bankruptcy property distribution plan with other bankruptcy properties. According to Guo Fa [1994] No.59, when a state-owned enterprise that belongs to the merger and bankruptcy scheme of a pilot city goes bankrupt, no matter how it obtains the land use right, it can be used to resettle employees in different places, and the creditor's rights of the bankrupt state-owned enterprise are paid off according to the bankruptcy property distribution scheme. Obviously, the spirit of Guo Fa [1994] No.59 has admitted that the land use right of state-owned enterprises when they go bankrupt belongs to the responsibility property of state-owned enterprises, but only other properties different from those of state-owned enterprises are disposed of, and the land use right price is given priority to meet the employee resettlement expenses of bankrupt enterprises. Considering the public interest, there is nothing wrong with the provisions made in Guo Fa [1994] No.59.

Unfortunately, however, the position of China's judicial practice deviates from the spirit of Guo Fa [1994] No.59, and directly denies that the land use right acquired by state-owned enterprises due to allocation belongs to the responsible property of state-owned enterprises. Article 1 of the Supreme People's Court's Reply on whether the right to use state-owned land allocated by bankrupt enterprises should be included in the bankrupt property (Fa Shi [2003] No.6) stipulates that the right to use state-owned land obtained by bankrupt enterprises through allocation is not bankrupt property, and when the enterprise goes bankrupt, the relevant people's government can take it back and dispose of it according to law. State-owned enterprises incorporated into the national merger and bankruptcy plan shall obtain the right to use state-owned land according to law, which shall be handled according to the relevant documents of the State Council. Interpreting the position approved by the Supreme Law [2003] No.6, the following conclusions are worth considering: (1) The state-owned land use right of state-owned enterprises that have been included in the national merger and bankruptcy plan should be used first for the resettlement of employees of bankrupt enterprises; If there is any surplus after the employees of bankrupt enterprises are resettled, the rest will be unified with other bankrupt properties for bankruptcy distribution. At this point, the Supreme Court has inherited the position stipulated in Guo Fa [1994] No.59, which should be affirmed if it is based on the public interest. Land use rights obtained by state-owned enterprises that are not included in the national merger and bankruptcy plan do not belong to the responsibility property of bankrupt state-owned enterprises. At this point, the Supreme Court did not really understand the core spirit stipulated in Guofa [1994] No.59, and then made an expanded improper interpretation. The allocated land use right does not belong to the responsibility property of state-owned enterprises. In fact, the above conclusions are directly contrary to the provisions of the Urban Real Estate Management Law that allow the allocation of land use rights to pay off debts at different prices. At the same time, treating state-owned enterprises differently objectively harms the rights and interests of employees of state-owned enterprises who are not included in the national merger and bankruptcy plan and only allocate land.

(two) the relevant people's government can recover the land use rights allocated by state-owned enterprises and dispose of them. At this point, the state has a very broad discretion to recover the land use rights obtained by state-owned enterprises due to allocation. The state may not take back the allocated land use right, or it may take it back. If there is, it may even be without any reason. There is no legal basis for the Supreme Court to authorize the relevant people's government to recover the allocated land use right when the state-owned enterprise goes bankrupt through judicial interpretation. Moreover, the relevant people's government can recover the allocated land use right and dispose of it. There is no restriction on how to dispose of it and for what purpose, which means that the allocated land use right has been destroyed by the state, and the government can do whatever it wants. What should I do if the people's government concerned decides not to take back the land use right allocated by the bankrupt state-owned enterprise? Or to say the least, why can't the people's government concerned take back the land use right obtained by bankrupt state-owned enterprises through allocation? It can be seen that the above judicial interpretation of the Supreme Court is extremely arbitrary and does not give a standard that can be fully grasped by practice.

The author thinks that although the land use right of state-owned enterprises can be obtained in two different ways, its nature as usufructuary right is the same, and the land use right constitutes the responsibility property of state-owned enterprises from the time of acquisition. In principle, when a state-owned enterprise goes bankrupt, whether it is allocated or transferred, the land use right obtained should be included in the bankrupt property, and bankruptcy distribution should be conducted by changing the price. For the allocation of land use rights, the state-owned enterprises should also adjust their prices when they go bankrupt, referring to the provisions of Article 50 of the Urban Real Estate Management Law. After the price of land use right changes, the amount equivalent to the payable land use right transfer fee shall be paid in priority and included in the bankruptcy property for distribution.

Second, the mortgage of land use rights of state-owned enterprises

The property of a bankrupt enterprise is bankrupt property. Theoretically, the mortgaged property of bankrupt enterprises should belong to the bankrupt property with burden; Before lifting the burden, the bankruptcy property shall be used to meet the interests of the holders of security rights obtained by the burden. If the land use right of state-owned enterprises has been mortgaged, according to the provisions of Article 28 of the Enterprise Bankruptcy Law (Trial) and Article 203 of the Civil Procedure Law, it does not belong to the bankruptcy property. However, the part where the value of the land use right exceeds the amount of the secured debt shall be regarded as bankruptcy property. According to the relevant provisions of China's current laws, if the land use right of a state-owned enterprise is mortgaged, unless the mortgage is invalid, the mortgagee can exercise the mortgage right to change the price of the collateral (land use right) when the state-owned enterprise goes bankrupt, and pay off the creditor's rights secured by the land use right with the price change money. However, if the right to use the land is acquired by means of allocation, the mortgagee can get priority compensation only after paying the amount equivalent to the payable land use right transfer fee. The balance of the mortgagee's priority land use right shall be distributed as distributable bankruptcy property according to the bankruptcy property distribution scheme. The above legal provisions should have been unconditionally applied to the mortgaged land use rights of state-owned enterprises.

However, Article 2 of the Supreme Law (2003) No.6 Reply stipulates that an enterprise has no right to dispose of the state-owned land use right obtained by allocation, set up a mortgage with the land use right as the subject matter, and go through the mortgage registration formalities according to law, and the mortgage is valid with the approval of the people's government or the land management department with the right of approval; After the amount equivalent to the land use right transfer fee is paid by discounting the mortgaged subject matter or the proceeds from auction or sale, the mortgagee can enjoy the priority of compensation for the rest. The question here is not whether the mortgagee should have priority in compensation, because the mortgagee's priority in compensation for the mortgaged allocated land use right has been clearly stipulated in the Urban Real Estate Management Law and the Guarantee Law, and there is no doubt about the mortgagee's priority in compensation for the allocated land use right. The question is, after the mortgagee exercises the priority right of compensation for the allocated mortgaged land use right, if there is any surplus in the price of the land use right, does it belong to bankruptcy property? According to Article 1 of the Supreme Court Interpretation [2003] No.6 Reply, the right to use state-owned land obtained by bankrupt enterprises through allocation is not bankruptcy property. When an enterprise goes bankrupt, the relevant people's government may take it back and dispose of it according to law. Obviously, the land use right obtained by state-owned enterprises through allocation is not bankruptcy property. Even if the mortgage is established and the mortgagee exercises the mortgage, it cannot be regarded as bankruptcy property in interpretation. Therefore, the balance after the mortgagee exercises the priority right of compensation for the mortgaged land use right obtained by allocation still does not belong to bankruptcy property. There are obvious contradictions here.

The Supreme Court [2003] No.6 approved Article 2, which stipulates that the mortgage of the state-owned land use right obtained by state-owned enterprises listed in the national merger and bankruptcy plan shall be handled in accordance with the relevant documents of the State Council. However, this provision seems to be inconsistent with the relevant documents of the State Council. If the Supreme Court only stipulates that the allocated land use right is mortgaged, it shall be handled in accordance with the relevant documents of the State Council; Does the implication mean that the mortgage of the land use right obtained by transfer can be handled in accordance with the relevant documents of the State Council? In fact, the special provisions of relevant documents of the State Council on the land use right when the state-owned enterprises listed in the national merger and bankruptcy plan go bankrupt are not limited to the allocation of land use rights. Guo Fa [1994] No.59 notice stipulates that when a state-owned enterprise goes bankrupt, the land use right it has obtained according to law (whether allocated or allocated) should be used first for the resettlement of employees of the bankrupt enterprise. 1On July 25th, 996, the State Economic and Trade Commission and the People's Bank of China issued the Notice on Several Issues Concerning the Trial Merger and Bankruptcy of State-owned Enterprises with the consent of the State Council, which stipulated in Article 5: "To implement enterprise bankruptcy, we must first properly arrange the employees of bankrupt enterprises and maintain social stability. If the enterprise mortgages the land use right, the proceeds from the transfer shall be used first to resettle the employees of the bankrupt enterprise, and the remaining mortgagees shall have the priority to be compensated; If the income from the disposal of land use rights is not enough to resettle employees, the insufficient part shall be distributed in turn from the income from the disposal of unsecured property and other mortgaged property. The mortgagee shall participate in the settlement and distribution of general creditor's rights for the part that has not been paid off first. " Moreover, in 1997, the State Council issued the Supplementary Notice on Issues Related to the Trial Merger and Bankruptcy of State-owned Enterprises and the Re-employment of Employees in Several Cities, stipulating that "the resettlement expenses of employees in bankrupt enterprises shall be paid from the land use right transfer income obtained by bankrupt enterprises according to law. If the bankrupt enterprise mortgages the land use right, the proceeds from the transfer shall also be used for the resettlement of employees first. If the payment is insufficient, the insufficient part shall be paid in turn from the proceeds from the disposal of unsecured property and mortgaged property. If the proceeds from the property auction of bankrupt enterprises are still insufficient to resettle employees, they shall be borne by the people's government at the same level according to the affiliation of enterprises. " Obviously, the relevant documents of the State Council actually give priority to the resettlement expenses of employees of bankrupt enterprises over all land use rights (whether acquired through allocation or allocation). In legislative and judicial practice, when it comes to the land use right of state-owned enterprises included in the national merger and bankruptcy plan, the problem to be solved is not whether the mortgage set on the land use right can be exercised, but whether the interests of the mortgagee take precedence over the resettlement expenses of employees of bankrupt enterprises. The Supreme Court's Reply No.6 [2003] did not solve this practical problem.

There may be two reasons for the above defects in the judicial interpretation of the Supreme Court: (1) unclear understanding of the nature of the land use right of state-owned enterprises. The land use right of state-owned enterprises is artificially divided into two different rights: the land use right obtained by allocation is different from that obtained by transfer, the former does not constitute the responsible property of state-owned enterprises, and the latter constitutes the responsible property of state-owned enterprises. The land use right obtained by state-owned enterprises due to allocation does not belong to the responsibility property of bankrupt state-owned enterprises, and whether it is mortgaged has nothing to do with the liquidation and distribution of bankrupt property. The relevant state departments can recover or change the price to pay the resettlement expenses of bankrupt enterprises. It has been said before that there is no legal basis for artificially dividing the land use right of state-owned enterprises into two different rights. (2) I don't know much about the spirit of the State Council's relevant documents. As mentioned above, the spirit of the relevant documents in the State Council does not deny that the land use right of state-owned enterprises belongs to the responsibility property of state-owned enterprises when they go bankrupt, but in the distribution of variable prices, the variable price of land use right is given priority to meet the employee resettlement expenses of bankrupt enterprises. Relevant documents in the State Council stipulate that the cost of employee placement in bankrupt enterprises takes precedence over the security right and ordinary creditor's rights of land use rights (whether acquired by allocation or transfer). However, the spirit of the Supreme Law Interpretation [2003] No.6 reply narrowed the scope of application of relevant documents in the State Council.

Article 5 of Guo Fa [1994] No.59 stipulates the land use right of state-owned enterprises incorporated into the national merger and bankruptcy plan, so that the mortgagee of the land use right has the priority to be compensated, and the resettlement expenses of employees of bankrupt enterprises shall not be deducted. The significance of mortgage lies in the repayment of creditor's rights secured by collateral; When the state-owned enterprise goes bankrupt, the creditor's rights of the mortgagee are directly in danger of being unable to be compensated. It is precisely when the mortgage is needed to play a role that the mortgagee's security rights and interests should not be weakened in the case of bankruptcy of state-owned enterprises. When the state-owned enterprise goes bankrupt, denying the priority effect of the mortgage of the bankrupt enterprise's property (land use right) is a direct injury to the social credit system, and this injury lacks other remedial measures. On the contrary, it should be noted that the government finance or social security system should play a role in the resettlement expenses of employees when state-owned enterprises go bankrupt, and the social burden of enterprise bankruptcy cannot be passed on to the mortgagee. At the same time, it is considered that the resettlement fee for employees of bankrupt enterprises takes precedence over the mortgage of land use rights of bankrupt enterprises, but it is only limited to the bankruptcy of state-owned enterprises included in the national merger and bankruptcy plan, which objectively gives other bankrupt state-owned enterprises and their employees unequal treatment.

Therefore, it is considered that when the state-owned enterprise goes bankrupt and its land use right is mortgaged, the mortgagee can exercise the mortgage right to change the price of the mortgaged property (land use right) and pay off the creditor's rights secured by the land use right at the changed price, which is appropriate and in line with the law. The right to use the land is the right obtained by allocation, and the mortgagee can get priority compensation only after paying the amount equivalent to the transfer fee of the land use right. The balance of the land use right price paid by the mortgagee in priority is used as distributable bankruptcy property and distributed according to the bankruptcy property distribution plan. However, for state-owned enterprises listed in the national merger and bankruptcy plan, the surplus after giving priority to the resettlement expenses of employees of bankrupt enterprises shall be distributed according to the bankruptcy property distribution plan. If the placement of employees is still insufficient, it will be supplemented by government finance and social security funds.