★ 周显根

浙江五联建设有限公司（下称浙五建公司）请求确认海南昌台物资燃料总公司（下称昌台公司）与方某土地使用权转让合同无效纠纷一案，由台州市中级人民法院（下称台州中院）作出一审判决，该案判决后，各方当事人均未提出上诉；现把该案基本情况介绍如下：

一、案件基本事实

1997年10月间，临海市人民政府与昌台公司签订红脚岩二期海涂围垦协议书，协议规定红岩脚二期2400的海涂由昌台公司投资围垦，围垦成功后，昌台公司对围垦海涂享有70年的土地使用权。协议签订后，昌台公司把部分围垦工程分别发包给上海隧道工程股份有限公司（下称上海公司）和浙五建公司施工。该围垦海涂经临海市土地估价事务所于1999年6月间评估，计价为4960万元，评估有效期为六个月。2000年7月间，因昌台公司未按约付清工程款，上海公司向台州中院起诉并依法向法院提出诉讼保全申请，要求对2400亩围垦海涂进行查封。为此台州中院下达查封裁定。在查封期间即2001年5月间，昌台公司把围垦海涂土地使用权转让给方某，转让价计人民币418万元正，并约定由昌台公司负责转让土地的评估工作，涉及围垦海涂有关债权、债务与方某无关；昌台公司根据与方某达成的协议，依法对转让土地使用权进行评估，评估价计人民币531余万元。2001年6月间，临海市土地管理局根据方某申请，作出临土发（2001）5号文件，将讼争土地使用权确定给方某；2001年7月间，临海市土地管理局以方某隐瞒事实、存在欺骗行为为由，撤销了上述文件。2001年6月间，昌台公司与上海公司工程承包合同纠纷一案由台州中院作出一审判决，因昌台公司未在生效判决期限内履行义务，上海公司向法院提出执行申请，2001年11月间，上海公司与昌台公司达成执行和解协议，台州中院同时根据上海公司的申请，解除了对围垦海涂诉讼保全的财产查封。临海市土地管理局根据台州中院解封裁定，于2001年12月间，发出临土发（2001）13号文件，将涉讼的围垦海涂土地使用权确认给方某，2002年4月间，方某取得了涉讼围垦海涂土地使用权证。

2001年8月间，因昌台公司未付清浙五建公司工程款，浙五建公司依法向台州中院起诉，案经台州中院调解，于2002年4月双方达成调解协议；因调解协议生效后，昌台公司因无可供财产执行，故浙五建公司以昌台公司逃避债务、转让价格奇低和转移查封财产为由，要求法院确认昌台公司与方某签订的土地使用权转让合同无效。同时在本案审理过程中，法院委托评估机构对本案涉讼海涂土地使用权进行评估，评估价计人民币1762万元。

二、本案诉争意见

本案在审理过程中，各方当事人对本案合同是否有效，存在以下不同几种意见：

一、浙五建公司要求确认合同无效诉请是合理合法的，依法应予支持，因为：1、在昌台公司与方某签订合同时，法院已对该土地进行查封，依据《城市房地产管理法》第37条第2款规定，该土地使用权依法不得转让，违反了法律、行政法规的强制性规定，依据《合同法》第52条第5款规定，应确认合同无效。2、经过法院委托评估机构评估，本案土地使用权转让价格偏低，损害了其他债权人的利益，依据《合同法》第52条第2款规定，也应确认无效。

二、浙五建公司诉请要求法院确认合同无效，没有事实和法律依据，其诉请依法应予驳回，其理由：1、法院对本案土地使用权查封，只限制当事人对财产权利的行使，并不意味着当事人对该财产权利始终无处分权；随着法院对保全财产的解封，当事人对该财产又享有完全的处分权。因而确定合同是否有效，关键在于受让人与转让人签订土地使用权转让合同时，转让方对土地使用权有无处分权。2、本案从当事人协议订立过程表明：昌台公司转让本案涉讼土地使用权是自愿的，且方某在订立合同时并不知道本案土地使用权已被查封。3、本案浙五建公司以昌台公司逃避债务、转让价格奇低为由，要求确认合同无效，没有法律依据，即使如此，浙五建公司也应提出撤销权之诉，但因浙五建公司行使撤销权期限已过一年，即使对诉讼请求进行变更，也不会得到法院支持。

三、对本案意见评析

（一）关于转让协议的效力问题

本案方某与昌台公司所订的土地使用权转让合同不存在无效之事实和法律依据，其理由：

1、从协议签订到土地使用权的确认，可以证明本案所涉的土地使用权转让合同是双方真实的意思表示。（1）双方在2001年5月间签订土地使用权转让协议时，其意思表示是真实，作为方某在接受该地块土地使用权受让时，不知该地块已被司法机关查封。（2）台州中院执行上海公司与昌台公司案件时，对昌台公司法定代表人进行谈话并形成笔录，该笔录所载内容证明昌台公司始终认可与方某所订的土地使用权转让合同。（3）土地使用权确权管理部门在最终确认方某对本案转让地块享有土地使用权时，鉴于昌台公司法定代表人重新认可土地使用权转让合同和台州中院解除查封的事实予以确定。

2、从土地管理部门确权过程表明：该土地使用权转让合同是合法的，其理由：（1）由于在第一次确权时，该地块被法院查封，故临海市土地使用权登记发证办公室下达临土发（2001）12号文件，决定收回临土发（2001）5号“红脚岩二期围区国有土地使用权确认通知”，这是发证部门依法行使职权的表现，后在昌台公司法定代表人重新认可原来所订的土地使用权转让合同和台州中院解除该地块的查封后，发证办公室又下达临土发（2001）13号文件，确认方某对本案争议土地享有土地使用权，这同样是发证部门依法行使职权。（2）从发证部门下发临土发（2001）13号土地使用权确认通知表明双方就相同内容事项重新以认可原合同的方式形成了新的土地使用权转让合同法律关系，该法律关系重新形成不存在出让方权利行使受到限制之事实依据，也不存在该地块使用权在转移过程中受到司法机关、有关行政机关限制双方权利行使之事实依据。

3、台州中院在执行过程中向方某收取土地使用权转让款表明该地块使用权转让的合法性。

4、在现行的有关法律、行政法规中，对查封的土地使用权禁止当事人依协议方式予以转让，没有明文的规定；在本案中，无论是浙五建公司还是昌台公司只讲到本案转让行为的违法性，但到底违反了何种法律规定，均无法律、法规依据予以证实；同时违法行为并非就是无效的民事行为，对此我国《合同法》第52条第5款规定已予证实，因为合同只有在违反法律、行政法规强制性规定情况下才可确认为无效。同时，本案也不适用于《城市房地产管理法》，因该法只适用于城市规划区国有土地使用权出让和转让，而本案不属于城市规划区域；虽然该法规定城市规划区外有关国有土地使用权交易参照本法规定，但《合同法》并未规定参照法律、行政法规有关强制性规定作为合同无效的理由和法律依据。

5、从法律理论角度看：司法机关对某项财产的查封，对财产所有权人来说只是财产权利行使受到限制，但不能禁止权利人永远不能行使权利；而《合同法》规定的违反法律、行政法规强制性规定，只要在法律、行政法规规定存续期间，当事人是永远无法行使权利的，故表明查封财产由当事人进行转让就认为该民事行为无效，没有法律理论基础。

（二）关于方某与昌台公司所订的土地使用权转让合同价格偏低能否作为合同无效的依据问题

1、《合同法》并未规定价格过低作为合同无效的理由和依据。

2、债权人认为价格过低损害其债权实现的，当事人可行使撤销权，而不能请求人民法院确认合同无效；且在本案中，浙五建公司无依据证实昌台公司转让土地使用权时，其价格过低的事实；土地管理部门重新确认土地使用权并发证，表明政府职能部门认可转让土地价格的合理性，如不合理，依据《城镇国有土地使用权出让和转让暂行条例》第26条规定，县级人民政府有优先购买权；县级人民政府放弃优先购买权，表明其转让的土地价格不明显低于市场价值。

（三）法院在审理期间，对土地使用权价格进行重新评估，不能实现审判目的，因为本案是确认合同无效纠纷；而不是撤销权纠纷。

四、法院判由和判决结果

台州中院经过审理后认为：昌台公司虽然在本院查封期间转让土地使用权，但后来随着本院对争讼土地使用权的解封，昌台公司对本案涉讼土地使用权无处分权予以解除，又恢复取得了对土地使用权的处分权。临海市土地管理局接到法院解封通知后，依法确认土地使用权并予发证，对土地使用权效力进行了确认。昌台公司与方某所订的土地使用权转让合同系双方自愿，不违反法律、行政法规的强制性规定，因此该转让合同合法有效。浙五建公司主张昌台公司为逃避债务、以奇低价格予以转让，致使其债权不能实现，要求确认合同无效的请求缺乏法律依据。即使转让价格奇低，也并不必然导致合同无效；如当事人认为价格奇低损害其权益的，只能行使撤销，而不能要求法院直接确认合同无效。同时在诉讼过程中，本院已通知浙五建公司变更诉讼请求，因浙五建公司拒不变更，故浙五建公司诉请不能成立，依法驳回浙五建公司的诉讼请求。

★ Zhou Xiangen

The case of Zhejiang Wulian Construction Co., Ltd. (hereinafter referred to as Zhejiang Wujian Company) requesting confirmation of the invalidity of the land use right transfer contract between Hainan Changtai Materials and Fuel General Company (hereinafter referred to as Changtai Company) and Fang was made a first instance judgment by the Taizhou Intermediate People's Court (hereinafter referred to as Taizhou Intermediate Court). After the judgment in this case, neither party appealed; The basic situation of the case is now introduced as follows:

1、 Basic facts of the case

In October 1997, the People's Government of Linhai City signed an agreement with Changtai Company on the reclamation of the Hongjiaoyan Phase II tidal flat. The agreement stipulated that Changtai Company would invest in the reclamation of 2400 hectares of the Hongjiaoyan Phase II tidal flat. After successful reclamation, Changtai Company would have a 70 year land use right to the reclaimed tidal flat. After the agreement was signed, Changtai Company contracted out some of the reclamation projects to Shanghai Tunnel Engineering Co., Ltd. (hereinafter referred to as Shanghai Company) and Zhejiang Wujian Company for construction. The reclaimed beach was evaluated by Linhai Land Appraisal Office in June 1999, with a valuation of 49.6 million yuan and a validity period of six months. In July 2000, due to the failure of Changtai Company to pay the project payment as agreed, Shanghai Company filed a lawsuit with the Taizhou Intermediate People's Court and filed a lawsuit preservation application in accordance with the law, requesting the closure of 2400 acres of reclaimed sea land. For this reason, the Taizhou Intermediate People's Court issued a lockdown ruling. During the lockdown period, in May 2001, Changtai Company transferred the land use rights of the reclaimed sea beach to Fang, with a transfer price of RMB 4.18 million. It was agreed that Changtai Company would be responsible for the evaluation of the transferred land, and the claims and debts related to the reclaimed sea beach were not related to Fang; According to the agreement reached with Fang, Changtai Company has evaluated the transfer of land use rights in accordance with the law, with an evaluation price of over RMB 5.31 million. In June 2001, the Land Management Bureau of Linhai City, based on Fang's application, issued the Lintu Fa (2001) No. 5 document, determining the disputed land use right to Fang; In July 2001, the Land Management Bureau of Linhai City revoked the above-mentioned documents on the grounds that Fang had concealed facts and engaged in fraudulent behavior. In June 2001, the dispute over the engineering contract between Changtai Company and Shanghai Company was decided in first instance by the Taizhou Intermediate People's Court. Due to Changtai Company's failure to fulfill its obligations within the effective judgment period, Shanghai Company submitted an application for enforcement to the court. In November 2001, Shanghai Company and Changtai Company reached an enforcement settlement agreement. At the same time, the Taizhou Intermediate People's Court, based on the application of Shanghai Company, lifted the property lockdown for the preservation of the reclaimed coastal litigation. According to the decision of the Taizhou Intermediate People's Court to lift the seal, the Land Management Bureau of Linhai City issued the Lintu Fa (2001) No. 13 document in December 2001, confirming the right to use the reclaimed coastal land involved in the lawsuit to Fang. In April 2002, Fang obtained the certificate of use for the reclaimed coastal land involved in the lawsuit.

In August 2001, Zhejiang Wujian Company sued the Taizhou Intermediate People's Court in accordance with the law due to Changtai Company's failure to pay off the engineering funds of Zhejiang Wujian Company. The case was mediated by the Taizhou Intermediate People's Court and a mediation agreement was reached between the two parties in April 2002; After the mediation agreement came into effect, Changtai Company had no property available for execution. Therefore, Zhejiang Wujian Company requested the court to confirm the invalidity of the land use right transfer contract signed between Changtai Company and Fang, citing Changtai Company's avoidance of debt, extremely low transfer price, and transfer of seized property. At the same time, during the trial of this case, the court entrusted an evaluation agency to evaluate the use rights of the coastal land involved in the case, with an evaluation price of RMB 17.62 million.

2、 Opinions on the dispute in this case

During the trial of this case, there were several different opinions among the parties regarding the validity of the contract:

1、 Zhejiang Wujian Company's request to confirm the invalidity of the contract is reasonable and legal, and should be supported in accordance with the law. This is because: 1. When Changtai Company signed the contract with Fang, the court had already sealed up the land. According to Article 37 (2) of the Urban Real Estate Management Law, the land use right cannot be transferred in accordance with the law, which violates the mandatory provisions of laws and administrative regulations. According to Article 52 (5) of the Contract Law, It should be confirmed that the contract is invalid. 2. After being evaluated by an evaluation agency commissioned by the court, it was found that the transfer price of the land use right in this case was too low, which harmed the interests of other creditors. According to Article 52 (2) of the Contract Law, it should also be confirmed as invalid.

2、 Zhejiang Wujian Company's application requires the court to confirm that the contract is invalid and lacks factual and legal basis. Its application should be rejected in accordance with the law. The reasons for this are: 1. The court's seizure of the land use right in this case only restricts the exercise of property rights by the parties, and does not mean that the parties have no right to distribute the property rights; With the release of the court's seal on the preservation of property, the parties have full power to dispose of the property. Therefore, the key to determining the validity of the contract lies in whether the transferor has the right to distribute the land use right when signing the land use right transfer contract between the transferee and the transferor. 2. The process of signing the agreement between the parties in this case indicates that Changtai Company's transfer of the land use rights involved in this case was voluntary, and Fang was not aware that the land use rights in this case had been seized at the time of signing the contract. 3. In this case, Zhejiang Wujian Company requested confirmation of the invalidity of the contract based on Changtai Company's avoidance of debt and exceptionally low transfer price, without legal basis. Even so, Zhejiang Wujian Company should also file a lawsuit for revocation. However, since Zhejiang Wujian Company has exercised its revocation right for one year, even if the lawsuit request is changed, it will not receive court support.

3、 Comment on the opinions of this case

（1） On the Validity of Transfer Agreements

The land use right transfer contract between the party in this case and Changtai Company does not have any invalid facts or legal basis, and the reasons are as follows:

1. From the signing of the agreement to the confirmation of the land use right, it can be proven that the land use right transfer contract involved in this case is a true expression of intention between both parties. (1) When the two parties signed the land use right transfer agreement in May 2001, their intention was true. As Fang, when accepting the transfer of the land use right of the plot, he was unaware that the plot had been seized by judicial authorities. (2) During the execution of the case between Shanghai Company and Changtai Company by the Taizhou Intermediate People's Court, a conversation was held with the legal representative of Changtai Company and a written record was formed, which proves that Changtai Company has always recognized the land use right transfer contract signed with Fang. (3) When the land use right confirmation management department finally confirmed that Fang had the land use right to the transferred plot, it was determined based on the fact that the legal representative of Changtai Company had re recognized the land use right transfer contract and the Taizhou Intermediate People's Court had lifted the lockdown.

2. The process of confirming the rights of the land management department indicates that the transfer contract for the land use right is legal. The reasons are as follows: (1) Due to the fact that the land was seized by the court during the first confirmation of the rights, the Land Use Right Registration and Certification Office of Linhai City issued Document No. 12 of Lintu Fa (2001) and decided to withdraw the "Confirmation Notice on the State owned Land Use Right of Hongjiaoyan Phase II Surrounding Area" No. 5 of Lintu Fa (2001), which is a manifestation of the issuing department's lawful exercise of powers, After the legal representative of Changtai Company re recognized the original land use right transfer contract and the Taizhou Intermediate People's Court lifted the sealing of the land plot, the issuance office issued the Lin Tu Fa (2001) No. 13 document, confirming that Fang had the land use right to the disputed land in this case, which was also exercised by the issuance department in accordance with the law. (2) The Land Use Right Confirmation Notice No. 13 (2001) issued by the issuing department indicates that both parties have re formed a new legal relationship for the transfer of land use rights in the form of recognizing the original contract for the same content. The re formation of this legal relationship does not have any factual basis for the exercise of the transferor's rights to be restricted, nor does it have any judicial authority The factual basis for administrative authorities to restrict the exercise of both parties' rights.

3. The collection of land use right transfer funds from Fang during the execution process by the Taizhou Intermediate People's Court indicates the legality of the land use right transfer.

4. In the current relevant laws and administrative regulations, there is no explicit provision prohibiting the parties from transferring the seized land use rights through agreement; In this case, both Zhejiang Wujian Company and Changtai Company only mentioned the illegality of the transfer behavior in this case, but there is no legal or regulatory basis to prove what legal provisions were violated; At the same time, illegal acts are not necessarily invalid civil acts. This has been confirmed in Article 52 (5) of China's Contract Law, as contracts can only be confirmed as invalid if they violate mandatory provisions of laws and administrative regulations. Meanwhile, this case also does not apply to the Urban Real Estate Management Law, as it only applies to the transfer and transfer of state-owned land use rights in urban planning areas, and this case does not belong to urban planning areas; Although this law stipulates that the transaction of state-owned land use rights outside the urban planning area shall refer to the provisions of this law, the Contract Law does not provide for the reference to mandatory provisions of laws and administrative regulations as the reason and legal basis for the invalidity of contracts.

5. From the perspective of legal theory, the seizure of a certain property by judicial authorities is only a restriction on the exercise of property rights by the property owner, but it cannot prohibit the owner from exercising their rights forever; The violation of mandatory provisions of laws and administrative regulations stipulated in the Contract Law, as long as the parties are unable to exercise their rights during the existence period of the laws and administrative regulations, indicates that the transfer of seized property by the parties is considered invalid and lacks legal theoretical basis.

（2） Can the low price of the land use right transfer contract signed between Fang and Changtai Company serve as a basis for the invalidity of the contract

1. The Contract Law does not specify that low prices are the reason and basis for invalidity of contracts.

2. If the creditor believes that the price is too low to harm the realization of their creditor's rights, the parties may exercise the right to revoke the contract, but cannot request the people's court to confirm the invalidity of the contract; And in this case, Zhejiang Wujian Company has no basis to prove the fact that the price was too low when Changtai Company transferred the land use right; The land management department has reconfirmed the land use right and issued a certificate, indicating that the government functional departments recognize the rationality of the transfer of land price. If it is not reasonable, according to Article 26 of the "Interim Regulations on the Transfer and Transfer of Urban State owned Land Use Rights", the county-level people's government has the priority to purchase; The county-level people's government waives the right of first refusal, indicating that the price of the land it transfers is not significantly lower than the market value.

（3） During the trial, the court reassessed the price of land use rights, which could not achieve the purpose of the trial, as this case is a dispute confirming the invalidity of the contract; Instead of disputes over revocation rights.

4、 Court Judgment and Result

After trial, the Taizhou Intermediate People's Court held that although Changtai Company transferred the land use rights during the lockdown period of this court, with the lifting of the disputed land use rights by this court, Changtai Company had no right to dispose of the land use rights involved in this case and restored its right to dispose of the land use rights. After receiving the court's notice of lifting the seal, the Land Management Bureau of Linhai City confirmed the land use right in accordance with the law and issued a certificate, confirming the effectiveness of the land use right. The land use right transfer contract signed between Changtai Company and Fang is voluntary and does not violate the mandatory provisions of laws and administrative regulations. Therefore, this transfer contract is legal and valid. Zhejiang Wujian Company claims that Changtai Company's request to confirm the invalidity of the contract lacks legal basis for evading debts and transferring it at an extremely low price, resulting in the inability to realize its creditor's rights. Even if the transfer price is exceptionally low, it does not necessarily lead to the invalidity of the contract; If the parties believe that the extremely low price damages their rights and interests, they can only exercise revocation and cannot request the court to directly confirm the invalidity of the contract. At the same time, during the litigation process, our court has notified Zhejiang Wujian Company to change its lawsuit request. Due to Zhejiang Wujian Company's refusal to change, the lawsuit cannot be established, and Zhejiang Wujian Company's lawsuit request is rejected in accordance with the law.