论破产案件中土地使用权的处理原则

本文对依法破产和政策性破产中土地使用权的处理原则做了探讨。以划拨土地使用权为标的物设定抵押时,其变卖所得中相当于土地使用权出让金的款额属于国有财产,其他部分抵押权人可优先受偿。政策性破产文件规定破产企业的土地使用权无论是划拨取得还是出让取得,无论是否设置抵押,其变卖所得均要优先用于破产企业职工安置是不妥的。农民集体(经济)组织以集体土地使用权入股破产企业的,该集体土地使用权应当作为破产财产分配。

On Handling Principles of Right to the Use of Land in the Bankruptcy Cases

The article discusses the handling principles both in the bankruptcy according to law and in the bankruptcy permitted by policy. While taking right to use allotted land as a subject matter to set mortgage, after selling-off of estate under mortgage, the cost matched with remuneration for assignment of the right to the use of land belongs to the state, the other mortgagee can be paid from the left cost. The stipulation in the document of bankruptcy permitted by policy is not appropriate, which providers that regardless of the bankruptcy enterprise's right to the use of land is gained by assignment and by allocation and regardless of whether the right to the use of land be mortgaged or not, all of the cost of selling-off of estate under mortgage firstly be used to the arrangement of the workers of bankruptcy enterprise. If a collective economic organization of peasants had taken the collective right to the use of land as shares to enter a bankruptcy enterprise, the collective right of the use of land should be treated the same as insolvent property.