Land Ownership, Property Rights and Social Conflict in China (Studies on This monograph contributes to the field of institutional change and property rights .
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Depending on the region, farming was more or less privatized, with managerial responsibilities vested in the household. Farm households negotiated contracts under which they had to deliver grain quota to the state at low fixed prices. The surplus grain above the quota could be sold freely at private markets. These privileges were rescinded twice and subsequently reinstalled during the Great Leap Forward and the Great Proletarian Cultural Revolution — In the case of urban land, after the nationalization of industries and companies in the early s, it was deemed state-owned, although not legally stipulated for a long period of time.
Land owned by the state was seen as "absolute" and therefore, did not warrant a title; a principle adhered to — and enshrined in regulation — until today. In , the fourth amendment to the constitution was made. Article 13 of the constitution provided that: The country shall protect in accordance with law citizens' private property rights and inheritance rights.
The country may, as necessitated by public interest, expropriate or requisition citizens' private property and pay compensation therefor. The most recent development would be the enactment of the Property Law in March after 14 years of debates , which is noted as one of the most important core components of the evolving civil law in the PRC.
An investor who wants to invest or develop land or property in China must bear in mind China's property laws, most notably the property law introduced in , [7] which for the first time protects the interest of private investors to the same extent as that of national interests. Real property rights in China can generally be grouped into three types. The first type is ownership rights.
The second type is usufructuary rights, and the third is security rights. However, this right has to comply with laws and social morality. It can harm neither public interests nor the legitimate rights and interests of others. In general, rural collectives own agricultural land and the state owns urban land. However, Article 70 of The Property Law allows for ownership of exclusive parts within an apartment building, which endorses the individual ownership of apartments.
The owner of a usufructuary right has the right to possess, utilize and obtain profits from the real properties owned by others. There are several types of usufructuary rights. These include the right to land contractual management, the right to use of construction land, the right to use of residential housing land and easement. The right to land contractual management allows a contractor of the right to possess, utilize and obtain profits from agricultural land. The right to use of construction land is only with regard to State-owned land, and the owner of the right is able to build buildings and their accessory facilities.
This is in addition to being able to possess, utilize and obtain profits from the land. The owner of the right to use of residential housing land can possess and utilize such land as collectively owned, and can build residential houses and their accessory facilities. The owner of easement has the right to use the real property of others to benefit his own real property.
Easement will be governed by the terms of a contract. Forms of security rights include mortgages, pledges and liens.
Holders of security rights have priority if a debtor defaults on his obligation. Security rights do not exist independently, but require a valid principal claim, and lapse when the debt lapses. Foreign investors are not allowed to buy land in China. The land in China belongs to the state and the collectives.
A land user obtains only the land use right, not the land or any resources in or below the land. The land grant contract must be signed.
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Land use rights can be obtained from the land administration department by agreement, tender or auction. Article 12 of the Provisional Regulations on Grant and Assignment of Urban State-owned Land Use Right states the different duration of rights provided for different purposes. In China, there is no unified official procedure for the rules on the registration of land-use rights and the ownership of property. This register is proof of ownership. However, different interests might be registered under different registries. Peter Ho has described the recordation of Chinese property rights per institution as it exists until An overview is in the table below.
Article 6 provides for a general registration requirement in the cases of creation, modification, transfer, and elimination of rights to immovables. Article 10 2 l requires a unified registration system for all real property rights, but this unified system is currently only adopted in tier one cities [30] like Beijing and Shanghai.
The unification of interests in a single registry is still not prevalent in the smaller cities and will take more time before its implementation. China has a system of public notaries which are a subordinate agency of the Ministry of Justice of the People's Republic of China. They are responsible for certification of property titles.
Chinese property law - Wikipedia
The description below applies to the post-reform legal arrangements and should not be confused with nationalistation of property before The Chinese authorities are empowered under the Constitution and various statutes [31] to expropriate land use rights contracted to individuals as well as ownership rights from collectives.. Since all land is owned either collectively or by the state, [32] expropriation of rural land only requires the withdrawal of land use rights for the reason of "public interest. The definition of public interest is intentionally vague, and a general list of such interests has been expounded in an attempt to define what it means.
These include interests such as defence , transportation infrastructure, education and health. However, the first two are paid to the collective landowners instead of the farmers.
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Compensation for non-land rural assets is also highly discretionary. Once the farmers and collective land owners are notified, the expropriation can commence. Disputes regarding the compensation and resettlement shall not affect the implementation of the expropriation. The Land Administrative Law provides five situations under which land use rights may be withdrawn: The rights holder is entitled to "appropriate compensation" in the first two situations. It is made either in cash based on market prices and accounts for any moving expenses or resettlement subsidies, or in kind in the form of a replacement structure.
Under the current legal framework, land developers no longer have the legal power to expropriate, and are no longer involved in the demolition and relocation procedures. The local government or non-profit organisations are now in charge of land expropriation and compensation. By minimising the business interests in the expropriation procedure, incidents of forced expropriation might be reduced. If a rights holder wants to protect his property, he can evoke certain procedural safeguards, which include:. In the event that an agreement cannot be reached between homeowners and the government, the expropriation can only be carried out after judicial review.
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New regulations effective from January 21, have provided hope for the future with regards to several controversies surrounding urban property expropriation. In January ,a year-old man was beaten to death for refusing to leave his house that was expropriated for demolition. Although these new regulations relate to urban land , the legal principles established have significant implications for the rule of law in China. While having implemented the household production responsibility system , China retains collectively-owned farmland in the rural areas.
This creates a large potential for abuse as the critical decisions regarding the land and its use are made by a small number of village leaders. Since decollectivization, collective ownership — previously represented by the lowest collective level former production team — has been split up in three: Chinese law does not stipulate whether the former production team is still the legal owner. While the Property Law enacted in provides some legal leverage to prevent the abuse of power by village councils, it remains to be seen if legal remedies are accessible or are even used by the villagers.
Prevailing local culture, the fear of authority and the possibility of violent repercussions hinder a victim's inclination to seek legal recourse. While critics may be skeptical of whether the new enactments clarifying the issue of collective ownership will make a difference, such changes are still welcomed as signs of increasing protection for the rural villagers. Another issue is the problem of rampant corruption arising from rural land transactions, involving both governmental and non-governmental parties.
This leads to over-pricing and also improper use of land that goes unchecked. The Chinese government, while liberalizing its property laws, has still preserved its right to reclaim any property from an individual, as long as there is a public policy consideration. Please re-enter recipient e-mail address es. You may send this item to up to five recipients. The name field is required. Please enter your name. The E-mail message field is required. Please enter the message. Please verify that you are not a robot.
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Remember me on this computer. Cancel Forgot your password? Reprint View all editions and formats. Preface ; Introduction ; 1. The credibility of agricultural land tenure or why delibrate institutional ambiguity might work ; 2.