Property Law of the People's Republic of China
Encyclopedia
The Property Law of the People's Republic of China (Chinese: 中华人民共和国物权法, Pinyin
: Zhōnghuá Rénmín Gònghéguó Wùquán Fǎ) is a property law
adopted by the National People's Congress in 2007
that went into effect on October 1, 2007. The law covers the creation, transfer, and ownership of property in the mainland
of the People's Republic of China
(PRC) and is part of an ongoing effort by the PRC to gradually develop a civil code
. In developing civil law in the PRC mainland, the PRC government has used the German Pandectist system
of classification under which the property law corresponds to the law on real rights, which is the term used in Chinese for the official name of the law.
because of disputes over its content. It finally went through its eighth reading in 2007. Many in the Chinese legal community feared that creating a single law to cover both state property and private property would facilitate privatization
and asset stripping
of state-owned enterprises
. The draft law was subject to a constitutional challenge. Legal scholars, notably Gong Xiantian
of Peking University
, argued that it violated the constitutional
characterization of the PRC as a socialist state
. The law was originally scheduled to be adopted in 2005, but was removed from the legislative agenda following these objections. The final form of the law contains a number of additions to address these objections.
On March 8, 2007, the Property Law was formally introduced at the NPC
. Vice-Chairman Wang Zhaoguo
told the Congress that the law will "safeguard the fundamental interests of the people", and the law is an attempt at adapting to new "economic and social realities" in China. The law was adopted on March 16, the final day of the two-week session of congress, with the backing of 96.9% of the 2,889 legislators attending, with 2799 for, 53 against, and 37 abstentions. In his final address to the 2007 Session, NPC Chairman Wu Bangguo
declared "the Private Property Law and the Corporate Taxation law are two of the most important laws in the new economic system of Socialism with Chinese characteristics, we must attempt to learn these laws fully through various methods."
The law covers all of the three property types within the People's Republic of China, which are state
, collective, and private
which are defined in Chapter 5 of the law. Chapter 4, Article 40 of the law divides property rights into three types: ownership rights, use rights, and security rights. The law goes into detail about the legal rights associated with any of these three types.
The law does not change the system of land tenure
by which the state owns all land. However, in formalizing existing practice, individuals can possess a land-use right, which is defined in Chapter 10 of the law. The law defines this land-use right in terms of the civil law concept of usufruct
.
, although this is incorrect as the right to private property was written into the Constitution of the People's Republic of China
in 2004. The amendment states "Citizens' lawful private property is inviolable." . The 2007 Property Law itself is directed at defining all forms of property in the PRC.
Pinyin
Pinyin is the official system to transcribe Chinese characters into the Roman alphabet in China, Malaysia, Singapore and Taiwan. It is also often used to teach Mandarin Chinese and spell Chinese names in foreign publications and used as an input method to enter Chinese characters into...
: Zhōnghuá Rénmín Gònghéguó Wùquán Fǎ) is a property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
adopted by the National People's Congress in 2007
2007 National People's Congress
The 5th Plenary Session of the 10th National People's Congress held its annual meeting from March 5 to March 15, 2007 at the Great Hall of the People in Beijing, China, in conjunction with the 2007 CPPCC. Many items were listed on the agenda for the two-week-long session of the National People's...
that went into effect on October 1, 2007. The law covers the creation, transfer, and ownership of property in the mainland
Mainland China
Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...
of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
(PRC) and is part of an ongoing effort by the PRC to gradually develop a civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
. In developing civil law in the PRC mainland, the PRC government has used the German Pandectist system
Pandectists
Pandectists were German university legal scholars in the early 19th century who studied and taught Roman law as a model of what they called Konstruktionsjurisprudenz as codified in the Pandects of Justinian ....
of classification under which the property law corresponds to the law on real rights, which is the term used in Chinese for the official name of the law.
Passage
The drafting of the law involved considerable controversy. The proposed bill caused quite a stir since it was first published in 2002, was subsequently deferred, and yet again failed in its reading at the National People's Congress (NPC) of 20062006 National People's Congress
The 4th Plenary Session of the 10th National People's Congress was held in Beijing, China, in conjunction with the 2006 CPPCC. Many items were listed on the agenda for the two-week-long session of the National People's Congress. 2,937 delegates from every province, municipality, and Special...
because of disputes over its content. It finally went through its eighth reading in 2007. Many in the Chinese legal community feared that creating a single law to cover both state property and private property would facilitate privatization
Privatization
Privatization is the incidence or process of transferring ownership of a business, enterprise, agency or public service from the public sector to the private sector or to private non-profit organizations...
and asset stripping
Asset stripping
Asset stripping involves selling the assets of a business individually at a profit. The term is generally used in a pejorative sense as such activity is not considered productive to the economy. Asset stripping is considered to be a problem in economies such as Russia or China that are making a...
of state-owned enterprises
Government-owned corporation
A government-owned corporation, state-owned company, state-owned entity, state enterprise, publicly owned corporation, government business enterprise, or parastatal is a legal entity created by a government to undertake commercial activities on behalf of an owner government...
. The draft law was subject to a constitutional challenge. Legal scholars, notably Gong Xiantian
Gong Xiantian
Gong Xiantian is a professor of jurisprudence at Beijing University Law School. In 2005, he openly challenged the constitutionality of the draft of the Property Law....
of Peking University
Peking University
Peking University , colloquially known in Chinese as Beida , is a major research university located in Beijing, China, and a member of the C9 League. It is the first established modern national university of China. It was founded as Imperial University of Peking in 1898 as a replacement of the...
, argued that it violated the constitutional
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
characterization of the PRC as a socialist state
Socialist state
A socialist state generally refers to any state constitutionally dedicated to the construction of a socialist society. It is closely related to the political strategy of "state socialism", a set of ideologies and policies that believe a socialist economy can be established through government...
. The law was originally scheduled to be adopted in 2005, but was removed from the legislative agenda following these objections. The final form of the law contains a number of additions to address these objections.
On March 8, 2007, the Property Law was formally introduced at the NPC
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
. Vice-Chairman Wang Zhaoguo
Wang Zhaoguo
Wang Zhaoguo is a Chinese politician who came to prominence during the era of Deng Xiaoping. At age 41 he had already acquired a ministerial position job.-Biography:...
told the Congress that the law will "safeguard the fundamental interests of the people", and the law is an attempt at adapting to new "economic and social realities" in China. The law was adopted on March 16, the final day of the two-week session of congress, with the backing of 96.9% of the 2,889 legislators attending, with 2799 for, 53 against, and 37 abstentions. In his final address to the 2007 Session, NPC Chairman Wu Bangguo
Wu Bangguo
Wu Bangguo is a high-ranking politician in the People's Republic of China. He is currently Chairman and Party secretary of the Standing Committee of the National People's Congress, a position that makes him China's chief legislator...
declared "the Private Property Law and the Corporate Taxation law are two of the most important laws in the new economic system of Socialism with Chinese characteristics, we must attempt to learn these laws fully through various methods."
Description
Article 9 requires that creation, transfer, and destruction of immovable property rights requires registration to be effective.The law covers all of the three property types within the People's Republic of China, which are state
State property
State property is property owned by the state anything registered with the "state" becomes 'State property'. Such property may also referred to crown property...
, collective, and private
Private property
Private property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
which are defined in Chapter 5 of the law. Chapter 4, Article 40 of the law divides property rights into three types: ownership rights, use rights, and security rights. The law goes into detail about the legal rights associated with any of these three types.
The law does not change the system of land tenure
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
by which the state owns all land. However, in formalizing existing practice, individuals can possess a land-use right, which is defined in Chapter 10 of the law. The law defines this land-use right in terms of the civil law concept of usufruct
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
.
Response
Some press reports have characterized this law as the first piece of legislation in the People's Republic of China to cover an individual's right to own private assetsProperty law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, although this is incorrect as the right to private property was written into the Constitution of the People's Republic of China
Constitution of the People's Republic of China
The Constitution of the People's Republic of China is the highest law within the People's Republic of China. The current version was adopted by the 5th National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of...
in 2004. The amendment states "Citizens' lawful private property is inviolable." . The 2007 Property Law itself is directed at defining all forms of property in the PRC.
See also
- Intellectual property in the People's Republic of ChinaIntellectual property in the People's Republic of ChinaIntellectual property rights have been acknowledged and protected in the People's Republic of China since 1979. The People's Republic of China has acceded to the major international conventions on protection of IPRs...
- Nail houseNail houseA nail house is a Chinese neologism for homes belonging to people who refuse to make room for development. The term, a pun coined by developers, refers to nails that are stuck in wood, and cannot be pounded down with a hammer.-Historical background:In the People's Republic of China, during most...
s - land reformLand reform[Image:Jakarta farmers protest23.jpg|300px|thumb|right|Farmers protesting for Land Reform in Indonesia]Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution,...
External links
- English translation, Lehman, Lee & Xu, LLP
- Text in Chinese
- Draft text in Chinese
- China Introduces Landmark Property Law, Guardian Unlimited
- China passes new law on property, BBC, Friday, 16 March 2007, 02:51 GMT.