China's (Post-)Socialist Property Rights Regime: Assessing the Impact of the Property Law on Illegal Land Takings
Hong Kong Law Journal, Vol. 37, No. 3, pp. 919-949, 2007
32 Pages Posted: 10 Aug 2009 Last revised: 31 Aug 2009
Date Written: 2007
After unprecedented discussion, on 16 March 2007, China’s legislature passed the Property Law which guarantees private property rights and thus has been acclaimed as progress in the development of China’s (post-)socialist property rights regime. The purpose of this article is to analyse the Property Law’s capacity to address illegal land takings, one of the chief externalities of the country’s development. The article argues that in the context of fazhi ('rule of law'), legislation is increasingly seen as a source of legitimisation. Nonetheless, fazhi operates as an ideology that is both produced by and productive of inequalities accompanying China’s growth. A description of the problem of takings and the social violence they generate is followed by an overview of existing legislation. The legislative history of the Property Law and particularly the debates that surrounded it demonstrate that while such discourses were interpreted as signifying rule of law, the debates ironically institutionalised vagueness in the Property Law on the issues of expropriation, public interest, and adequate compensation. Finally, the article considers a broader view of property reform by analysing different models of property rights in transitional economies and applies a view developed in legal anthropology to posit a basis for property reform based not just on legislation but on structural reforms that address the disconnect between China’s marketisation and the administrative and political hierarchies in the countryside.
Keywords: Property rights, transitional economies, law reform, China
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