Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa

2010 (17:4) Maastricht Journal of European and Comparative Law 377-405

29 Pages Posted: 25 Sep 2010 Last revised: 16 Nov 2014

See all articles by Hanri Mostert

Hanri Mostert

University of Cape Town (UCT); University of Groningen

Lei Chen

City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law

Date Written: September 24, 2010

Abstract

Our paper examines constitutional property protection in China.The Chinese constitutional amendments of March 2004 were far-reaching since they introduced into Chinese law a notion of property that renders a free-market economy more viable and economic development more sustainable. Nevertheless, the principles for constitutional property protection in China have yet to be translated into more concrete implications, especially in the context of expropriation. It is still not generally appreciated that the Chinese Constitution plays an important part in property law, and particularly in matters relating to expropriation.

Our goal is more modest. China’s constitutionalization of private property rights has only just begun. This presents an appropriate opportunity to examine the possible theoretical development of Chinese constitutional property law, in comparison with similar developments from elsewhere in the world. At this point, the necessity and value of legal-comparative study cannot be denied. We base our analysis on lessons taken from another very recently emerging body of constitutional property law, namely that of South Africa.

Keywords: constitutional property law; expropriation; China; South Africa

Suggested Citation

Mostert, Hanri and Chen, Lei, Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa (September 24, 2010). 2010 (17:4) Maastricht Journal of European and Comparative Law 377-405. Available at SSRN: https://ssrn.com/abstract=1681947 or http://dx.doi.org/10.2139/ssrn.1681947

Hanri Mostert

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

University of Groningen ( email )

P.O. Box 800
9700 AH Groningen, Groningen 9700 AV
Netherlands

HOME PAGE: http://www.rug.nl/gcl/visitorsprogramma/ProfMostert

Lei Chen (Contact Author)

City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law ( email )

83 Tat Chee Avenue
Room P5300, 5th Floor, Academic 1
Kowloon Tong
Hong Kong

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