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China's Changing Property Law Landscape

Comparative Property Law: Global Perspectives, Michele Graziadei & Lionel Smith eds., Edward Elgar, 2017, pp. 311-332.

35 Pages Posted: 2 Mar 2017  

Shitong Qiao

The University of Hong Kong - Faculty of Law

Frank K. Upham

New York University School of Law

Date Written: February 28, 2017

Abstract

This chapter provides an outline of the changing Chinese land regime, including the past, present, and future of land expropriation, small or informal property rights, and rural land reform. We argue that the evolution of Chinese land law exhibits three characteristics. First, law serves as the final confirmation of policy reforms, rather than the precondition of the reform. Second, there is no individual land ownership, and public land ownership (including both state land ownership in the urban area and collective land ownership in the rural area) still matters. Third, due to the rapidly changing nature of the Chinese economy and society, property rights in action are often a pale shadow of what their legal entitlements would indicate in theory. As a result of these three characteristics, Chinese land law poses two related challenges to conventional property theory. First is one of the rarely questioned verities of economic theory: that clear, secure, and judicially enforceable property rights are an essential – perhaps the most essential – prerequisite to economic growth. The second question grows directly out of the first. China’s growth has come through voluntary market exchange on a massive scale, and in this sense fully vindicates economic theory. The challenge is to understand how these markets – in our case, the real estate market – operate without the legal framework considered necessary for Coasian bargaining. We propose a relational property theory as one explanation of what has enabled the market, without any legal rules or judicial enforcement, to thrive on a literally global scale. Relational property emphasizes the determinative role of social relations in the construction of property. The most important normative implication is that relational property can function without the full and faithful implementation of formal property law; but property law cannot function without embedding itself in social relations.

Keywords: Land reform; China; law and development; relational property rights; small/informal property; land expropriation

Suggested Citation

Qiao, Shitong and Upham, Frank K., China's Changing Property Law Landscape (February 28, 2017). Comparative Property Law: Global Perspectives, Michele Graziadei & Lionel Smith eds., Edward Elgar, 2017, pp. 311-332. . Available at SSRN: https://ssrn.com/abstract=2925067

Shitong Qiao (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.law.hku.hk/faculty/staff/shitong_qiao.php

Frank K. Upham

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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