Legal Doctrine and Judicial Review of Eminent Domain in China

56 Pages Posted: 16 Oct 2020

See all articles by Wenzheng Mao

Wenzheng Mao

The University of Hong Kong

Shitong Qiao

The University of Hong Kong - Faculty of Law

Date Written: August 23, 2020

Abstract

Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.

Keywords: Eminent Domain; Due Process; Chinese Courts; Principal-Agent Problem; Judicial Politics of Legal Doctrine

JEL Classification: K11; K41; K23

Suggested Citation

Mao, Wenzheng and Qiao, Shitong, Legal Doctrine and Judicial Review of Eminent Domain in China (August 23, 2020). Law and Social Inquiry, Forthcoming, University of Hong Kong Faculty of Law Research Paper No. 2020/050, Available at SSRN: https://ssrn.com/abstract=3679448 or http://dx.doi.org/10.2139/ssrn.3679448

Wenzheng Mao

The University of Hong Kong ( email )

Pokfulam Road
Hong Kong, Pokfulam HK
China

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

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