The Structure and Spirit of Chinese Property Law

in Nicole Graham, Margaret Davies, and Lee Godden eds., Handbook of Property, Law and Society, Routledge, Forthcoming

Duke Law School Public Law & Legal Theory Series No. 2021-49

University of Hong Kong Faculty of Law Research Paper No. 2021/54

11 Pages Posted: 16 Nov 2021 Last revised: 7 Jan 2022

See all articles by Shitong Qiao

Shitong Qiao

Duke University School of Law; The University of Hong Kong - Faculty of Law

Date Written: September 22, 2021

Abstract

It is puzzling to many that China has maintained its socialist commitment to public land ownership while creating individual land rights that eliminated famine in rural China and ushered in the largest urban real estate market in the world. To make the situation even more puzzling, those land rights were initially created without legal authorization, being driven by farmers, entrepreneurs, and local officials on the ground. Chinese law eventually catches up with and sanctions practices that prove effective, but has never been able to regulate or ossify dynamic and ever-changing practices. That is why we see the co-existence of socialist public land ownership, the civil law principle of numerus clausus, and the common law practice of the bottom-up, continual reconfiguration of the bundle of sticks constituting property rights. These elements of China’s hybrid system are by nature in constant conflict with one another, creating friction and bumps on the country’s road to economic and social development. Together, however, they permit the system to get by, striking a balance between development and stability.

Keywords: China; property law; common law; civil law; socialist law; numerus clausus; state land ownership; collective land ownership; bundle of sticks; hybridism

JEL Classification: K11; K41; K23

Suggested Citation

Qiao, Shitong and Qiao, Shitong, The Structure and Spirit of Chinese Property Law (September 22, 2021). in Nicole Graham, Margaret Davies, and Lee Godden eds., Handbook of Property, Law and Society, Routledge, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2021-49, University of Hong Kong Faculty of Law Research Paper No. 2021/54, Available at SSRN: https://ssrn.com/abstract=3928574 or http://dx.doi.org/10.2139/ssrn.3928574

Shitong Qiao (Contact Author)

Duke University School of Law ( email )

HOME PAGE: http://law.duke.edu/fac/qiao/

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

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://https://www.law.hku.hk/academic_staff/dr-shitong-qiao/

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