Chinese Property Law: System Design and Innovation

Author: Gao Fuping
Publisher:
Publish Date: 2005-03-01
Features: "A sound legal system is the cornerstone of modern civilization," this assertion has not only been proven by the historical development of human society but has also increasingly become a common consensus. Throughout human history, examples of establishing a comprehensive legal system and promoting social development and civil progress through the rule of law are ubiquitous. However, when flipping through the histories of all nations and cultures across the East and West, it is extremely difficult to find examples of countries that completely abandoned legal systems while maintaining national prosperity and social progress. This is because, after shedding primitive and barbaric conditions, human society began to develop at an "accelerated rate," with human minds gradually opening up and people's interests and pursuits becoming increasingly diverse. In the face of increasingly complex societies, the establishment and maintenance of "order" have become an inevitable outcome. Among the various selectable solutions for establishing and maintaining order (violent, ethical, religious, and institutional), formulating a legal system and implementing and promoting it in the name of the state is undoubtedly the most straightforward and effective approach. As history progresses, society develops, and civilization advances, the legal system, as an important spiritual achievement of humanity, continues to evolve, elevating its own standards and gradually becoming a vital pillar in maintaining social order and supporting the social structure.
After the 17th century, several industrial and technological revolutions, particularly the electronic information revolution of the mid-20th century, brought earth-shaking changes to human society. These changes not only directly altered the scale and speed of information exchange but also fundamentally transformed people's lifestyles and ways of thinking, ushering humanity into a more complex and diverse new realm. Against this backdrop, traditional methods of maintaining social cohesion, such as religion and morality, have increasingly proven inadequate in the face of new circumstances. The ideal and practical choice seems to be establishing a rational and comprehensive legal system to provide a reasonable and feasible set of common behavioral rules for people in a diverse society, ensuring the protection of collective interests while granting members a certain degree of freedom to express their individuality. In this way, it is possible to maintain the overarching principles of social order, preserve basic harmony and stability, while fully safeguarding individual freedom and creativity, thereby promoting the progress of civilization. Only in this way can stability and development, the whole and the individual, spiritual civilization and material progress all advance in parallel.
For this very reason, over the past several centuries, legal reform movements have surged in major countries across the East and West, coinciding with waves of social transformation. China is a nation with a long history and splendid culture. In its millennia-old traditional culture, the spirit of upholding and valuing the law has always held a significant position. However, due to the fundamental differences between the spirit and purpose of ancient legal culture and modern society, the vast and profound traditional legal system of China could not be integrated with modern concepts. As a result, by the mid-19th century, with the invasion of Western powers, the ancient Chinese legal system, which had endured for thousands of years, ultimately collapsed, and China's legal system embarked on an extremely arduous path of modernization.
If we take the legal reforms of the Qing Dynasty in the early 20th century as a starting point, China's legal transformation since modern times has spanned nearly a century. During this period, Chinese society has been filled with various contradictions and struggles—path choices, ideological disputes, national salvation efforts, and political struggles—keeping the entire nation in a state of restlessness. In a sense, social transformation theoretically provides opportunities for legal reform, but prolonged social turmoil and frequent political upheavals have objectively had a significant impact on legal reform efforts. Thus, despite numerous opportunities and the tireless efforts of countless dedicated individuals, China's nearly century-long journey of legal reconstruction has remained arduous.
It was not until the late 1970s, with the end of the decade-long turmoil of the "Cultural Revolution," that the Chinese people began to reassess themselves and the world around them with a rational perspective, adopting a more calm and reasoned approach to thinking and choosing their path of development. This marked the beginning of China's extraordinary historical era of reform and opening up. This comprehensive national rejuvenation movement, driven by economic reform, also brought unprecedented opportunities and vast development space to the legal reform of China, which had been stagnant for nearly a century. It can be said that the two decades following the Third Plenary Session of the 11th Central Committee of the Communist Party of China in 1978 were the most transformative and profound in Chinese history. During these two decades, the Chinese people, under the banner of Deng Xiaoping Theory, broke free from the of "leftist" ideology, carried out comprehensive reforms in politics, economics, and culture, and achieved remarkable accomplishments that attracted worldwide attention, making China one of the most hopeful and vibrant regions in the world.
During this period, China's new-era democratic and legal construction also made remarkable achievements. In the early stages of reform and opening up, legal nihilism, which had long harmed legal development, was eradicated, and "strengthening socialist democracy and improving socialist rule of law" became an important part of national political life. After nearly two decades of effort, by the mid-1990s, the overall landscape of China's legal development had undergone fundamental changes. In terms of legislation, our legislative awareness, techniques, standards, and scale had all improved significantly. In terms of adjudication, a modern judicial system centered on safeguarding citizens' basic rights and achieving judicial fairness had been preliminarily established and was continuously being refined. More encouragingly, after nearly two decades of subtle influence, the legal awareness and legal concepts of the Chinese people had enhanced. The governance strategy of "rule of law" and "building a socialist rule-of-law state" adopted at the 15th National Congress of the Communist Party of China had become a common consensus and demand among the entire population. This shift in mindset has provided a strong ideological guarantee for further improving China's current legal system and achieving the goal of truly governing the country according to law.
As is well known, the progress of law and the perfection of the legal system depend on both objective social conditions and needs, as well as the development of legal research and legal education. Law is a highly specialized, technical, and complex social science. The improvement of the overall level of law relies on the advancement of legal research and the continuous efforts of legal scholars and practitioners. Similarly, the overall level of national legal development depends on the scale and quality of legal education and talent cultivation. In summary, the objective needs of social development, legal research, legal education, and other aspects are interrelated, mutually reinforcing, and mutually influential.
Over the 20 years of reform and opening up, with the progress of the nation and society, China's legal research and legal education have also made tremendous strides. After 20 years of effort, the influence of "leftist" ideology has been largely eliminated in the field of Chinese law, and the overall layout of legal disciplines and the basic construction of their branches have been rapidly completed. At the same time, in response to the needs of national construction and social development, in-depth academic research has been conducted on specific legal issues, providing theoretical support and institutional recommendations for national legislation and adjudication. Meanwhile, legal education in the new era has also achieved remarkable success. Through continuous deepening of the reform of the legal education system, the scale and quality of legal talent cultivation in China have rapidly improved. A large number of new-generation legal scholars, nurtured by new ideas and systems, have become the backbone of China's legal development, providing ample and robust talent reserves for further progress.
In a sense, the efforts of the legal community over the past 20 years have made significant contributions to the advancement of China's new-era legal development. The positive role of legal research in transforming the legal awareness of the entire population, improving legislative standards and efficiency, and further refining the judicial system has been particularly evident.
Law is a superstructure built upon the economic base, and as a discipline that studies legal systems, law is highly practical and targeted. The development and changes of society inevitably impose new demands on law, which are then reflected in legal research.
Regarding China, after nearly two decades of struggle, the stage goals of reform and opening up have been successfully achieved. However, as reforms have deepened, some deep-seated issues in the state and society have also emerged, such as the renewal and reconstruction of universal moral values, the establishment of a true market economy order, the reform of state-owned enterprises, and the improvement of the political system. Compared to the problems encountered in previous reforms, these issues are often more complex, involve a broader scope, and are more difficult to resolve. Moreover, in addition to updating concepts and formulating policies, the resolution of these complex issues ultimately boils down to legal systems.
As a result, some insightful individuals have proposed that the current challenges or pressing tasks facing China lie in two areas: first, consolidating national spirit and establishing national moral values that meet the requirements of the new era, providing a basic value standard and life direction for society; second, designing a "good law and beautiful system" that aligns with China's national conditions and modern social spirit, providing a comprehensive, specific, clear, and reasonable set of behavioral rules for society, bringing various social behaviors into an ordered and efficient framework.
In reality, considering China's unique historical and cultural context and current situation, the establishment of a system, i.e., a "good law and beautiful system," should be the top priority. Establishing a sound and reasonable legal system is, of course, an extremely large-scale social project. The foundational work—such as theoretical argumentation, framework design, and corrective measures during implementation—depends on further in-depth legal research. This places higher demands on China's legal research institutions, legal education institutions, and legal theorists.
The Law School of Renmin University of China was established in 1950 and is the first regular higher education institution for legal studies founded after the birth of New China. Over the nearly half-century since its establishment, the Law School of Renmin University of China has been at the forefront of legal research and education in China, with a strong academic strength, rigorous and pragmatic academic atmosphere, high-quality teaching standards, and extremely fruitful academic research achievements. It has also joined the ranks of world-renowned law schools. For a long time, the legal scholars of the Law School of Renmin University of China have taken it upon themselves to promote the flourishing of national law, diligently cultivating their research fields, publishing a large number of legal works, and making outstanding contributions to legal research and the development of the legal system in various eras.
Given the new situation facing China's legal research and to adapt to the new requirements of national and social development for legal work, the Law School of Renmin University of China and Renmin University of China Press, after careful deliberation, have decided to publish this "Library of Legal Science," a long-term academic publishing project, to publish a large number of high-quality academic works that fully reflect and represent the high standards of the Law School of Renmin University of China and the broader field of Chinese law.
This "Library of Legal Science" is an open-ended, long-term academic publishing plan, led by a group of renowned senior professors and distinguished middle-aged and young legal scholars of the Law School of Renmin University of China, with other famous legal scholars from legal research and teaching institutions invited to participate in forming a strict evaluation committee. Each year, several high-level and highly valuable domestic legal monographs will be selected for publication by Renmin University of China Press through careful organization, aiming to publish outstanding legal works in a concentrated manner, achieve economies of scale, and produce the effect of classic works.
The editing and publishing of the "Library of Legal Science" is a long-term task. We envision that by this opportunity, a batch of high-quality, high-level legal classics will be introduced, providing direct theoretical support and assistance for the development of the legal system, social development, and legal research. At the same time, we hope to provide a platform for scholars, especially middle-aged and young scholars, who are dedicated to legal research to publish their outstanding works, thereby cultivating first-class legal scholars for China's new era. We expect and believe that through the joint efforts of all parties, the "Library of Legal Science" will be able to continuously publish first-class legal works, becoming an authoritative forum and a treasure trove of high-quality legal works in the field of Chinese legal research.
The right to property is a legal system rooted in a specific society but influenced by politics, economy, and culture. The research on the institutional design of the right to property is not purely normative analysis but involves placing the system of the right to property in its social context, studying the laws governing its evolution with the political, economic, and cultural changes of a specific society, and revealing the mechanisms of the system that align with its social foundation. Therefore, institutional design research requires the comprehensive analysis of methods from law, economics, sociology, and political science.
Since becoming involved with the right to property, the author has published two works on the subject: "On the Right to Property" (in three volumes) and "Land Use Rights and the Right to Enjoyment of Property." In these books, the author attempts to use the principles of the right to property to design China's system of the right to property and propose his own ideas on some theoretical and rule-related issues. The 18 thematic research papers collected here include nine that have been published in professional legal journals, while the other nine have not been published or have only been included in some collections of essays. They are compiled and published here to showcase the author's thoughts on the institutional innovation of the legislative system of the right to property.
The appendix includes the "Land Use Law of Mexico," translated by the author in 1999 but not published, which is included here due to its important reference value and guiding significance for the regulation of rural land in China.
This book comprehensively employs methods from legal economics, legal sociology, and normative analysis to explore the basic principles of the institutional design of the right to property and conduct research on the fundamental institutions of the right to property. The first part focuses on the macro aspects of the institutional design of the right to property, particularly on its political, economic, and social foundations, attempting to seek a system of the right to property that aligns with public ownership. The second part discusses the basic principles and concepts of the right to property law. The third part discusses the institutional design of immovable property rights in China, proposing a basic framework for immovable property rights centered on land use rights. The fourth part discusses the institutional design issues of several types of movable property.