Chinese Property Law (System Design and Innovation)

Author: Gao Fuping
Publisher:
Publishing 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 civilized progress through the rule of law are abundant. However, flipping through the history of nations 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 diversifying. 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 it under the name of the state is undoubtedly the most straightforward and effective method. As history progresses, social development, 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, especially the electronic information revolution of the mid-20th century, brought earth-shaking changes to human society. They 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 fundamental 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 been vigorous in major countries across the East and West, coinciding with the tide of social transformation. China is a nation with a long history and splendid culture. In its millennia-old traditional culture, the spirit of valuing and upholding the law has always held a significant position. However, due to the fundamental differences between the spirit and purpose of ancient Chinese legal culture and modern society, the vast and profound traditional legal system of China could not be integrated with modern social 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 began an extremely arduous process 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 turmoil and unrest. In a sense, social transformation theoretically provides opportunities for legal reform, but prolonged social instability 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 to rebuild its legal system has been fraught with difficulties.
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 re-examine themselves and the world around them with a rational perspective, using a more calm and reasoned approach to think about and choose their path forward. This marked the beginning of China's reform and opening-up period, a historically significant era. This comprehensive national rejuvenation movement, driven by economic reform, also brought unprecedented opportunities and vast development space for the legal transformation that had been stagnant for nearly a century. It can be said that the two decades following the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China in 1978 were the most transformative and profound in Chinese history. Over the past 20 years, the Chinese people, guided by the great theory of Deng Xiaoping, broke free from the of "leftist" ideology, carried out comprehensive reforms in politics, economy, and culture, and achieved remarkable accomplishments that have 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 the reform and opening-up, legal nihilism, which had long hindered 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 construction 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 ensuring 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 "governing the country according to law" and "building a socialist rule of law state," as determined at the Fifteenth National Congress of the Communist Party of China, had become a common consensus and demand among the entire population. This ideological shift has provided a strong intellectual guarantee for further improving China's current legal construction 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 one hand, on objective social conditions and needs, and on the other, on the development of legal research and legal education. Law is a highly specialized, technical, and complex social science. The advancement of the legal system as a whole relies on the improvement 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. 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. At the same time, the legal education system 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 construction, providing ample and robust talent reserves for further development.
In a sense, the efforts of the legal community over the past 20 years have made significant contributions to the progress of China's new-era legal construction. The positive role of legal research in transforming the public's legal awareness, improving legislative standards and efficiency, and further refining the judicial system has been particularly evident. Law is an upper structure built upon the economic base, and the study of legal systems as a discipline has become highly practical and targeted. The development and changes of society inevitably impose new demands on law, which are then reflected in legal research.
For China, after nearly two decades of struggle, the stage goals of the 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, beyond ideological renewal and policy formulation, the resolution of these complex issues ultimately boils down to the legal system. 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 to guide all social activities into an orderly and efficient framework.
In reality, considering China's unique historical and cultural context and current situation, we recognize that the establishment of a system, i.e., a "good law and beautiful system," should be the most pressing 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, and abundant academic achievements, and has now 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 the flourishing of national law as their mission, diligently cultivating their fields, publishing a large number of legal works, and making outstanding contributions to legal research and construction 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 research and consultation, have decided to publish this "Legal Science Series," which will gradually release a large number of high-quality academic works that fully reflect and represent the high standards and levels of academic research in the Law School of Renmin University of China and the broader field of Chinese law.
This "Legal Science Series" is an open-ended, long-term academic publishing plan, with a group of highly esteemed senior professors and renowned young and middle-aged legal scholars of the Law School of Renmin University of China as its core, supplemented by famous legal scholars from other legal research and teaching institutions, 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, with meticulous organization to achieve the goals of publishing high-quality legal works in a concentrated manner, generating economies of scale and the effect of renowned works.
The editing and publishing of the "Legal Science Series" is a long-term task. We envision that by this opportunity, we can promote a batch of high-quality, high-standard legal classics to provide direct theoretical support and assistance for the construction of the legal system, social development, and legal research. At the same time, we hope to provide a platform for scholars, especially young and middle-aged scholars, who are committed to legal research to publish outstanding works, thereby cultivating first-class legal scholars for China in the new era. We expect and believe that through the joint efforts of all parties, the "Legal Science Series" can continuously release first-class legal works over the coming years, becoming an authoritative forum and a treasury of high-quality legal works in the field of Chinese legal research.
The property rights system is a legal system rooted in a specific society but influenced by politics, economy, and culture. The research on the institutional design of the property rights system is not purely normative analysis but involves placing the property rights system in its social context, studying the laws governing the evolution of property rights as they change with the political, economic, and cultural shifts of a specific society, and revealing the mechanisms of the property rights system that align with its social foundation. Therefore, institutional design research requires the comprehensive analysis of methods such as law, economics, sociology, and political science.
Since becoming involved with the property rights system, the author has published two works on property rights law: "The Theory of Property Rights" (in three volumes) and "Land Use Rights and Beneficial Property Rights." In these books, the author attempted to use the principles of property rights law to design China's property rights system 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 innovation of property rights legislation and institutional design.
The appendix includes the "Agricultural Land 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 property rights institutional design and conduct research on the fundamental institutions of property rights. The first part focuses on the macro aspects of property rights institutional design, particularly on the political, economic, and social foundations of the property rights system, attempting to seek a property rights system that aligns with public ownership. The second part discusses the basic principles and concepts of property rights 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.