Property law in China
From the Sui dynasty onwards, women could not hold property directly and, for land to stay in the same family, it had to pass between male heirs following the rule of primogeniture.
[4]: 67 Newly accrued land along rivers, creeks and other waters – so-called riparian rights – was clearly designated as state property, and the Qing government repeatedly emphasized this in imperial edicts.
[4]: 100 During the rule of the Nationalist government (1912–1949), communal and customary rights gave land tenure to landlords, nobles, religious institutions, and village communities.
After they had gained power, the Chinese Communist Party (CCP) gradually worked towards the abolition of private ownership.
In the 1930s Land Reform in the old revolutionary base areas, such as the Jiangxi Soviet and the Shaan-Gan-Ning Border Region, was carried out with the least possible social disruption.
The Great Leap Forward (1958–1962) forced the central leadership to decentralize land ownership from the commune to the production team.
This was laid down in CCP regulations promulgated in 1962 (the Sixty Articles)[4]: 6 Freedom in the private use (not ownership) of land shifted various times.
Before 1958, when rural China was organized into huge administrative units—the people's communes—farmers were allocated small plots of collective land for their own use (ziliudi).
Farm households negotiated contracts under which they had to deliver grain quota to the state at low fixed prices.
[4]: 6 In the case of urban land, after the nationalization of industries and companies in the early 1950s, it was deemed state-owned, although not legally stipulated for a long period of time.
Land owned by the state was seen as "absolute" and therefore, did not warrant a title; a principle adhered to – and enshrined in regulation – until today.
The country may, as necessitated by public interest, expropriate or requisition citizens' private property and pay compensation therefor."
In China, there is no unified official procedure for the rules on the registration of land-use rights and the ownership of property.
Article 6 provides for a general registration requirement in the cases of creation, modification, transfer, and elimination of rights to immovables.
It is made either in cash (based on market prices) and accounts for any moving expenses or resettlement subsidies, or in kind (in the form of a replacement structure).
[33] If a rights holder wants to protect his property, he can evoke certain procedural safeguards, which include: In the event that an agreement cannot be reached between homeowners and the government, the expropriation can only be carried out after judicial review.
[33] New regulations effective from January 21, 2011, have provided hope for the future with regards to several controversies surrounding urban property expropriation.
[33] Following this instance, the employment of violence or coercion, or illegal methods like cutting off the water and power supply, to force homeowners to leave is officially disallowed.
Although these new regulations relate to urban land, the legal principles established have significant implications for the rule of law in China.
[43] While having implemented the household production responsibility system, China retains collectively-owned farmland in the rural areas.
This creates a large potential for abuse as the critical decisions regarding the land and its use are made by a small number of village leaders.
Prevailing local culture, the fear of authority and the possibility of violent repercussions hinder a victim's inclination to seek legal recourse.
[47] While critics may be skeptical of whether the new enactments clarifying the issue of collective ownership will make a difference, such changes are still welcomed as signs of increasing protection for the rural villagers.
[48] Another issue is the problem of rampant corruption arising from rural land transactions, involving both governmental and non-governmental parties.
"[50] In 2004, it amended its 1982 Constitution to include that the Government has to pay the person compensation for expropriation (征收) or requisition (征用).
[51] However, in 2011, the Chinese Government released regulations clarifying this, which promise to provide more transparency and a fairer compensation system.
