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George Washington University Law School

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Sunday, March 5, 2006

China's draft Property Law: reaction and counter-reaction

The adoption of China's Property Law (物权法) has proven exceptionally difficult because of the minefield of ideological problems involved. It is not on the legislative agenda of this month's NPC Standing Committee session because of an open letter written last August by Prof. Gong Xiantian (巩献田) of the Beijing Univ. Faculty of Law. (According to his Beijing Univ. Web site, Prof. Gong has a Ph.D. from the Univ. of Sarajevo and specializes in jurisprudence, Marxist legal theory, general theory of law, politics, and ethics.)

Professor Gong published his letter - "A Draft 'Property Law' that Violates the Constitution and Departs from the Basic Principles of Socialism" - last August, but a full account of what went on has only recently become available in an article published in Southern Weekend (南方周末).

Needless to say, those who had worked for years on the draft were furious that their efforts had been derailed at the last minute. The Civil Law Research Board of the China Law Association held a meeting on the Property Law late last month at Renmin Univ. in Beijing, which seems by and large to have been devoted to denouncing Prof. Gong's views. (See the end of this post for a link to a news report as well as a translation.)

Although Prof. Gong has been criticized for singlehandedly throwing a spanner into the works, open letters from professors these days are so common you wonder they have any time left for teaching and research; this letter would have gone nowhere were there not powerful political figures who could use it. According to the Southern Weekend report, half a month after he published his letter, Prof. Gong was invited to have a personal meeting with Hu Kangsheng (胡康生) and Wang Shengming (王胜明), chairman and vice chairman respectively of the Legislative Affairs Commission of the NPC Standing Committee. This was apparently the first time an academic had ever been invited alone to give his views to Commission members.

For a report in Chinese on the meeting where Prof. Gong's views were criticized by a roster of big names in the property law field, click here. The following translation is courtesy of David Kelly of the East Asian Institute, National University of Singapore.

Jiang Ping: Formulating the Real Property Law must not go backwards

China Industrial and Commercial Times, Feb. 27, 2006

"If a Real Property Law cannot manifest the spirit of science, and anyone's opinion can be written into it, what kind of Real Property Law is it? A Real Property Law that goes backwards—I don't approve!" Thus declared Emeritus Professor Jiang Ping of the Chinese University of Politics and Law when appraising the Real Property Law.

The process of enacting the Real Property Law, which was set for consideration at the NPC and CPPCC meetings this year, had to come to a halt because a professor at a famous univ­ersity published an open letter claiming that the draft of the Law violated the constitution. The Civil Law Research Board of the China Law Association therefore held a seminar on "The Real Pro­perty Law and the theory of building a harmonious society" at Chinese Ren­min University on 25 February. The majority of scholars attending argued that the Real Property Law legislative process should not be disturbed, and it should as soon as possible considered and promulgated.

Jiang Ping's speech was right on the money. Not only did he directly name the professor who published the open letter, he also evinced concerns about some issues in the present legislative procedure. He believes that the drafting of the Real Property Law was pulled in opposite directions by two forces, leading to revisions of the relevant articles. He pointed out that some revisions were progressive, some were going backwards. He strongly recommended that a Real Property Law be formulated that embodies the spirit of the constitution, of the reform and open policy and of science. If what finally appeared was a hodgepodge, a backward-facing Real Property Law, he would oppose it. Such a law might as well not be formulated.

Professor Wang Weiguo, Vice-chairman of the Civil Law Research Board of the China Law Society, stated that a view of the professor who published the open letter violated legal logic. The question the open letter proposed is: Are a beggar's stick and a millionaire's mansion to be protected equally? Wang Weiguo replied that the overwhelming majority of people have at least some property; even if someone begs, there are still principles. Begging someone for food indeed shows respect for the property rights of another: when a "gentleman acts charitably," the one who is begged from exercises his right of disposal, hand­ing a part of his property over. This is in fact an order without which even beggars could not exist. As for the millionaire, if his property was illegally gained, he is not protected by the Real Property Law. But telling if his property was legally obtained or not is not a question to be solved by civil law or the Real Property Law. Not all issues are to be dumped on it.

Renmin University's Professor Yang Lixin summarized six points of consensus: (1)  the Real Property Law is an important law that safeguards the basic socialist economic system, in politics, playing a vital role in economic life; (2) the Real Property Law is an important law that confirms and consolidates fruits of the victory of the reform and open policy, and impels its thorough development; (3) the Real Property Law is a fundamental law that coordinates property relations in socialist society: it safeguards people's basic rights, and is an important safeguard of building a socialist harmonious society (4) the Real Property Law is an import­ant law that encourages the broad masses to create wealth, and strengthens China's compreh­ensive national strength; (5) the Real Property Law is an important constituent of China's civil code, with decisive significance regarding the improvement of the legal framework of the socialist market economy; (6) the Real Property Law draft is the crystallization of a comprehensive exchange of opinion between jurists and the nation as a whole, condensing results of the research of several generations of Chinese jurists.

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Comments

Though Mr. Gong Xiantian's opinion is not persuasive because it lacks legal reasoning, I think he did reveal some of the flaws in Chinese civil law theory. Among them the most serious one might be that, not like in most of the civil law coutries, the Chinese state-own corporations are not regarded as having entitlement to their property. Actually most of the statesmen and even some of the legal scholars still believe the state is the owner of all those corporate assets and corporations merely act as the agents of the state when they are doing business, thus making it possible for people like Mr. Gong to refer to the slogan in the constitution that "the public property is sacred and inviolable" and claim for higher protection of those property possessed by the state-owned corporations by both government and judicature. And when the draft property law is trying to make all types of entitlement to property equally protected, Mr. Gong just became furious and asserted that the draft articles were unconsitutional.

Posted by: espresso | Mar 7, 2006 7:45:51 PM

Are there English versions of draft Property Law and Prof. Gong's open letter available on the net?
Thanx to who may help.

Posted by: manuel delmestro | Mar 9, 2006 1:19:47 AM

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