Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Saturday, July 2, 2011

Phantom gray areas in Chinese law

I want to recommend this post from China Hearsay on what the author (Stan Abrams) calls "phantom gray areas" in Chinese law. These are areas where the law really isn't uncertain at all, but people for various reasons like to pretend it is. Sometimes it's just because they don't like the rule; sometimes it's so that they can blame unpredictable government policy instead of themselves when things go wrong. Stan's example is that of the use of contractually-based Variable Interest Entities to attempt to get around Chinese restrictions on foreign ownership in various industries. One favorite area of mine is the uncertainty I often heard alleged about what would happen to long-term land-use rights under the Urban Real Estate Administration Law when their term expired. (This is before the Property Law injected real uncertainty into the process.) Well, the answer was always quite clear: everything goes back to the state, including all buildings on the land, without any further compensation. But holders of LURs didn't like this result - they would conjure up pictures of granny being thrown out onto the street as year 70 expired. (As if the LUR holder hadn't had a full 70 years' advance notice that this was going to happen!)

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