Tuesday, November 3, 2015
Jie Cheng (British Columbia) has posted Enforcing Takings Clauses in China (Tsinghua China Law Review) on SSRN. Here's the abstract:
Property rights are considered fundamental in constitutional jurisprudence and essential for economic development. However, China’s economic growth over the past 30 years has posed a special paradox to many theorists: for some, it is a mysterious phenomenon that China could continue rapid growth for a few decades without proper contract law until 1999 and without constitutional private property rights until after 2004. For others, the lack of property rights explains the social unrests arising from land-taking and the potential risk of non-sustainability of further development.
This does not mean that there is no property protection in China; both the Constitution and other relevant laws provide for property rights. However, it is the security of property rights that is questioned. Not only do individuals find themselves vulnerable when government agencies (the State) take their property, but also collective organizations in rural areas fail to resist expropriation requests from the State. According to the original text of Article 10 of the 1982 Constitution, “The state may in the public interest take over land for its use in accordance with the law. No organization or individual may expropriate, buy, sell or lease land, or unlawfully transfer land in other ways.” It was not until 2004 when the 20th and 22nd Amendment of the Constitution added compensation to the original clause.