An Analysis of the Conflict in Chinese Property Law: Eminent Domain Powers versus Real Property Rights

An Analysis of the Conflict in Chinese Property Law: Eminent Domain Powers versus Real Property Rights

This article, written by a partner at a Shanghai, China, law firm, covers eminent domain powers and real property rights in China. It discusses the public interest requirement in land-taking laws in China, the exercise of eminent domain powers in China, and the illegal taking of property rights and land in that country. The article also covers proposals for future eminent domain procedures in China.

Excerpt:

The matter of real property rights is an important issue, and one that causes significant social controversies in the People's Republic of China (PRC). This essay intends to give an analysis of the conflict between eminent domain, the powers of a government to expropriate private property for public use, and real property rights. The consequences of this conflict between eminent domain and real property rights are significant. For the purposes of the discussion, this article will begin by introducing the historical development of "public interest" as a stipulation for eminent domain. We will then discuss how the government and its agents are able to bypass the public interest stipulation, and we will argue that the public interest stipulation is impracticable because of the tension it highlights between the laws and the actual purposes for land-taking. Lastly, this article will propose stricter adherence or new regulations regarding eminent domain procedures, so that land transfers may occur – even if for commercial purposes – in accordance with law and administrative regulations.

The concept of public interest appears in Chinese property law, as well as in various other laws and regulations, but finding the exact meaning of the term poses more difficulty. According to Chinese law, the right of eminent domain cannot be exercised unless there is a need based on public interest. However, if the state is to exercise eminent domain for the purpose of public interest, the meaning of "public interest" must first be defined by law. Laws and regulation in China have failed to offer a specific definition of public interest. Instead, until now, they have applied a method of incomplete enumeration, meaning that actions that may qualify as public interest works have not been expressly laid out.

Dr. Fang Ye is a partner of ALLBRIGHT LAW OFFICES, the largest PRC law firm headquarted in Shanghai, China. Her practice area includes real estates and finance, land taking, corporate law, and litigation. Dr. Ye got her S.J.D and LL.B. from East China University of Politices and Law, and her doctoral degree dissertation is about land taking. She got her LL.M. from both William S. Richardson School of Law, University of Hawaii, and Tsing Hua University.

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