Current Social Obligations of Land Rights on Chinese State-Owned Land

Author:Zhe Huang
Pages:261-315
SUMMARY

Cyberattacks are proliferating. Live trackers record over 6 million cyberattacks daily. Information technology-dependent societies increasingly perceive cyber- threats as a destabilising force and citizens inevitably look to the State for protection. This paper concerns one form of State protection: whether States owe due diligence obligations in cyberspace under the laws of State responsibility. ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
I am grateful to Professor Larry Church and Professor Joseph ome of University
of Wisconsin Law School, and other professors and friends for their guidance and
support. I would like to thank e Indonesian Journal of International & Comparative
Law and its editors for their help in the process of publishing this article. I dedicate
this article to my parents for their unconditioned dedication, perseverance and love
throughout the years.
CURRENT SOCIAL OBLIGATIONS OF LAND
RIGHTS ON CHINESE STATE-OWNED LAND
Zhe Huang
Independent Scholar
E-mail: zhehuang007@gmail.com
is article critically examines social responsibilities of land rights on State-
owned land in China where the State is the highest owner and regulator of land.
Current social responsibilities on State-owned land are inadequate, ineective,
and distorted. Urban property rights holders do not owe sucient social obli-
gations to the society. Chinese State governments have abandoned and violated
their social responsibilities as landowners and regulators. ey abandon their
regulatory responsibilities to impose and enforce social responsibilities upon
property owners and land users on State-owned land. is article argues the
State is justied to impose adequate social responsibilities on State-owned land.
As landowners, State governments should bear certain social responsibilities to
allocate land for specic social purposes. As land regulators, the State govern-
ments should impose and enforce social responsibilities on land use holders, in-
cluding prohibiting unauthorized enclosure and conversion of cultivated land
for non-agricultural purposes, promoting armative land use, protecting the
environment, regulating real estate transactions and enforcing land use laws
and regulations.
Keywords: Socialist Legal System, Land Use Rights, Social Legal Obligations, Granted
Land Use Right, Allocated Land Use Right, Condominium Rights.
IV Indonesian Journal of International & Comparative Law 261-313 (April 2017)
262
Huang
I. INTRODUCTION
Traditional libertarians argue that private property’s social function
is to shield it from the power of the public and to promote personal
autonomy, liberty, security, and economic eciency.1 A social norm
theory of private property, as an alternative to traditional libertarians,
views property as a social institution, which can and should contribute
to society.2 Despite the dierences, both theories generally agree that
certain social responsibilities can and should be imposed upon prop-
erty under certain circumstances. Even traditional libertarians believe
that private property has social functions. A thin social norm of prop-
erty developed from classical liberal approach treats the social respon-
sibility as something necessary, as the social duty only attaches to the
property when something bad or harm happens. Libertarians’ negative
social responsibility is demonstrated in Anglo-American common law
to prohibit nuisance.3 Anti-nuisance doctrine asks the owner not to
commit a noxious use on his property, and the State can abate such use
without paying compensation.4 e law-and-economics version of this
obligation views owners have obligations to their community to solve
problems like market failures, free riders, and holdouts.5 Libertarians
also acknowledges there might be “certain intrinsic constraints operat-
ing within property rights as a result of the limitations on permissible
1. H D, P: V  I 40 (2011). J
W S, E: T P  P 3 (2000).
Qinglan Long, Reinterpreting Chinese Property Law, 19 S. C. I. L. J.
55, 57 (2009).
2. Gregory S. Alexander, e Social-Obligation Norm in American Property Law,
94 C L. R. 745, 746 (2009). e core of property rights is the owner
has a right to exclude others and owes no further obligation to them. Com-
mon-law nuisance recognized limits on the exercise of property rights, but
such limits are exceptions and the periphery rather than the core.
3. Id.
4. G S. A, T G D O C
P: L F A T J 225 (2006).
5. R E, T: P P   P  E-
 D (1985).
263
Current Social Obligations of Land Rights on Chinese State-Owned Land
Huang
appropriation from the commons.6 John Locke, for example, believed
that the law of nature entails both negative obligations and arma-
tive obligations, which include leaving available resource to others, and
making surplus resources available for others’ subsistence when they
cannot provide for themselves.7
In China, the State is the supreme landowner and land regulator.8
e 2007 Chinese Property Rights Law classies property rights to
State ownership, collective ownership, private ow nership, usufructuary
rights, and real rights for security.9 Usufructuary rights include land
use rights on State-owned land and collective-owned land, and other
land use rights, such as easement rights. Real public properties also
include public housing, which is not regulated in details in Property
Rights Law. is article will discuss State ownership and land use rights
on State-owned land and owners’ condominium rights. is article will
not discuss collective ownership, easement rights, and real rights for
se c ur ity.
is article critically examines social responsibilities of land and
housing on State-owned land in China. What are the social obligations
on State-owned land? What regulatory roles does the State play in
imposing and enforcing social obligations of property rights on State-
owned land? Do these social obligations serve the public welfare of
the society or counter negative externalities? What are the problems
associated with the social obligations of Chinese property rights in
urban areas?
is article begins with a discussion about the owners of Chinese
State-owned land and their conicts, followed by an analysis of social
obligations of the central State governments (Part I) and local State
governments (Part II). I will discuss social obligations on granted land
6. G S. A  E P, A I T
P T 114 (2012).
7. Id.
8. Compared to rural collectives, Chinese State governments are the higher land-
owners and land regulators.
9. Wuquan Fa ar t. 12 (󰾚󰑴󰨆) [Property Rights Law] (promulgated by the Fih
Session of the Tenth National People’s Congress of the People’s Republic of
China, March 16, 2007, eective Oct. 1, 2007). Please see the appendix for the
categories of real property rights and landowners in China.

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