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Civil code: China's "declaration of rights"


(Liu Wei,Wang Jun and Yang Dingmiao, Xinhua)Ding Jiaqiang, a peasant in Qingfeng County, in southwest China’s Guizhou Province, had never thought of suing the government until his 0.2-hectare garden was expropriated to make way for a highway.

Ding believed the expropriation procedures and the amount of compensation both violated China’s Property Law.

In April, Ding took a two-hour bus ride to the court in the provincial capital, Guiyang. Across the courtroom, the vice-governor of Guizhou was in the defendant’s seat. It was the first time a provincial governorship had answered charges from a member of the public since the foundation of the New China in 1949.

The defendant Chen Mingming, the vice governor of Guizhou Province. By Wang Jun, Xinhua

The Property Law, passed a decade ago, fully acknowledges “private property ownership” and restricts expropriation powers. It has become a weapon for citizens fighting land requisitions and demolitions.

Public awareness of private rights first stirred in 1986 when the General Principles of the Civil Law (GPCL) was enacted, but given the lack of a tradition of protecting private rights, a civil code has been absent till now.

In June, the Standing Committee of the National People's Congress began the first key steps towards a “unified civil code”, which is expected to be enacted by 2020, and property rights will be included.

Legal scholars view this belated statute book as the Chinese people’s “declaration of rights”.

A close study of China’s reform reveals the expansion of private rights with civil law, says civil law scholar Liang Huixing. From the abolition of the commune system to the implementation of the household contract responsibility system, it shows a progression from status (an ascribed position) to contract (a voluntary stipulation) , as described by Henry Sumner Maine, the British jurist and legal historian, in his 1861 work Ancient Law.

In the time of the planned economy, private property rights were so limited that a peasant could raise no more than two hens because “capitalist hens” could lay eggs.

The first draft of the GPCL appeared in the 1950s, but it took 30 years to enact. “Still, it was the first time a law showed the public that citizens have civil rights. You can imagine how it contributed to the emergence of the market economy,” says Sun Xianzhong, a researcher at the Law Institute of the Chinese Academy of Social Sciences.

Most Chinese in the 1980s would have been puzzled by the GPCL’s concept of “property ownership and related property rights”, though it clearly stated that “property ownership” meant the owner’s rights to lawfully possess, utilize, profit from and dispose of their property.

When the first private enterprises sprang up in the market economy era, people wondered if they were a result of socialism or capitalism. When China’s then Paramount Leader Deng Xiaoping read a report on private enterprises, he said, “Socialism or capitalism – we don’t judge.”

“Civil law like the GPCL protects a citizen’s ambition to make money and inspires the confidence and passion to pursue wealth,” says Sun.

In 2014, China enacted the “Guidelines on further promoting the reform of the household registration system”. This removed the distinction between urban and rural residents so that society could evolve from status to contract.

Under the hukou (household registration) regime, which dates from the 1950s, migrants have limited access to health care, education and other social benefits outside their hometowns. When rural resident Zhang Xuguang moved to the town, his rural hukou hindered his efforts to open a tea shop in 2005.

On April 1, 2016,Xu Qiuling, a rural resident in Wuyi County of Zhejiang Province, is showing her new household register, removing the distinction between urban and rural residents. Xinhua

“I was asked to bring house and marriage certificates for the license because I was a ‘peasant’,” Zhang recalls.

Luckily for Zhang ,the new household policy started its pilot program in Tongling City, Anhui Province early in 2011, and it changed Zhang’s life by enabling him to become an official citizen of Tongling.

When he opened a second tea shop, Zhang was less troubled by paperwork, and he successfully applied for a business loan. Without citizen status, Zhang could only get a small loan from the special agriculture program of China’s Agriculture Bank.

But civil law is not omnipotent. “The major role of civil law is to draw a line between private and state rights and to prevent offense, but it doesn’t mean protecting private rights at the expense of state rights,” says Yin Tian, director of the Civil Research Center of Peking University.

In 2007, a couple in Chongqing stood on their rooftop to stop a developer from demolishing their house. The act triggered a debate about the relationship between public and state rights.

Wu Ping and Yang Wu pioneered the “nail house” phenomenon of stand-alone buildings holding out against demolition. On the scheduled day of the demolition, Wu Ping stood in front of hundreds of cameras, holding the house ownership certificate and documents including China’s Constitution and demanding hefty compensation.

“I believe that this is my legal property, and if I cannot protect my rights, it makes a mockery of the Property Law. In a democratic and lawful society, a person has the legal right to manage one’s own property,” said Wu.

On March 21, 2007, Wu Ping stood in front of her stand-alone home holding the house ownership certificate and documents including China’s Constitution. Xinhua

In this case, the local government had abused the power to cut off water and electricity and to block their way out, which severely violated their rights. Moreover the compensation was inadequate. However, says Professor Jiang Ping, of China University of Political Science and Law, Wu was abusing her private rights by unilaterally setting compensation standards.

A civil code is needed to better define state rights and private rights so that people like Ding Jiaqiang will not have to refer to the Property Law to defend their private rights and stand a better chance of winning the case.

“I am looking forward to studying the civil code,” says Ding. “I have lost the case, but I know my property rights are protected by law and I should use this weapon well.”

(Qu Ting also contributes to the story.)

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