One of the most debated questions regarding land rights in China among Chinese scholars is clarifying the concept of the collective as a holder of land rights.
Article 10 of the Constitution of 1982 (now in force) reads as follows: “Land in the cities is owned by the state. Land in the rural and suburban areas is owned by collectives except for those portions which belong to the state in accordance with the law; house sites and private plots of cropland and hilly land are also owned by collectives. The state may in the public interest take over land for its use in accordance with the law. No organisation or individual may appropriate, buy, sell or lease land, or unlawfully transfer land in other ways. All organisations and individuals who use land must make rational use of the land.”
Apart from the polemic geographic division of land ownership that poses multiple problems of interpretation, this article sanctions the collective as owner of land in the rural and suburban areas. But, who or what is the collective? Who exercises its ownership rights?
The origin of the collective is rooted in the history of Chinese economic planning, when private property gradually disappeared and the power of the Administration to regulate the private lives of citizens became ubiquitous. The collectivisation of the means of production operated from the second half of the twentieth century on, and the consequent control of the market by the Administration led to confusion between public law and private law. All that fell under the domain of the economy was regarded as public law, and the Administration was entitled to interfere in civilian affairs.1 The state’s interest were thus considered greater than the farmer’s (xian guojia, zai jiti, zuihou shi nongmin geren – 先国家,再集体,最后是农民个人), justifying the discretionary behaviour demonstrated by the authorities.2 It is not a legal but a political concept created by the CCP.
According to article 59 of the Property Rights Law the movable and immovable property of the farmers’ collective belongs to its members (nongmin jiti suoyou de budongchan he dongchan, shuyu ben jiti chengyuan jiti suoyou－农民集体所有的不动产和动产，属于本集体成员集体所有). Therefore, according to the law, the concept of collective is equivalent to that of the farmers’ collective (集体＝农民集体). Hence, rural land is collectively owned by the collective’s members.
Once we know that farmers are the legal owners of rural and suburban land we should analyze how farmers exercise their collectively owned property rights, so as to determine the essence of the collective. Article 60 of the same law sheds some light on this question, elucidating which organised bodies exercise farmers’ collective ownership rights.