Tag Archives: collective-owned land

Who is the collective? (I)

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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.

  1. Liang Huixing (1993) Minfa xue shuopan li yu lifa yanjiu.Beijing: Zhonguo zhengfa daxue chubanshe []
  2. Chen Xiaojun, deng (2012) Nongcun tudi falv zhidu de xianshi kaocha yu yanjiu – zhongguo shisheng tiaoyan baogao shu. Beijing: Falv chubanshe []

Miguel Elosua

Spanish qualified lawyer; PhD in Chinese Law. UrbaChina Research Officer. Has lived in China since 2006.

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Land expropriation in China

Zhang, Xian. Seeking just compensation for collective-owned land expropriation in China. Short Academic Paper, Peking University (July 1, 2013). 18 p. Available at SSRN: http://ssrn.com/abstract=2331225 or http://dx.doi.org/10.2139/ssrn.2331225

In the process of urbanization, China needs to expropriate more and more collective-owned lands in order to satisfy the need of city construction and development. However, when the collective-owned lands are expropriated currently, peasants get very low compensation for their loss in improvements, green crops, and land use rights.Why Chinese peasants get such a low compensation? From legal aspect, it is illegal for the Collective to sell its land directly in the market. China does not allow a market for the transfer of collective-owned land, the compensation lacks of a comparable market standard. In addition, the Land Administration Law requires the compensation to be based on the original purpose of land expropriated and administrative pricing. That leads the compensation standard to be far away from fair market value. From incentive aspect, the local government needs extra-budgetary revenue to fill the huge gap between its tax revenue and fiscal expenditure. The price spread between land-transferring fees and compensation turn into local government’s extra-budgetary revenue. Thus, the local government has great incentive to lower the compensation. With the discretion on deciding what qualifies public use, local government can expropriate as many collective-owned lands as possible, in order to generate more extra-budgetary revenue.

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Chen, Lei. Legal and institutional analysis of land expropriation in China (October 14, 2013). Available at SSRN: http://ssrn.com/abstract=2339998 or http://dx.doi.org/10.2139/ssrn.2339998

China has a bifurcated land system, with clear distinctions between urban and rural land use rights. While state-owned land in urban areas has become commercially transferable, rural land cannot be transferred. This discrepancy has been exploited by property developers, investors, village heads and local governments, which has caused wide-spread, large-scale malpractice in relation to expropriation of land. Thus, conflict over expropriation of land has been, and continues to be, a simmering hotpot of social unrest in China. It has been claimed that land disputes over expropriation is one of the most common ways of provoking grassroots resistance and undermining public confidence in the government. How should the grievances suffered by the rural farmers be redressed, and how should the Chinese government draw the fine line between economic development and individual property rights? In order to answer these questions, this paper addresses the root causes of land disputes both from a legal perspective, evaluating the most recent statutory changes, and from the policy perspective, analyzing the national strategy of integrating urban and rural areas (城乡一体化), including the recent local experiments on transforming the inalienability of rural land use rights.

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See also

Roberts, Dexter (November 20, 2013). Is land reform finally coming to China? Bloomberg Businessweek. Retrieved 10 February 2014 from http://www.businessweek.com/articles/2013-11-20/is-land-reform-finally-coming-to-china

China’s leaders raised a multitude of reforms as priorities at the plenum that closed a week ago. A key one, a change in land ownership so that farmers can more freely rent, sell, and mortgage their land, is hoped to boost China’s still laggard household consumption.

Read the full story

Sargeson, Sally (2012). Villains, victims and aspiring proprietors : framing ‘land-losing villagers’ in China’s strategies of accumulation. Journal of Contemporary China, 21 (77),  757-777. DOI: 10.1080/10670564.2012.684962

This paper examines how debates in the media are providing the discursive conditions for, and thereby giving impetus to, diverse strategies of ‘so-called primitive accumulation’ in China. Taking as its empirical referent Chinese news and journal articles on land enclosure, the paper analyzes three frames in which policy entrepreneurs craft varying class positions for land-losing villagers. Grounded in different ontological premises, problem diagnoses and recommendations centering on the adoption of either a statist, neo-collective or liberal rural land regime, and backed up by evaluations of local policy experiments, the frames illustrate the diversity of ideational, political and institutional configurations that could facilitate the separation of peasant producers from the land, place land-losing villagers in different relationships with the state and capital, and sustain accumulation. In foregrounding these debates over land-losing villagers’ future class positioning, the paper aims to offer a corrective to the historical determinism implicit in contemporary analyses that characterize enclosure in China as simply one national manifestation of homogenous, global neo-liberal projects of ‘accumulation by dispossession’ or ‘gangster capitalism’.

Read full text on Taylor & Francis online (restricted access)

Monique Abud

Centre d’études sur la Chine moderne et contemporaine, EHESS, Paris, France

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Seeking just compensation for collective-owned land expropriation in China

Xian Zhang (2013), Seeking just compensation for collective-owned land expropriation in China, Full text of the article available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2331225

Abstract

In the process of urbanization, China needs to expropriate more and more collective-owned lands in order to satisfy the need of city construction and development. However, when the collective-owned lands are expropriated currently, peasants get very low compensation for their loss in improvements, green crops, and land use rights.

Why Chinese peasants get such a low compensation? From legal aspect, it is illegal for the Collective to sell its land directly in the market. China does not allow a market for the transfer of collective-owned land, the compensation lacks of a comparable market standard. In addition, the Land Administration Law requires the compensation to be based on the original purpose of land expropriated and administrative pricing. That leads the compensation standard to be far away from fair market value. From incentive aspect, the local government needs extra-budgetary revenue to fill the huge gap between its tax revenue and fiscal expenditure. The price spread between land-transferring fees and compensation turn into local government’s extra-budgetary revenue. Thus, the local government has great incentive to lower the compensation. With the discretion on deciding what qualifies public use, local government can expropriate as many collective-owned lands as possible, in order to generate more extra-budgetary revenue.

If the unjust compensation continues, the peasants’ situation would be worse. Therefore, I make three proposals to reshape the compensation system for expropriating collective-owned land. First, abandon the original purpose and administrative pricing in article 47 of Land Administration Law. The compensation should be based on fair market value. The land-transferring fees could represent the fair market value of ownership of collective-owned land. And the value of individual peasant’s improvements, green crops, and land use right could be assessed by independent appraisers. Second, I design a new distribution mechanism according to the proposed amendment of the Land Administration Law and new compensation standad. Third, there is a need to define public use specially for expropriating collective-owned land. The definition should be narrower than the one in the Regulation on the Expropriation of Buildings on State-owned Land and Compensation. And certain amendment to the definition is needed.

 

Jacqueline Nivard

Jacqueline Nivard, Centre d’études sur la Chine moderne et contemporaine

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