Yang Zhizhu is listed as “librarian, China Youth Political Academy; Webmaster, “Issues and Isms,” Thanks to David Kelly for the translation. The original Chinese text is here.
Since the determination on 19 March by the Municipal Court of Jiulongpo District, Chongqing, that “those whose property is to be demolished shall demolish it by 22nd of this month, otherwise it will be enforced by the court,” No.17 Yangjia Pinghouxing Road in Jiulongpo, the “most in-your-face recalcitrant household,” has won the sympathy of the press and network media. But apart from the fact that, as I have pointed out, the basis of the determination in favour of mandatory demolition”Article 16 and 17 of the State Council Regulations on Demolition of Urban Housing”is in violation of Article VIII, Section 9, of the PRC Constitution, the grounds appealed to by commentators to attacked the developers, Housing Bureaus and Courts has not been the Property Law, but antediluvian “German windmills” or similar stories. Stories about “German windmills,” “Washington recalcitrants,” etc., however, being based on private ownership of land, provide little theoretical support, to say nothing of a legal basis, for recalcitrants on China’s state-owned land.
The amazing thing is that Property Law experts have such a lot to say about the support it offers the recalcitrants. “The Property Law will end enclosure movements and forceful demolitions, so that they become historical terms.” “The recalcitrants will able to win iof the Property Law is given force in Chongqing.” To tell you the truth, I would prefer to believe that this was erroneous reporting by journalists.
Article 28 of the Property Law of the PRC (effective October 1, 2007), provides that “The establishment, modification, transfer and lapse of the property rights as a result of the legal amanuensis of the people’s court and the arbitration commission, the expropriation decision of the people’s government shall become effective upon the effective date of such legal amanuensis or expropriation decision of the people’s government.”
The date at which the determination by Jiulongpo District on the resumption for demolition of Yangjia Pinghouxing was to take effect is not to be found in any of the media coverage. However, the fact that the developers had previously gained the usage right certificates indicates that the “most in-your-face recalcitrant household” had lost their ownership of the house at that moment. The same piece of land cannot have two incompatible ownerships, this is the ABC of the Property Law. The developers who had already registered their land use certification with the Ministry of National Lands and Resources or the Housing Bureau, and not the recalcitrants, are the genuine property owners, so how can they have recourse to the protection of Property Law?
Theoretically speaking, the Property Law, while an important part of the Civil Code, cannot contend with administrative powers. What the Civil Code regulates is relations between private individuals (including legal private persons, as below) and not between public (government) and private, so how can it constrain the exercise of public authority? The Civil Code can at most define the boundary which a specific administrative act may not infringe. However, even if a judgment is won that a civil right has been violated by a specific administrative act, the criterion by which it is found to be illegal is that it lacked legal basis or was in breach of statutory procedures, not that it a violated private rights. The extent of damage caused by violation of the private rights is merely the criterion for compensation, and not the criterion determining the legality of the administrative act.
It’s no bad thing that the civil Code cannot contend with administrative power, indeed is an inevitable requirement for the legal system’s own logical consistency. If private civil rights can run counter government power just like private rights, then all taxes, fines, confiscation of charge, requisitions will become illegal actions that violate of civil rights. Even traffic controls may be considered to prejudice the exercise of civil rights.
Finally some Property Laws experts spoke out to demolish the myth of public opinion that the Property Law would prevent mandatory demolitions. According to the Oriental Morning Post on March 23, Professor Jiang Ping, head of the Property Law Experts drafting group, has stated that Wu Ping’s grounds for refusing the demolition was that it did not involve the public interest, but these grounds could not be substantiated. “So if she says it is not a matter of public interest, it isn’t?” Although Professor was ruled castigated for this by netizens, and I personally don’t think that it was legitimate for the court to forcibly remove the “most in-your-face recalcitrant household,” But what is meant by the public interest is certainly not simply up to those whose property is to be demolished; Mr. Jiang Ping is not mistaken on this point.
The print and network media always count on the property rights clearly defining the “public interest” to limit expropriation and requisitioning, but their legal status is in fact a matter of administrative rather than civil law, and the existence of “public interest” can be judged by the government only, not by individuals. It is up to the Constitution to curb the government broadening the interpretation of “public interest” to harm private rights. The provisions on expropriation and requisitioning in Articles 44 to 42 of the Property Law of the PRC should be part of the Constitution and not the Civil Code, and the regulatory scope of the civil Code vis √° vis administrative law should likewise be harmonized in the Constitution rather than the Civil Code.
As a result, firstly the absurdity of article 42 of the Property Law,** “inviting wolves into the house” may be avoided; secondly, a basis would be provided for constitutional review of infringement of individual rights by demolitions.
