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Formality in Real Property Sale Contracts in Modern China with a Common Law Perspective

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Formality in Real Property Sale Contracts in Modern China with a Common Law Perspective Formality in Real Property Sale Contracts in Modern China with a Common Law Perspective Wei WEN A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law September 2014 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: WEN First name: Wei Other name/s: Abbreviation for degree as given in the University calendar: PhD School: School of Law Faculty: Faculty of Law Title: Formality in Real Property Sale Contracts in Modern China with a Common Law Perspective Abstract 350 words maximum: (PLEASE TYPE) This thesis outlines the Chinese laws, judicial interpretations, scholarly views and government policies relating to contractual formality for land sale contracts in their historical and modem settings. The thesis also employs a comparative methodology to critically evaluate the Statute ofFrauds literature in some selected Common Law jurisdictions such as the United States, Australia and England. This investigation includes English legal history, the development of the Statute ofFrauds legislation, associated scholarly views and judicial interpretations. These positions and arguments are compared and contrasted with their counterpart in mainland China and other Civil Law jurisdictions such as Germany and Taiwan, including Chinese legal history, the principle of freedom of contract and the Chinese version of Healing Theory. The most important original contribution is the examination and integration of the functions of formality (particularly writing) in both Sino-Civilian (mainland China, Germany and Taiwan) and Anglo-American literature which forms the theoretical framework of the thesis. Formality is also examined against the theory of freedom of contract in mainland China. Additionally, the thesis compares and contrasts the contractual consequences where the statutory writing obligation is not observed, as well as the legal techniques to address oral land sale contracts across the selected Common Law and Civil Law jurisdictions. Arising out of this, the thesis proposes a legal reform measure for mainland China and argues for a clear requirement of writing for real property sale contracts in modem mainland China. The reform recommendation also includes contractual consequence for lack of writing and the legal techniques to address the informal and sale contracts. This reform has legal, political, economic and social significance. The reform increases legal certainty and clarity in land sale contracts, one of the most important dealings in Chinese society, and could be integrated into China's unified Civil Code in the making. The reform also addresses some of the essential issues outlined by the Central Committee of Communist Party of China. Furthermore, the reform underpins the issues relating to the real property industry which constitutes a significant portion of the Chinese national economy. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). 29 May 2015 Signature Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……23……………………………………….......... September 2014 ................. AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……23……………………………………….......... September 2014 ................. ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date ……………………………………………..............23 September 2014 ACKNOWLEDGEMENTS It is a serious undertaking to write a PhD thesis, particularly for an international student whose first language is not English. I would like to express my deep gratitude to the helpful hands that reached out to me in my time of need. First, I would like to deliver special thanks to my supervisors, Professor Dimity Kingsford- Smith and Professor Keith Mason (AC, QC). I deeply appreciate their most diligent and patient guidance. This PhD thesis would never have been possible without their help. I am particularly grateful for Professor Kingsford-Smith’s most responsible supervision from which I have learned a lot. I am also very grateful for Keith’s kindest care, which he offered to me in my candidature, a testament of our profound friendship. Secondly, I also would like to give special thanks to another supervisor of mine, Dr. Liu Qiao for his constructive comments, which are invaluable to my research. Thirdly, my heartfelt gratitude goes to many others who have generously helped me complete this PhD thesis in various ways: Dr. Jenny Jarrett, Professor Theunis Roux, Professor May Fong Cheong, Mr. Maurice Cashmere, Dr. John Squires and Dr. Juan Chen. Last but not least, I am greatly indebted to my dear family. Thank you for accompanying me all the way through this particular journey of our life and supporting me to pursue my dream as you always do. i Thesis Title: Formality in Real Property Sale Contracts in Modern China with a Common Law Perspective Table of Contents Page Acknowledgement i Chapter 1 Introduction 1 Chapter 2 Introduction to Contractual Formality in Chinese Land Sale Contracts 19 Chapter 3 The Statute of Frauds and the Common Law Perspective on Contractual Formality 43 Chapter 4 The Functions and Purposes of Formality in Anglo-American and Sino-Civilian Law 72 Chapter 5 Formality and Freedom of Contract in China 102 Chapter 6 Contractual Consequences of Non-compliance With Writing in Common Law and Chinese Law 117 Chapter 7 Techniques and Remedies to Address the Legal Consequences of Non-Compliance With the Writing Requirement in Common Law and Chinese Law 136 Chapter 8 Law Reform Recommendations Relating to Land Sale Contracts in Mainland China 175 Bibliography 190 Appendix A English Literature 190 Appendix B Chinese Literature (Translated by the Author of This Thesis) 203 Chapter 1 Introduction I A SHORT STATEMENT OF THE ARGUMENT OF THIS THESIS AND ITS SIGNIFICANCE ........................................................................................................................................... 1 II A SHORT DESCRIPTION OF THE ARGUMENTS AND FINDINGS IN EACH CHAPTER .......... 2 III SIGNIFICANCE AND IMPORTANCE OF THIS THESIS ................................................................. 6 IV A SHORT OUTLINE OF COMPARATIVE METHODOLOGY EMPLOYED IN THIS THESIS ......................................................................................................................................................... 9 V THE MAIN CONTRIBUTIONS OF THIS THESIS .......................................................................... 14 VI CONCLUSION TO THIS
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