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Traditional Forms of Land Tenure in Rural China and Models for Reform

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Traditional Forms of Land Tenure in Rural China and Models for Reform TRADITIONAL FORMS OF LAND TENURE IN RURAL CHINA AND MODELS FOR REFORM Andrew John Godwin ORCID ID https://orcid.org/0000-0003-4739-0432 Thesis submitted for the degree of Doctor of Philosophy (PhD) Submitted 5 July 2018 Melbourne Law School The University of Melbourne This thesis is being submitted in total fulfilment of the degree and is not being completed under a jointly awarded degree. Abstract The plight of farmers in rural China is an issue of fundamental importance in China today, both in terms of improving their living conditions from the perspective of individual farming households and in terms of maintaining social stability and achieving economic prosperity from the perspective of the nation as a whole. Since 1979, when the Household Responsibility System was first trialled, China has made significant advances in terms of increasing agricultural production and lifting its rural population out of poverty. As the liberalisation of the rural economy has gathered pace, however, problems have arisen in relation to rural land use and management. These include inefficiencies in the use of land as a result of small-scale farming; under-utilisation of land as a result of the migration of rural labour to the cities; abusive and coercive practices on the part of local governments and authorities; and irregular and unlawful land dealings. The above problems have implicated law and the legal system and have revealed deficiencies in the legal framework and rules governing rural property rights. To a significant extent, these deficiencies are attributable to enforcement challenges and weaknesses in the courts and other institutions. However, the deficiencies have also been attributed to fundamental structural weaknesses in the design of the land tenure system in rural China. The nature and extent of the deficiencies have been thrown into sharp relief by a series of government policies over the past few years. These policies aim to give farmers stronger property rights and reduce or remove restrictions on the assignment of property rights to encourage the development of a market for the sale and purchase of rural property rights. This thesis evaluates the relevance and suitability of traditional forms of land tenure to reform of rural land rights in China today. The criteria for the evaluation are the official policy objectives of the State, including giving farmers stronger property rights and increasing the scope of rights that famers may exercise. This thesis argues that the traditional forms of land tenure should be considered in the mix of reform options and considers conceptual models for this purpose. Declaration I declare that: (i) This thesis comprises only my original work towards the Doctor of Philosophy (PhD); (ii) Due acknowledgement has been made in the text to all materials used; and (iii) The word count in this thesis is less than the maximum word limit in length, exclusive of tables, bibliographies and appendices. Signed: Contents Chapter 1 - Introduction ......................................................................................................................... 5 1. Introduction ................................................................................................................................ 5 2. Literature review ......................................................................................................................... 8 3. Focus, hypothesis and research questions ............................................................................... 17 4. The research methodologies and materials ............................................................................. 19 5. Outline of chapters ................................................................................................................... 22 Chapter 2 – The Legal Framework for Rural Land Tenure in Mainland China ...................................... 25 1. Introduction .............................................................................................................................. 25 2. Concepts and terminology ........................................................................................................ 26 3. The evolution of rural land tenure since 1949 – an overview .................................................. 28 4. Collective land ownership ......................................................................................................... 29 5. Land contract management rights ............................................................................................ 37 6. Residential foundation rights .................................................................................................... 55 7. Conclusion ................................................................................................................................. 56 Chapter 3 - Rural Land Tenure in Mainland China: Challenges, Policies and Calls for Reform ............ 59 1. Introduction .............................................................................................................................. 59 2. Early criticisms of the current system ....................................................................................... 60 3. Challenges ................................................................................................................................. 61 4. Policies ...................................................................................................................................... 70 5. Calls for reform ......................................................................................................................... 81 6. The implication of rules in the current challenges ................................................................... 85 Chapter 4 – The Historical and Legal Context for the Traditional Forms of Tenure in China ............... 86 1. Introduction .............................................................................................................................. 86 2. An outline of perpetual tenancy rights and dian rights ............................................................ 87 3. An overview of the historical and legal context ....................................................................... 87 4. Family ownership and dealings with land ................................................................................. 95 5. Private constraints on the assignability of land ...................................................................... 102 6. Taxation as a basis for the legal recognition of private rights in respect of land ................... 103 7. Observations on the factors underpinning the traditional forms of tenure in China ............. 105 Chapter 5 – Perpetual Tenancy Rights ................................................................................................ 107 1. Introduction ............................................................................................................................ 107 2. Historical overview of perpetual tenancy rights ..................................................................... 109 3. The debate concerning the recognition and adoption of perpetual tenancy rights .............. 128 Chapter 6 – Dian Rights ...................................................................................................................... 141 1. Introduction ............................................................................................................................ 141 2. The concept of a dian .............................................................................................................. 142 3. Historical overview of the dian ............................................................................................... 147 4. Why were dian sales so prevalent in pre-modern China? ...................................................... 156 5. The debate: arguments for and against recognising dian rights ............................................ 160 Chapter 7 – Reform Models ................................................................................................................ 168 1. What deficiencies of the current system have led to calls for reform?.................................. 169 2. Do traditional property rights have the potential to achieve the official policy objectives? . 172 3. If traditional property rights were adopted, what conceptual models could be considered? 175 4. Household ownership and rights of pre-emption .................................................................. 180 5. Key findings and areas for further research ........................................................................... 181 Appendices .......................................................................................................................................... 184 Bibliography ........................................................................................................................................ 208 Chapter 1 - Introduction 1. Introduction The plight of farmers in rural China is an issue of fundamental importance in China, both in terms of improving their living conditions from the perspective of individual households and in terms of maintaining social stability and achieving economic prosperity from the perspective of the nation as a whole. The plight of farmers is particularly important in view of the need to achieve food security and agricultural efficiency
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