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Chinese Socialism: an Iterative Perspective of the Legal Framework

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Chinese Socialism: an Iterative Perspective of the Legal Framework CHINESE SOCIALISM: AN ITERATIVE PERSPECTIVE OF THE LEGAL FRAMEWORK OF MARKET ECONOMIES OF THE PEOPLE’S REPUBLIC OF CHINA by MATTHEW KINGCHEONG AU B.Sc. Cornell University, 1979 M.Sc. University of Toronto, 1981 M.A. Carleton University, 1983 LL.B. University of London, 1992 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) February 2012 © Matthew Kingcheong Au, 2012 ABSTRACT This dissertation suggests that “socialism with Chinese characteristics” or “Chinese socialism” is an evolving and adaptable, rather than transitory and conflicting, ideology. I emphasize the iterative and evolutional characteristics of the ideology, which occurs not only between economic and legal institutions, but also between social and political ones. I also stress the effect of global institution in this iterative evolution. The iterative evolution denotes an interplay of ideological and practical aspects of Chinese socialism and represents a sequential institutional development of modern Chinese reforms. Among them, two institutional changes are noteworthy, namely property rights and market economy reforms. Using capital and land markets as examples, I show that ‘market’, as an institution that aims to delineate property rights, has flourished ongoing developments of property rights of capital and land markets, albeit in different manners respectively, in China. The case study of capital and land market demonstrates practical aspects of Chinese reforms including pragmatic, self-improvement, open, stability, and efficacy ideas. I further argue that property rights reform is an impetus to the rule of law, whereas efficacy and stability mandates are conducive to open, yet controlled, society. This dissertation is otherwise devoted to providing a normative view on the long run evolution of Chinese socialism. I conclude that while Chinese reform appears lacking in a grand design that can articulate all of its content at the outset, an open policy and the interplay of socialism and local practicality will in the long run evolve towards a rule of law based open and controlled society in the PRC. ii Further, as Chinese pragmatics, open culture, self improvement, stability, and efficacy are external mandates, which need be asserted by political leaders and policy makers of the PRC, political instability, ruling legitimacy, social instability, human right and civil liberty conflicts are all obstacles to the continuity and sustainability of the contemporary reforms. This dissertation suggests further study of the iterative process to address parallel developments of institutional reforms in political, social and legal areas. iii TABLE OF CONTENTS ABSTRACT ...................................................................................................................................................... ii TABLE OF CONTENTS .................................................................................................................................... iv LIST OF FIGURES .......................................................................................................................................... vii ACKNOWLEDGEMENTS .............................................................................................................................. viii CHAPTER 1 OVERVIEW ............................................................................................................................ 1 1.1 Background ................................................................................................................................... 1 1.2 Inquiries ........................................................................................................................................ 2 1.3 Methodology ................................................................................................................................. 5 1.4 Thesis ............................................................................................................................................ 6 1.5 Terms of Reference ....................................................................................................................... 9 1.5.1 Scope ..................................................................................................................................... 9 1.5.2 Definition............................................................................................................................... 9 1.6 Road Map .................................................................................................................................... 14 CHAPTER 2 THEORETICAL FRAMEWORK OF CHINESE SOCIALISM ........................................................ 16 2.1 Socialism ..................................................................................................................................... 18 2.1.1 Socialism as Ideology Spectrum .......................................................................................... 18 2.1.2 Interpretations of Socialism ................................................................................................ 22 2.2 Chinese Interpretation - Socialism as Institutional Reforms ...................................................... 27 2.2.1 Ideological Perspective ....................................................................................................... 27 2.2.2 Institutional Perspective ..................................................................................................... 29 2.3 Iterative Interpretation - Chinese Socialism as Normative Iterations ........................................ 44 2.3.1 Local Movement ................................................................................................................. 47 2.3.2 Global Movement ............................................................................................................... 53 2.4 Summary ..................................................................................................................................... 66 CHAPTER 3 CAPITAL MARKET REFORM ................................................................................................. 70 3.1 Introduction ................................................................................................................................ 70 3.2 Analytical Framework ................................................................................................................. 76 3.2.1 Perspectives of Chinese Capital Market ............................................................................. 76 iv 3.2.2 Institutions of Chinese Capital Market ............................................................................... 78 3.3 Capital Ownership Reform .......................................................................................................... 80 3.3.1 Property Right ..................................................................................................................... 81 3.3.2 Legal Person ....................................................................................................................... 92 3.4 Capital Market Reform ................................................................................................................ 97 3.4.1 Right Delineation................................................................................................................. 99 3.4.2 Exchange Platform ............................................................................................................ 102 3.4.3 Rights Protection ............................................................................................................... 109 3.5 Summary ................................................................................................................................... 134 CHAPTER 4 LAND MARKET REFORM .................................................................................................... 137 4.1 Introduction .............................................................................................................................. 137 4.2.1 Perspectives of Chinese Land Reform ............................................................................... 142 4.2.2 Institutions of Chinese Land Market ................................................................................. 146 4.3 Rural Land Reform .................................................................................................................... 148 4.3.1 Rural Land Ownership ....................................................................................................... 148 4.3.2 Rural Land Use Rights........................................................................................................ 157 4.4 Urban Land Reform ................................................................................................................... 173 4.5 Summary ................................................................................................................................... 177 CHAPTER 5 NORMATIVE MODEL OF MARKET REFORM ...................................................................... 181 5.1 Introduction .............................................................................................................................. 181 5.2 Normative Methodology ..........................................................................................................
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