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Social Obligations of Land Rights on Chinese Collective-Owned Land

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Social Obligations of Land Rights on Chinese Collective-Owned Land Journal of Civil Law Studies Volume 10 Number 1 Article 6 12-31-2017 Social Obligations of Land Rights on Chinese Collective-Owned Land Zhe Huang Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls Part of the Civil Law Commons Repository Citation Zhe Huang, Social Obligations of Land Rights on Chinese Collective-Owned Land, 10 J. Civ. L. Stud. (2017) Available at: https://digitalcommons.law.lsu.edu/jcls/vol10/iss1/6 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. SOCIAL OBLIGATIONS OF LAND RIGHTS ON CHINESE COLLECTIVE-OWNED LAND Zhe Huang∗ I. Introduction ............................................................................... 62 II. Historical Social Obligations on Collective-Owned Land ....... 65 A. Social Obligations on Collective-Owned Land from the 1950s to 1980s ..................................................................... 65 B. Analysis of the Peasants’ Social Obligations ....................... 69 III. Current Social Obligations on Rural Collectives .................... 71 A. The Identity of Rural Collectives Determines Their Limited Regulatory Roles .................................................................. 71 B. Current Social Obligations on Rural Collectives Are Subordinate to the State Government’s Authority ............... 77 1. Registration ....................................................................... 77 2. Dispute Resolution ............................................................ 78 3. Land Regulations .............................................................. 79 a) Land Use Planning ....................................................... 79 b) Granting Contractual Land Use Rights on Agricultural Land ............................................................................. 81 c) Supervisory Authority of Collectives under the Agricultural Contract ................................................... 82 d) Social Obligations of Rural Homestead Housing Rights .......................................................................................... 89 C. Social Obligations Imposed Upon Collective Land Ownership Are Distorted ..................................................... 91 IV. Social Obligations Should Be Imposed on Collective-Owned Land.......................................................................................... 94 V. Conclusion ............................................................................... 98 ∗ Doctor of Juridical Science (S.J.D.), University of Wisconsin Law School (2015); Master of Law, Shanghai Jiao Tong University School of Law (2010); Bachelor of Law, Hunan University of Technology School of Law (2007). I am grateful to Professor Larry Church and Professor Joseph Thome for their valuable advice and guidance. I would like to thank the editors of Journal of Civil Law Studies for their help in the publication process. I would also like to thank my parents for their unconditioned love and support throughout the years. 62 JOURNAL OF CIVIL LAW STUDIES [Vol. 10 ABSTRACT This article critically examines social obligations on Chinese collective-owned land. Current social responsibilities on Chinese collective-owned land are inadequate, ineffective, and distorted. Ru- ral property right holders do not owe sufficient social burdens to society. As rural land regulators, rural collectives should have the authority to regulate and manage agricultural land use. Because of the vague and weak identity of rural collectives, collectives have limited authority and resources in restricting and regulating rural land use rights. As rural landowners, collectives violate their social responsibilities by misusing agricultural land and harming society. This article argues that for agricultural land, where physical char- acteristics of the land are better used in farming, the use restriction serves as a social obligation that conforms to the physical charac- ters of the land. Thus, it is justifiable for collectives or the state to impose restrictions upon the land use rights of agricultural land, especially basic agricultural land—land that is most suitable for farming. The restrictions, however, must be imposed according to physical characteristics of the land, not according to the identity of landowners. Keyword: social obligations of property rights in China, collective- owned land, social obligations I. INTRODUCTION Traditional libertarians argue that private property’s social func- tion is to shield it from the power of the public, and to promote per- sonal autonomy, liberty, security, and economic efficiency.1 A so- cial norm of private property, as an alternative, views property as a social institution, which can and should contribute to society.2 It 1. HANOCH DAGAN, PROPERTY: VALUES AND INSTITUTIONS 40 (2011). JOSEPH WILLIAM SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 3 (2000). Qinglan Long, Reinterpreting Chinese Property Law, 19 S. CAL. INTERDISC. L.J. 55, 57 (2009). 2. Gregory S. Alexander, The Social-Obligation Norm in American Prop- erty Law, 94 CORNELL L. REV. 745, 746 (2009). 2017] CHINESE COLLECTIVE-OWNED LAND 63 contrasts with the notion that private property ordinarily triggers in- dividual rights, not social obligations.3 A social norm of private property does not come from a partic- ular theory. It can be found in many property ideas that do not nec- essarily promote social norms. For example, even the strictest liber- tarians acknowledge that property should not be used in a way that harms neighbors or community.4 From the classical liberal view, so- cial responsibility plays a necessary role in property rights. How- ever, this role often only comes into play if something bad happens. The law and economics version of this obligation, for example, views owners as having responsibilities to their community to solve or cure problems like market failures, free riders, and holdouts.5 A negative social responsibility of libertarians is demonstrated in An- glo-American common law to avoid committing a nuisance.6 Anti- nuisance doctrine asks the owner not to commit a noxious use on his property, and the state could abate such use without paying compen- sation.7 Libertarians also acknowledged there might be “certain in- trinsic constraints operating within property rights as a result of the limitations on permissible appropriation from the commons.”8 John Locke, for example, believed that the law of nature entails both neg- ative obligations and affirmative obligations, which include leaving available resource to others, and making surplus resources available for others subsistence when they cannot provide for themselves.9 What are the social obligations of land rights on collective- owned land in China? What roles do Chinese agricultural collectives play in regulating and enforcing social obligations of property rights on collective-owned land? Do these social obligations counter 3. Id. 4. Id. 5. GREGORY S. ALEXANDER & EDUARDO PEÑALVER, AN INTRODUCTION TO PROPERTY THEORY 114 (2012). 6. Alexander, supra note 2. 7. GREGORY S. ALEXANDER, THE GLOBAL DEBATE OVER CONSTITUTIONAL PROPERTY: LESSONS FOR AMERICAN TAKINGS JURISPRUDENCE 225 (2006). 8. ALEXANDER & PEÑALVER, supra note 5. 9. Id. at 39. 64 JOURNAL OF CIVIL LAW STUDIES [Vol. 10 harms or problems and serve the public welfare of society? What prevents rural collectives to exercise their regulatory authority? What are the problems associated with the social obligations of Chi- nese property rights in the countryside? As rural landowners, Chinese agricultural collectives have au- thority in regulating land use rights on rural land, such as cultivated land preservation, supervising farmers for reasonable use and pro- tection of the property, and monitoring farmers’ rights to transfer their land use rights. However, social obligations imposed upon col- lective-owned land are inadequate and distorted. Historically, few social obligations were imposed on collective-owned land. The col- lective system created boundless property rights, eliminating prop- erty users’ basic negative social responsibilities, i.e., that they should not use their property in a way that harms their neighbors or community. Social duties imposed on collective-owned land were distorted. For example, mandatory quotas and fees demonstrated that Chinese rural property rights mainly served the state’s interests. Land use restrictions imposed on collective-owned land by the state turns on the question of who owns the land regardless of the physical characteristics, nature of the property, and public welfare. Although rural collectives play an essential role in regulating ag- ricultural land use, their regulatory authorities are abrogated by the state. As land regulators, collectives do not adequately exercise their regulatory responsibilities on collective-owned land. As landown- ers, collectives violate their social responsibilities when they use ag- ricultural land for non-agricultural purposes. The state violates its social obligations by abandoning its regulatory responsibilities as higher land regulators in China. The state also violates social re- sponsibilities on collective-owned land by initiating, transferring, or contracting agricultural land for non-agricultural purposes. In the context of China, this article argues that it is justifiable for collec-
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