The London School of Economics and Political Science Property Rights, Governance and Socio-Economic Transformation: The Revival of Private Property and its Limits in Post-Mao China Ting XU A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, November 2008 UMI Number: U613419 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U613419 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 m se s F BHdBhUbraryof Polrtica< and Economic Science 1115 if 50 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. Ting Xu November 2008 2 Abstract This thesis examines the nature of property rights in historical and contemporary China. The principal question addressed in the study is: what is the nature and significance of the re-emergence of private property in the context of rapid socio-economic change in post-Mao China? In examining this issue the dissertation looks beyond established dichotomies in Chinese law such as ‘public versus private’, and explores the manner in which the Chinese define ownership and leave the boundaries between the public and the private in property rights unclear. This study concludes that while there is a limited move towards the recognition of private property in real estate in contemporary China, ownership in the law, and ownership as understood and practised socially, often diverge significantly. Since the late Qing, ‘modernist’ law and entrenched social practice have often opposed each other. In contrast to the official, and indeed legal, support for unitary and exclusive property rights, the reality of the property regime (from late imperial China to the present) has seen the fragmentation of property rights. The reasons for the contradiction between the legal and the social understanding of property rights include tensions between economic reform and ideological commitment to socialism, and blurred boundaries between formal and informal institutions in post-Mao China. ‘Modem’ conceptions and theories of property rights emerged in the context of nation-building from the late Qing onwards, and unitary and exclusive property rights were Considered as ‘badges’ of modernity. These conceptions and theories served (and still serve) the purposes of control and governance but were, and still are, often resisted in social practice and popular thinking, leading to alienation and conflict. As such, the nature of private property and its social and political implications provide an important vehicle for analysing the changing nature of modem China. 3 To My Parents and Wei 4 Acknowledgements Since I began to write this thesis in October 2005,1 have been greatly indebted to many people. The first gratitude is to my PhD supervisors, Professor Tim Murphy and Dr. Tatiana Flessas, for their intellectual inspiration and continuing support. They have read numerous drafts of this thesis, and have given me insightful and invaluable comments and suggestions during the researching and writing up of this thesis. Special thanks are to Professor Simon Roberts. Professor Roberts taught me as an LLM student at the LSE. He has continued to be an invaluable source of advice, encouragement and support. I am grateful to him for reading my various drafts of essays and thesis chapters, and for giving me helpful comments and suggestions. I am also very grateful to Mrs Marian Roberts, Mr Alain Pottage, Dr. Angus Wrenn, Ms Marina Benjamin, Professor Athar Hussain, Mr Scott Shurtleff, Professor Xu Yinzhou, Ms Du Jie, and Dr Sung Soo Hong. I am also grateful to my teachers and colleges at the Law Department, LSE. My PhD research has been supported by the LSE research studentship and the LSE Vincent Cheng scholarship. The Vincent Cheng scholarship has given me generous financial support that has covered all tuition fee and living cost for three years. Without this financial support, the thesis could not have been written and finished. Last but not the least, I wish to thank my Mum, Dad and husband, for their love, encouragement and support, and for their sharing laughs and tears with me during my writing of this thesis. They have made a lot of sacrifice for my concentrated study in the UK. I also wish to thank my grandmother, Professor Wang Dexin, who has been a great teacher for me since I was a child. This thesis is dedicated to them, and in memory of my grandfather, Professor Xu Bingnan. He passed away when I was preparing to come to the LSE for my master’s study. He was a kind and knowledgeable teacher, who had helped and sponsored many students. He was the first person to lead me to the academic road. Ting Xu November 2008 5 List of Abbreviations ADR Alternative Dispute Resolution ALC Administrative Litigation Cases ALL Administrative Litigation Law BGB The Biirgerliches Gesetzbuch CASS The Chinese Academy of Social Sciences CCPCC The Chinese People’s Consultative Conference CEO Chief Executive Officer CSO Civil Society Organisations CPC The Communist Party of China EEFSU The Eastern Europe and Former Soviet Union FDI Foreign Direct Investment GBCL The General Principles of the Civil Law GDP The Gross Domestic Product GNP The Gross National Product HRS The Household Responsibility System ICCPR The International Covenant on Civil and Political Rights ICESCR The International Covenant on Economic, Social and Cultural Rights LAC The Legislative Affairs Committee LAL The Land Administration Law LLC Limited Liability Companies LUR Land Use Rights MBO Management Buyouts MC The Ministry of Construction MLR The Ministry of Land and Resources NAO The Natioanl Audit Office NDRC The National Development and Reform Commission NPC National People’s Congress PRC People’s Republic of China SASAC The State-Owned Assets Supervision and Administration Commission SBLA The State Bureau of Land Administration SEZ Special Economic Zones SHC Shareholding Companies SME Small and Medium Sized Enterprises SOE The State-Owned Enterprises TVE The Township and Village Enterprises UN United Nations USSR The Union of Soviet Socialist Republics WTO World Trade Union 6 Contents Abstract ............................................................................................................ 3 Acknowledgements .......................................................................... .............. 5 List of Abbreviations ...................................................................................... 6 Contents ............................................................................................................ 7 Chapter 1: Introduction 1 0 1. Introduction 1 0 2. Brief reflections on Western discourses on Chinese law 1 3 3. Discourses, research sources and methods 1 5 4. Theoretical Perspectives 2 1 5. The public-private distinction, property rights and state-making: a historical background 2 5 5.1. Pre-1949 China 2 7 5.2. Mao and N ow 3 0 Chapter 2: Property and Property Rights in Historical Context: Late Imperial and Republican China 3 3 1. Introduction 3 3 2. Understanding civil Taw’ in Qing and Republican China 3 4 3. The socio-economic conditions in late imperial China 3 9 3.1. The growth of commerce in the Ming (1368-1644) 4 0 3.2. Self and ‘non-organisational’ (w uzuzhi society 4 1 3.3. Inheritance, household division and lineage property 4 3 3.4. Population growth and landownership 4 7 3.5. Rural-urban uniformity and mobility 4 9 4. Fragmentation of the land tenure system 5 2 4.1. Yongdian (Permanent tenancy) 5 2 4.2. Topsoil rights (tianmianquan |T |® $ () ....................................... : 5 3 4.3. Yongdianquan (the rights to permanent tenancy) in Republican China 5 6 5. Conclusion 6 1 Chapter 3: Property Law Reform and the Revival of ‘the Private’ in Law in Post-Mao China 6 3 1. Introduction 6 3 2. The background of property law reform in the post-Mao era 6 7 2.1. The historical context—codification in the Qing and the Republic 6 7 2.2 The emergence of the private sector and the diversification of ownership 6 9 2.3.The civil law framework before the 2007 Property Law came into effect 7 3 2.4. The drafting of property law 7 5 3. Debates over property law 7 6 3.1. Debates over the status of property law in the proposed Civil Code (minfa dian y£:fc) in China 7 6 3.2 Substantive debates 7 9 4. Conclusion 9 0 7 Chapter 4: The Transformation of Collective Ownership in Rural China: Governing Farmers under Collective Ownership 9 2 1. Introduction 9 2 2. Rural governance in traditional China and its transformation 9 6 2.1. ‘Large community’ vs. ‘small community’: centralization vs. kinship 9 6 2.2. Landholding, taxation and middlemen 9 8 3. Collectivisation (1949-1978) .................................................................................................... 1 0 0 3.1. The land reform ( tugai ) ................................................................................................ 1 0 0 3.2. Formation of People’s Communes 10 3 4. Decollectivisation 10 5 4.1.