On China's draft property law
Professor Liang
I. Summary of China's current system of civil legislation introduced in 1978
opening up and reform economic structure, develop socialist market economy. Have formulated a number of important civil law , the initial formation of a Civil Law system. The Civil Law system, divided into the following levels: first level is the Basic Law of the Civil Code as a civil; the second level is the special civil law, including claims law is the nature of contract law ; is the nature of Family Law Marriage Law, Adoption Law, Inheritance Law; is the nature of the Guarantee Law of Property Law; is the nature of the Company Law Commercial Law, Negotiable Instruments Law, Maritime Law, Insurance Law, Securities Law, Patent Law, Trademark Law, Copyright Law. s three levels, is the civil laws, such as domestic air passengers Provisional Regulations and other body damages. The fourth level is the administrative laws and regulations of the civil law rules, such as land management law on land ownership and use requirements.
Second, China's current system of civil legislation, the nature of property law are the laws and regulations
(a) of the Civil Code Civil Code has not yet developed
China, living in the civil status of the Basic Law, Adopted January 1, 1987 implementation). The Chapter made a list of civil rights provisions, section, (Article 71), transfer of ownership of property (article 72), on the common property (article 78), on the objects buried and lost property (Article 79), on the relationship between real property adjacent to the provisions of ( Article 83).
(b) Civil special law
1, Chapter IV provides the right quality and the provisions of Chapter V on the lien. another in the seventh chapter on the definition of immovable and movable property (article 92).
2, published 7 February, July 1, 1993 implementation). major is the second chapter on ship ownership, ship mortgage, maritime liens provisions.
3, published March 1, 1996 implementation). Main is one of the third chapter on civil aircraft ownership, and priority of mortgage provisions.
c) of the Property Management Act
the current number of property management law, an administrative law nature, but often the rules on property rights. mainly:
(1) . The second chapter on land ownership and use rights provisions.
(2) on land use right transfer, allocation of land use rights provisions; fourth chapter on real estate sale, real estate collateral requirements; the fifth chapter on real estate ownership registration requirements.
(d) administrative regulations
According to China's legislative system, the State Council with administrative legislative power. by the State Council's legal documents, regardless of the nature of civil law or administrative law nature, collectively referred to as administrative regulations. For Property administrative regulations are:
(1) Private Housing Management Ordinance 19, the State Council), including 8 chapters: Chapter I General Provisions, Chapter II of land use right transfer, land use right transfer of Chapter III, Chapter IV leased land use rights, land use right mortgage chapter, Chapter VI of land use the right to terminate the allocation of land use rights under Chapter VII, Chapter VIII Supplementary Provisions;
(3) and use rights provisions.
Third, the existing laws and regulations related to the shortcomings of property
(a) the laws and regulations enacted in the economic system during the transition period, they will be subject to the limitations of the planned economic system. For example, in accordance with the production classification of the ownership of property ownership, and stressed that the so-called socialist public property is inviolable, while the natural and legal persons of the poor protection of property. In addition, movable and immovable property belonging to the basic civil rights, to be provided by the administrative law, it may not appropriate [2].
(b) In addition to civil law, security law and other legal work of the National People's Congress Standing Committee to draft, most of the laws and regulations by the State Council ministries and commissions responsible for drafting. responsible for the drafting of the ministries are often impossible global considerations, but more consideration to the department, the system of interest. This will inevitably lead to existing laws and regulations of the mutual lack of coordination, duplication of regulations, conflicting, and the lack of basic system requirements. has so far failed to establish a unified real estate registration system [3], the reason is also here.
(c) the existing civil law in China in 50 years following the Civil Law by the Soviet Union formed the basis of the theory, broadly in line with the reform and opening up a single form of public ownership and planned economy system, but not with the market economy. such as the original one-sided emphasis on civil law protection of public property in 1986, the Civil Code still provides that . Civil Code of the property not used the concept of acquisitive prescription system and does not provide good access to the system, are derived from the existing civil law.
(d) of the guiding ideology of China has always stressed that the legislation the material, from the material, raw, fruits and other concepts; the lack of distinction between movable and immovable property criteria; the lack of occurrence of real property and movable property, change and destroy the basic rules; lack of the basic rules of condominium ownership; lack of goodwill get the system to obtain prescription system; lack of property rights protection principles and systems.
four, civil drafting and the establishment of the working group drafting the Property Law
determined in accordance with the Chinese government's goal of building the rule of law, in 2010 years ago into a building and development of market economy and rule of law well suited to the legal system. in accordance with the concept of the legislature, the legal system, constitutional and civil law, civil complaint, criminal law, Criminal procedure shall establish written codes. the present Constitution and the Criminal Law, Criminal Procedure Law, Civil Procedure Code, have developed a better, only the civil law is only a Civil Law, Civil Code has not yet developed. Thus, in March 1998, the Legislature commissioned the nine civil law scholars, experts, Civil drafting group established [4], charge of the Chinese Civil Code and the draft preparation. Civil drafting group agreed to plan: March 1999 through a unified contract law; 4-5 years through property law; completed by 2010 Chinese Civil Law Code codification.
civil drafting group 25-26 March 1998 meeting to discuss the draft property law. discussed the legislation I proposed property law (draft). Finally, a resolution: I commissioned the program in accordance with the drafting of proposed legislation The draft property law. In view of Professor Wang Liming, legislative proposals put to me there are different views, so civil drafting group also made a resolution: Professor Wang Liming, commissioned the drafting of their own views on the draft property law. I led the drafting of the CASS Institute of Law, Property Law Group , in October 1999 to complete the A total of 435:
Chapter I General Provisions (Article No. 1-60)
Section I General Provisions (Article 1-9)
II objects (Article 10-19 Article)
section three changes in property rights (Article 20 -)
the first head of real estate registration (Article 20-40 Article)
second possession and delivery of movable head (No. 41-44 article)
third purpose without publicity Right Change (Article 45-50 Article)
fourth claim of the right (the first article 51-60)
chapter title (No. 61-195 Article)
Section I. General provisions ( Article No. 61-86)
Section land ownership (Article No. 87-89)
III condominium ownership (Section 90-113 of Article)
IV relationship adjacent property (No. 114 -144 bar)
V property ownership (Article No. 145-176)
the first project acquired in good faith (Article No. 145-147)
preempt the second head (No. 148-151 Article)
The third project Lost Property (Article No. 152-163)
find objects buried in item (No. 164-167 Article)
fifth head accretion (Section 168-174 Article)
sixth objective of monetary and securities ownership (Article No. 175-176)
VI Total (No. 177-195 Article)
base of the right to use Chapter III (Article No. 196-229)
Chapter of agricultural land use rights (Article No. 230-259)
Chapter adjacent land use rights (Article No. 260-287)
Chapter Code (art. 288-303 Article)
mortgage Chapter VII (Section 304 - 357)
Section I General Provisions (Article No. 304-338)
maximum mortgage II (No. 339-346 Article)
III combined mortgage business property (Article No. 347-350)
IV corporate guarantees (Article No. 351-357)
Chapter VIII of the matter (art. 358-390 Article)
Section I General Provisions (Article No. 358-370)
second Secured section (art. 371-384 Article)
Section pledge of rights (Article No. 385-390)
IX lien (s 391-407 Article)
Chapter for and secured (Article No. 408-416)
possession of Chapter XI (p. 417-434 Article)
Chapter XII Supplementary Provisions (Article 435)
b) of the main features of
1, implementing the legal property of one protection principles, by giving up ownership of the means of production practice, does not require state ownership, collective ownership and individual ownership, only to land ownership (Chapter 2, section 2), mineral ownership (Article 62) and public property and public property (Article 63) specifically provided for.
2, in view of the restructuring of state-owned enterprises after corporatization, the state and property relations between enterprises belonging to the Company Law to adjust the scope of the state enterprises enjoy the right of the shareholders entitled to legal property rights, so property law does not require state-owned enterprise property rights.
3, taking into account the contributions of religious believers and the temple property used for special religious purposes, the provisions of religious property, belonging to all religious corporation (Section 64).
4, for the collection system is widely used in commercial purposes, and collection of rural collective land ownership and farmers, urban residents of the land use rights, are often not given the reality of just compensation, requiring the payment shall be limited to natural persons and legal persons to the real purpose of social welfare, and in strict accordance with statutory procedures, to give just compensation. and to provide land for commercial purposes, shall not apply to collection (Article 48).
5, reference to experience of other countries, to obtain prescription system requirements (Section 65-86 of Article).
6, on the Real change, not property rights adopted formalism German law, French law does not adopt Marxism of claims agreement, and the reasons for actions taken (contract of sale) plus registration (delivery) of the eclectic, to register the credibility of the principles (Article 29 ) and the system of movable property acquired in good faith (Article No. 145-147) Security transaction security.
7, proposed the establishment of a unified county-level people's courts, and administrative de-linked real estate registration office (Article 20).
8, the concept of land use rights concept as a basis, then according to different purposes, divided into base of the right to use (Chapter 3) and agricultural land use rights (Chapter 4). base of the right to use the land equivalent Japanese Civil rights, agricultural land similar to the Japanese the right to use small for permanent civil rights. then use the right neighborhood (Chapter 5) to replace the easement. and provides the typical Chinese traditional rights (Chapter 6), constitute Usufruct System.
9, in order to guarantee the existing provisions of law on the basis of a security interest, reference the Japanese financial mortgage and corporate security law, the provisions set business property mortgages (Chapter 7, Section 3) and enterprise security rights (Chapter 7, Section 4) , drawing on the Hong Kong region's Introduction
(a) of the People's University of the legal structure of
draft form by the six chapters, a total of 575:
Section I General Provisions Chapter I General Provisions (Article 1-7)
section two drugs (section 8-15 section)
III Real Right (Article No. 16-44)
one, real estate registration (Article No. 16-35)
Second, the possession and delivery of movable property (Article 36-44 Article)
fourth claim of the right (Article 45-56 Article)
Chapter title ownership
General Section (Section 57-102 of Article)
a , the scope of ownership (Article 57-60 Article)
Second, the acquisition of ownership (Section 61-102 of Article)
II national title (the first 103-125 Article)
I. General provisions (section 103-120 bar)
Second, the property rights of state-owned enterprises (Article No. 121-125)
Section collective ownership (Article No. 126-152)
I. General provisions (Article No. 126-134) < br> Second, collective land ownership (Article No. 135-140)
Third, ownership of cooperatives and collective enterprises (Article No. 141-152)
fourth title of individual citizens (Article No. 153-158)
Section V of ownership associations and religious organizations (section 159-160 section)
VI Total (No. 161-179 Article)
VII condominium ownership (Article No. 180-191)
VIII right of first refusal (Article No. 192-200)
IX neighbor relations (Article No. 201-232)
Chapter III Section usufruct of land use rights (Section 233 - 270)
rural land contract and management rights in section II (Article No. 271-297)
III land use right (section 298-309 section)
IV easement (Section 310 - 338)
section V of the Code (art. 339-360 Article)
VI space utilization (art. 361-371 Article)
VII Chartered Property (No. 372 -)
First, farming and fishing rights (art. 372-373 Article)
Second, mining rights and prospecting rights (Article No. 374-377)
three, forestry rights (Article No. 378-379)
IV , water rights (Article No. 380-381)
five, hunting rights (Article No. 382-383)
Section IV
mortgage security interest (section 384-454 section)
I. General provisions (Article No. 384-425)
Second, the common security (the first article 426-430)
Third, the maximum mortgage (No. 431-441 Article)
four, set security (s 442-446 bar)
five floating charge (s 447-454 Article)
Section pledge (Article 455-510 Article)
I. General provisions (section 455-468 section)
Second, the movable mass (art. 469-492 Article)
three pledge of rights (Article No. 493-510)
lien III (No. 511-525 Article)
fourth priority (Article No. 526-554)
I. General provisions (Article No. 526-532)
Second, the general priority (Article No. 533-534)
three, especially movable property priority (Section 535-541 section)
four, in particular, property priority (Section 542-545 Article)
five, intellectual property priority (Article No. 546-550)
six priority relationships with other security rights (Article 551 -554 bar)
Chapter possession (Section 555-574 Article)
Chapter VI Supplementary Provisions (Article 575)
(b) of the main features of
1, adhere to the division of ownership in accordance with the means of production . that China is the public ownership dominant form of the coexistence of multiple economic socialist market economy countries, the public ownership system of the dominant characteristics of the decision of the state ownership of property law and must provide for the collective ownership system. [5]
2 , adhere to the special protection of state property system: First, can not determine the ownership of a property, the presumption that property owned by the State (Article 44 paragraph 2); Second, ownership of the property is unknown, presumed to state ( 112); Third, not authorized to natural persons, legal persons or other organizations that manage state property are infringed upon, not subject to the limitation of action limit (Article 120).
3, provided the property rights of state-owned enterprises ( Article No. 121-125).
4, the provisions of collective ownership, including ownership of cooperatives and collective enterprises (Article No. 126-152).
5, advocated the right to follow the concept of rural land contracting. that China implement contract responsibility, for decades the system has formed a complete set of policies and laws, the right to cancel the contract management concept, is equivalent to a system which completely abolished, in practice not feasible. [6]
6, separate provisions of land use right ( Chapter 4, Section 3). that the land use right of access in different ways, different in content rights, the main capacity is limited, the provisions should be separate and not incorporated into the construction land use rights (the right to use bases). [7] < br> 7, the provisions of pre-emptive rights (Chapter 2, Section 8);
8, provides the right use of space (Chapter 3, Section 6);
9, provides licensed property, including farming and fishing rights rights, mining rights and prospecting, forest rights, water rights, hunting rights (Chapter 3, Section 7);
10, provides priority (Chapter 4, Section 4).
July, the Legislative Affairs Commission Civil Code draft Room 22-29 May 2001 Seminar on Property Law Expert
Civil Law Committee Room in the Academy of Social Sciences University of the draft and the people on the basis of the draft, to be abridged, add to, the formation of a submitted May 22-29 Property law expert at the seminar to discuss the draft property law, referred to as structure of the draft Civil Law Committee Room draft
includes 10 chapters, totaling 191:
Chapter General Provisions (Article 1 - Article 6)
Chapter II Right of establishment, alteration, transfer and elimination of (Article 7 - Article 30)
Real Estate Registration Section (Section 7 - Article 22)
Section movable delivery (Article 23 - Article 30)
Chapter Property claims (Article 31 - Article 36)
chapter title (Article 37 - the first article)
Section I. General provisions (Article 37 - Article 40)
II countries title (article 41 - 49)
Section collective ownership (Article 50 - Article 53)
fourth private ownership of property ownership and religion (Article 54 - Article 56)
V condominium ownership (Article 57 - Article 63)
VI neighboring relations (Article 64 - Article 70)
VII Total (Article 71 - Article 84)
special provisions made in section VIII of ownership (Article 85 - Article 97)
Chapter land contract and management rights (Article 98 - Article 117)
Chapter VI construction land use right ( Article 118 - Article 139)
Chapter VII of the land use right (Article 140 - Article 150)
Chapter VIII of the adjacent land use rights (Section 151 - section 170)
section IX possession (Article 171 - Article 189)
Chapter X Supplementary Provisions (Article 190 - Article 191)
(b) of the Civil Law Committee of the draft room features
1, does not provide guarantees property;
2, Code does not provide the right;
3, does not provide access time;
4, does not specify what is the thing;
5, does not provide the definition of property rights;
6, divided according to ownership title, the provisions of national ownership, respectively, the collective ownership and private ownership;
7, in accordance with the provisions of the reality of usufruct, the provisions of the state-owned land use right, respectively, rural contractual management, land use right;
8 , does not provide a unified real estate registration office issues.
(c) 22-29 May 2001 an expert seminar on Property Law Civil Law Committee room for the draft amendment proposed by the
1, proposed that a security interest , to be adopted property law, in force, repeal the existing security interest in part of the security law, security law and the existing provisions on the guarantee and deposit into the unified contract law. The main reasons: First, property law system based on a complete consideration of ; Second, the current serious shortage of security law provisions or even wrong, the market can not meet the requirements of economic and judicial practice; Third, although the Supreme Court through judicial interpretation of [8] on the security provisions of the law were to make up for shortcomings and errors, and corrected, according to judicial interpretation of the referee case, the rule of law and do not meet modern requirements and international standards.
2, proposed that the definition of property rights. the main reasons: First, countries As a result of private ownership, rights, clear boundaries, the provisions of the Civil Code does not matter does not preclude the right to define. our long-term public ownership and planned economy, the lack of the concept of private rights, the law expressly provides the definition of property rights, provides for the exclusive control over the property is conducive to the concept of universal property rights, limit the abuse of public power. Its Second, a clear definition of property rights through the provisions of the adjustment range of property law in line with the tradition of Chinese legislation.
3, proposed that the definition and classification of objects. The main reasons: First, the property is a physical object as the object of control over the the provisions of property law should be the definition of objects, and provides for the classification of objects. Second, the provisions of the definition of objects and the main thing and from the material, and material composition, original and fruits, etc. is important for the judicial practice.
4, proposed that the right Code. The main reasons: First, the Code of Rights for the traditional Chinese system, there are other system functions are difficult to replace, should be provided. Second, if the property law is not provided, but the actual occurrence of the Code, the right to life case the lack of referee specification.
5, proposed that acquisitive prescription. The main reason: countries such as Germany, the private ownership of tradition and the rule of law improved the situation for obtaining prescription system may be small, but because of the long-term public ownership in China has experienced cooperatives, communes, the Great Leap Forward, the Cultural Revolution, etc., resulting in ill-defined property relations, so difficult to resolve disputes. requirements to obtain prescription system is conducive to stability of social and economic order.
6, proposed that unified, and administration decoupling of the real estate registration office and registration system. The main reason: not to solve the unified registration and registration of institutions and administrative bodies decoupling problem, property law will be difficult to play a role.
7, suggested implementing different forms of ownership of the property on the principle of equal protection not allowed to be on some sort of special protection of property ownership. state-owned enterprises, whether state-owned companies or state holding company, has made the Company Law provides that the provisions should not be in the Property Law.
8, in view of the construction land use rights and land use right, with the same essence, equivalent to the ground on the traditional civil rights provisions of the proposed merger. As for the right name, best known as the , the following problems: First, the right to land contractual management and contract contact, unable to realize the right nature; Second, property rights and contract management of contracts for management of claims of difficult to distinguish; Third, through auction, bidding, etc. from the national made barren hills, wasteland and the use rights to forestry and agriculture, has nothing to do with the household responsibility contract can not be said to be Property Law Committee Draft
2001 年 5 月 22-29 days after the expert seminar on Property Law, the Legislative Affairs Commission spent six months on the draft room to modify the Civil Code, to the end of the new draft: Republic Property Law (Draft) (a) of the draft structure of the draft
of six parts, 27 chapters, totaling 336:
General Provisions Chapter I General Provisions
(Article 1-8)
Chapter materials the right to establish, change, transfer and elimination (Section 9-39 of Article)
Real Estate Registration Section (Section 9-24 of Article)
Section movable delivery (Article No. 25-29)
section three other provisions (Article 30-33)
Chapter of property rights protection (Article No. 34-39)
ownership
Chapter IV General Provisions (Article 40-45 Article)
V Chapter of national ownership (Article No. 46-52)
collective ownership of Chapter VI (Section 53-59 Article)
Chapter VII of the private ownership (p. 60-65 Article)
Chapter VIII of the Building Ownership (Article 66-76 Article)
IX neighboring relations (Article No. 77-87)
Chapter Total (No. 88-100 Article)
Chapter XI of title special provisions (Section 101-115 bar)
usufructuary
general provisions of Chapter XII (p. 116-120 Article)
the right to land contractual management of Chapter XIII (p. 121-144 Article)
XIV Chapter construction land use rights (Article No. 145-168)
Chapter XV of the land use right (section 169-179 section)
XVI adjacent land use rights (Article No. 180-196)
Chapter XVII Code (art. 197-211 Article)
XVIII residence (Article No. 212-219)
XIX prospecting and mining rights (Article No. 220-227)
Chapter water (art. 228-232 Article)
Chapter XXI fishing rights (Article No. 233-240)
Chapter XXII domesticated rights, hunting rights (pp. 241-247 Article)
security interest
XXIII General provisions (Article No. 248-252)
mortgage twenty-four chapters (Section 253-282 Article)
Section of the General Mortgage (s 253-276 bar)
Section ceiling amount of mortgage (section 277-282 section)
XXV quality (art. 283-305 Article)
Section Secured (art. 283-297 bar)
Section pledge of rights (Article No. 298-305)
lien twenty-six chapters (the first 306-315 Article)
Chapter XXVII to and guarantees ( Article No. 316-323)
possession (Article No. 324-334)
Annex (Article No. 335-336)
(b) solicitation of features
1, adopted May 2001 22-29 at the expert workshop on the following recommendations: to require a security interest; provides the definition of property rights; provisions of Code of Rights.
2, did not adopt the 22-29 May 2001 at the expert workshop on the following recommendations: to require time to obtain ; provides the definition and classification of objects; unified real estate registration agency; construction land use rights and land use right Merger Regulation; change the construction land use rights and land contracting right name.
3, in the title part, divided according to ownership : state ownership, collective ownership and private ownership. does not provide special protection of state property. does not provide for religious property issues (religious legal ownership).
4, part of the usufruct, the usufructuary right to increase on the general provisions (section 12); newly created residency (Chapter 18); additional prospecting and mining rights (Chapter 19), water rights (Chapter 20), fishing rights (Chapter 21), domestication rights, hunting rights (Article 22 chapter).
5, part of the security interest to require four security interest in: mortgage, pledge, lien, and so with the security right. does not provide for priority. in the mortgage, the property does not require enterprises to set collateral and corporate guarantees.
IX Conclusion
property law related to China because the existing economic system and administrative system, and how to deal with the practical experience of reform and opening up, coupled with long-term lack of knowledge of property values and property rights, and property law lack of theoretical research, so the development of property law in China are quite difficult.
draft from the above situation, the Chinese civil law and civil law within the academic circles and among the legislature, in a number of important issues are still differences, to need some time to reach a consensus. property law draft will be distributed to various universities and research institutions, Department of Law, Supreme Court and local courts, the State Council departments, to be aggregated all the amendments, the panel will convene the Legislative Affairs expert seminars, reference all of the amendments, to discuss the amendment, the formation of the NPC Standing Committee to submit a formal draft law.
civil law in accordance with the aforementioned working group drafting the plan, is to pass property law, and then draw the Civil Code (property law has been adopted as a Civil Code). But the recent situation, the NPC Standing Committee as soon as possible to develop the Civil Code, Civil Code requires this draft produced by the National People's Congress for the first time for consideration. Therefore, it is possible through property law is not alone, and the draft property law into the Draft of Civil Code [9].
Note:
[1] This paper is Waseda University, Japan January 15, 2002, at the development seminar Standing legislation.
[3] China's current legal system, the land management agencies, property management agencies, mineral management agencies, water administrative authorities, fishery management agencies and forest management agencies, etc are responsible for real property or quasi- Property registration.
[4] working group drafting the Civil Code 9 members are: Professor of Civil Law of China University of Politics and Jiang Ping; Academy of Social Sciences researcher Wang Jiafu Civil Law Institute, Professor Liang; Weizhen Ying, Peking University, Professor of Civil Law; Commercial Law, Tsinghua University Professor Wang Baoshu; Wang Liming, China People's University Professor of Civil Law; Supreme People's Court Vice-President of the former Economic Division, retired judge charges were Yi; Civil Law Committee, deputy director of the former, retired cadres, Xiao Xun, the original, director of economic law, retired cadres Wei Yaorong.
[5] See Wang Liming, editor of Draft of Property Law that April 1
