On Constitutional Protection Of Private Property Right In China

The right to private property is a right inherent to mankind; a right that extends from and is protected by mankind's right to life and freedom. John Locke, a famous British political philosopher, illustrated an important political view in his masterpiece Treatise of Government:the major responsibility of politics is to protect private property, thus the absence of property rights implies the absence of justice. A source of great passion for those in state politics is the struggle to protect their private property rights. An innovated socialist country cannot be built without value recognition or the legal protection of private property. Along with the establishment and development of China's market economy system, the type and quantity of private property have increased. "Amendments to the Constitution 2004" officially incorporated the protection of private property rights to the constitution. Subsequent enactment of Property Law and Tort Law further improved the legal protection of private property rights and objectively facilitated the robust growth of the Chinese economy. We are clearly aware, however, that the legal environment for the protection of private property in China is not optimistic. A crucial aspect is that the legal system regarding private property remains unresolved; its current imperfections and incompleteness leads to the difficulty of thoroughly implementing laws in reality.According to the ancient Greek philosopher, Aristotle, two important conditions for the "rule of law" include the capacity to "be stipulated and rigorously implemented". "If the legal protection of private property remains only on paper and cannot influence human behavior or be rigorously observed, then the law is merely a myth and not a reality. "Law itself does not work". Constitution is no exception. Given the significant implications of weaknesses in the law, I have chosen to study the legal protection of private property rights in China with a focus on the constitution's implementation.This paper is subsequently divided into six major sections, as outlined below.By summarizing and analyzing both typical and severe cases of the public authority's infringement on private property rights, the introduction reveals that private property rights in a modern "rule of law" society can be compromised from three main fronts: civil tort, crime and the abuse of public power, with particular attention paid to the detrimental influence of threats from public power. Upon an in-depth study of the constitutional protection of private property through the lens of implementation, significant theoretical and realistic implications will be drawn. This section also highlights current literature on this issue in the academic community and introduces the concept, methods and major content that provides the framework for this paper.Chapter I examines the connotations of basic rights regarding private property since this paper aims to focus on its constitutional protection. Thus, we must clarify the meaning of "property"-related concepts in different contexts and make jurisprudential classifications. "Property right" under constitutional jurisprudence originates from the "public power" of human rights and is against those of the "state". "Property right" under civil jurisprudence originates from "private power" of "right in rem" and is against people other than the owner. They are not in the same category and their essential difference is to reflect the disparate relationships of different subjects on the same object. The Chinese constitution exercises protection on property rights under different systems of ownership (state property, collective property and private property) to different extents. The private property right, as a citizen's basic human right, has the function of "defense and resistance". Regardless, no right is absolute. The formation of constitutional order depends to some extent on the reasonable restrictions of citizens'basic rights, such as restriction by commonwealth, legal reservation, principle of proportionality, etc.ChapterⅡexamines the history of private property's theoretical evolution, with a focus on its protection. "Reading ancient classics helps the understanding of today's society". In the history of constitutional protection systems for private property, the protection of and restrictions to private property have partially formed the core of constitutions for other modern countries. The evolution of private property's legal protection in the capitalist West has shown that attitudes regarding private property rights have gradually evolved from absolute to relative protection. The one-century history of constitutionalism in China has witnessed the formation of private property rights from the absence of protection to the clear announcement of protection of private property rights, from the mere recognition of citizens'property rights and inheritance or means of livelihood to the omnipresent protection of all types of property, from the emphasis on a socialist, public ownership to the declaration that individuals and private economies are important contributors to the state economic system, all which reveal the interaction between private property rights and the process of constitutionalism. After a sober analysis of China's reality, I found that the small-scale revision of the current constitution has almost approached its limit. Chapter III discusses the standardization and systematization of protection clauses for private property in the constitution. Pursuant to general principles of the constitution and using the current Chinese constitution as a study model, it systematically illustrates protection regulations regarding private property and provides a technical breakdown using the "three-element" theory of laws and theory of constitutional validity. The protective system of private property mainly includes a three-tier structure:absolute protection, restrictive articles, and expropriation, acquisition and compensation. The three-tier structure has specific connotations and functions to each facet. The first tier of "declarative protection articles" determines the general precondition for a modern protection system of property rights. The second tier of "restrictive clauses" intends to impose a suitable limitation on the protection of property rights. The third tier of "compensation clauses" balances the restriction on property rights to maintain the precondition for establishment of the "inviolable" clause and to also provide an appropriate buffering mechanism of the restrictive clause in the entire statute. Although the current constitution covers the aforementioned threefold structure in Article 13, its implementation and practice are unsatisfactory, thus waits for further enhancement. The key to resolving these issues is to strengthen two aspects:the observation and application of constitutional regulation about private property.Chapter IV illustrates the observance of constitutional regulation regarding private property rights. Observation of the constitution is the most basic method to realize its validity. It suggests that subjects in constitutional relationships shall observe the principle and regulations of the constitution and their behavior cannot violate the regulations and spirit of the constitution. The universality of constitutional subjects in observing the constitution represents a core principle for effective constitutional regulations. Different subjects in the constitutional relationship observe the constitution differently. Individuals (such as citizens) and public organizations (such as state authorities) observe the constitution in different ways. State authorities of different statuses and functions also observe the constitution in contrasting ways. Global experiences prove that the greatest threat to constitutional authority comes from state authority and civil servants instead of from common citizens. The house is an important unit of private property. During China's urbanization process, however, the protection of citizens'private property in Articles 10 and 13 of the constitution remained only on paper as the demolition activities of urban houses triggered many incidents that infringed upon citizens'private property rights. By taking the demolition of urban houses as an example, I conducted in-depth studies on the absence of state's legislative authority, strong administrative rights with weak judicial authority and how to better observe constitutional regulations regarding private property rights by investigating the legal issues behind the demolition and the revision of Urban House Demolition Management Rules that are suspected of infringing constitutions.ChapterⅤis about the application of constitutional regulations on private property rights. The application of constitution is essentially a state authority's enforcement of the constitutional regulations in handling particular legal matter by means of state power. Unconstitutional review and investigation into the responsibility for violation of the constitution will greatly improve the observation of the constitution. Thus, the exercising of the constitution is one of the most important methods to realize the validity of a constitution. Under the framework of the current constitution, the People's Congress and its standing committee are major authorities to implement the constitution. The State Council, State Chairman and the central military committee have sometimes the right to apply the constitution when fulfilling their functions. I have studied the application of constitutional regulations regarding private property by legislator and administrative authorities and their supervision and other existent issues based on different subjects when applying the constitution and have proposed a recommendation on reform and consummation of relevant systems. The most important part in application of constitutional regulations on private property is in the legislation and supervision by the People's Congress and its standing committee. Therefore, I attempt to illustrate the currently valid laws enacted by the People's Congress and its standing committee and seek to analyze and conclude the complementing—contradicting—interaction between the existing legal system and the constitutional regulations regarding private property by taking the civil, criminal, administrative and procedural legislation as basis for interpretation. Of course, the constitutional objective of protecting private property rights cannot be realized without the powerful supervision of the constitution. By examining the specific planning and mechanisms of China's constitutional supervision system, I have expressed the expectation and wish for the launch and consummation of a constitutional supervision system.In conclusion, I recognize that the constitutional regulations regarding the protection of private property rights have been implemented from the angle of the constitution's implementation, but have also highlighted the shortcomings. To ensure the consistency and coordination among constitutional regulations on the protection of private property rights and laws and statutes in the common law system and the ultimate observation in the legal practice, we must continue to strengthen the implementation of constitutional regulations.