Property Legal Research

Property right in jurisprudence means the right to property, which is the domination of a thing with the property as its object. It is a power by which the right holder precludes interferences and infringement from others at large. It has the features of a right in rem or a real right and therefore is not merely a"bundle of rights". Only by adhering to the notion that property right is first and foremost a negative right can we better understand the essence of property right and its relationship with constitutionalism.The core connotation of constitutionalism is to limit and restrict the powers of the state by constitution and law. Supremacy of constitution, limited government, check and balance and constitutional review are the basic principles and features of constitutionalism,which is closely and inherently related to democracy, human rights and rule of law.Individual property right facilitates and promotes constitutionalism mianly in the following four aspects:Firstly, individual property right, by safeguarding the subsistence, security, independence and freedom of the individual, lays the foundation for individual personality and dignity and further lays the value rule and precondition of constitutionalism.Secondly, individual property right, by limiting the powers of the state, delineates the boundaries between public sphere and private sphere, facilitates the development of several forces of check and balance and the reliance of government on the people, and further changes the purpose and position of the state, redefines the relationship between the state and individual, promotes the concept of people's sovereignty, clarifies the political rule of constitutionalism and lays the legitimacy and rationale of constitutionalism.Thirdly, the principles of statutory taxation and statutory budget developed on the basis of individual property right provide the people with the power to control and supervise the revenues and expenditures of the government through representative organs, which has become an effective tool of the people to restrict the powers of the government, thereby constituting the procedural rule of the constitutionalism that lays the feasibility of constitutionalism.Fourthly, individual property right provides forceful impetus to the development of democracy, human rights and rule of law, which in turn facilitates the development of constitutionalism. The reason that constitutionalism was able to be established in England should be attributed to the several and individual property right that was developed there since the 10th century and the cherishment and safeguarding of such private property right by the English people over the period of a few hundred years, particular their persistence on the principle of"no taxation without consent by the people". Things in France were similar to that of England at the beginning, but the French king later obtained a strong power to levy taxes and the Estates General simply became a dependency of the king. The Estates General failed to stand in safeguard of the private property right and France gradually moved to a totalitarian state. The immediate cause of the American Independence War was also property/tax issue. The American Constitution has clear stipulations on the protection of private property and the principle of statutory taxation. From the very beginning, private property right has been a core element and foundation of the American constitutional system.The traditional Chinese society is ruled by monarchy on the basis of force. Under the totalitarian property right system that the emperor owns the country, all land and properties in the country are owned and dominated by the emperor, all people are the subjects of the emperor and the people have no access to legal remedy of any kind against the infringement on their properties or even their lives by the emperor. The missing of individual property right made it impossible for the people to exercise any effective limitation or restriction on the totalitarian powers and for the society to develop constitutionalism on its own.The question of property is mainly reflected in the constitution in three aspects, namely the protection of property by the state, the taking and expropriation of private property by the state and statutory taxation and budget.The state may protect property in different patterns. There are two obvious defects in our constitution's protection of property right. The first is differentiated treatment of public property right and private property right and the second is the failure to stipulate private property right as a basic right of the citizen.Taking and expropriation of private property by the state is in essence an infringement upon private property and therefore must follow the principles of pubic interest, statutory compensation and due process. The clause concerning taking and expropriation by the state in our constitution has no stipulation on the standard of compensation or timing of compensation or due process.Statutory taxation and budget is one of the main means that people in a modern taxation state control the government via representative organs and materialize constitutionalism. Such principles are stipulated in most constitutions of the world, but we have many problems in stipulating and implementing such principles in China. In order to solve these problems, one way is to make further amendment to the constitution and accelerate the formulation and improvement of relevant legislation. Another way is to improve the people's congress system so as to implement the congress'review and supervision of the government's budget.