On The Enforcement Mechanism Of State Property Ownership In Constitution

As a legal fiction, state property ownership is generally defined to be a basic legal system in its constitutional text. Certainly, nearly half articles of General Principles are also related to this term in Constitution of the People's Republic of China. Which are covering ownership by the whole people, state economy,state-owned natural resources and land, the sacrosanctity of socialist public property,expropriation, state enterprises, state organizations and institutions etc.. Hence, how is this term formed? The clearer answer basically can be got by means of carding and analyzing its developing sequence of etymology and legal history at home and abroad.However, due to the related theoretical and practical paradox, for instance, the status and effect of General Principles in Constitution, the particularity of the subject of the state, and the uncertainty of the actual executor of state-owned properties, a strong theoretical dispute has been set off about what is the real attribute of the"state-owned" in Constitution, whether state property ownership is a power or right.Generally speaking, the former dispute is mainly divided into three doctrines: the state ownership, the institutional guarantee and the state right (power). And the latter dispute is roughly divided into nominal ownership, legal person of public law, real right, public power, residual ownership, and eclectic.Factually, through the analysis of the status and effect of General Principles in Constitution, and the nature of Constitution as a fundamental law, the "state-owned"in Constitution should be state property ownership, and this ownership is both public and private which mainly lie in the following aspects: double principal-agent of its subject, communion of its legal interests, the separability of its powers, stationary applications of its object and the double-edged of its function. In other words, state property ownership in Constitutional refers to an absolute dominant position of the right or power to specific properties regulated by Constitution. Furthermore, these properties includes state-owned natural resources (mineral, water, forest, mountain,grassland, wasteland, beach, etc.), state-owned land, state-owned assets of government organizations and institutions, state-owned assets of enterprises, and state-owned cultural relics and archives. In addition, the constitutionality of other creative provisions depends by whether this ownership is a power or right.As is known to all, there is a unified code to regulate the enforcement of state property ownership in France and Japan, Taiwan and other countries and regions.Nevertheless, China (Mainland) adopt a different model, that is, classified legislations about all sorts of properties. Based on the existing legal documents relating to state-owned properties and their practices in China, we can find that the scope of the enforcement of state property ownership can be roughly defined by restrictions of purposes, acquisitions and applications. While other specific enforcement mechanism,such as the subject, the object, the way and means, the responsibility mechanism, etc.,can be fully discussed in other sections about the severally managing, respectively legislating and specially protecting.Generally speaking, we have achieved fruitfully since 1949 under the function of these enforcement mechanisms, but also accompanied by negative effects. The main reason lies in the fact that rules of state property ownership in Constitution are scattered, staggered, conflicted and even lacking, so that state property ownership and the state administrative power are frequently confused in life practice, and the economic efficiency is superior to all else. Undoubtedly, in consideration of the overall environment, subject arrangement and behavior choice, it is still a difficult problem in the enforcement of state property ownership to separate it from other state powers, especially state administrative power. But, at least, it is still feasible to distinguish applicable situations between state property ownership and state administrative power from rules of conduct. Therefore, in order to prevent the loss and waste of state-owned properties, to achieve a clear separation of powers and responsibilities, to resolve the conflict of rights and other negative problems, it is necessary to establish a global, unified and hierarchical system of exercising rules to guide the lawful and effective enforcement of state property ownership whether in theory or in practice.Because of the inalienability,the enforcement of state property ownership can only be the creation of other various non-ownership, that is, the enforcement of state property ownership is mainly about the distribution of its usufruct. So, the different efficacies of state-owned properties in Constitution, such as the rank of legal rights and the different ratio of cost-benefit and the former is preferred when the two efficacies conflict, is a better choice than five kinds of statutory state-owned properties based on the material classification of itself in the tradeoff of the optimal combination of objects and the people. May the reason be rational or emotional, the dependency on state-owned properties of individuals or organizations should be the most appropriate standard in the sorting of numerous rights-rank. Thus, state-owned properties in Constitution can be divided into following categories: the state-owned property needed for the survival and living, the state-owned property required for production and operation, the state-owned property necessary for ecological environmental protection and the state-owned property demand for the preservation of cultural tradition.Simultaneously, by modifying the theoretical extension of C&M Framework,four kinds of exercising rules, namely inalienability rules, property rules, liability rules and regulation rules, have been prepared. These exercising rules are not only adaptable, but also can solve the system defects and realize the separation of the two rights. After distinguishing the relative relationship of state property ownership, the remaining work is to separately regulate the first right entitled by the enforcement of state property ownership in accordance with different efficacies of state-owned properties. Specifically, the sorted applicability of four exercising rules is mainly reflected in the following aspects: (1) the state-owned property needed for the survival and living mainly applies to inalienability rules, (2) the state-owned property required for production and operation and necessary for ecological environmental protection have an approximation so that their two corresponding relationship respectively apply to property rules and liability rules, (3) the state-owned property demand for the preservation of cultural tradition mainly applies to liability rules, and (4) the applicability of regulation rules runs through the entire state-owned properties, which directly pre-sets many trading conditions.From the view of the consequence of state property ownership, property rules have reached an agreement on usufruct of state-owned properties. Liability rules have recognized infringers' illegitimate use of state-owned properties under the premise of paying a price. Regulation rules have intervened in the use and trade of state-owned properties in a conditional pattern way, and the substandard were removed or invalid.Inalienability rules has been designed to protect and maintain the the individual survival and living, whose ration is directly discreted by the state ogan in a purposes pattern way, so that no one (including individual, organizations and even the state itself) can interfere or infract. Therefore, it is a well-grounded judgment how to deal with the non-state subjects' violations of these exercising rules under the existing system including civil, administrative and criminal supervisory body, the interested party, the remedy and the procedure of the punishment and so on. Only violations of the competent authorities who represent the state are complex and intractable to be supervised in different situations. In a nutshell,the interested party or the whole people as the real owner of state-owned properties can claim their rights through following approaches. First, the relationship between the competent authorities of state-owned properties and the users is similar to that of the non-state subjects in property rules. Second, in property rules, liability rules and regulation rules, the competent authorities' violation accompanied by administrative power is applied to the typical administrative dispute settlement. In addition, it is necessary to add punishment measures for the damage of public properties and misappropriation of common public properties. Thirdly, besides the administrative reconsideration,democratic procedure is the best measure to supervise the competent authorities'exercising behaviors accompanied by legislative power that mainly occur in rules of regulation and inalienability.