Property Right Law of the People’s Republic of China

The facts of the case are as follows; A Kazakh herder had discovered a meteorite in 1991 on the land which he raised his sheep and cattle, after finding the meteorite he had left it for more than twenty years without doing anything to it. In 2011 the local officers took away the meteorite stating that natural resources belongs to the state and the herder and his son decided to sue. It is uncertain as to what price the meteorite is to be valued as there are several opinions to its value.

There are several issues to address in this case, through his case the history of property law in china will be analysed, including the right attached to the owner of the land so basically who owns the recourses found on the land. Some questions will be highlighted; who owns the land in china? Does private ownership of land exist in china? By whom are natural recourses owned to in china? Does a meteorite fall under a natural resource considering that it does not come from earth and how accurate is the claim of the local officers? As a judge what would be my proposed ruling, by deciding who would has ownership of the meteorite and if the state has ownership will the herder and his son have to be compensated, what would be the reasoning behind my decision and the effect of my decision or ruling in the long run or in the cases to come after it.

One of the main issues is the land ownership in china and this is because in most cases a/the deciding factor for ownership of a property on a piece of land is decided by the land owner. So to resolve the land ownership in china, the evolution of china’s property law has to be explored. Traditionally, China was a socialist or communist society. A communist society is one which follows the ideology of a classless and stateless society based on common ownership, here the state plans and controls the economy with a power holding authority and claims to make progress towards a higher order. Some characteristics of a community society are: it is a classless society, the means of production is owned by the public or the state, there is an absence of private ownership.

So majority of china’s property were under state owned enterprises with private enterprises not allowed as it naturally went against Communism. China at first had no proper property law. It adopted the German civil code in the early 1930s, because it had no effect it was abolished in 1949. Communism still was prominent till 1975, where all land and means of production were nationalised. The people of china were put in different production units were they worked and lived, owning the land collectively, with naturally the rural people owning more things than the urban people. In 1978, with the introduction of a new government the communist system fell, the regime created economic reforms, Chinese government contracted farming to the peasants and created land- use rights and before 1992 the ownership of private enterprises was legalised, although this does not mean they had no restrictions.

Presently china has now succeeded in providing a corporate set of property law in china was the Property Right Law of the People’s Republic of China. It was adopted at the Tenth National People’s Congress of the People’s Republic of China and was put in effect on October 1, 2007. This legislation contains the creation, alteration, transfer and extinction of property rights; it also contains the ownership by the state, collective ownership and individual ownership.

So who owns the land in China? The property in china was classified in to three: state property, collective property and individual property, although it was criticised for its impracticability, land ownership is still classified this way. Article 71 of the civil code defines ownership as an owner’s right in accordance with law to possess, benefit from and dispose if of its own property. There are certain rights attached to ownership. The Constitution of the People’s Republic of China, article 13 protects the citizen’s right over their private property.

The Property Right Law of the People’s Republic of China of 2007, Article 39 provides to the owner right to possess, utilize, dispose and obtain profits from its real or movable property. Article 66 states that the legitimate properties are protected by law and so cannot be occupied and damaged by any institute or individual. Here real property here could refer to land. Ownership of land largely depends on the state in question as each has varying laws. For socialist countries in this case china tend to practice more of state ownership of land, while Democratic states like the United state tends to practice private ownership. China’s lands reforms made two main achievements which is the establishment of Land use right (LUR) in urban areas and the establishment of land Management and contract rights (LMCRs).

Presently or as of 2014, provided for the separation of three rights: land ownership rights, land contract rights and management rights. China mostly retains state-owned of which one can only acquire the land’s use for a time period, it is known as LUR it can be given by local authorities and PRC body corporations. LURs are not given forever but given out for a specific time period, 70 years is the maximum term for urban land use right for residential purposes. A Granted LUR can be likened to long leasehold as in other jurisdictions like UK, in this period of lease a person could use the land for the purpose it was leased for.

A development made to china’s land ownership was as in may 2017, the premier Li Keqiang implied in his announcement that private ownership was reinstated. The Chinese code articles provide for 8 categories that gives rights to owner, one of them is the right for an individual to lodge complains and charges against a state organ or official and to demand compensation for the infringement. But note that as China’s legislation also states that the rights are given by the state and so can be taken away by the state.

Another main issue is if a meteorite amounts to natural resources in Chinese law. The People’s Republic of China Constitution states that natural resources belong to the state and the land with the resources is Non-transferable. It also states that all mineral resources, water, forest, mountain, grassland, unclaimed land, beaches and other natural resources are owned by the state except they are owned by collectors in accordance with law. Article 9 gives the provision regarding resources. The state can allow its exploitation of its resources providing it is subject to a fee. Natural resources are materials occurring in nature that can be exploited for economical gain. Examples of common natural resources include: water, air oil, natural gas, iron, coal.

China’s natural resources law list out the natural resources in china, they include; land, mineral resources, water, Forestry, grasslands, fishery, and wildlife. The natural resources Law of china was/is made up of 4 regulations as of 1990; Regulations about ownership and rights to use of natural resources, Regulations about protection and regeneration of natural resources, Regulation about exploitation and utilization of natural resources Regulation about legal liability.

In urban areas, wildlife, land and mineral resources belong mostly to the state while in rural areas; Grassland, water and land are owned collectively or by the state. So far meteorite has not been mentioned separately in this legislation. So we have to consider if meteorites could fall under a mineral resource. Mineral resources are substances formed naturally in rocks and in the earth of which a country can use to increase its wealth, a perfect example is a natural resource is coal. If we follow this definition strictly a meteorite can actually be classified as a mineral resource. A meteorite is basically a rock that falls to earth from outer space which contains minerals like sulphur, oxygen, nickel and iron.

The outcome of each case is relative to the state in question. In Argentina meteorites are the provincials’ property. In Switzerland and Denmark meteorites belong to the state and they are required to submit it to a museum but are offered compensation not higher than its value while in India it belongs to the state, they are to be given to the Geological survey of India and they aren’t offered any compensation in return. In US and Canada the meteorites belongs to the land owner and they have the discretion to sell it if they want. In Japan according to the civil code the finder of the meteorite has ownership. But the problem presented here in this case is a blank in Chinese law. None of it explicitly States what happens to a meteorite.

So who owns the meteorite? The Claim of the claimant is that “the meteorite wasn’t made on land, or even on the earth” and that as “it’s from outer space, so it should belong to the person who first discovered it”. As said earlier in the essay different states have different ways of interpreting this some may accept this view some may not. China belongs to the category that does not as it’s legislation states that natural recourses belong to the state, so the claim of the claimant is not feasible in china but in a country like Japan or Canada.

This case will be difficult to rule properly because of the blank in Chinese law regarding ownership of a meteorite, a material that is also controversial as to the clarity of if it falls under Natural resources in addition to its lack of adequate precedents to make reference to Towards the proposed ruling, certain things have to be put into understood such as the fact that China is a ‘recovering’ communist state and china’s property law is not as developed as to efficiently giving ‘private ownership’ and the rights to private owners. So the ruling is to be confined or limited to the laws that are already made available by the legislation. There are two ways for a ruling to go, a ruling could either follow the precedents already set or could replace or create exceptions to the precedent. So the proposed ruling could be such that would conform to the level of chain’s property law, but the ruling could also serve as reference for the future cases and it could be a catalyst towards further developing property law in china.

I think an important fact of the case is the ownership of the land of which the meteorite in question was found, whether it belongs to the farmer, state or is a collectively owned land will go a long way in determining the outcome of this case. There are two different directions this case can take, if the farmer had true ownership of the land and not simply possession he could be entitled to the rock but considering that it falls under state property as a natural resource he may be entitled to compensation. This is a likely option as case facts show that it is a family land but whether it is collectively or private owned is still a bit unclear.