Chinese rural land expropriation law: problems, prescriptions and obstacles

Abstract

Extensive rural land expropriation has been a source of social deprivation and contention in contemporary China. This article provides a comprehensive state-of-art analysis of the Chinese law of rural land expropriation and demonstrates the multiple problems it faces now. It first reveals the definitional, structural and procedural challenges embedded within the existing legal framework to the constitutional public interest prerequisite enshrined in Article 10 of the 1982 PRC Constitution. It shows that not only is the prerequisite itself legislatively and judicially under-defined, it is also in effect made structurally redundant by the relevant constitutional and statutory prescriptions. The second part moves on to explain the current legal standard of compensation for rural land expropriation and the critique against its unfairness, both substantively and procedurally. It shows that the existing statutory standard of compensation is unfair not because it falls under the “true” value of the peasants’ use-rights over rural land but because it denies them any share in the increased land value as a result of expropriation. The peasants have no institutionalized channel to challenge the standards either. The third part turns to a series of proposals made in the existing literature on reforming the Chinese rural land expropriation law, all of which intend to boost the capacity of the law to check the state’s takings power and protecting land rights. The concluding part briefly discusses the socio-political reasons why these reform proposals have yet to roll out in China, despite the lengthy groundswell of support for an overhaul of the law in this field, and why a broader reform is needed.