Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa

Abstract

Our paper examines constitutional property protection in China.The Chinese constitutional amendments of March 2004 were far-reaching since they introduced into Chinese law a notion of property that renders a free-market economy more viable and economic development more sustainable. Nevertheless, the principles for constitutional property protection in China have yet to be translated into more concrete implications, especially in the context of expropriation. It is still not generally appreciated that the Chinese Constitution plays an important part in property law, and particularly in matters relating to expropriation. Our goal is more modest. China’s constitutionalization of private property rights has only just begun. This presents an appropriate opportunity to examine the possible theoretical development of Chinese constitutional property law, in comparison with similar developments from elsewhere in the world. At this point, the necessity and value of legal-comparative study cannot be denied. We base our analysis on lessons taken from another very recently emerging body of constitutional property law, namely that of South Africa.