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韩大元: 中国私有财产权的宪法保护

来源:中国宪政网 |2013-06-28 07:20:00 | [ ]  

            中国私有财产权的宪法保护
                韩大元 

          译者:英译:柳建龙,校订:Charles Wharton


   摘要:  私有财产权是公民的一项重要的基本权利, 但这一概念直到20世纪初期才传入中国。此后, 私有财产权在中国的宪法理论与实践中发挥了重要作用。中华人民共和国成立后先后颁布的《共同纲领》和四部宪法都对所有权或私有财产权的保护作了规定, 然而由于种种原因, 有关私有财产权的宪法条款经历了一些变动, 直到2004年现行宪法最新一次修改, 私有财产权才得到充分的保护。1982年宪法通过时并未明确给予私有财产权与公共财产同等保护, 但随着社会主义市场经济的发展, 修改宪法、加强私有财产权保护的呼声日益高涨。现行宪法迄今共进行了四次修改, 每次修改均涉及私有财产权保护问题, 这使得宪法对私有财产权的保护更加完整和充分。


  The right to own private property is an important fundamental right enjoyed by individuals. However, such an idea had not been introduced to China until the early 20th Century. Thereafter, the right to private property has assumed an important role in the constitutional practices and theories in China. Since the establishment of the People,s Republic of China, five constitutions have been adopted in succession. Most of them shed light on the protection of such right Nevertheless, for certain reasons, the provisions on private property rights have experienced great upheavals since 1949 and were not well-protected until the latest amendment to the Constitution of 1982, enacted in 2004. Though according to the original provision of the Constitution of 1982, private property was not entitled to the same equal protection of law provided to public property. With the development of the Chinese socialist market economy, there was an increasing demand for amending the Constitution to protect the right to private property. The current Constitution of China has been amended four times, and all of them re-evaluated the protection of the right to private property. The protection of the right to private property has thus been enhanced and strengthened.

   I. INTRODUCTION

  In modem constitutional states, the right to private property is highlighted as one of the most core and essential fundamental rights, [1]because it is the backbone for the realization and enforcement of other fundamental rights and liberties. Without the right to private property, the first and foremost guardian of liberal constitutionalism, a man would be a dependent slave rather than an independent sovereign owner of the state. It is the right to property that safeguards political liberty from arbitrary government as well as the economic utility of private property [2]that makes a man free and independent.[3]

  However, the idea of the right to private property as fundamental human right had not been introduced into China until the early years of the 20th Century. The inception of such idea is one of the results of the national independence and liberation movement triggered by the invasions of some western states and Japan. Since then, constitutional and political theories and practices have constantly shed light on the realization and enforcement of such right. However, in the decades before 1949, China was involved in many internal and civil wars and political chaos; and therefore such right was never fully realized and protected

  Since the establishment of the People,s Republic of China in 1949, the right to private property has experienced great upheavals. It was not until the adoption of reform and opening-up policies in the 1980s that the right to private property regained its position and strength in constitutional theories and practices. Being increasingly conscious of the importance of the role of the right to private property in safeguarding individuals, rights and liberties, from time to time the present constitution of China was revised and amended to meet the demands of developing and changing politics, society and economy. In this regard, it is notable that the realization and guarantee of the right to private property to some extent reflects the development of constitutionalism or rule of law in China Accordingly, to carry out an inquiry into the constitutional protection of such right is important to understand the progress of development of constitutionalism and human rights protection in China. To do so, this article carries out following inquiries about the right to private property: historic development of right to private property (part 2); right to private property in context of the Constitution of 1982(part 3); nature and content thereof (part 4); equal protection of socialist public property and private property (part 5); limitations of rights to private property (part 6); and systematic guarantee of right to property and its future (part 7).

  II. HISTORIC DEVELOPMENT OF THE RIGHT TO PRIVATE PROPERTY

  In the modem states of constitutionalism or rule of law (Rechtsstaat), the rights to property, life and liberty synthetically constitute the tri-pillars of the fundamental-rights system, which embodies the dignity and values of human beings. As the fundamental law of state and the supreme value system of a commonwealth, the Constitution always views the protection of (the right to) private property as the starting-point and basis for the realization of its social goals. In order to ensure the realization of the fundamental human values embodied in the right to private property and provide legal bases for the exercising of the right, it is common to specify the principles, margins and provinces of the right to property in the constitution and to concretize the constitutional principles through ordinary laws. However, even when the provisions on the protection of right to private property have been formulated by the Constitution and concretized in ordinary laws, the content and scope of the right to property remain uncertain and need to be further determined Every fundamental right in the present Constitution of China is a result of the development of modern Chinese history that goes back to the end of Qing Dynasty, i. e., the early 20th Century. Therefore, the understanding and determination of the right to private property in the present Constitution should be carried out in the context of the constitutional history of China

   A Implantation and Inception of the Right to Private Property before 1949

  The idea that the right to property is a fundamental and essential human right was not introduced into China until the early 20th century. Thereafter, with the implantation and universalization of human rights, the right to property became an important and significant topic in the area of legal practices and sciences in China Biographies and Indexes of Japanese Literatures (日本书目记), edited by Kang Youwei (康有为)and published in 1897, dropped a hint of the right to property by mentioning the book Critical Discourse on Declaration of Human Rights (人権宣告弁妄), written by Japanese scholar Kusano Kenko (草野宣隆), According to Prof. Kusano, the term “human right” was used as the counterpart term of right to property.[4]However, as an academic and meaningful concept, the term “right to property” first appeared in the 1910s. In 1919, one of a few articles in celebration of Labor,s Day published on Morning Post (晨报), titled as Three Major Fundamental Rights of Human, came out with the “right to life, to work and to have and enjoy all the products of the laborer.”[5]Luo Dunwei (罗敦伟)mentioned the concept of “fundamental economic right” in his Critics of Constitution of Hunan Province (湖南省宪法批评), published in August, 1922. At the 54th conference of the Constitutional Convention in August of 1922, the draft of chapter of “livelihood” and the debating thereof was carried out under the influences of scholars. While making propositions about “fundamental rights,” the representative Lin Changmin (林长民)made the proposition, “The State may regulate individual,s right to property and economic freedom.”[6]In the meantime, the human rights school advocated the idea of property, right to property and private property, etc., and insisted they were elements of human rights. For example, Luo Longji (罗隆基)wrote in his book On Human Rights (论人权)that the “State should guarantee the citizen,s private property” was an inherent part of human rights.[7]He held that the enforcement of right to property was an important institution for enforcing other rights, including right to life. The necessity to guarantee the right to property arose from fights over the ownership of properties.[8]

  With the universalizing and developing of conceptions of human rights up to the 1940s, the right to property had been regarded as a counterpart and independent term to that of human rights. For example, the Shanxi, Gansu and Ningxia Border Regions Regulations on Safeguarding Human and Property Rights (陕甘宁边区保障人权财权条例)passed by Revolutionary Bases juxtaposed human rights with right to property and prescribed that “human rights are guaranteed by the State. Nobody is to be detained only but for by the competent authorities in accordance with the pre-prescription of law and with due process of law. Thereafter one should be trailed and treated in accordance with the law and with due process of law. The right to property is hereby guaranteed; private property enjoys full protection of the laws.”[9]

   B. Development of the Right to Private Property after 1949

  Since the Establishment of the People,s Republic of China in 1949, China has ratified 5 constitutions in succession, viz, the Common Program of the Chinese People,s Political Consultative Conference 1949(中华人民共和国政治协商会议共同纲领, also regarded as the interim constitution of China and hereafter referred to as “the Common Program”), the Constitution of the People,s Republic of China, 1954(中华人民共和国宪法, hereafter referred to as “the Constitution of 1954”), the Constitution of the People,s Republic of China 1975(hereafter referred to as “the Constitution of 1975”), the Constitution of the People,s Republic of China 1978(hereafter referred to as “the Constitution of 1978” and the Constitution of the People,s Republic of China, 1982(hereafter referred to as “the Constitution of 1982”).[10]As the interim constitution of China, the Common Program shed light on the right to private property in two aspects: firstly, it abolished the feudal and quasi-feudal land tenure and established the farmer,s tenure; secondly, it provided that the “State protects the state-owned public property and the commune-owned property, and the economic interests and private property of workers, petty and national bourgeoisies.”[11]Given that the Constitution of 1954 was the first socialist constitution in the history of China, it clearly let down the status of right to private property. Article 11 of the Constitution provided that the “State protects a citizen,s right to own lawfully-earned incomes, savings, houses and other means of life.”[12]Article 12 provided that the “State protects a citizen,s right to private property and inheritance in accordance with the laws”. To a large extent, the modes in aspect of protections of private property set up by it were generally followed by the Constitution of 1975 and the Constitution of 1978.[13]In the drafting of the Constitution of 1982, the provisions on the protection of private property were restored, and in accordance with the realistic demands of social development, the phrase “all other kinds of means of subsistence” in the Constitution of 1954 was altered to read “ownership of other legitimate private property.” Compared with the provisions of its preceding constitutions, the scope of citizen,s right to property in the Constitution of 1982 is much larger.[14]

  In order to meet practical demands, the constitutions of China stipulated differently in the area of the protection of the right to own lawful property and to inherit private property in accordance with social changes. However, the content and system of the Constitution remained far from complete and perfect until the fourth amendment of the Constitution was ratified in the year 2004, especially when the lack of social consensus and legal grounds for respecting and protecting the private property are taken into consideration. The primary dilemmas to be removed and settled were as following:(1) the lack of consciousness of the protection of private property;(2) the objects of the right to property were indefinite, and the provisions did not cover the protection of the means of production, but rather only living materials such as lawfully-earned income, savings and houses. However, the right of the means of production needed be weighed, since it is the most fundamental right of a citizen.(3) Considering the specific normative system and the concretized institution of the protection of the right to property, it is notable that the Constitution of 1982 does not make clear and specify the status of the right to property and the principles and the process of compensation for the infringement of the right other than provide the principle to limit it. Comparing the protection of public property with that of private property, the principles and the policies applicable thereto were unequal and discriminatory since the Constitution gave far greater protection to the former than the latter. The preference or bias in favor of public property led to discriminatory treatment toward private property and some social dilemmas, such as the owners lacking confidence in private property security. This was especially true in cases of compelled home demoltion and requisitions of plantations — violations in those instances were frequent. From the perspective of the Constitution, the main cause that accounts for the conflicts between public interests and private interests during the recent social development of China is ineffective protection of the right to private property.

  With the development of a market economy, the accumulations of private wealth, and the maturation of legal consciousness, the public has extraordinarily focused on the protection of the right to property and continually and increasingly called for the state to provide an effective state legal system to consolidate and enforce the protection of the right to property. In responses to the practical demands on the protection of the right of private property, Jiang Zemins Report at the 16th National Congress of Communist Party of China pointed out that “We should strengthen the supervision and administration of the non-public sectors according to law to promote their sound development. We should improve the legal system for protecting private property”.[15]the amendments of the year of 2004 to the Constitution have advanced and improved the protection of the right of private property by clarifying its status in the Constitution. They are of great help for the realization of the fundamental values of the protection of private property of the whole society and urge governments and the public agencies to protect and respect the values of the right of private property and to offer sound legal circumstances for private property owners.

   III. RIGHT TO PRIVATE PROPERTY IN CONTEXT OF THE CONSTITUTION OF 1982

  Article 13 of the Constitution of 1982 clearly laid out the principles of the right to property. The provision was further amended and altered by Article 22 of the Amendment to the Constitution of the People,s Republic of China 2004 in order to meet the demands of a changing society. Article 22 of the Amendment to the Constitution provided that: Article 13 of the Constitution, which reads “The state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property” and “The state protects the right of citizens to inherit private property according to law” is revised as follows: “Citizens, lawful private property is inviolable”, “The State protects in accordance with the law the rights of citizens to private property and its inheritance” and “The state may, in the public interest and in accordance with law, expropriate or requisition citizens, private property for its use and shall make compensation therefore.”[16]In accordance with Article 13 as amended, there are four conclusions: firstly, the right to private property is a fundamental or constitutional right; secondly, the private property is inviolable; thirdly, the State may not impose limitations on the right to private property but for the purpose of public interest; fourthly, such limitations may only be imposed in accordance with the laws.

  A. Right to Private Property as a Fundamental Right

  Most of the fundamental rights are enumerated in Chapter 2 of the Constitution, “Fundamental rights and obligations of Citizen”. However, due to the uniqueness of the framework of the Chinese Constitution, the right to property was included in Chapter 1 of the Constitution, “General Principles,” rather than in Chapter 2. Such a specific arrangement is justified by the dual functions of the right to property. The right to property functions not only as a subjective right but also as an objective law of institutional guarantee. Generally, the basic frameworks and policies of the State and issues alike find their positions in the Chapter of “General principles”, an essential part of the Constitution. However, the nature of right to property does not vary for having been included in this chapter.

  Above all, fundamental rights set up a defense system of rights against the public powers. The foremost significance of embodying the fundamental rights into the Constitution is to provide a citizen,s exercising of fundamental rights with constitutional foundations. Such rights are to be enforced in various fields of social lives. Thus, there are all kinds of connection between each right and the civil society. As a result of the establishment of the fundamental right, certain general principles of rights have been refined therefrom on one side and the constitutional status of citizen founded on the other. Under the Chinese tradition of political culture, some “cooperationality” and “coordinationality” has been incorporated into the defense system of fundamental rights which is quite different from political theories of liberalism. As the case of political theory of fundamental rights is concerned, the Chinese Constitution is founded on the ideology of socialism.

  Fundamental rights constitute the basis for the system of rights. The system of rights is a tremendous system, organically organized the rights can be divided into various categories according to various standards. The system of rights consists of various levels and patterns of rights, of which the original rights directly constitute the fundamental rights.

  In China, fundamental rights are the rights in the sense of positive but not natural law. The idea of fundamental rights of citizens followed and pursued by the Constitution is a reflection thereof. The fundamental rights are not only foremost fundamental and essential, but also elementary and necessary for a citizen in social life.

  The preface of the Constitution clearly spells out that “This Constitution affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the state in legal form; it is the fundamental law of the state and has supreme legal authority.” As “the fundamental law of the state”, the Constitution is the supreme norms for the whole society and is not only applicable in the fields of public law. Such an image of the Constitution distinguishes it from that in the western countries which takes the idea that “constitutional law is public law” for granted the fundamental rights as the supreme norms of values in the Constitution constitute an integrative institution regulating the fields of politics, economy and culture and public law and also partial fields of civil law.

  The right to private property has the general characteristics of the fundamental rights and is an indispensable part of the Constitution which has an intimate connection with the other fundamental rights.

   B. Concept of Right to Private Property in Context of the Constitution

  As a fundamental right, the right to private property refers to an individual,s right to gain, enjoy, own and dispose of property through work and other lawful means. It is an essential part of fundamental rights and guarantees a citizen the necessary means to realize his/her freedom and economic interests in social life. Regardless in which fields, either political, economic or social life, the right to property constitutes the basis for the exercising of other fundamental rights. Were they not based on the right to property, other fundamental rights would reduce to nothing.

  According to Chinese legal theories, there are two separate images of right to property: one in a constitutional sense and the other in a civil law sense. They vary in nature and function and hence belong to different rights systems. The right to property in a constitutional sense exists as an anti-thesis of the public powers. As a fundamental right, its primary function is to protect the people from the infringement and violations of the State. Whenever the right to property in a civil law sense is incorporated into the Constitution, it will be turned into a constitutional right, which lays an integrated legal foundation for the protection of the right to property in a civil law sense. The specific distinctions between the two images are as follows: Firstly, the scopes differ from each other. The scope of the right to property in a constitutional sense is larger than that of the right to property in a civil law sense. The former consists of all kinds of rights of value. Secondly, their targets are different. The former targets fundamental rights, infringements, and violation of the public powers, while the latter targets the property relationships between private persons.[18]Thirdly, the means of remedy for them vary. The recognition and protection of the right to property as a fundamental right is absolutely in accordance with the requirements of the developing socialist market economy. Among the economic relationships regulated by the Constitution, the protection of individuals, rights to property cannot be ignored the right to property is not only a fundamental right of individuals, but also a general principle established by the Constitution. The civil law norms on the protection of the right to property are the concretizing of the constitutional norms thereof. Therefore, the former should fall within rather than be separate from the latter value system.

  IV. NATURE AND SCOPE OF THE RIGHT TO PRIVATE PROPERTY

  A. Nature of the Right to Private Property

  The right to private property had been universally regarded as an inviolable and absolute natural right before the ratification of the Constitution of the Weimar Republic in the year of 1919. Thereafter, with the increasing tendency of relativization of rights, the right to private property has been gradually relativized and turned into a synthetic system of rights with social responsibilities. There are four doctrines of the right to property:(1) the first argues that the right to property is in itself an inviolable right of liberty that belongs to every individual;(2) the second contends that the constitutional right of property is of itself a fragment of certain legal institutions, which means that the right of private property is not an original natural right, but a right of law that derives from the Constitution and the laws;(3) the third underlines that the right to property, as a defensive right against the arbitrariness of the state, is in and of itself both an individual right and some kind of legal institution; and (4) the last one claims that the right to property is of dual characteristics, which means that the right to property is both a subjective right of defense and an objective order of law. As a defensive right, the right to property protects citizens against the infringements of the state and sets the boundaries of public powers. Meanwhile, the right to property is fundamental of an institutional guarantee, also an institution and an objective legal order, which guarantees that citizens enjoy the freedom to exercise the right to property. Therefore, the provisions on the right to property of the Constitution play exactly the role of “the guardian of freedom”, which guarantees individual freedom to access all kinds of economic means.

  As far as the history of the development of the right to private property and its nature is considered, the third doctrine and the forth doctrine sound much more reasonable than the other two and are based on the common theoretical grounds. The nature of the right to property under the modem constitutional regimes shall be determined from institution-individual rights perspectives and strike the reasonable balance between public powers and individual interests and rights.

   B. Scope of the Right to Private Property

  The clause, “Citizens, lawful private property is inviolable”, means that the state has the duty or obligation to protect citizens, right to property and to undertake any effective measures to realize values of the right to property. Based on the constitutional characteristic of the right to property, the very amendment expanded its scope. The Constitution of 1982 guarantees the right to property through enumeration and limits its scope to means of life. The means of production had never entered the perspectives of the fathers of the Constitution. This indetermination of the scope of the right to property directly weakened the enthusiasm to make money and rendered the accumulation of wealth to tension and criticism. In the doctrine of constitutional law, all the legal rights formulated according to social consensus are fragments of the right to property of the Constitution. The right to own property is definitely not the “A to Z” of the right to property. It is just a fragment of the right to property, which cannot be described as the complete and fundamental content of the right to property. In order to cover the means of production and to determine the scope of the right to property, the amendment replaced the concept of “the right to own property” with that of “the right to private property” while establishing the principle of the Constitution that “Citizens, lawful private property is inviolable”. In accordance with the stipulations of the Amendment (2004), both the rights to the means of life and that of production, such as share rights, the right to enter into rural land contracts and their operation, the patents etc. are guaranteed by the Constitution.

  The citizens, right to property covers the following:

  1. Lawfully Earned Incomes.- Lawfully earned incomes refers to the money made and goods gained in accordance with law by the citizens through working or other means, which specifically include salaries and wages, goods, bonuses, retirement persons; labour insurance, private home-based work, trees and fruits, cultural relics and books; individual means of production of the rural and urban collective units; individual instruments and other means of production; other lawfully earned incomes, such as house rents, interest, presentations gained and inheritances, etc..

  2. Savings.- Savings refers to the money that the citizens deposit in banks or other credit associations. The state encourages citizens to deposit their surplus money in banks or other credit associations. Citizens enjoy the freedom to deposit and withdraw their money from the banks or other credit associations. The banks and other credit associations shall observe the principles to pay interest for deposits and keep secret the depositors, information. No individuals and units shall be allowed to inquire about, freeze, or withdraw individual deposits except under orders of judicial departments according to law.

  3. Houses.- Houses fall within the means of life. Any illegal infringements, seizure, sealing-up, and destruction of citizens, houses, whether in rural or urban areas, are forbidden. When it is necessary to seize, confiscate and destruct individuals, houses, the state shall make sound arrangements for the accommodations of the owner and make a sound compensation according to relevant requirements.

  4. Other Means of Life and Production.- In China, the scope of citizens, rights of means of life and of production has been more broadly extended than ever before. The state protects all means of life according to law. Objects such as clothes, food and vehicles, which are not forbidden by laws shall be considered as the subjects of the right to property and shall be guaranteed by law therefore. With the development of the economy and the extending scope of citizens, right of property, some rights of categories different to the traditional ones, such as a right to invest, right to run business, etc., are blooming. Moreover, there are incomes gained through other ways of distribution but belong “to each according to his work”[19], such as securities, dividends and so on, of which it is necessary to define and clarify their natures and status within the law. Regarding the contents of the Amendment of 1988, the Amendment of 1993 and the Amendment of 1999: to extend citizens, rights of property has always been the intent of legislators. Doing so has improved the legal system of protection of citizens, rights to property through various ways and concretized its constitutional foundations. Citizens, incomes include both the lawful income according to his work and other lawful income. Herein, the other lawful income refers to the money earned through dividends, fictitious transactions, and lotteries. As citizens, wealth increases, the percentage of other lawfully earned income of the whole income will also increase. As far as some citizens are concerned, the percentages of the other lawfully earned income may surpass that of the lawfully earned income through working. The other incomes are legally intimately tied up with the means of life. For example, if we want to encourage the people to make investments, then we must admit the justification of the incomes gained through investments. There are various ways for citizens to earn incomes in real life, and it is hard to enumerate all of them in the Constitution. As the nature of the right to property is considered, the amendments do not enumerate the ways, but establish a principle ensuring all the citizens, rights to lawful property are equally protected the limitation of the right to property reduces the protection of illegal property. Herein, the “lawful” should be subject to scrutiny which highlights the legality of the process of wealth accumulation and urges members of the society to make money through honest and hard work so as to formulate a good convention of social activities.

   V. EQUAL PROTECTION OF SOCIALIST PUBLIC PROPERTY AND PRIVATE PROPERTY

  Article 12 of the Constitution established the principle that “socialist public property is sacred and inviolable.” As a result, a problem of unequal protection of public property and private property arose therefrom. The responses to such problem vary. Some of them give priority to public property over private, while others prefer equal protection of the two.

  A. Evolution of Constitutional Provisions on “Socialist Public Property”

  Rather than lay out the principle that “socialist public property is sacred and inviolable,” the Constitution of 1954 only provided that the “state ensures priority for the development of the state sector of economy.” Even the Constitution of 1975 and the Constitution of 1978 said nothing about the sacred status of “socialist public property” other than that it is “inviolable”. The Constitution of 1982 first inserted the phase “sacred and” before “inviolable”. Since the commencement of the Constitution of 1982, it has been amended four times. Afraid that such provision may lead to the unequal protection of public property and private property, some proposals have been made to remove the phase “sacred and” from the text of the Constitution of 1982. Meanwhile, there are also proposals that a new clause providing “private property is sacred and inviolable” ought to be added to the Constitution of 1982 and to establish an institution of dual sacred status ensuring the equal protection of public and private property. However, such proposals have never been adopted

   B.“Sacred and Inviolable” in Context of the Constitution

  According to the Modem Chinese Dictionary (《现代汉语词典》), “sacred” means “greatly respected, holy, inviolable”. The principle that “socialist public property” is “sacred and inviolable” indicates the dominance, importance, elementary nature, and authority of socialist public property in the state of People,s democratic dictatorship. To protect public property through the constitution of the state is an essential requirement of socialist statehood However, such a principle is more a constitutional principle associated with political regimes or a political principle. The phrase “sacred(ness)” in the text of the Constitution is not a legal term in a negative sense but a prescription of principle of political declaration and policies. The term basically means that: socialist public property is inviolable and of great significance for the development of the People,s democratic dictatorship; the state protects both public property and private property; under the socialist regime there are not essential conflicts of interest between the two; on the contrary, they are reciprocal and co-developing. It is necessary to note that the phrase “sacred” does not mean that public property should absolutely and unconditionally be given priority. Meanwhile, the so-called “equal(ity)”does not mean that private property and public property has the same or equivalent status. The “equal(ity)”is relative and hereby refers to being equal before the law. The equal protection of private property with public property is guaranteed by the State for the purpose of development of public property. Though the principle that “private property is sacred and inviolable” has played a progressive role in modem constitutional states, private property is never “sacred” but subjected to limitations of public interest. In this regard, whether the word “sacred” is added to or inserted in the text of the Constitution ought not to be taken as a benchmark in determining the intensity of protection of public or private property.

   C. Equal Protection of Public and Private Property in Context of the Chinese Constitution

  The Constitution has been amended four times in order to realize the idea of “protecting private property and respecting individual interests of the citizen” and establish the philosophies of values of “state protects and respects human rights” while casting aside “nationalism (国家主义)” from the system of values. The constitutional status of the right to private property has been confirmed and improved.

  Firstly, equal protection of public property and private property is the elementary requirement of the Constitution. The Amendment to the Constitution in 1988 firstly confirmed the legality and lawfulness of the private sector of the economy and provided that “the State protects the lawful rights and interests of the private sector of the economy”; then, the Amendment to the Constitution in 1999 further provided “The private economy is a complement to the socialist public economy. The State protects the lawful rights and interests of the private economy, and guides, supervises and administers the private economy.” Though since then the Constitution has been amended twice, and the legality and legitimacy of private property to some extent has been guaranteed, its status in the Constitution remains not clearly defined, and the nature of the right to property undetermined- the Amendment to the Constitution in 2004 further clarified the constitutional foundations of right to property and provided that “The State protects the lawful rights and interests of the non-public sectors of the economy such as the individual and private sectors of the economy. The State encourages, supports and guides the development of the non-public sectors of the economy and, in accordance with law, exercises supervision and control over the non-public sectors of the economy.” Article 16 of the Amendment to the Constitution in 1999 clearly defined the nature of non-public sectors of the economy as following: “Individual, private and other non-public economies that exist within the limits prescribed by law are major components of the socialist market economy.” Accordingly, the constitutional status of the non-public sector of the economy has been revised It became “major components” instead of supplementary to the socialist market economy. This means that the legal status of the non-public sector of the economy is the same as that of the public sector, and it equally participates in the development of market economy. The re-definition of the status of the non-public sector of the economy to some extent reflects the function of the constitution as a program of the state and the changes of value benchmarks toward economic institutions.

  Secondly, the principle of equal protection of law is a constitutional principle.“All citizens of the People,s Republic of China are equal before the law,” established by the Constitution of 1982, is n, , , ot only a basic constitutional principle, but also a requirement of the rule of law. Under the constitutional order, national, collective and private properties and their subjects are equal. In perspective of constitutional philosophies, the purpose of guaranteeing equal protection of the right to private property is to protect the infringement of individuals, property by public powers and effectively enforce of citizens, rights to private property in the Constitution. The civil law protection of the right to private property is a derivation from and concretizing of the constitutional protection. The two vary in nature and function.

  Thirdly, it is the state,s obligation to give equal protection of the right to property. The subject of such obligation is the state, which is clearly laid out by Article 21 of the Amendment to the Constitution. The “state” in this article first refers to the state organs obligated to protect the non-public sector of economy, i. e., the legislatures, administrations, judiciaries and procuratorates of the state, which are bound to protect the lawful rights and interests of the non-public sector of the economy while exercising their functions and powers. In accordance with the Constitution, the state has the obligation to protect the non-public sector of economy according to laws, which is the requirement of protection of the basic economic system of the state. For example, the National People,s Congress and the standing committee thereof should make no law discriminating against the public or non-public sector of the economy while exercising their legislative powers; the administrative organs should not violate lawful rights and interests of the non-public sector of the economy while executing the law; the judiciary should uphold the principle of equality and equally protect the public and non-public sectors of the economy and should not discriminate against either of them, and so on. Several Opinions of the State Council on Encouraging, Supporting and Guiding the Development of Individual and Private Economy and Other Non-Public Sectors of the Economy (国务院关于鼓励、支持和引导个体私营等非公有制经济发展的若干意见, hereafter referred to as “The Several Opinions”)adopted by the State Council in 2005, by forms of state policies, established an equal platform for the development of the public and non-public sectors and further concretized basic principles of the non-public sector of the economy. The Several Opinions enumerated 36 measures adopted by the State Council to encourage and guide the non-public sector of economy. Its main contents are as follows: to remove institutional stocks in the way of development of the non-public sector of economy, to establish equal status of subjects of the market and to realize fair competition, and to improve and strengthen the supervision, administration and services of the government. For realizing the equality of public and private sectors of the economy in law, the Several Opinions ordered equal entrance to be put into practice, the principle of equal treatment to be realized, and clearly provided that “permit (ing) non-public capital to enter the industries and fields which are not prohibited by law”.

  Fourthly, equality is a necessary precondition for the protection of the right to private property. The right to private property is primarily a fundamental right targeted at the public powers and providing the civil law right to private property with legal foundation.“Lawful right to private property is inviolable” means that the state is obligated to protect a citizen,s right to property and take all kinds of effective measures to realize values of the right to property. However, it is notable that under the constitutional structure, the right to property has a duality of subjective and defensive right-objective orders. On one hand, the right to property as a defensive right protects a citizen from infringement and violation of the state and defines the basic effective ranges and limitations of state activities. On the other hand, the right to property has the function of an institutional guarantee and establishes an institution or objective legal order for the exercising of individuals, liberty and freedom. Therefore, the provisions of the Constitution practically function as a “freedom-guarding institution” that protects the individual,s freedom to make use of all kinds of economic facilities. Grounded on the constitutional nature of the right to private property, the its range of protection has been extended by the constitutional amendments; the scope of means of production of private property defined and the original phase “ownership” replaced by the phase “right to property” and the constitutional principle that “The right to private property is inviolable” established

  VI. LIMITATIONS OF THE RIGHT TO PRIVATE PROPERTY

  In the modem society of rule of law, the right of private property plays a very important role in the promotion of individual freedom and the realization of other fundamental rights. The essence of the right to property is to meet the fundamental demands for the exercising of the right of freedom and is the social-material basis for the individual to live with dignity. Therefore, in the sense of social development, to own private property is the vita prerequisite for the harmonious development of society and for the protection of human dignity.

   A. What “Lawful (ness)” Means in “Lawful Private Property”

  Only “lawful” property is guaranteed by the Constitution; therefore, the definition of “lawful (ness)” is important in determining the constitutional limitations of the right to private property.

  In the text of the Constitution, choices of some important and significant words are not only indications of the personal preferences of the constitutional makers and revisers and also show the basic principles and value tendencies implied in the Constitution. In respect of the term “lawful (ness)”in the Constitution, there is a clear tendency of limited, not absolute, protection in the protection of rights and interests of citizens. However, the word lawfulness)" should be read not out but down. It refers to that which is in accordance with laws, regulations, orders and other regulatory documents instead of laws in a negative sense; i. e., the legislation by the National People,s Congress and the Standing Committee should thereof be held valid Moreover, it refers to not only what is in accordance with the law in a positive sense but also in a passive sense, i. e., what is not positively permitted or protected but not clearly prohibited by law should also be regarded as lawful.

  In the Constitution, the word “lawful” apears nine times, among them seven times in the phrase “lawful rights and interests, of the remaining two, one in the phrase “lawful liberties and rights”(Article 51) and the other “lawful private property”(Article 13(1) and 22 of the Amendment to the Constitution). In most of the cases where the term “lawful” is used, it is to define the rights and interests of citizens. Of them, Article 13 should be paid more attention. As of the Second Session of the 10th National People,s Congress on March 14, 2004, Article 13 of the Constitution, “The State protects the right of citizens to own lawfully earned income, savings, houses and other lawful property” and “The State protects according to law the right of citizens to inherit private property”, was revised to “citizens, lawful private property is inviolable” and “The State, in accordance with law, protects the rights of citizens to private property and to its inheritance” and “The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and shall make compensation for the private property expropriated or requisitioned” This amendment is very important and significant in the protection of citizens, right to private property, “it is the first time in the constitutional history of People,s Republic of China the principle ‘lawful private property is inviolable, is publically and clearly declared”

  In contrast to the above principle, the protection of citizens, rights is still not as strong, and the scope of interests is limited only to specific and lawful rights and interests of citizens. The limitation and specificity of protection is an identification of the limited-protection principle adopted by the Constitution in case of protection of rights and interests.

  As the objects to be protected are concerned, only “lawful” rights and interests are to be protected the term “lawful” clearly lays out the preconditions for the rights and interests for which protection may be claimed On the contrary, unlawful or illegal rights and interests are not guaranteed by the Constitution; i. e., they are more exposed to infringements and violations of the state and other citizens. It is in this case that the distinction of lawful(ness) and unlawful (ness) counts. Therefore, it is a foremost task to determine whether a property is lawful or not when the protection of right to private property is concerned Some scholars hold that whether the taxes and duties have been paid or not may be taken as the elementary benchmark to test the lawfulness of property. It is hold that “lawful private property” in Article 13 of the Constitution should be read to mean that: generally, the property for which taxes and duties are duly paid should be regarded as lawful in the sense of the Constitution; only under exceptional circumstances may the property on which taxes and duties are not duly paid be regarded as lawful.“Whenever it is found about one,s property that the taxes and duties imposed on it are not duly paid, and it does not fall within exceptional circumstances, it should be confiscated into the national treasury and apprioprate punishments and penalties should be given therefor.”[20]

  If such a benchmark were adopted, the scope of lawful property would be too narrow for the protection of rights and citizens and would not fully comply with the principles of constitutionalism. As far the problem of lawfulness of property is concerned, some scholars hold that it should be resolved in two perspectives, substantive and procedural.“From a substantive perspective, lawful private property refers to private property gained through legal means. However, since the market changes a lot, the means for creating and gaining wealth are always increasing, and it is impossible to cover them through the law. Therefore, the property, both means of production and life, gained through either work or through other means, is lawful. From a procedural perspective, the private property is lawful unless it is declared illegal by appropriate state organs in accordance with the law. In other words, even if the property concerned is illegal in a substantive sense, it enjoys the protection of law unless so declared However, being short of substantive justification, the presumed legality or lawfulness in a procedural sense is in uncertainty to some extent and could be overruled by declaration of illegality.”[21]In conclusion, in a substantive sense, unless the lawfulness of the property is denied or rejected by the appropriate state organs, it is entitled to the protection of law. Therefore, in determining the lawfulness of property, it is important to inquire whether such property is gained illegally. As long as the acquisition of property does not violate the compulsory provisions of law, even if the means of acquirement thereof are not prescribed, the property should be presumed lawful. The scope of unlawful property should be strictly limited to situations proscribed by the law. Unless the lawfulness of property is prescribed by the law, the property concerned should be regarded as lawful and protected by the law. Therefore, in judging the legality of rights and interests of citizens, the principle of presumption of legality should be followed Unless the unlawfulness of rights and interests are proven, they should be regarded as lawful and protected by the law.

  The lawfulness of rights and interests to property that is not specified by the law, either positively or negatively, should be recognized Firstly, the power to decide whether a property is lawful or not is vested in appropriate state organs. No decisions on the lawfulness of property might be made other than by the competent state organs in accordance with the law. Secondly, even when decisions of illegality are so made, the executive organs and other organs enforcing the law are not permitted to coerce arbitrarily, but must do so in due process of law. Otherwise, such actions taken by the state are violations and infringements of rights and interests for which they are responsible. Thirdly, even when such decisions are so made, the right to remedies and to be informed of approaches for remedies and time limits of the individual concerned ought to be fully guaranteed

  Though the principle of limited protection is adopted by the Constitution, and it guarantees only that the lawful rights and interests are inviolable, those that are unlawful but not prohibited by the law are not completely denied the protection of law. The infringement or limitations of rights and interests of citizens, legal persons and other organizations which do not comply with the law should be held responsible according to the law.

  B. Public Interest and Limitations of the Right to Private Property

  Of course, the right to private property is not absolute, just like any other right. Actually, its social nature determines the limitations of the right to private property. The constitutions generally established the principles for the protection of the right to property on one hand and prescribed its limitations or boundaries on the other hand So did Article 22(3) of the Amendment of 2004. It provided that “The state may, in the public interest and in accordance with law, expropriate or requisition citizens, private property for its use and shall make compensation therefore”.

  The ongoing debates on public interest and the right to private property focus on the concept and elements of public interest and other relevant concepts, such as national interest, interests of the motherland, social and collective interests, and so on. Though a number of research achievements have been made, no basic consensus has been reached on the interpretation and meaning of public interest until now. Scholars, understandings of public interest in the text of the Constitution vary. Some hold that “in China the public interests refer to public order and morality.”[22]“Social public interest” in context of the General Principles of Civil Law and Contract Law is relevant to the “public interest” in a constitutional sense. However, the statements of the two differ from each other. Of them, the “social public interests” refer more to social order and the latter the relationship between the individual and the public life. In order to illustrate the value relations between public interests and political life, some scholars divide public interest into four levels: first, the most elementary public interest refers to the improvement of productive forces of the commonwealth; secondly, public interests at the third level refer to public goods, e. g., public security, order, and health, which are accessible to all members of the society; thirdly, the protection and guarantee of legitimate rights and freedom of citizens; fourthly, rationalized public institutions.[23]Such categorization comprehensively sums up the meaning of public interests in various fields and is helpful to carry out classified analyses on public interests. However, where the concerned public interests are disputed, it would be difficult to come out with an operative test to determine the appropriate relation between facts and values. The understanding of public interests) should be subjected to the protection of individual interests and rights. Meanwhile, the public interest ought to be realized through the establishment of appropriate institutions. To certain extent, “The competence that creates the political orders is the competence that creates public interests as well.”[24]

  Public interests are different form the interests of groups, social organizations, or businesses and should be strictly defined In fact, there are practices that infringe and violate individuals, right to private property under the banner of public interest, of which the hidden intentions behind such practices are to cover business interests or illegitimate public interests. In order to resolve the disputes over public interests and the right to private property, it is necessary to detect or evolve certain mechanisms of interest-balancing which reinforce not only the legitimacy of public interests but also the protection of individuals, rights and interests and also to concretize and categorize public interests. Besides this, it is important to spring the constitutional idea of public interest into all fields of social life and establish a unified system for evaluating public interest

  C. Legalization of Expropriation and Requisition

  In order to seek a rational balance between the public interest and the individual interest, Amendment 22 of the Amendment (2004) has set up the prerequisites and process for expropriation and confisication and defined cautiously and strictly the boundaries of the kingdom of public interest. In accordance with the spirit of the Constitution, the objects of rights are entitled to make judgements on the legitimacy of public interests. The right to private property can only be infringed for the sake of the public interest, such as the interests of the society as a whole, compelling state interests in the area of defence and diplomacy, etc.. As far as expropriation and confiscation is to be carried out or judged, it is necessary to take both the values of the national policies for the sake of public interest and that of social justice into consideration and check out the balance between them. What public interests shall be cautiously and strictly defined and shall not be reduced to the interests of certain groups, social organizations, and other commerce interests, etc. In the progress of social development, citizens, rights of property sometimes are infringed under the pretense of public interest which in fact protects illegal commercial interests and unjustified public interests of the society.

  Meanwhile, it is necessary to note that to restrict the right to property for the sake of pubic interes does not refer to expropriating or confiscating individuals, private property without any consideration; on the contrary, the state must make a sound conpensation according to law. The expropriation and confiscation may cause losses of various extents and forms to the owners; therefore, it is necessary to make a sound compensation correspondingly. Amendment 22 of the Amendment (2004) will play an important role in the protection of the right to property and enable people to claim for compensation through judicial remedies.[25]

  VII SYSTEMATIC GUARANTEE FUNCTION OF the RIGHT TO PROPERTY AND ITS FUTURE

  A. Systematic Guarantee Function of the Right to Property

  The constitutionalization of the right to private property will greatly change the society and the progress of rule of law of China. Its influences can be described in the following aspects:1. The constitutional protection of private property will strictly limit the exercising of powers and determine the boundaries of its kingdom.2. It requires that all the public agencies must respect individuals, rights of property in accordance with the Constitution and must not exceed their authorities provided by law.3. It may help encourage the people to dedicate themselves to creative work and making investments, which therefore will lead to property and flourishing of the society.4. The constitutional guarantee system of the right to property will promote the remedy system of individual rights.

  B. Future of the Constitutional Guarantee System of the Right Private Property

  Firstly, whether the constitutional rights of private property can be pursued and realized in reality is a social problem of popular concern. Regarding it, weight shall be attached to how the legislature will play its role as legislators in the future legislate on the right to property. Legislation in regard to the right to property shall severely observe the doctrines of the Constitution and determine the tests and limitations to restrict the right to property, all well-grounded in the Constitutional Commission. It order to formulate the constitutional foundation of the protection of the right to property, it is necessary to import the doctrine of administrative presentation and to meet the demands for the constitutional protection of the right to property with formal statutes.

  The right to property shall be restricted with stipulations of bounding structures, which means that to stipulate the limitation and purpose of restrictions and standards for compensation. Since the constitutionalization of the right to property as a right of a fundamental rights system, legislators shall take into account relations between the values of property of constitutional protection and the property rights order of social justice into consideration and reasonably react to the demands of various interest groups. The law or the policies that restrict the right to property shall subject to the goals of the right to property and especially shall not violate the spirtit of the Constitution. Hence, the doctrine of proportionality, principle of equality, principle of legitimate expectation, etc. shall be observed

  Secondly, to infringe the property right for the sake of public interest will not be justified spontaneously. It is necessary to define the The reasonable margins of the public interest according to the doctrine of proportionality.[26]the doctrine of proportionality requires that:1. The purpose of the restriction shall be justified, in other words, the purpose of restriction shall fall within the frame of the Constitution and be confirmed by it, which herefore justifies the The legislative activities.2. The approch shall be justified, which means that it necessary to seek balance between the approaches applied and the goals pursued 3. Even when the goals of the infringement of the right to property and the expropriation or the confiscation for the sake of public interests are justified, they still shall be strictly subjected to the doctrine of proportionality, so that the violations of the right to property can be avoided 4. In addition, the state and governments shall endeavor to extend the provinces of the right to property and make the obligees feel safety and encourage them to accumulate wealth according to the doctrine of legitimate expectations.

  Thirdly, in order to concretize and enforce the right to property, it is necessary to clean up and adjust, repeal, revise and amend the laws and regulations that violate the Constitution, so that the uniformity of the legal system can be ensured the contents and limitations of statutes will engender two categories of the results through law according to law:1. The constitutional right of property is directly enforced and concretized by laws;2. The abstract and general provisions of the right to property are concretized through administrative activities; however, the executive branch has no discretion to extend or reduce the scope of the right to property. Regarding reality in practice, the arbitrariness to restrict and infringe individuals, rights to property do exist during “The progress of concretization.” It shall mentioned that the following cases do not fall within the doctrine of reasonableness:1. The contents of laws and regulations violate the Constitution;2. The execution of laws and regulations violate the Constitution;3. The executive activities violate the Constituton while the laws and regulations are in accordance with law. All of the above cases violate the right to property and hence violate the fundamental constitutional spirit of the right to property. The approach that the Constitution applies to protect the right to property is to establish and confirm some principles to be observed, which afterward provide a uniform ground for legislation. If the principles of the Constitution were not concretized by laws — in other words, if relevant statutes do not exist, then the doctrine of the right to property is not more than a mirage. The provisions of the private property right ofThe Amendment (2004) are important; however, what is more important is to concretize the right to property through statutes and institutions and to enable accessible and effective remedies for when the right to property is infringed

  Fourthly, the effective constitutional protection of the property right relies on a mature institution of constitutional interpretation. Whenever it comes to making a judgement on the issues of the right to property, it is necessary to apply active and effective norms of constitutional interpretation. For example, the concepts of property and that of the right to property, the nature of lawful property, the constitutional significance of expropriation and confiscation, the meanings of public interest, etc. shall be clarified and constructed duritng the persistent progress of constitutional practices. Regarding the constitutional practices worldwide, it is important to improve the function of constitutional interpretion for the sake of the protection of the right to property.

 

注释:
[1]Wei-Lin Tsai, the Constitutional Protection and Structure of Property, 11 Cheng Kung Law Review 35(2006).
[2]JAMES W. ELY, THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS, at IX (Oxford University Press 1992).
[3]MICHAEL & MORLOK, GRUNDRECHTE §195, at 2(Aufl., Nomos2010).
[4]QU XIANGFEI, CONCEPT AND TRANSFORMATION OF HUMAN RIGHTS, in CONSTITUTIONAL THEORY HISTORY OF CHINA Vol.1, at 550(Han Dayuan ed., People of China University Press 2012).
[5]ZHUANG FULING, HISTORY OF PROPOGATION OF MARXIST PHILOSOPHY, at 69(People of China University Press 1988).
[6]LIN CHANGMIN, GROUNDS FOR INCLUDING THE CHAPTER OF LIVELIHOOD INTO THE CONSTITUTION, in SECRETARIAT OF CONSTITUTIONAL CONVENTION, BRIEFS AND OUTLINES OF DRAFT OF THE CONSTITUTION, at 108(1925).
[7]CONSTITUTIONAL THEORY HISTORY OF CHINA, Vol.2, at 550(Han Dayuan ed., People of China University Press 2012).
[8]LUO LONGJI, WE WANT OUR POWER OVER FINANCIAL MANAGEMENT Vol.3(2)(New Moon).
[9]SELECTED WORKS OF DONG BIWU, at 110-112(People's Press 1985).
[10]Some Chinese scholars contend that the constitutional power can only be excercised once, and thereafter it appears as the power to amend the Constitution; therefore, they hold that China has only ratified one Constitution, the later constitutions are just revisions to the Constitution of 1954. Meanwhile, some scholars criticize the theory by arguing that the living generation shall not be governed by the dead ones, but rather than is governed with its own consent As a logical outcome of this argument, the living generation is entitled to draft and ratify a constitution at their own will. If this is taken into consideration, the argument on how many constitutions China has already ratified is out of the question.
[11]See Art 3 of the Common Program of the Chinese People's Political Consultative Conference.
[12]See Art.11 of the Constitution of 1954.
[13]See Art.9 of the Constitution of 1978. For more detailed literature references, see THE CONSTITUTIONAL LAW, at 325-326(Mo Jihong ed., Social Sciences Academics Press 2005).
[14]Both Sec.6 of the Basic Law of the Hongkong Special Administrative Region of the People's Republic of China and Sec.6 of the Basic Law of the Macao Special Administrative Region of the People's Republic of China contain provisions on the protection of private property. Eg., Sec.6 of the Basic Law of Macao provides that “The right of private ownership of property shall be protected by law in the Macao Special Administrative Region.”
[15]Jiang Zemin's report at 16th Party Congress, xinhuanet, at
http://news. xinhuanet. com/english/ 2002-11/18/content_632554. htm (last visited Jan.24, 2013).
[16]REFER TO THE CONSTITUTIONAL LAW, at 72(China Law System Press 2005).
[17]LIN LAIFAN, GENERAL PRINCIPLES OF HUMAN RIGHTS, in HAN DAYUAN, LIN LAIFAN & ZHENG XIANJUN, TREATISES ON CONSTITUTIONAL LAW, at 305(People's University of China Press 2008).
[18]Lin Laifan, Right to Property from the State, 1 Studies in Law and Business 54, 58(2003).
[19]Art 6 of the Constitution specifies that: the basis of the socialist economic system of the People's Republic of China is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people. The system of socialist public ownership supersedes the system of exploitation of man by man; it applies the principle of from each according to his ability, to each according to his work.
[20]Zhao Wenjun, “Only Property of Which Taxes and Duties Are Duly Paid Is Lawful” Should be Taken as a Constitutional Principle, 12 People's Judiciary 47, 48(2001).
[21]Xie Hongxing, Institution of Protection of Civil Rights, Cornerstone for Development of Economy, 2 Journal of Anhui Vocational College of Police Officers 19, 20(2004).
[22]INTERPRETATION OF CONTRACT LAW OF CHINA, at 92(Hu Kangsheng ed., China Legal Publishing House 1999).
[23]Ma Depu, Public interests, Polities and Political Culture, 8 Teaching and Research 73, 75(2004).
[24]SAMUEL HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES, at 25(Huaxia Press 1988).
[25]The Standing Committee of the National People's Congress of the Republic of China has carried out a plan to draft the National Compensation Law.
[26]Han Dayuan, On the Constitutionalization of the Right of Private Property, 4 Legal Sciences 11, 13(2004).

 

 

 

 

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