February 09, 2008
No trespassing in Chinese law?
Posted by Donald Clarke

A recent discussion on the Chinalaw listserv has revealed a fascinating loophole in Chinese real property law: nowhere does it seem to contain a clear prohibition against trespassing. The relevant laws regarding state-prosecuted offenses don't seem to include anything like this; at most, one is forbidden from disturbing order at a workplace, but that doesn't turn on whether one is trespassing or not, and is not an offense against the employer's rights to a particular physical space. On the civil side, one could (if one wished) construct an anti-trespassing norm by combining various provisions in the Property Law: Art. 2, stating that rights in rem include the right to exclude, Art. 32, which says that a rightholder can sue for damages resulting from infringement of his rights, and Art. 35, which says that an aggrieved rightholder may request a court to eliminate an impairment of the right. But whether this amounts to an action against trespassing - in particular, to an action for ejectment, or an injunction against further trespass - doesn't seem clear. A Chinese scholar specializing in real estate law, in his contribution to this discussion, said it does not; according to him, the most Chinese law requires is that someone entering onto the property of another should "restrain [himself]", minimize damage, and compensate for any damage done.

The interesting question, of course, is why this should be so. My hunch is that it's connected to China's pre-reform economy, in which all important urban spaces were under the more or less direct control of a governmental or quasi-governmental entity with access to tools of physical coercion (i.e., people with clubs). Physically as well as politically, pre-reform China was a very closed society - workplaces and apartment buildings were often walled or fenced, with all entrances manned by guards. Trespassing would have been difficult to accomplish simply as a practical matter. Furthermore, much urban land was owned by the state (technically, all of it after 1982), and the particular way of understanding state ownership of land may have contributed. In the US, we have no problem saying that citizens can be trespassers on state-owned land, because the state owns land more or less just like any private party owns land. But in China, state ownership, sometimes called "ownership by the whole people" (the terms are explicitly said to be synonymous) is sometimes and for some purposes interpreted as direct ownership by the citizens of China. Obviously, this couldn't be true in any practical sense - you would need the consent of all joint owners to alienate, for example - but perhaps it's felt just enough to make a notion of trespassing unthinkable.

It's hard to believe - and to the best of my knowledge it's not true - that in China you can simply waltz into someone's living room (provided the door is unlocked) and make yourself comfortable provided you act with restraint and are willing to compensate for any damage you cause. But the legal basis for saying you can't is surprisingly obscure.

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Comments (7)

1. Posted by Jake on February 10, 2008 @ 20:09 | Permalink

When the State confers all property rights, the State's omission of a prohibition against trespassing comes as no surprise.

In terms of results, things work out much the same in the USA. Supposedly we have innate property rights that predate government. And there are criminal trespassing statutes on the books, and recognized civil causes of action against trespassers, that property owners can turn to in order to defend their rights. Ever give it a try, however? As a practical matter, law enforcement agencies view trespassing about as seriously as they do littering. The only way you can get a trespasser charged with the crime is to persuade him/her to hang around long enough for the police to arrive (and not to kill you in the meantime).

To address the hypothetical trespasser who waltzes into one's living room, the true deterrent to trespassing in the USA is the Second Amendment. There is, of course, nothing of the sort in China.


2. Posted by Don Clarke on February 10, 2008 @ 20:46 | Permalink

Let me clarify: I was speaking only of trespassing per se, unaccompanied by any other wrongful act. Chinese law does prohibit breaking and entering, assault and the threat thereof, etc.


3. Posted by Alex on February 13, 2008 @ 13:53 | Permalink

How about this article in criminal law, prohibition against illegal entry; and illegal entry to a lesser extent also constitutes a tort in civil law.
There can't be an equivalence of trespass in the Civil Law countries. China is a Civil Law country. So it's no strange there is no common law equivalence.

第二百四十五条  【非法侵入住宅罪】非法搜查他人身体、住宅,或者非法侵入他人住宅的,处三年以下有期徒刑或者拘役。
   司法工作人员滥用职权,犯前款罪的,从重处罚。

(一)概念
非法侵入住宅罪,是指非法强行闯入他人住宅,或者经要求退出而拒不退出他人住宅的行为。
(二)特征
1、侵犯的客体是公民的住宅安全权利;本罪侵犯的对象是他人居住的住宅。住宅,是指供人居住的场所。包括经常居住的住宅和不经常居住的别墅,也包括营业性的旅馆、饭店、招待所等供人租住的客房。渔民家居的船只,也视为住宅。非供人居住的办公室、仓库、剧场、车间等不是住宅,不属本罪侵害的对象。所谓他人住宅,是指行为人以外的其他人的住宅。这里的“他人”,既可以是住宅所有权人即主人,也可以是住宅的承租人、借用人,还可以是宾馆、招待所客房居住的客人。非法侵入尚未分配、出售或出租、无人居住的住房,是民事侵权行为,不构成本罪。

2、客观方面表现为非法强行闯入他人住宅,或者经要求退出而拒不退出他人住宅的行为;
3、犯罪主体是一般主体;
4、主观方面是故意。


4. Posted by Don Clarke on February 13, 2008 @ 16:10 | Permalink

Thanks, Alex. The Criminal Law provision you cite is helpful, but not conclusive - it applies only to *unlawful* entry, and therefore we still have to look elsewhere for the definition of unlawfulness.

As for the civil claim, I don't think things are quite as straightforward as the simple syllogism you propose. First, Germany surely can be considered a civil law country; this issue was in fact first raised by a German lawyer on the Chinalaw list, who stated that it was covered under Article 1004 of the German Civil Code.

Second, although China in some respects follows a civil law model, the statement "China is a civil law country" is far too sweeping a generalization to solve any concrete problems.


5. Posted by Alex on February 14, 2008 @ 16:40 | Permalink

Here are the legal basis for the tort action under civil law. All are from the "General Principles of Civil Code" 《民法通则》, not to mention the newly enacted “Property Law”. Please note that under the civil law system, statutes are very general and succinct, but the articles with regard to tort can definitely be applied by the court in the case you mentioned. Frankly, I don't think any Chinese educated lawyer/judge would have the same question or doubt you raised. That's why I was quite surprised by this blog entry.

第七十五条 公民的个人财产,包括公民的合法收入、房屋、储蓄、生活用品、文物、图书资料、林木、牲畜和法律允许公民所有的生产资料以及其他合法财产。
公民的合法财产受法律保护,禁止任何组织或者个人侵占、哄抢、破坏或者非法查封、扣押、冻结、没收。

第一百零六条  公民、法人由于过错侵害国家的、集体的财产,侵害他人财产、人身的,应当承担民事责任。
  没有过错,但法律规定应当承担民事责任的,应当承担民事责任。
  
第一百三十四条 承担民事责任的方式主要有:
  (一)停止侵害; (Note: the plaintiff can apply for something like injunction)
  (二)排除妨碍;
  (三)消除危险;
  (四)返还财产;
  (五)恢复原状;
  (六)修理、重作、更换;
  (七)赔偿损失;
  (八)支付违约金;
  (九)消除影响、恢复名誉;
  (十)赔礼道歉。
  以上承担民事责任的方式,可以单独适用,也可以合并适用。
  人民法院审理民事案件,除适用上述规定外,还可以予以训诫、责令具结悔过、收缴进行非法活动的财物和非法所得,并可以依照法律规定处以罚款、拘留。


6. Posted by Alex on February 14, 2008 @ 16:51 | Permalink

On the question of "unlawfulness" you raised, I don't think it is a problem. Because according to the Constitution, the entry as described in the Criminal Code is illegal per ce, except for limited exceptions such as authorized entry by the State for investigative purposes or consent by the owner. There is no need to look for "definition of unlawfulness", because the entry itself is unlawful except for the limited exceptions.
And in criminal law, the information below may be helpful; in civil law, please see the comment I made above, there is an action in tort in the civil code.

什么是非法侵入他人住宅的犯罪行为?
最高人民检察院于1989年11月30日发布的《人民检察院直接受理的侵犯公民民主权利人身权利和渎职案件立案标准的规定》第6条第3款规定:“非法强行闯入他人的住宅,影响他人正常生活和居住安全,具有下列行为之一的,应予立案。
1.非法强行侵入他人住宅,经要求或教育仍不退出,严重影响他人正常生活和居住安全的;
2.非法强行侵入他人住宅,毁损、污损或搬走他人生活用品,严重影响他人正常生活的;
3.非法强行侵入他人住宅,停尸闹事,严重影响他人正常生活的;
4.非法强行侵入并封闭他人住宅,致使他人无法居住的;
5.非法强行侵入他人住宅,引起其他严重后果的。


7. Posted by Alex on February 14, 2008 @ 17:10 | Permalink

I read the Article 1004 of the German Civil Code. It is not an equivalence of trespass. The two concepts are not exactly the same.

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