February 06, 2008
The elementary particle of Chinese real property law: the suite
Posted by Donald Clarke

Having taught the first-year property course for eight years and instructed my students in the "bundle of sticks" model of property rights, I was fascinated to run across the following Chinese property law case a couple of days ago. (For those who can read Chinese, it's here.) By way of background, China passed its first comprehensive statute governing rights in rem (the "Property Law") last year, and it came into effect in October. Although it did not (at least in my opinion) fundamentally revolutionize anything - contrary to some breathless reports, private property existed and was protected in China prior to Oct. 1, 2007 - in any case we are now starting to see cases in which courts look to it for guidance.

In the case in question, Husband (H) and Wife (W) divorced by agreement in 2005. Their agreement provided that the 2-bedroom apartment held in W's name (China has a community property regime, so the nominal owner is not necessarily important) should be divided, with ownership over the southern room to H and ownership over the northern room to W. By 2007, W had had second thoughts about this arrangement, and brought suit in January to have the agreement declared invalid. She sought full ownership of the apartment, with a payment to go to H representing the value of his interest.

The Beijing No. 1 Intermediate Court agreed. (I believe the judgment was issued after Oct. 1, and applied the Property Law as the rule of decision.) According to the court, while there can be joint ownership over the same thing, there cannot be separate ownership rights over the same thing, and an apartment is the smallest "thing" you can have in real property law; you can't subdivide it any further.

The news report of the case appends an explanation from the judge who decided it, but it's not very helpful - there's a hint that what's driving the decision is China's property registration system, which doesn't have the capacity to register ownership of separate rooms within an apartment unit. But one also gets the sense that the judge thinks it's just self-evident that you can't own rooms within an apartment; he says specifically that you are not allowed just to make up ownership interests at will.

Interestingly, though, this is precisely what you pretty much are allowed to do in the US; there is no elementary particle of property rights. In my last post, I talked about the way Chinese law often seems centered around the needs of officialdom. That may go some way toward explaining the different approach to property rights as well. The creation of property rights in the US is highly decentralized and contractual. China is simply not willing to let individuals have this kind of undisciplined power to create property rights that the state is then going to have to protect. The state wants more control over what its coercive machinery is going to be asked to do.

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