Property concepts and institutions in China: does tradition abide?
University of British Columbia
Master of Laws - LLM
The premise of this paper is that in order to understand contemporary concepts and institutions of property in China one needs to be aware of the historical approaches towards the ownership and management of resources and assets. Legal institutions are a reflection of the ideological and material conditions of a society. The persistence or reappearance of these conditions suggests that there may be some similarities between traditional, primarily Confucian, and contemporary post-Maoist property concepts and institutions. This paper explores the social, economic and ideological basis of imperial era concepts of ownership and management of land resources and investigates the interaction between state and society, or the official and private spheres. The research here demonstrates that despite officially held ideas of imperial land ownership, most land effectively was owned by actors within the private sphere by at least the early to mid-Qing. Nevertheless, the concept of ownership emphasized the community as opposed to the individual, and thus the notion of private exclusive rights in resources such as land significantly was minimal. Property institutions frequently resembled trusts or corporations, which were characterized by a separation of ownership and management powers or rights. This does not imply however that the separation was a clear one. Like contemporary uncertainties surrounding the division of ownership and management rights in state enterprises, late imperial institutions did not clearly define how a resource was to be managed. Generally such determinations must be made on a case by case basis.
Law, Peter A. Allard School of