The Main Contents of the Draft Property Law:
(1) Adherence to the Basic Socialist Economic System. The Chinese-style
socialist property system is determined by the basic socialist economic system
and is in essence different from the capitalist property system. Therefore,
enactment of the Chinese- style property law must give a full and accurate
expression to the basic socialist economic system and the "Two Unswervingly" (to
unswervingly consolidate and develop the economic sector of public ownership,
and to unswervingly encourage, support and guide the development of the economic
sector of non-public ownership - trans. ) which is put forward at the 16th
National Congress of the Communist Party of China. First, in the draft,
upholding the basic economic system of the State is made the basic principle,
the draft explicitly stipulates, "In the primary stage of socialism, the State
upholds the basic economic system in which public ownership is dominant and the
economic sectors of diverse forms of ownership develop side by side." "The State
consolidates and develops the economic sector of public ownership, and
encourages, supports and guides the development of the economic sector of non-
public ownership." As the core of the property law, this basic principle runs
through and is embodied in this law as a whole. Second, the proprietary right is
a reflection of the ownership system in law and provides the basis for the
property system. Clear-cut stipulations are made on ownership by the State and
the collective and by the individual and there are comparatively more provisions
on ownership by the State, which is conducive to upholding and improving the
basic socialist economic system and to bringing into full play the advantages of
all the economic sectors of the various forms of ownership, so that they
stimulate one another for common development. Third, developing the socialist
market economy is the inevitable requirement of upholding and improving the
basic socialist economic system. On the premise of explicit provisions that "the
exercise of rights by a usufructuary or a secured party shall not damage the
rights and interests of the owner", stipulations on usufructs and security
rights are made in the draft, which is conducive to bringing into full play the
usefulness of things, maintaining the order of market transaction and promoting
the economic development.
(2) Equal Protection of the Property of the State, the Collective and the
Individual. The property law comes under the civil code, one important principle
of which being equal protection of the rights of the obligees. The draft
property law stipulates, "The property of the State, the collective, the
individual and other obligees is protected by law, and no units or individuals
may infringe upon it. " The Constitution stipulates, "The State practices
socialist market economy." Fair competition, equal protection and survival of
the fittest are the basic rules governing the market economy. Under conditions
of the socialist market economy, the subjects of the market, formed by economic
sectors of different forms of ownership, operate and form mutual relations in a
unified market, they all have an equal status on the market, enjoying the same
rights, observing the same rules and bearing the same responsibility. If the
different subjects of the market are not provided with equal protection, or if
the methods used for settling disputes or the legal responsibilities to be borne
are varied, it will not be possible to develop the socialist market economy, nor
will it be possible to uphold and improve the basic economic system of
socialism. In order to keep abreast of the development of the socialist market
economy, it is further made clear by the Third Plenary Session of the 16th
Central Committee of the CPC that "the equal legal status and the right to
development of all the subjects of the market shall be guaranteed". Even with
respect to the property which is not transacted on the market, the Constitution
also clearly stipulates, "Citizen's lawful private property is inviolable." "The
State, in accordance with law, protects the rights of citizens to private
property and to its inheritance." On the premise that ownership of property is
established according to law, as subjects of property, no matter whether it is
the State, collective or individual, their right of property shall be given
equal protection. Equal protection does not necessarily mean that the economic
sectors of different forms of ownership play the same role or perform the same
function in the national economy. According to the provisions of the
Constitution, the economic sector of public ownership is dominant, the
State-owned economic sector is the leading force, and the economic sector of
non-public ownership constitutes an important component of the socialist market
economy, each playing a different role and performing a different function in
the national economy. This is chiefly manifested in the macro-economic control
conducted and the public resources distributed and market access granted by the
State. Where the important industries and key fields of endeavor which have a
bearing on State security and the lifelines of the national economy are
concerned, the controlling role of the State-owned economic sector must be
ensured, and all this is stipulated by economic and administrative laws.
