China's "General Principles of Civil Law ("General Principles")" is not just a piece of legislation; it represents a system of legal relations with an underlying theoretical framework. Despite any "Chinese characteristics" that might be found elsewhere in the "General Principles", its theoretical framework is firmly rooted in the Romanist legal tradition as interpreted by the Pandectists and borrowed from them by Japan and China Before 1949. This is amply illustrated by the definition of property rights in chapter 5, section 1. Parts II and III of this article examine the theoretical tools used by Chinese civil law theorists to draft and analyze these property rights, the system and legal attributes of ownership, and five kinds of "rights in things." The latter are a kind of right "in rem." Four of these rights are designed to ensure that the rights to use and realize the economic potential of publicly owned property are distributed to productive economic entities, such as collective or state enterprises and individuals or household economic units. Despite an attempt by legal theorists in the 1950's to shake off the mantle of "bourgeois" legal concepts, the theoretical system used to define these property relations is not Chinese but borrowed from Continental civil law. Sometimes the concepts borrowed from a description of bourgeois property rights, such as possession and usufruct, do not fit the socialist ideal of property relations, but Chinese theorists apply them notwithstanding. Perhaps Pashukanis was right to say that there are no socialist legal forms because law is by definition bourgeois. The "General Principles" must also be understood in the context of economic reform in China today. As a fundamental law regulating property relations it has an important role to play in defining the framework of property rights for commercial relations. Yet the theory which is needed to justify and explain these property rights is still the subject of controversy. The lack of a sound theoretical basis for futher legislation to implement economic reform, however, is itself an obstacle to reform. This is illustrated in Part IV of the article which examines in detail the theoretical controversy about the definition of property rights in the state enterprise which affected the drafting of the "General Principles" and which continues today. Chinese theories defining the property relations between the state and the state enterprise are examined in four general categories. Theoretical and ideological influences on them are traced, especially to Eastern Bloc countries, and in turn their influence on the drafting process is examined. By and large the theorists have similar ends in mind, i.e., the realization of some degree of economic autonomy for state enterprises to control and deal with their property efficiently and responsibly as their own, with state interference limited to the use of macroeconomic measures. Every school of thought has its own theoretical view of the property rights which define this autonomy. Article 82 of the "General Principles" represents only one such view and it may well be replaced in the future. Until there is a settled definition, however, it will be difficult for a systematic reform of the state-owned industrial sector to take place.
Edward J. Epstein,
The Theoretical System of Property Rights in China’s General Principles of Civil Law: Theoretical Controversy in the Drafting Process and Beyond,
52 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol52/iss2/9