Property Law with Chinese Characteristics: An Economic and Comparative Analysis
Commentators have contended that China’s Property Law of 2007 (“CPL”) demonstrates “Chinese characteristics”; yet only the most obvious ones have been spelled out. Whether the unique features of the CPL increase or decrease welfare has not been explored either. In this article, I use comparative and economic approaches to analyze this important enactment that presumably will lead socialistic China closer to capitalism. Taiwan’s civil code, because of the similarity of its structure, contents, and origins to the CPL, is compared to the CPL in order to identify the CPL’s other Chinese characteristics. Then, economic analysis of law is used to evaluate the efficiency of the CPL’s unique features or to explain their economic functions.
I find that the CPL contains peculiar contents that are unseen in other civil codes but at the same time omits some doctrines (such as the rule of first possession) that are widely recognized in other jurisdictions. I argue that the most salient Chinese characteristic of the CPL is centralization of power. Some unique stipulations of the CPL (or lack thereof) make economic sense in China’s context or demonstrate that China has learned lessons from other civil codes’ interpretive problems. Nevertheless, sometimes what makes the CPL special also reduces welfare.
1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 345 (2012)