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Legal Strategies for the Development and Protection of Communal Property$

Ting Xu and Alison Clarke

Print publication date: 2018

Print ISBN-13: 9780197266380

Published to British Academy Scholarship Online: May 2019

DOI: 10.5871/bacad/9780197266380.001.0001

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Understanding Collective Property in the Chinese Context through the Lens of Community

Understanding Collective Property in the Chinese Context through the Lens of Community

Chapter:
(p.152) 8 Understanding Collective Property in the Chinese Context through the Lens of Community
Source:
Legal Strategies for the Development and Protection of Communal Property
Author(s):

Ting Xu

Wei Gong

Publisher:
British Academy
DOI:10.5871/bacad/9780197266380.003.0008

Abstract and Keywords

This chapter deals with the conceptualisation of collective property in the Chinese context. It is argued that this concept can be understood and defined through the lens of community via undertaking three methodological steps. The first step lays out the theoretical framework concerning the interplay between community and property. The second step examines the formation and transformation of the collective from a historical perspective. The final step analyses key cases concerning the relationship between membership of the collective and land rights. It is concluded that collective property in the Chinese context is a hybrid property system with permeable boundaries, and the closing commentary therefore questions the nature of the role that the law plays in sustaining collective property.

Keywords:   communal property, collective property, lens of community, boundaries of property, collective, membership of the collective, hybrid property, land rights

Introduction: difficulties in defining the concept of collective property

‘Communal property’ can be understood as resources owned, used and governed by a group of people defined by reference to some common characteristics. This definition of communal property refers to a resource over which a community and its members together have overall control and the way a resource is managed and regulated by a community for its collective purposes. There is a mix of private property interests and communal property interests in such a resource. Communal property is an important mechanism for allocating natural resources and regulating their use – whether for economic exploitation, recreational use or the promotion of biodiversity and nature conservation.

The importance of communal property, transcending the public/private divide in property rights, is increasingly apparent globally. In England and Wales, the importance of communal land rights has been brought back into sharp focus by a number of developments which have revived interest in communal land and resource rights amongst academics, policy makers and social commentators. The Commons Registration Act 1965 and Commons Act 2006 guarantee the continued survival of traditional agricultural and recreational commons in England and Wales and open up the potential for recognition of newly emerging commons.

The importance of communal property highlights the need to undertake theoretical work in this area with case studies of communal property regimes in jurisdictions such as China, where communal property plays a crucial role in the allocation and regulation of resources. Although the history and present structure (p.153) of land rights in various regions such as the UK and China are very different, communal property nevertheless emerges in both regions as a key component in the management of resources, notably in four related areas: agriculture; environmental protection; rural and urban development; and housing.

In the case of the People’s Republic of China (PRC), understanding communal property requires us to ask the difficult question: what is collective property? We could find a brief answer to this question in Article 10 of the 2004 PRC Constitution, which provides: ‘Land in the rural and suburban areas is owned by collectives except for those portions which belong to the state in accordance with the law; residential plots and private plots of cropland and hilly land are also owned by collectives.’1 However, in explaining in detail the meaning of collective property and exploring the extent to which this kind of collective/communal property2 in the PRC resembles communal property as understood in England and Wales, we immediately encounter three major difficulties.

The first difficulty is that there is no consensus concerning the definition of ‘commons’ or ‘communal property’. The term ‘commons’ may be defined as ‘a diversity of resources or facilities as well as property institutions that involve some aspects of joint ownership or access’,3 encapsulating ‘the emerging conception of access, conservation, and use . . . [as well as] many different grassroots movements’.4 Various linked concepts, including ‘common-pool resources’, ‘common property’ and ‘public goods’, are often used interchangeably.

A ‘common-pool resource’ refers to ‘a natural or man-made resource system that is sufficiently large as to make it costly (but not impossible) to exclude potential beneficiaries from obtaining benefits from its use’ (partially non-excludable).5 A common-pool resource is rivalrous, as one person’s use diminishes another’s use.6 ‘A public good’ is ‘something to which everyone has access, but . . . one person’s use of the resource does not necessarily diminish the potential for use by another’ (non-rivalrous and non-excludable).7 The term ‘common property’ implies ‘a kind of management arrangement created by humans rather than a (p.154) characteristic of the resource itself’.8 Whereas ‘common-pool resource’ and ‘public good’ refer only to the physical resource itself, ‘common property’ refers to the management arrangement adopted by a community to regulate its communal use of a resource. This definition of common property comes closest to the concept of communal property that we focus on in this chapter.

The second difficulty lies in deciphering the meaning of collective property in the Chinese context. The relevant laws provide a sketch of its meaning and the ways in which collective property rights can be exercised. Article 58 of the Property Law (2007) delineates the categories of things that can be owned collectively.9 Article 59 of the Property Law (2007) outlines the owners of collective property: ‘the immovables and movables collectively owned by the farmers belong to the members of the collective’.10 Article 10 of the Land Administration Law (2004) and Article 60 of the Property Law (2007) set out the ways in which collectively owned land should be managed and administered by the collective economic organisations belonging to a village, a villagers’ group or a town; the villagers’ committees; or villagers’ groups themselves.11 The above provisions indicate that the collective encompasses multi-layered communities with varied scales. As the meaning of the collective is poorly defined in law, in order to comprehend its meaning we need (p.155) to probe the nature of those communities and the relationship between those communities and their members.

The third difficulty concerns how best to translate the meaning of collective property as it is specifically defined in the Chinese context and to link it with the general study of communal property. One of the particularly challenging tasks is to identify the boundaries of a community: where do the boundaries of a community lie? What is the relationship between collective economic organisations and administrative governance entities, in particular the villagers’ committee? Due to the present chapter’s space limitations, we focus on providing an explanation of the historical process whereby different layers of the collective have been formed, rather than proceeding to recommend possible reforms remedying this institutional ambiguity.12

Further, since 1978, private property rights have been selectively granted to farmers, in the form of ‘contractual management rights’, through the dismantling of rural communes and the introduction of the household responsibility system. For farmers, once they have discharged their duty to meet the grain quota imposed by the state, they can sell the grain produced over and above the required quota and retain the profits. A market system has been slowly re-emerging where farmers began to pursue their independent economic goals.

Since the initial allocation of rural land rights in the 1980s, contractual management rights have been granted to farmers, in the form of contracts, for the possession and use of rural land for farming purposes. Therefore, these rights may be translated into ‘the right to possession and use of rural land for farming purposes’, or, in a much simpler form, the right to farm, which is a private property interest. Farmers’ private property interests are enforceable against the community, outsiders and the state. The collective economic organisation or the villagers’ committee issues contracts to the household, which has responsibility for the management of farming an area of land called ‘responsibility land’.13 Here it should be noted that the household is neither a formal tier of the collective nor a legal entity; rather it functions as a ‘close-knit’ community14 that organises agricultural production, forming a kind of collective involvement in the larger communal group. The ‘responsibility land’ is therefore subject to the farmer’s private property interest and layers of communal property interest including the household’s interest and the collective economic organisation’s interest. The collective economic organisation also directly owns a tiny amount of rural land called (p.156) ‘reserved land’ (jidong di) for the benefit of present and future members.15 The ‘reserved land’ can be used to adjust the rights land allocated to the household when the household has new members.16

The second round of the allocation of rural land rights began in 1998. The duration of the contracts increased from 15 years granted in the initial allocation of rural land rights to 30 years under Article 14 of the Land Administration Law (1998). Now, under the Property Law (2007), when the contracts expire, they may be renewed.17 In fact, responsibility land serves as one kind of basic social security for farmers, enabling them to make a living from farming.

The creation of the right to farm within the collective property system has added another layer of complexity to the ownership system of rural land: it creates a hybrid property regime where private land rights have been selectively readmitted and integrated into collective land rights.18 This mixed system has been confirmed in Article 8 of the 2004 Constitution,19 but poses more questions in probing the boundaries of the collective and collective property.

It is argued in this chapter that examining community, in particular its boundaries, is the key to understanding and defining the concept of collective property in the Chinese context. Here, the term ‘community’ is invoked as both an abstraction and an empirical description. In our following discussion, we use the single form of community when referring to the abstraction of its meaning and the plural form when referring to empirical examples of communities. Blomley argues that ‘the boundary, precisely because it is simultaneously a legal and spatial construct, is one useful place to think through these dialectic geographies of law’.20 The boundary of community we examine is not only a legal and spatial construct but also a construct that is being shaped and reshaped by ideologies, values, interests and political power (p.157) in profound social, political and economic transformations. Moreover, community differs from either the aggregations of individuals or the state. Therefore, the examination of the boundaries of community poses important questions concerning the interplay between individuals, communities and the state, and between state law and community norms.21 Such an examination has significant implications for the probing of the concept of communal property, and in particular the origin of communal property, the identity of rights holders of communal property, the extent of ‘dominion’ and the configuration of communal assets.22

Methodology: invoking the lens of community

In invoking the lens of community,23 three steps are taken. The first step (the section on ‘Community and property’) lays out the theoretical framework, exploring the relationship between community and property and examining the legal concept of communal property from a sociological perspective.24 Community and property are mutually constitutive; our focus in this chapter falls in the community direction, that is, community plays a constitutive role in the definition and understanding of property.

(p.158) The second step deciphers the meaning of community and provides a sociolegal interpretation of the origin of collective property in the Chinese context. For this purpose, we have conducted a substantial survey of large volumes of laws, regulations and policy documents which concern the meaning of the collective, and that have been promulgated since 1949, the founding date of the PRC. We have surveyed the ‘Compendium of the Laws of the PRC (1954–2004)’.25 However, prior to 1978 very few laws concerning property were made by the Standing Committee of the National People’s Congress, and the governance of China primarily relied on policies and documents issued by the Chinese Communist Party (CCP) Central Party Committee (hereinafter the Central Committee). Therefore, we have moved on to examine various collections of documents edited by the Central Committee, including: the ‘Selected Important Documents since the Founding of the PRC’;26 the ‘Selected Important Documents since the Third Plenary Session of the 11th Central Committee of the CCP’;27 the ‘Selected Important Documents since the 12th National Congress of the CCP’;28 and the ‘Selected Important Documents since the 13th National Congress of the CCP’.29 We have examined where and when the concept of the collective appeared in those policy documents, and linked the content of the relevant provisions with the profound political events that occurred before or after the publication of those documents. The result of the survey maps the trajectory of the formation of the collective and the establishment of collective ownership in the collectivisation period (1958–1982), and is presented below in the section on ‘The formation and transformation of the collective in the period 1949–1982’ and briefly summarised in Table 8.1.

(p.159) The third step examines the transformation of the boundaries of the collective (as shown in Table 8.2) and collective property in the context of a hybrid property system in the post-commune era (the section on ‘The collective, membership of the collective and land rights in the post-commune era’). In addition to continuing to draw upon the survey listed above, we have undertaken an analysis of cases concerning disputes over the right to farm. In viewing these cases through the lens of community, we have examined the relationship between the collective, membership of the collective and the right to farm.

We have chosen to focus on disputes occurring in Henan province, and there are a number of reasons for our sampling strategy. First, Henan is located in the central part of China and has the largest population of all the provinces in China.30 If we use the geographical dividing line, the Huai River-Qin Mountains Line, as the dividing line between northern and southern China, Henan crosses the north–south divide. It therefore embodies the characteristics of both northern and southern China regarding the style of life, means of production and cultural traditions. Second, Henan is regarded as the breadbasket of China and one of the most important producers and processors of food products in China. People’s communes appeared first in Henan in 1958.31 Moreover, since 2009, the Henan People’s Court at the High Level has experimented with posting judgments online.32 Following Henan’s initiative, in 2013 the Supreme People’s Court requested courts nationwide to put judgments online and then collected these judgments in the Supreme Court’s online database.33

We have explored the database ‘China Judgments Online’ launched by the Supreme Court of the PRC in 2013.34 Searching cases using the keywords ‘disputes over the right to farm’, ‘civil cases’, ‘disputes occurring in Henan province’ and ‘cases heard at the local court/the court of first instance’,35 we have found (p.160) 132 relevant cases tried in the period from 2012 to 2016, which reflect the ways in which the law is implemented to express and support an enduring relationship between the collective and its members with respect to the right to farm.36

This study, which is the first step towards analysing the large volume of data only recently made publicly accessible, carries important methodological significance.37 It is the first to study collective property in China through analysing the Supreme Court’s database. The analysis will give non-Chinese speakers important insights into the meaning of collective property in the Chinese context, in the light of decisions made in the Chinese courts.

Community and property

‘“Community”’ is a fluid, often elusive concept.’38 It may be better understood with reference to some common characteristics or identifiers. Locality is important; people are often bound together via living in a common place. That said, community is not merely a geographical notion, as people may be bound together by a common interest that transcends the territorial boundaries. Community may be formed by a distinctive network of social relations or style of life (for example, the community of farmers, pastoral community, etc.).39 Community may also be shaped by a strong sense of connection or belonging, for example, many communities such as indigenous communities have members who share a distinctive ‘identity’.40

In seeking the common characteristics of community, some meaningful taxonomies of community have been developed. Lehavi divides communities into intentional, planned and spontaneous communities.41 ‘An “Intentional Community” may be defined as a group that shares a thick common denominator of ideology, values, or beliefs that are substantially distinctive from those of general society.’42 The people’s commune established in the collectivisation period (1958–1982), to be discussed in the next section, is an example of an intentional community. By contrast, ‘planned communities’ can only be effectively established with ‘the basic (p.161) structural support of the state legal system’.43 The collective economic organisation fits within this category of community. ‘Spontaneous communities’ usually rely on ‘relatively fragile modes of cooperation, and even when incorporated as nonprofit organizations, they typically do not distinctively hold formal property rights to resources’.44 The mutual aid teams, to be discussed in the next section, can be included in this category of community.

Another major study that has developed the taxonomies of community has been undertaken by Cotterrell, who sees ‘community’ as networks of social relations held together by a variety of bonds (for example, a convergence of economic interests,45 shared custom, common values).46 Drawing upon Weber’s four ideal types of social action (traditional, affectual, instrumentally rational and valuerational),47 Cotterrell’s ‘networks of relations of community’ encompass four ideal types of community: traditional community, affective community, instrumental community and community of belief. In this approach, one ideal type of community (for example, community of belief) is not to be equated with one empirical manifestation of community (for example, a church); rather it represents a distinctive type of ‘collective involvement’, and can be combined with other types of community ‘in complex ways in actual group life’.48 Further, social groups can be formed on both a voluntary and involuntary basis. For involuntary groups, individuals are born into the group without necessarily bearing a sense of attachment to the group or other members in the group.49

The seeking of the common characteristics of community, or the identification of the bonds that hold community together, helps to develop a meaningful definition of communal property.50 For example, Clarke defines communal property as ‘land and other resources owned and/or used and controlled by a self-interested and self-governing group of people defined by reference to some common characteristics such as kinship, locality, or common interest’.51 This definition includes at least three important dimensions of communal property: the resource which (p.162) is owned/used communally or collectively; the governance of such a resource; and the bonds that hold the community together. Human involvement is the very quintessence of communal property.

Community embodies both inclusivity and exclusivity. For example, a community often embraces its members, but excludes outsiders. Of course, there are also instances where the membership of a community is ‘stratified in uncomfortable ways and riddled with practices that seek to reproduce and stabilize certain orderings of authority, power, and knowledge’.52 For example, in the case of PRC rural society, although the law protects women’s property rights in instances of divorce or remarriage, in reality, women’s right to farm is often revoked by the village even when they are still its members.53 Whether women are or are not part of the ‘community’ has been a crucial issue in China.54 This point will be further elaborated in the section on ‘The collective, membership of the collective and land rights in the post-commune era’.

The observation that communities are both inclusive and exclusive helps explain the co-existence of private property interest and communal property interest within a communal property regime. Indeed, communal property can be seen as a hybrid system:

Most resource utilising communities, whether or not culturally distinct, use only some of their resources collectively. The rest of their resources may be loosely regarded as community assets but will be allocated to individuals or individual families on a more or less private property basis, perhaps subject only to a prohibition against alienation out of the community.55

The absolute homogeneity of community is only ‘imagined’, as the boundaries of community are often permeable and shifting in the process of social, economic, political and legal transformations.56 In addition to the increasing mobility of people (for example, migration) and the deconstruction of spatial boundaries (for example, by urbanisation), values, ideologies and interests that used to hold communities together may change, leading to the grouping and regrouping of communities. For voluntary groups, the right to exit enjoyed by members may (p.163) not necessarily lead to the dissolution of the communal group; rather it may strengthen the group. The freedom for members to withdraw also means that their participation in the group is ‘more conscious and considered’, which helps sustain enduring rather than transient communal relations.57 If a community is not completely sealed and static, the boundaries of communal property may be fluid and changeable.58 This point will be discussed in detail in the following sections.

The formation and transformation of the collective in the period 1949–1982

The first-named author has discussed the transformation of communities in China from the historical perspective at length elsewhere,59 so the description of the role of community in the historical context can be brief here. Throughout Chinese history there have always been tensions between the central government and small communities; the latter refers to self-governing organisations, for example, kinship and grassroots associations. Although lineage-based communities were exclusive, they also linked together and formed larger communities, forming nested communities at varying scales.60 As the power of kinship grew, the state had to rely on kinships or lineages for local governance. China’s traditional adherence to kinship, lineage and community ties, which can be compared to what Cotterrell calls ‘traditional community’,61 engendered and affected ‘de facto and de jure property holdings’.62

Since the founding of the PRC in 1949, the formation of communities has begun to depart from its adherence to traditional community ties, and to be strongly influenced by communist ideology. During the land reform (tugai) that occurred in the period 1949–1952, land and other property of landlords (including corporate/ (p.164) communal landowners such as lineages, temples, and monasteries) was confiscated and equally redistributed so that each household in a rural village could own a piece of land in accordance with the size of the household.63 Land reform initially allowed every rural household to be allocated an amount of private land, but this allocation proved rather quickly to be a temporary phenomenon.

In 1953, the CCP initiated its first Five Year Plan (1953–1957), aiming for the promotion of ‘socialist transformation’ and ‘industrialisation’. The term ‘collective economic organisation’ first appeared in the ‘Draft Model Charter on Agricultural Producers’ Cooperatives’, approved by the Standing Committee of the National People’s Congress on 9 November 1955.64 Article 1(1) indicates that the collective economic organisation can be equated with the agricultural producers’ cooperative. Article 1(1) provides:

agricultural producers’ cooperatives are working people’s collective economic organisations [. . .] These cooperatives make arrangements to use their members’ land, livestock and tools collectively, with the aim to transform the ownership of the means of production to public ownership. Cooperatives also organise the members’ work so that labour can be shared and income can be distributed in a unified way.

The term ‘agricultural producers’ cooperative’ emerged earlier in the ‘Decision on Mutual Aid and Cooperation in Agricultural Production (Draft)’, issued by the Central Party Committee on 15 December 1951. Article 4 provides that agricultural production shall be undertaken in three forms of agricultural producers’ cooperative: temporary, seasonal mutual aid; long-term mutual aid, which is based on arrangements among several households where labour and the means of production are to be shared; and formal agricultural producers’ cooperatives where land is pooled together as shares in the cooperative.65

Up until 16 December 1953 when the CCP Central Party Committee formally published its ‘Decision on the Development of Agricultural Producers’ Cooperatives’, more than 47.9 million rural households (43 per cent of rural households nationwide) had participated in the seasonal, long-term mutual aid teams, or agricultural producers’ cooperatives; 273,000 rural households, a tiny minority of the 47.9 million rural households, participated in 14,000 formal agricultural producers’ cooperatives.66

When the Central Party Committee issued its decision on 11 October 1955 to further the development of formal agricultural producers’ cooperatives, the number (p.165) of such cooperatives had increased dramatically to 650,000 with the participation of more than 16.9 million rural households.67 Those cooperatives were characterised as being at a primary stage of formation, and were referred to as primary cooperatives (chuji she). They were based on a system of apportioning agricultural income in accordance with both the amount of land that the household owned and the labour input of that household. During this period, farmers retained private ownership rights in their own land, while primary cooperatives held use rights over the whole of the land owned by the farmers who were the members of primary cooperatives.

In spring 1956, primary cooperatives were transformed into advanced cooperatives (gaoji she), whose establishment had been first proposed in the ‘Draft Model Charter on the Agricultural Producers’ Cooperatives’ in 1955. Compared to primary cooperatives, advanced cooperatives governed a larger territorial area that transcended the traditional boundaries of the ‘natural’ villages (ziran cun) that had been shaped by long-term social interactions of villagers.68 Farmers were encouraged to join advanced cooperatives as members by handing in their assets, including land and production tools that were distributed to them in the land reform of the early 1950s. Except for a few private plots retained by farmers to grow supplementary foodstuffs, both land ownership and use rights were collectivised and held by advanced cooperatives.69 Income distribution was implemented through a system of work points (gongfen) based on the work done by each person. Farmers still retained the right to exit, that is, to withdraw from advanced cooperatives and take away their properties and receive remuneration for work done.

The nature of the advanced cooperative, as the collective economic organisation, was confirmed in Article 1 of the ‘Draft Model Charter on Advanced Agricultural Producers’ Cooperatives’, issued by the Central Party Committee on 30 June 1956.70 At that time, the number of rural households which joined advanced cooperatives constituted more than 61 per cent of the number of rural households nationwide.71 In terms of the scale of cooperatives, on 14 September 1957 the Central Party Committee required that one (administrative) village should (p.166) have one cooperative and that if the village was small, several small villages could constitute one cooperative. Further, the production team (shengchan xiaodui) was to constitute the basic production unit consisting of about 20 households.72

Driven by the aim to speed up the process of collectivisation, on 29 August 1958, the Central Party Committee pushed for the expanding of the scale of cooperatives: ‘in general, one township should establish one cooperative which should encompass about 2,000 rural households; larger cooperatives should be allowed, each cooperative may consist of 20,000 rural households’.73 The expansion of cooperatives resulted in the formation of people’s communes (renmin gongshe) that replaced the cooperatives and the subsequent establishment of collective ownership of rural land in 1958.74

Communes directly managed agricultural production and arranged income distribution. As communes consisted of all farmers in a region and membership was compulsory, farmers were deprived of the right to exit. Further, the possible exodus of farmers from villages to cities was prohibited by the household registration system (hukou), which was formalised in the process of collectivisation in 1958. Under this system everyone was registered as belonging to a household, which had a registered place of residence; an individual’s household registration could not generally be changed.75 Mobility was severely restricted under this system; rural dwellers were required to remain in their official place of residence in the countryside. Daily necessities, including food and clothing, were allocated through systems of rationing or coupons based on household registration.76

The commune was characterised as an organisation which combined political control with economic management.77 In 1962, rural land ownership was further transformed into three-level agricultural collectives, each headed by a branch of the Party: production teams, production brigades (shengchan dadui) and people’s communes. Land ownership was formally located at the level of the production team,78 which functioned as the basic accounting unit, each consisting of 20–30 households.79 (p.167)

Table 8.1 The transformation of the collective economic organisation and the establishment of collective ownership between 1949 and 1982.

Form

Mutual aid teams (huzhu zu)

Primary cooperatives (chuji she)

Advanced cooperatives (gaoji she)

People’s communes (renmin gongshe)

Period

1950–1953

1951–1955

1956–1958

1958–1982

Nature

The sharing of labour and livestock

Contributing land to cooperatives as shares

Collective ownership of rural land

The integration of political control of the rural community with economic management of the cooperatives

The collective, membership of the collective and land rights in the post-commune era

The transformation in the post-commune era

Following the economic reforms that commenced in 1978, the ‘household responsibility system’ was first set up in 1978 by a small group of farmers, and was expanded on a nationwide scale between 1980 and 1983.80 The governance structure of rural China was also transformed. Peng Zhen, the then Vice-Chairman of the Standing Committee of the National People’s Congress, delivered a report on the ‘Draft Amendment of the Constitution of the PRC’ to the National People’s Congress on 26 November 1982. He pointed out that:

it is time to change the system of people’s communes where political control and economic management are mixed together. We should establish townships as one tier of the governance structure, and people’s communes will only function in the rural collective economy as economic organisations.81

This intention was realised in Article 8 of the 1982 Constitution, which confirms that ‘various forms of the cooperative economy in rural areas such as producers’, supply and marketing, credit and consumers’ cooperatives belong to the sector of the socialist economy under collective ownership by the working people’. Townships function at the lowest level of the formal administrative governance (p.168) structure,82 whereas administrative villages serve as an organisational unit at the grassroots level. The boundaries of administrative villages may not correspond to natural villages, which exist spontaneously within rural areas. Villagers’ committees function as ‘self-governing mass organisations at the grassroots level’ (jiceng qunzhong zizhixing zuzhi), according to Article 111 of the 1982 Constitution.83 One villagers’ committee may govern several natural villages. However, one big natural village may set up several villagers’ committees. The chairman, vice-chairmen and members of each villagers’ committee are elected by the villagers.84

One villagers’ committee may set up several villagers’ groups (cunmin xiaozu), which may be characterised as equivalent to the production team in the commune system. The villagers’ groups do not hold much power. This situation has been shaped by the transformation of rural governance in the post-commune era. In the early 1980s, when communes were dismantled, the production teams at the lowest level of the communes went into decline. After the township replaced the governance function of the commune in the early 1980s, the administrative village took the place of the production brigade, and the villagers’ group superseded the production team.85 Power was concentrated at the administrative village and township levels.

The villagers’ committee is responsible to the villagers’ assembly, which is convened by the villagers’ committee in accordance with the proposal by more than one-tenth of the villagers or more than one-third of the villagers’ representatives.86 The villagers’ assembly makes decisions regarding matters including use (p.169) of the proceeds from the running of the collective economy of the village and plans regarding granting villagers the right to farm in the form of contracts.87

The villagers’ committee does not have the authority to adjudicate land disputes, because it is one of the authorities that issue land contracts granting the right to farm to rural households.88 Where a dispute arises over a contract, the parties may settle the dispute though negotiation, or request the villagers’ committee or the township government to help settle the dispute though mediation. Where the parties are not willing to have their dispute settled through negotiation or mediation, or neither negotiation nor mediation is successful, they may apply to an arbitral body in charge of rural land contracts for arbitration, or directly bring a suit in the courts.89

The blurred boundaries of the collective are manifest in the overlapping functions of the villagers’ committee and the collective economic organisation. One cooperative (collective economic organisation) may be founded in an administrative village (equivalent to the brigade in the commune system), or in a natural village (equivalent to the production team in the commune system); as a result, in many localities the collective economic organisation and the villagers’ committee are ‘the same team with two brands’.90 The brand ‘the villagers’ committee’ refers to the governance function of the collective, while the brand ‘the collective economic organisation’ refers to the economic function of the collective.91 If the villagers’ committee and the village collective economic organisation are separate bodies, ‘the villagers’ committee must respect the power of decision-making of the village collective economic organisation in conducting economic activities according to the law’.92

The status of the members of collective economic organisations is not to be equated with that of shareholders. In the early 1950s when collective economic organisations were at the early stage of formation, farmers joined agricultural (p.170) producers’ cooperatives voluntarily by contributing their means of production to the cooperatives and receiving income in accordance with their relevant contributions. At that stage, the status of the members of cooperatives was quite similar to that of shareholders. However, the nature of the membership of cooperatives soon changed when cooperatives were transformed into communes by force. ‘Egalitarian allocation’ (yi ping er diao) of land, livestock and grain harvest prevailed as part of the operation of communes regardless of the members’ contribution of land and labour. Free riding continued to plague the running of the communes.93 Although communes were later dissolved, egalitarianism continues to influence division of land among members of collective economic organisations in the post-commune era. In the initial allocation of rural land rights to the household in the 1980s, the amount of land that a household had the right to farm was based on the equal division of the land among the members of the collective economic organisation, including both children and adults. For example, if a collective economic organisation owned 1,000 mu land and had 100 members, each member was entitled to 10 mu land. If a household had five people, it could farm 50 mu land.94

In terms of the relationship between the membership of the collective economic organisation and the membership of the village, prior to the formation of communes, they were different memberships. Although one collective economic organisation was normally established in one village and its members came from the village, the members of the collective economic organisation did not necessarily encompass all the farmers that resided in that village. According to Article 11(1) of the ‘Draft Model Charter on Agricultural Producers’ Cooperatives’ (1955), ‘all male and female farmers and other types of workers who can engage in the work of the cooperatives can apply to join in agricultural producers’ cooperatives; once approved by the members’ assembly, they become members’.95 After the formation of communes in 1958, and because of the integration of political control and economic management in the commune system and compulsory membership of the commune, the membership of the collective economic organisation began to correspond to the membership of the village. However, in the early 1980s the rigid control of free movement of population, especially between rural and urban areas, began to be loosened. As a result, these two memberships no longer necessarily corresponded to each other. This point will be further examined through an analysis of relevant cases. (p.171)

Table 8.2 The relationship between administrative governance entities and collective economic organisations (the entities within the brackets refer to the collective economic organisations)

Traditional administrative divisions

Administrative divisions in the period of cooperatives (1950–1958)

The period of people’s communes (1958–1982)

The post-1982 period

Township

Township

Commune 2,000–20,000 households

Township (the agro-industrial-commercial cooperative)

Natural village

Administrative village (In general, one administrative village established one cooperative. The production team, which consisted of around 20 rural households, is the basic accounting unit)

Brigade 200–300 households (equivalent to the advanced cooperative) Encompassed 10 production teams; each team consisted of 20–30 households In some places, a small natural village corresponded to a team

Administrative village (the agricultural producers’ cooperative) Consists of villagers’ groups (the cooperative in accordance with the size of the villagers’ group)

The present system through case analysis

The transformation of the interplay between membership of the collective and land rights in the post-commune era has shaped the present system. Collective ownership is intimately linked with membership of the collective economic organisation, which embodies the close relationship between farmers and the land. A member of the collective economic organisation is automatically entitled to the right to farm. However, if the connection between the farmers and the land discontinues, their membership will be revoked by the collective economic organisation or the villagers’ committee.

In the 132 cases we have examined concerning disputes over the right to farm, 28 cases are related to membership of the collective. Among these 28 cases, there are 15 cases where the court has supported the argument that if farmers have lost their membership of the village, they could still retain their membership of the collective economic organisation. These 15 cases are primarily concerned with married or divorced women’s membership of the collective economic organisation. It has been decided by the court that if the right to farm has not been granted to farmers in the new village that they have moved into, their membership of the old (p.172) collective economic organisation should be retained and their right to farm should not be revoked by that collective economic organisation.

However, if farmers have been granted the right to farm in the new village, they will lose membership of the old collective economic organisation and the right to farm previously granted to them will be revoked. In our analysis of the 28 cases, three cases have been decided on this basis. Three other cases are concerned with the issue that the loss of membership of the village may lead to the loss of membership of the collective economic organisation: one case concerns a person who has moved out of a village to work in another place; the other two cases concern the fact that once farmers have died, their membership of the collective economic organisation terminates automatically. That said, the obtaining96 or retention97 of membership of the village does not necessarily secure membership of the collective economic organisation. Six cases have been judged on this basis. In terms of women’s right to farm, this is often revoked by the village when women are divorced even if they are still members of the village.98 One case among the 28 cases concerns this type of instance, and the court decided that a divorced woman should retain her membership of the collective economic organisation and continue to enjoy the right to farm.

Several general principles concerning the relationship between membership of the collective economic organisation and the right to farm can be gleaned from our analysis of the 28 cases. Membership can be obtained by birth through the maternal line: if the mother has obtained membership, her children can obtain membership as well.99 Membership can also be obtained through moving into the collective economic organisation via marriage or adoption. In most instances, this means that the newcomers need to change their household registration and register with the new collective economic organisation. However, there are exceptions to this rule. For example, without any change in the household registration, the newcomers may still obtain membership, if they have lost membership of the old collective economic organisation to which they belonged.100 Moreover, to become members, (p.173) the newcomers need to prove that they will rely on farming and the means of production provided by the new collective economic organisation in order to make a living. Without the required proof, even if they have changed their household registration, they cannot obtain membership.101 In some cases, both of the requirements, the change of household registration and the reliance on the collective economic organisation to make a living, need to be fulfilled, in order to obtain membership.102

The loss of membership of the collective economic organisation is often due to the death of the members.103 The revocation of membership may also be explained by persons moving into new collective economic organisations through marriage and adoption processes. However, if a person has not been allocated the right to farm in the new collective economic organisation after marriage, he or she will not lose membership of the previous collective economic organisation, no matter whether his or her household registration has been changed or not.104

(p.174) If farming is no longer relied upon to make a living, a person will also lose membership.105

Further, while the right to farm is held by individual members of the collective economic organisation, the right to farm the contracted land is closely linked to membership of the collective economic organisation, enabling the existence of private land rights in a collective land system. The increase or decrease in the number of people in the household will not affect the amount of the contracted land within the contractual period,106 an arrangement that is similar to the operation of joint ownership but without the limit to the number of co-owners. Aiming to sustain communal property, this arrangement differs from the initial allocation of the rights to ‘responsibility land’, which depended on the number of people in the household. As demonstrated in those cases examined, this arrangement that the amount of ‘responsibility land’107 does not increase/decrease if the size of the household increases/decreases has caused problems in practice. To solve some of the problems, especially in instances where the household increases in number, the collective economic organisation may allocate a portion of its ‘reserved land’108 to the household. If the farmer ceases to be a member or no longer relies on farming to make a living, the farmer’s right to farm automatically ceases and reverts to the household the farmer belongs to. If the household ceases to exist, the right to farm held by its previous members reverts to the collective economic organisation.

Moreover, the right to farm enjoyed by members of one household can be transferred to another household belonging to a different collective economic organisation within a given contractual period.109 Transfers shall be subject to the consent by the collective economic organisation.110 Members of the collective economic organisation to which the transferor belongs have the right of first refusal.111 Members of the household that has transferred the right to farm do not necessarily lose their membership of the collective economic organisation to which they (p.175) belong. The criteria used to judge whether those people can retain their membership include whether they still rely on the collective economic organisation to make a living and obtain provision of social welfare.

Conclusion

Through invoking the lens of community, the abstract concept of ‘the collective’ has been disaggregated into various communities with varying natures that are located at differing levels of the collective. The collectives appeared in the form of relatively small-scale communities such as mutual aid teams and primary cooperatives in the 1950s, but by the late 1950s transformed into large-scale, ideology-driven and politically fabricated communes, which overrode the boundaries of traditional communities. The eventual failure of the communes shows that communal property is more likely to be sustained in close-knit, limited-access communities. The boundaries of community matter not only in terms of demarcating territorial scale, but also in locating political power.

Invoking the lens of community also brings humans to the centre of the analytical framework of the concept of communal property. Communities, such as small-scale cooperatives including the mutual aid teams and primary cooperatives formed in the early 1950s, are neither merely geographical entities nor constructs of political power. They are quintessentially the construct of social relations that are held together by various bonds, creating a sense of identity and belonging and underpinning cooperation between people.112 These bonds include tradition, interests and values. To sustain communal property, we need to think about these bonds, that is, how to hold people together.

In many cases the boundaries of community have been penetrated by state power, eroding the bonds of community. The replacement of cooperatives with communes is one of the prominent examples. However, bonds such as ideologies that have been imposed by the state to hold communities together may be weakened in profound socio-economic transformations, leading to social regroupings. The regroupings of communities may in turn shape the ways in which property can be obtained, retained or lost. The formation of the hybrid property system in the post-commune era, via the introduction of the household responsibility system and the selective readmission of private property interest in the collective land system, exhibits one of the most important examples of this.

Communities are not completely sealed entities; their boundaries are penetrable (as shown in Table 8.1). The boundaries of community shift; the configuration of communal property changes correspondingly. As such it is difficult to sustain (p.176) a unified, coherent vision of communal property. The cases we have analysed through the lens of community show that the law can be interpreted and applied to strengthen the bonds that hold the community together and sustain communal property.113 This study has important implications for questioning the nature of the role that the law plays in protecting and developing communal property as a hybrid property system with penetrable boundaries.

Notes:

(*) We would like to thank Alison Clarke and the anonymous reviewer for helpful comments.

(1) Article 9 of the Land Administration Law (2004) defines collective ownership in the same way as Article 10 of the 2004 Constitution.

(2) In this chapter, we use these two terms interchangeably. As the relevant Chinese laws use the term ‘collective property’, we will use the term ‘collective property’ when referring to communal property defined in Chinese law.

(3) T. Dietz, N. Dolšak, E. Ostrom and P. C. Stern, ‘The Drama of the Commons’, in E. Ostrom T. Dietz, N. Dolšak, P. C. Stern, S. Stonich and E. U. Weber (eds), The Drama of the Commons (Washington, DC, National Academy Press, 2002), pp. 3–36 at p. 18.

(4) J. B. Holder and T. Flessas, ‘Emerging Commons’, Social and Legal Studies, 17 (2008), 299–310 at 300.

(5) E. Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge, Cambridge University Press, 1990), p. 30.

(6) C. Hess and E. Ostrom (eds), Understanding Knowledge as a Commons: From Theory to Practice (Cambridge, MA, MIT Press, 2009), p. 9.

(9) The immovables and movables owned by the collective include the following:

  1. ((1)) the land, forests, mountains, grasslands, wasteland and tidal flats that belong to the collective, as is provided for by law;

  2. ((2)) buildings, production equipment, and water conservancy facilities of farmland;

  3. ((3)) the educational, scientific, cultural, public health and sports facilities; and

  4. ((4)) other immovables and movables.

(10) The following matters shall be subject to decision by the members of a given collective in accordance with the statutory procedure:

  1. ((1)) plans for the contracting of land, and the subcontracting of land to other units or to individuals other than those belonging to the collective;

  2. ((2)) adjustment to be made to the contracted land by the individual persons among themselves who have the contractual management right;

  3. ((3)) methods for the use and distribution of such fees as compensations paid for land;

  4. ((4)) such matters as change in ownership of the enterprises invested by the collective; and

  5. ((5)) other matters as provided for by law.

(11) Article 60 of Property Law (2007) provides: with respect to the land, forests, mountains, grasslands, wasteland, tidal flats, etc. owned by the collective, the right of their ownership shall be exercised in accordance with the following provisions:

  1. ((1)) For those owned by the collective of farmers of a village, the collective economic organization of the village or the villagers’ committee shall exercise the right of ownership on behalf of the collective;

  2. ((2)) For those respectively owned by two or more collectives of farmers within a village, the collective economic organizations or villagers’ groups concerned within the village shall exercise the right of ownership on behalf of the collectives; and

  3. ((3)) For those owned by the collective of farmers of a town or township, the collective economic organization of the town or township shall exercise the right of ownership on behalf of the collective.

(12) For institutional ambiguity, see for example P. Ho, ‘Who Owns China’s Land? Policies, Property Rights and Deliberate Institutional Ambiguity’, The China Quarterly, 166 (2001), 394–421.

(13) Article 3 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002) provides: ‘Land contract in rural areas shall take the form of household contract within the collective economic organizations in the countryside …’

(14) For example, R. Ellickson, ‘Property in Land’, Yale Law Journal, 102 (1993), 1315–1400.

(15) Article 63 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002) provides:

Where, before the implementation of this Law, land has already been reserved, the area of such reserved land may not exceed five percent of the total area of the arable land of the collective economic organization concerned. If the area is less than five percent, the area of the reserved land may not be increased.

Where, before implementation of this Law, no land is reserved, no land may be reserved after the implementation of this Law.

(17) Property Law (2007), Article 126.

(18) See, for example, A. Clarke, ‘Integrating Private and Collective Land Rights: Lessons from China’, Journal of Comparative Law, 7 (2013), 177–193.

(19) The provisions of this Article include: ‘The rural collective economic organizations apply the dual operation system characterized by the combination of centralized operation with decentralized operation on the basis of operation by households under a contract … working people who are members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their private use, engage in household sideline production and raise privately owned livestock.’

(20) N. Blomley, ‘The Boundaries of Property: Lessons from Beatrix Potter’, The Canadian Geographer, 48 (2004), 91–100 at 93.

(21) Here the scope of community differs from many other studies of community which do not draw the distinction between community and the state. See, for example, G. S. Alexander and E. M. Peñalver, ‘Properties of Community’, Theoretical Inquiries in Law, 10 (2009), 127–160 (their conception of communities includes the state).

(22) See A. Bell and G. Parchomovsky, ‘The Evolution of Private and Open Access Property’, Theoretical Inquiries in Law, 10 (2009), 77–102 (arguing that the evolution of property is shaped by the interplay of three dimensions, namely, ‘number of owners, extent of dominion and asset configuration’).

(23) On invoking the lens of community in exploring Chinese property law, see T. Xu, ‘Global Legal Transplants through the Lens of Community: Lessons for and from Chinese Property Law’, in A. Perry-Kessaris (ed.), Socio-Legal Approaches to International Economic Law: Text, Context and Subtext (London, Routledge, 2013), pp. 167–180; T. Xu and W. Gong, ‘Taking as Giving, Appropriation as Access: Transfers of Land Development Rights and China’s Recent Experiments’, Northern Ireland Legal Quarterly, 64 (2013), 411–424.

(24) See, for example, R. Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Oxford, Oxford University Press, 1995), preface (arguing that ‘legal ideas cannot be adequately analysed without study of their social origins, social conditions of existence, and social consequences’); R. Cotterrell, ‘A Legal Concept of Community’, Canadian Journal of Law and Society, 12 (1997), 75–91. For studies of the relationship between community and property, see, for example, Ellickson, ‘Property in Land’, 1397 (arguing that ‘a close-knit group tends to create, through custom and law, a cost-minimizing land regime that adaptively responds to changes in risk, technology, demand, and other economic conditions’); G. Pienaar, ‘The Meaning of the Concept Community in South Africa Land Tenure Legislation’, Stellenbosch Law Review, 16 (2005), 60–76; Special Issue, Theoretical Inquiries in Law, 10 (2009); L. A. Fennell, ‘Scaling Property with Professor Ellickson’, William & Mary Bill of Rights Journal, 18 (2009), 173–181 (arguing that the scale of property matters); Clarke, ‘Integrating Private and Collective Land Rights’; A. Lehavi, The Construction of Property: Norms, Institutions, Challenges (Cambridge, Cambridge University Press, 2014), in particular ch. 4, ‘How Property Can Create, Maintain, or Destroy Community’, pp. 153–178.

(25) The Legislative Affairs Committee of the Standing Committee of the National People’s Congress (ed.), Compendium of the Laws of the PRC (1954–2004) (Zhonghua renmin gonghe guo falü huibian (1954–2004)) (Beijing, Renmin chubanshe, 2004).

(26) Party Documents Research Office of the CCP Central Committee (ed.), Selected Important Documents since the Founding of the PRC (Jianguo yilai zhongyao wenxian xuanbian) (Beijing, Zhongyang wenxian chubanshe, 1992–1998). The series of publications consists of 20 volumes, covering important documents issued between September 1949 and December 1965.

(27) Party Documents Research Office of the CCP Central Committee (ed.), Selected Important Documents since the Third Plenary Session of the 11th Central Committee of the CCP (Sanzhong quanhui yilai zhongyao wenxian xuanbian) (Beijing, Renmin chubanshe, 1982). This collection consists of two volumes of 104 papers, including documents issued by the Central Committee, as well as party leaders’ speeches and articles published during the period 1978–1982.

(28) Party Documents Research Office of the CCP Central Committee (ed.), Selected Important Documents since the 12th National Congress of the CCP (Shi’er da yilai zhongyao wenxian xuanbian) (Beijing, Renmin chubanshe, 1986–1988). This collection consists of three volumes and covers 128 papers including documents issued by the Central Committee and the State Council, as well as party leaders’ speeches and articles published during the period 1982–1987.

(29) Party Documents Research Office of the CCP Central Committee (ed.), Selected Important Documents since the 13th National Congress of the CCP (Shisan da yilai zhongyao wenxian xuanbian) (Beijing, Renmin chubanshe, 1991–1993). This collection consists of three volumes and covers 186 papers including documents issued by the CCP Central Committee and the State Council, as well as party leaders’ speeches and articles published during the period 1987–1992.

(30) Henan Statistics Bureau, ‘Introduction to Henan Province’, www.henan.gov.cn/hngk/system/2006/09/19/010008384.shtml.

(31) P. Luo, The History of People’s Communes in Rural China (Nongcun renmin gongshe shi) (Fuzhou, Fujian renmin chubanshe, 2002), p. 19.

(32) ‘Henan: Comprehensive Implementation of Posting Judgments Online (Henan: quanmian tuixing caipan wenshu shangwang)’, 24 November 2013, www.chinacourt.org/article/detail/2013/11/id/1149579.shtml.

(33) ‘The Supreme Court: All Legally Effective Judgments Should be Posted Online (Zuigao fa: jinhou shengxiao caipan wenshu yuanze shang quanbu shangwang)’, 3 July 2013, http://legal.china.com.cn/2013-07/03/content_29311260.htm.

(35) According to Chapter Three of the 2004 Constitution, the structure of governance in China consists of five tiers: the central government, provinces, cities, counties and townships. In correspondence with the first four tiers, the court system in China is divided into four levels: the Supreme Court, the court at the high level, the court at the intermediate level, and the court at the local level. Some courts at the local level have established detached tribunals in townships with large populations. The tribunals function as the constituent of the court at the local level and their judgments constitute the body of judgments of the court at the local level. See Articles 2, 17, 19, 22 and 25 of the Organic Law of the People’s Courts (1980, amended 1983, 1986, and 2006).

(36) According to Article 20 of the Organic Law of the People’s Courts and Article 17 of the Civil Procedure Law (1991, amended 2007 and 2012), cases heard at first instance are under the jurisdiction of the court at the local level.

(37) For discussion on the significance of this methodology, see, for example, B. L. Liebman, ‘Leniency in Chinese Criminal Law? Everyday Justice in Henan’, Berkeley Journal of International Law, 33 (2015), 153–227. Its focus is on criminal cases.

(39) J. Clarke, ‘Community’, in D. M. Nonini (ed.), A Companion to Urban Anthropology (London, Wiley-Blackwell, 2014), pp. 46–64 at pp. 47–48.

(45) See also S. R. Munzer, ‘Commons, Anticommons, and Community in Biotechnological Assets’, Theoretical Inquiries in Law, 10 (2009), 271–298 at 273–274 (defining a community as ‘a group of people who have shared interests and who work toward shared goals’).

(46) R. Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot, Ashgate, 2006), p. 74.

(47) M. Weber, Economy and Society: An Outline of Interpretive Sociology, trans. E. Fischoff (Berkeley, University of California Press, 1978), pp. 23–26.

(50) See also J. E. Penner, ‘Property, Community and Distributive Justice’, Theoretical Inquiries in Law, 10 (2009), 193–216 at 193 (arguing that ‘the topic of property and community normally invokes thoughts about the way in which the concept of property can be extended beyond private property’).

(53) For example, Article 30 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002) provides that marital status changes shall not affect women’s right to farm. Editors’ note: For discussion of gender discrimination in communal property governance, see also Pienaar and Pieraccini in this volume.

(54) See, for example, J. Stacey, Patriarchy and Socialist Revolution in China (Berkeley, University of California Press, 1983).

(55) A. Clarke, ‘Property, Human Rights and Communities’, in T. Xu and J. Allain (eds), Property and Human Rights in a Global Context (Oxford, Hart Publishing, 2015), pp. 19–40 at p. 22. See also C. M. Rose, ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’, University of Chicago Law Review, 53 (1986), 711–781 (arguing that property held by close-knit groups is private property when viewed from the outside).

(58) See, for example, H. Dagan and M. Heller, ‘The Liberal Commons’, Yale Law Journal, 110 (2001), 549–624 (arguing that successful commons can exist in a liberal society if participants have appropriate exit rights).

(59) T. Xu, The Revival of Private Property and Its Limits in Post-Mao China (London, Wildy, Simmonds and Hill Publishing, 2014).

(60) For nested communities, see, for example, G. W. Skinner, ‘Marketing and Social Structure in Rural China, Part I’, The Journal of Asian Studies, 24 (1964), 3–43; G. W. Skinner, ‘Marketing and Social Structure in Rural China, Part II’, The Journal of Asian Studies, 24 (1965), 195–228; G. W. Skinner, ‘Marketing and Social Structure in Rural China, Part III’, The Journal of Asian Studies, 24 (1965), 363–399; G. W. Skinner, ‘Chinese Peasants and the Closed Community: An Open and Shut Case’, Comparative Studies in Society and History, 13 (1971), 270–281; G. W. Skinner, ‘Rural Marketing in China: Repression and Revival’, The China Quarterly, 103 (1985), 393–413.

(63) S. Liu, ‘Report on the Issue of Land Reform (Guanyu tudi gaige wenti de baogao)’, 14 June 1950.

(64) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 7, pp. 357–395.

(65) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 2, pp. 512–513.

(66) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 4, pp. 662–663.

(67) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 7, p. 284.

(68) ‘Natural villages’ emphasises villages ‘in the sense of what is local and long-standing’, whilst ‘administrative villages’ closely resembles ‘sub-government institutions’. See S. Feuchtwang, ‘What Is a Village?’, in E. B. Vermeer, F. N. Pieke and W. L. Chong (eds), Cooperative and Collective in China’s Rural Development: Between State and Private Interests (New York: M.E. Sharpe, 1998), pp. 46–74 at p. 47. An administrative village may consist of several small natural villages.

(69) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 7, p. 359.

(70) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 8, p. 403.

(71) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 8, p. 359.

(72) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 10, p. 552.

(73) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 10, p. 446.

(74) In 1958, even private plots became public property, but private ownership of these plots was soon restored in 1959.

(75) This household registration system is still in operation today.

(76) J. Goldstein, ‘Introduction’, in M. Y. Dong and J. Goldstein (eds), Everyday Modernity in China (Seattle, University of Washington Press, 2006), pp. 3–21 at p. 17.

(77) The nature of communes was confirmed in the ‘Principles on the Work of People’s Communes (Revised Draft)’, issued by the Central Party Committee on 15 June 1961.

(78) Draft Amendment of the Working Regulations of the People’s Communes (1962), Article 21.

(79) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 15, pp. 179–186.

(81) Party Documents Research Office, Selected Important Documents since the 12th National Congress of the CCP, vol. 1, p. 153.

(82) Article 30 of the 1982 Constitution provides: ‘The administrative division of the PRC is as follows:

  1. ((1)) The country is divided into provinces, autonomous regions, and municipalities directly under the Central Government;

  2. ((2)) Provinces and autonomous regions are divided into autonomous prefectures, counties, autonomous counties, and cities; and

  3. ((3)) Counties and autonomous counties are divided into townships, ethnic townships, and towns …’

(83) Article 7(2) of the ‘Organic Law of the Villagers’ Committee of the PRC (for Trial Implementation)’ promulgated on 24 November 1987 provides: ‘The Villagers’ Committees are established in natural villages: several natural villages may set up one villagers’ committee collectively; a big natural village may have several villagers’ committees.’ Article 15 provides: ‘One Villagers’ Committee may set up several villagers’ groups; each head of the group is elected by the meeting of the villagers’ group.’ The document is available in the General Office of the State Council of the PRC, Bulletin of the State Council, 1987, no. 27, pp. 885–886.

(84) Article 11 of the ‘Organic Law of the Villagers’ Committee of the PRC’ (1998, amended 2010). Article 6 provides: ‘A villagers’ committee is composed of three to seven members, including the chairman, the vice-chairman (vice-chairmen) and the members.’ Article 11 provides: ‘The chairman, vice-chairman (vice-chairmen) and members of a villagers’ committee shall be elected directly by the villagers. No organization or individual may designate, appoint or replace any member of a villagers’ committee.’

(86) Article 21 of the ‘Organic Law of the Villagers’ Committee’ (1998, amended 2010).

(87) Articles 24(2) and 24(4) of the ‘Organic Law of the Villagers’ Committee’ (1998, amended 2010).

(88) Article 12 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002): ‘Where the land owned collectively by farmers belongs, in accordance with law, to the collectives in a village, contracts shall be given out by the collective economic organization of the village or the villagers committee; where the land is already owned collectively by farmers of more than two rural collective economic organizations in a village, contracts shall be given out respectively by the said organizations or villagers groups in the village. Where contracts are issued by the rural collective economic organizations or villagers committees in a village, the ownership of the land owned collectively by the farmers of the collective economic organizations in the village shall remain unchanged.’

(89) Article 51 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002).

(90) Article 3(5) of the ‘Notice on Rural Work in 1984’, issued by the Central Party Committee on 1 January 1984. See Party Documents Research Office, Selected Important Documents since the 12th National Congress of the CCP, vol. 1, p. 428.

(91) Information gathered from fieldwork undertaken by the second-named author at Wuli Village, Wandong Township, Wansheng District, Chongqing province in March 2014.

(92) Article 8 of the ‘Organic Law of the Villagers’ Committee’ (1998, amended 2010).

(93) For the ‘free rider’ problem with collective agriculture in China, see, for example, V. Nee, ‘The Peasant Household Economy and Decollectivization in China’, Journal of Asian and African Studies, 21 (1986), 185–203.

(94) 1 hectare =15 mu.

(95) Party Documents Research Office, Selected Important Documents since the Founding of the PRC, vol. 7, p. 362.

(96) For example, through marriage or purchasing houses.

(97) For example, in instances where a person’s household registration is still with the village, but he or she no longer relies on farming to make a living.

(98) Such a practice contravenes Article 30 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002), which provides: ‘where a divorced woman or a woman who loses her spouse still lives at her original residence or does not live at her original residence but undertakes no contract for land at her new residence, the party giving out the contract may not take back her originally contracted land’.

(99) For example, Cui Yuqing, Cui Jianlong, Wang Yuyan, and Cui Mou v No. 4 Villagers’ Group at Baiqiang Village, Zhaohe Township, Mengzhou City, Wang Weixing, and Wang Tianfa, People’s Court at Mengzhou City, Henan Province, 29 January 2016. Chinese names are cited in their Chinese order: family name comes first, followed by given name.

(100) For example, Huang Lizheng v Huang Zuhe and Huang Guangchuang, People’s Court at Guangshan County, Henan Province, 15 April 2015; Wang Guiqin v The Villagers’ Committee at Anzhuang Village and An Hongjun, Chiying Township, Xihua County, People’s Court at Shangshui County, Henan Province, 17 August 2015; Zhao Fang, Guo Aihong, and Guo Yuling v Wang Shuanzhu, People’s Court at Runan County, Henan Province, 18 August 2015.

(101) For example, Chen Sihan v The Villagers’ Committee and its No. 1 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 25 April 2015; Yang Yuxuan v The Villagers’ Committee and its No. 1 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 25 April 2015; Wang Changfu v The Villagers’ Committee and its No. 1 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 25 April 2015; Gao Xiangwei and Gao Mingxuan v The Villagers’ Committee and its No. 1 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 25 April 2015. In these four cases, the plaintiffs were not able to provide sufficient evidence to prove that they had formed a stable relationship with the collective economic organisation in terms of production and life, therefore the court did not support their claim for obtaining membership of the collective economic organisation.

(102) Yan Shude v Ren Daoxing, People’s Court at Huaibin County, Henan Province, 20 June 2012. Although the plaintiff relied on farming to make a living, his household registration had not been moved to the new collective economic organisation, and the court did not support his claim for membership.

(103) Zhu Xiujiang v The Villagers’ Committee and its No. 2 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 8 April 2015; Zhang Jixiang v The Villagers’ Committee and its No. 2 Villagers’ Group at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 8 April 2015. In both cases, the plaintiff argued that the compensation for the acquired land should have been allocated to the plaintiff’s deceased mother. The court held that because the plaintiff’s mother died, she had lost membership of the collective economic organisation, and her children were not entitled to the compensation, which was only to be allocated to the members of the collective economic organisation.

(104) For example, Peng Chunxiu and Zhang Yangxia v Zhang Jingwei, People’s Court at Tangyin County, Henan Province, 20 June 2014; Liu Yunfang v Liu Yunkui, People’s Court at Tongbai County, Henan Province, 28 March 2015; Guan Hua and Niu Yongjian v Niu Li, People’s Court at Yanjin County, Henan Province, 30 March 2015; Sun Shunling v Sun Haogui, People’s Court at Hua County, Henan Province, 20 April 2015; Liu Yuhua v The Villagers’ Committee at Liu Zhuang Ying Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, 25 August 2015; Wu Fenglian v Wu Mingxun, Meng Xiangling, Wu Linlin, Zhang Dandan, People’s Court at Ningling County, Henan Province, 6 November 2015; Zhu Fulian v Hewan Villagers’ Group at Gaomiao Village, Yangshan New District, Xinyang City, People’s Court at Pingqiao District, Xinyang City, Henan Province, 26 January 2016; and Zhao Guihong v The Villagers’ Committee at Xinzhuang Village, Juling Township, Linying County, People’s Court at Linying County, Henan Province, 16 February 2016.

(105) For example, Zhang Shanlin v The Villagers’ Committee at Qiaoxie Village, Hongmen Township, Hongqi District, Xinxiang City, People’s Court at Hongqi District, Xinxiang City, Henan Province, 12 June 2015.

(106) The Notice concerning ‘the Opinion on Stabilizing and Improving the Land Contract Relationship Issued by the Ministry of Agriculture and Approved and Distributed by the State Council’ (guowu yuan pizhuan nongye bu guanyu wending he wanshan tudi chengbao guanxi de yijian), 28 March 1995.

(109) For example, Article 32 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002) provides: ‘The right to land contractual management obtained through household contract may, according to law, be circulated by subcontracting, leasing, exchanging, transferring or other means.’

(110) Article 37 of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002).

(111) Article 33(5) of the ‘Law of the PRC on Land Contract in Rural Areas’ (2002).

(112) R. Cotterrell, ‘Is There a Logic of Legal Transplants?’, in D. Nelken and J. Feest (eds), Adapting Legal Cultures (Oxford, Hart Publishing, 2001), pp. 69–98.