NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION(三)
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nce of developer-monopolized commercial housing supply system. At present, reforming this institution is also inevitable. Since the developermonopolized commercial housing supply system no longer meets people’s requirements and the development of China, new reform must be carried out. The third deep reform of housing system is from the developer-monopolized commercial housing-supply system to the governmental housing-security system. Moreover, the transformation of the housing security policies should also be achieved by improving relevant laws and statutes, and protecting the right of habitation and the right to housing. II. NEW PROBLEMS IN CHINA’S HOUSING SYSTEM The Communist Party of China (the governing party in the People’s Republic of China) and all levels of governments place great importance on the housing security for the citizens. The Constitution of China regulates that “the state respects and preserves human rights” and “the home of the citizens of the People’s Republic of China is inviolable,” etc. The Report to the 7th National 5 耖.佶掖.孙1000 夭鬟芰睢郛, 麽.醣夭. (China Will Build Ten Million Low-Rent Houses in 2011, the Total Investment of Which Exceeds RMB One Trillion), 21 幡....猿 (21st Century Business Herald), Dec. 12, 2010. 302 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 People’s Congress deems “housing guarantee” as important to ensure and improve people’s livelihood, to promote social equity and justice, and to establish a harmonious society. The Real Right Law is a basic law of the housing property right. On the basis of marketing rules, the Real Right Law determines whether individuals will enjoy the right to housing. Therefore, the Real Right Law is beneficial for the individuals to enjoy human rights such as housing, and to pursue and create individual wealth. Specifically speaking, (a) the Real Right Law provides legal basis for the enjoyment of housing property right; (b) the Real Right Law promotes the circulation and transfer of housing property right; (c) the restrictive regulations of property rights in the Real Right Law are beneficial to the harmonious coexistence among housing right holders; (d) the Real Right Law straightens the relationship between the housing ownership and the right to use the land of the residential housing. However, at the international level, the basic function of the Real Right Law has never solved the problem for the protection of housing right. Therefore, we should not make excessive demands on China’s Real Right Law. After the enactment of the Real Right Law, the current housing legislations are insufficient on the following aspects. A. Lacking the Protection for the Housing Rights of the Middle and Low Income Families Based on the behavioral indicator of whether payment is involved, for all groups of the population, housing solutions can be divided into the social security mode and the market mode.6 (a) The social security mode generally refers to the mode of habitation where no payment is involved, e.g., families or friends living together, special housing as prison, asylum, and not-for-profit senior housing etc. which are provided by the government; (b) the market mode means that an individuals can enjoy housing rights by paying rent or purchasing a house. The real right is a kind of property rights, whose function is to establish right, therefore the Real Right Law is more significant for people who own property. In contrast, the real right is meaningless for those that do not own property in the current time (probably, they might own property in the future). Moreover, the real right can only be a basic condition to real estate transaction, the right itself cannot guarantee the transaction process is legal, and make transaction fair and 6 Zigui Ding, 塑瘳.鬃慵...钴扉邗圊萋喟 (General Analysis of the Realization of the Housing Right Market), at http://www.snzg.cn/article/show.php?itemid-6581/page-1.html (last visited Dec. 31, 2010). 2012] CHINA’S HOUSING LEGISLATION 303 just. The Real Right Law only creates a basic condition for protecting the property right on the right to housing, thus, whose function is limited for protecting the low income families’ right to housing. In China, the protection of the right to housing for low and middle income families mainly relies on the Social Security Law, which is the weakest link in the current legal system of China. Nevertheless, the right to housing is not only an important property right, but also a basic human right, which has already been recognized by the international community. Article 25(1) of the Universal Declaration of Human Rights of 1948 (UDHR) clearly states: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control. In April 1981, the international symposium on housing and city issues was held in London. At this symposium, an influential housing human right declaration was passed. This declaration believes that “all citizens have the right to enjoy adequate housing, and this is a basic human right.” In 1982, the 36th session of the General Assembly declared the year of 1987 as the international year of “Shelter for the Homeless” (IYSH), and appealed for the governments of all nations to provide adequate shelters for the homeless. On December 17, 1985, the United Nations unanimously designated the first Monday of October each year as the “World Habitat Day,” which triggered a climax of the “housing issue” around the world. In October 1997, Chinese government signed the International Covenant on Economic, Social and Cultural Rights. Article 11(1) of this Covenant stipulates: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. The wording of this covenant was directly quoted from article 25 of the UDHR. From the standpoint of the importance of the right to housing, the relevant housing legislations should establish such a right. Furthermore, it is the state’s responsibility to ensure that the establishment of the right to housing can be achieved. 304 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 B. New Problems in Achieving the Housing Right of the Middle and Low Income People While the market demands drive up housing prices, the enactment of the Real Right Law enhances Chinese people’s awareness of rights. On the one hand, Chinese people are trying to possess more wealth, and the wealth has been accumulated in the hands of minority; On the other hand, people hope that their wealth will increase in money circulation, and they can thus make financial gains. As a result, in the housing and its related industries, in the time that the housing wealth has been achieved by the minority, many people are unable to afford a home of their own. In addition, due to the aim of making more profits from the rising house prices, the continuous increase in housing prices has been constantly supported by the wealthiest class. This is also the essential driving force for the increasing house prices. The pursuit of housing wealth has caused the dwelling house to become a scarce resource, and this is also a main reason why the housing price increases rapidly. Consequentially, it is very hard or even impossible for middle and low income groups to afford a satisfying dwelling house from the market; moreover, the expenses such as building materials and labor fees are increasing tremendously. Also, due to the lack of sufficient funds, the efforts of the government to provide housing security for middle and low income groups have been more difficult than ever before. In addition, the shift in cost structure will inevitably lead to the increase in housing prices. The Real Right Law clearly stipulates for the system of land expropriation and the compensation mechanism for resettlement. In other words, in order to achieve land expropriation and resettlement, a reasonable compensation must be provided to legal entities or individuals who are forced to reset, which will be beneficial for solving the problem of land expropriation. Moreover, the interests of residents who are forced to reset will also be protected. However, it should be noted that the compensation may increase the difficulty of resettlement in cities, and real estate developers’ expenses on acquiring land will be also increased significantly.7 The increase in land costs will definitely lead to the increase in housing prices, and the middle and low income group |
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