NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION(四)
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’s right to enjoy their housing will also be affected at the same time. C. Lack of Protection for the Personal Housing Right The Real Right Law of the People’s Republic of China was passed on March 7 Siqin De, 讵.埚.郛颌..钴绡. (The Real Right Law’s Influence on the Real Estate Industry), at http://blog.soufun.com/5096733/21/articledetail.htm (last visited Dec. 31, 2010). 2012] CHINA’S HOUSING LEGISLATION 305 16, 2007 and came into effect on October 1, 2007, deleting the provision for the right of habitation in the draft of the Real Right Law issued by the Legal Affairs Commission of the NPC on July 10, 2005. Therefore, the right of habitation has not been approved by law in the legal system of China. This situation offers new choices for deepening the revolution of China’s housing system. Although article 42 of the Real Right Law stipulates that “for the purpose of public interest, where the individual residential house is expropriated, the residential conditions of the expropriated shall be guaranteed,” this mainly shows the protection for the personal right to housing instead of the system of habitation right in the traditional sense. In order to achieve the objective of “housing guarantee,” which is proposed in the 17th National People’s Congress, the research on housing rights and housing law must be strengthened. Therefore, from the reality or the theoretical system of real right, it is believed that the system of habitation right should be established in China. Based on the definition of the right of habitation and its reason for creation, the right of habitation, as personal servitude in usufruct, is to enjoy the house value for the purpose of living instead of its economic value. In Roman law, the right of habitation has been defined as the right of non-owners to reside in the house of another, and this definition has been widely inherited and accepted by the subsequent civil law system. In ancient Rome, the number of marriages without the consent of the husband and the number of liberated slaves increased gradually, therefore, if the head of the family died, the livelihood of people therein who either had no inheritance rights (for the former) or lost ability to work (for the latter), would become a serious social issue at that time. As a result, in order to ensure all the people could lead decent lives, husbands or house owners would bequeath the right of using family possessions and relevant usufruct to wives or liberated slaves.8 This is also the original reason why the right of habitation was established at that time. As often, family relationship, employment relationship or friendship are among the parties involved in the right of habitation. The parties’ identities are specific and the right of habitation has been attached to personal identity. Therefore, the right of habitation can only be enjoyed by a specific individual and cannot be transferred at will. It can be said that the right of habitation is a type of social security and welfare system.9 The Real Right Law should establish the system of habitation right. After this 8 Nan Zhou, ..埚戢. (呔.) (Original Theory of Roman Law, vol. 1), The Commercial Press (Beijing), at 368 (1994). 9 Xinyong Chen & Dengjun Lan, 塑瘳.钴旯椎朽徐亍埚钴租圊拗团 (The Rational Thinking on the Source and Development of the Right of Habitation and Its Legislation), 啶萘 镔埚.曷.. (Journal of Northwest University of Political Science and Law) 68, 70 (2003). 306 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 establishment, the house value (in use) will be made by the owners’ right of habitation being used. This will not only provide an opportunity for owners to make more wealth, but also provide efficient method to solve the problem of the current housing shortage in the society.10 Therefore, the right of habitation has the characteristic of social security. This characteristic reflects the requirement of the trend of modern civil law, and should be the basic orientation of value of the housing act or the housing security law as proposed . III. IMPROVING CHINA’S HOUSING SYSTEM AND PROMOTING HOUSING LEGISLATION In the Report to the 17th National People’s Congress, President Hu Jintao pointed out: Social development is closely related to the people’s well-being. More importance must therefore be attached to social development on the basis of economic growth to ensure and improve people’s livelihood, carrying out social restructuring, expanding public services, improving social management, and promoting social equity and justice. We must do our best to ensure that all the people enjoy their rights to education, employment, medical and old-age care, and housing, so as to build a harmonious society. The report also requests to “accelerate the establishment of social security system which covers both urban and rural residents and guarantees their basic living conditions.” In order to guarantee the right to housing and achieve the objective of “housing guarantee,” both the housing system and the housing legislations need to be further improved. These approaches are discussed respectively hereafter. A. Establishing the “Three-Three Housing Policies” The qualified housing system should satisfy the demands of low, middle and high income families all together, which is the starting point of the second housing reform. In 2008, the Housing Legislation Advanced Academic Seminar was held by Renmin University of China. At this seminar, based on the current situation of China, scholars offered positive comments to the “three types of housing systems, three means of land provision, and three teams involved” 10 Liming Wang, 讵.埚. (Theories of Real Right Law), China University of Political Science and Law Press (Beijing), at 531 (2003). 2012] CHINA’S HOUSING LEGISLATION 307 (hereinafter, the “three-three housing policies”). 1. Perfecting the Low Income Housing System. — The land should be provided by means of government allocation, and be exploited by the housing investment limited companies of state-owned sole proprietorship, the non-profit and public interest institutions of house building and the real estate developers together. The house construction area should be controlled in sixty square meters, and the housing problems of low income families (20% of the total city population) should be solved by building these houses. 2. Establishing the Public Housing System. — The land should be provided by means of invitation to bid, and be exploited by non-profit and public interest institutions of cooperative house building and the real estate developers together. The house construction area should be controlled in ninety square meters. These houses should be provided in fair price to the middle income families (60% of the total city population) in China. 3. Perfecting the Commercial Housing System. — The land should be provided by means of invitation to bid, auction and open consultation, and be exploited by real estate developers. The house construction area and the house prices can be decided by the developers independently. These houses shall satisfy the housing demand of the high income families (20% of the city population) in China. In summary, the goal of housing reform is to establish a healthy multi-level housing supply system, in which “the low income group’s housing rights will be protected, the middle income groups will be able to buy a house and the high income groups will choose to buy the house.” The institutional innovation of “the route map of three-three housing reform” mainly reflects in the public housing system. The reform of the land supply system is a prerequisite, and developing the public housing by the “four decisions and two biddings” will be the ultimate objective. B. Developing the Public Housing Reform by the “Four Decisions and Two biddings” 1. Ascertaining the Quotas of Public Housing Land Provision. — In China, local governments divide planned housing land into three parts annually, i.e., the first part of the land is reserved for the low income housing; the second part (about 60% of the remaining land) is reserved for the public housing. Before exploring, this part of the land should be registered and booked with priority. The remaining land (the third part) is reserved for the commercial housing. 2. Establishing the Bidding Methods of Land Provision for Public Housing. — Based on certain methods of capped-price housing, the starting price of the 308 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 public housing land should be the minimum price of the invitation to bid. The governments decide on land price, construction standards, tax rates and profit rates. After comparing the housing prices and the construction plans, the bidder achieving the highest score will acquire the land. This method of acquiring land is so called “four decisions and two biddings.” 3. Controlling the Area of Multi-Storey Housing in 90 Square Meters. — T |
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