NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION(一)
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FRONTIERS OF LAW IN CHINA VOL. 7 JUNE 2012 NO. 2 DOI 10.3868/s050-001-012-0016-4 ARTICLE NEW PROBLEMS IN CHINA’S HOUSING LEGISLATION AND ITS SOLUTIONS Ke Zhou,. Ming Li & Wenting Liang Since China’s reform and opening up in 1978, the housing system in China had undergone two major reforms; currently, the third major reform (also called the second housing revolution) has started. This article analyzes the historical course of the reforms, investigates the gains and losses of the reforms, seeks the directions for deepening the reform of housing system, and in turn, establishes the patterns of housing construction and consumption in accordance with Chinese actual conditions. The report of the 17th National People’s Congress pointed out that “housing guarantee” is a heavy task “to ensure and improve people’s living standard, to promote social equity and justice, and to build a harmonious society.” The Real Right Law of China plays a positive role to protect housing rights, but it only gives limited protection of housing right. Meanwhile, the Real Right Law itself introduces new problems to the housing security. In order to protect housing rights and achieve the objective of “housing guarantee,” China needs to further improve the housing system and advance the housing legislation. The main approaches in this article include: (a) carrying out the “three-three housing policies,” there are basically three types of housing systems, three means of land provision, and three teams involved; (b) employing the bidding method of “four decisions and two biddings” for land supply, it means that the government should take the responsibility to decide land prices, construction standards, tax rates and profit rate; and the bidder is determined by scoring each of the bidders as for his house price bidding and building program bidding; (c) establishing the system of habitation right in China’s Housing Law and maximizing its function of social security; and (d) further improving relevant regulations in the proposed housing act or housing security law and paying attention to the establishment and implementation of supporting measures. . Ph.D and Professor in law, at School of Law, Renmin University of China, Beijing, China. His main research covers civil law, economic law, environmental and natural resources law. Contact: rdzhouke@x263.net 296 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 I. THREE REFORMS OF CHINA’S HOUSING SYSTEM.................. 297 A. The First Reform............................................................................ 297 B. The Second Reform........................................................................ 297 C. The Third Reform........................................................................... 299 II. NEW PROBLEMS IN CHINA’S HOUSING SYSTEM................... 301 A. Lacking the Protection for the Housing Rights of the Middle and Low Income Families............................................ 302 B. New Problems in Achieving the Housing Right of the Middle and Low Income People .............................................. 304 C. Lack of the Protection for the Personal Housing Right................. 304 III. IMPROVING CHINA’S HOUSING SYSTEM AND PROMOTING HOUSING LEGISLATION..................................... 306 A. Establishing the “Three-Three Housing Policies” ........................ 306 1. Perfecting the Low Income Housing System ............................ 307 2. Establishing the Public Housing System................................... 307 3. Perfecting the Commercial Housing System............................. 307 B. Developing the Public Housing Reform by the “Four Decisions and Two biddings” .................................. 307 1. Ascertaining the Quotas of Public Housing Land Provision ..... 307 2. Establishing the Bidding Methods of Land Provision for Public Housing.................................................................... 307 3. Controlling the Area of Multi-Storey Housing in 90 Square Meters .................................................................. 308 4. Mobilizing the Social Forces to Participate in the Public Housing Construction.......................................... 308 5. Carrying Out the Access System of One Family with One House......................................................................... 308 6. The Distinction between the Public Housing and the Capped-Price Housing ........................................................ 308 C. Establishing the Habitation Right System ..................................... 309 1. The Establishment of the Habitation Right ............................... 310 2. The Subject and Object of the Habitation Right........................ 310 3. The Content of the Habitation Right ......................................... 311 4. The Termination of the Habitation Right .................................. 311 D. Establishing the Housing Security System .................................... 312 2012] CHINA’S HOUSING LEGISLATION 297 I. THREE REFORMS OF CHINA’S HOUSING SYSTEM A. The First Reform The first reform started from the public and welfare housing allocation system to the monetized and commercialized housing system and the economically affordable housing supply system. On July 18, 1994, the State Council issued the Decision on Deepening Urban Housing Reform ([1994] No. 43), which signifies that the housing system reform was preliminarily initiated. This document aims to establish the socialized and commercialized housing system at the national level, and the welfare housing allocation system will be gradually replaced by both the housing allocation system and the housing transactions system. On July 3, 1998, the Notice on Further Deepening Urban Housing Reform and Speed-Up Housing Construction issued by the State Council ([1998] No. 23, NPH1998) took effect. The promulgation of this document means that the public and welfare housing allocation system in the planned economy have been changed to the monetized housing allocation system. The document explicitly states that the primary objective of the reform of the urban housing system was “to terminate the public housing allocation and gradually reach the monetized housing allocation; to establish and improve the multi-level urban housing supply system, which is mainly composed of the economically affordable housing. The document specifically emphasized that “different housing supply policies should apply to families at different income levels, the low-rent housing be provided to the lowest income families, the economically affordable housing be provided to the low and middle income families, and the high income families purchase or rent commercial housing at market price.” B. The Second Reform The second reform is from the economically affordable housing supply system to the developer-monopolized commercial housing supply system. The Notice on Promoting the Sustainable and Healthy Development of the Real Estate Market, issued by the State Council, came into effect on August 12, 2003 ([2003] No. 18, NPH2003). The enactment of this notification is the most noticeable mark of the second reform, which postulated that “the structure of housing supply system should be adjusted, and the majority of families should purchase or rent ordinary commercial housing gradually.” This document clarified that the commercial housing supply system was a main kind of housing 298 FRONTIERS OF LAW IN CHINA [Vol. 7: 295 supply system in China, and the NPH1998 was abolished at the same time. Consequently, governments at all levels devoted themselves to achieving the market-oriented housings and actively cultivate real estate developers. However, this also resulted in that the real estate developers monopolize the housing construction and consumption market to a certain degree. Within a few years, the pattern of economically affordable housing had been replaced. After abandoning the original housing development teams and housing cooperatives, some of these development teams and housing cooperatives gradually shrank, and the others transformed into real estate developers. The low-rent housing and the economically affordable housing were gradually marginalized. For example, in 1999, “the completed floor space of the low-rent housing and the economically affordable housing exceeded 0.1 billion square meters, and accounted for more than 50% of the completed floor space of the commercial housing.” However, in 2004, the proportion of complete investment on the low-rent housing and the economically affordable housing “slumped to 4.6%.”1 In the period of four years after enacting the NPH2003, housing price in most big and medium cities doubled, and in some ca |
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