A Comparative Perspective of Eminent Domain Laws in the United States & China

AuthorArya J. Taghdiri
5 ESSAY_DOMAIN.DOC (DO NOT DELETE) 2019-12-20 11:46 AM
Arya J. Taghdiri
In the United States and China alike, eminent domain proceedings
have uprooted and displaced millions of citizens over the years as to
facilitate and hasten economic development. Both nations’
constitutions share similar texts regarding the limitations of eminent
domain proceedings the scope of which has historically been
broadened and manipulated as to ensure the quick redevelopment of
requisitioned land for economic development purposes. Specifically,
both constitutions require that the eminent domain takings be for
“public purpose/use and that “compensation” in some form or
another be provided to those uprooted. Historically, both nations
have applied a broad reading to “public purpose” and “public
use,” thereby precipitating a pattern of economic development
takings, which, in China have heavily burdened the rural farming
class. This paper will not only analyze both nations’ interpretations
of “public use” and “public purpose” side-by-side, but also how
“compensation,” and “just compensation” standards are
interpreted and enforced by each nation’s government agents and
judiciary. Additionally, this article will evaluate the due process and
constitutional enforcement mechanisms that the United States and
China each have in place to address issues arising from inequitable
eminent domain proceedings.
Leading up to the 2008 Beijing Olympics, the Chinese
Government forcibly displaced approximately 1.25 million people
from their homes in order to facilitate construction.1 Over the past
forty years, the Chinese government has evicted approximately forty
million rural farmers from their homes.2 Most of these evictions
1 See Scott Conroy, Group: Olympics Force Mass Evictions, CBS NEWS (June 5, 2007),
2 Ilya Somin, The Conflict over Takings and Property Rights in China and Its Parallels with That
in the United States, THE WASHINGTON POST (Aug. 8, 2014), https://www.washingtonpost.com/news/
5 ESSAY_DOMAIN.DOC (DO NOT DELETE) 2019-12-20 11:46 AM
emanated from government requisitions of privately owned rural
land for economic development projects. 3 These victimized
landowners, often farmers with little to no political or legal recourse,
are pushed into unfamiliar housings markets with largely inadequate
compensation from the government to show for their troubles.4
According to Cheng Jie, Associate Professor of Law at Tsinghua
University, both individuals and collective organizations in rural
areas often “fail to resist expropriation requests from the State.”5
Chinese “requisitions,” the Chinese form of eminent domain, are
constitutionally permitted as necessary for the “public interest,” and
if “compensation” is provided.6 Chinese property laws, however,
have only just recently explicitly defined what constitutes “public
interest,” or “compensation.”7 Historically, no such definition was
ever provided for by the Chinese government; however, the 2019
Amendment of the Land Administration Law of the People’s
Republic of China spells out rather detailed guidelines, guaranteeing
farmers and those displaced greater financial security.8 But, whether
Chinese officials will heed such instructions remains to be seen,
considering that, historically, constitutional restraints on government
eminent domain (i.e. requisition) powers rarely, if ever, precluded
local Chinese governments from requisitioning rural land for
economic development projects, with landowners denied any
semblance of compensation as constitutionally mandated.9
3 For the remainder of this paper, government condemnations of private property (i.e. eminent
domain proceedings), for the purposes of economic d evelopment projects will be referred to as
“economic development takings.”
4 See id.
5 Cheng Jie, Enforcing Takings Clauses in China, 7 TSINGHUA CHINA L. REV. 191, 192 (2015).
6 This paper will refer to the “public use” and “public interest” requirements of U.S. and Chinese
constitutional eminent domain laws as the “Public Use Doctrine” and the “Public Interest Doctrine,”
7 “In order to strike a balance between economic development and private property protection,
Chinese lawmakers passed several laws to regulate government takings: (1) Article 13 of the
Constitution; (2) Regulations on Urban Housing Demolition and Relocations, 2001 (Regulations);
and (3) Urgent Notice on Diligently Carrying out Urban Housing Demolition and Relocation, and
Maintaining Social Stability (“Notice”).” Chenglin Liu, The Chinese Takings Law from a Comparative
Perspective, 26 WASH. U. J. L. & POLY 301 (2008), http://openscholarship.wustl.edu/law_journal_law_
8 See Tudi Guanli Fa (土地管理法) [Land Administration Law] (promulgated by the Standing
Comm. Nat’l People’s Cong., Jun. 25, 1986, effective Jan. 1, 1980) (2019) (Chinalawinfo).
9 See generally Shintong Qiao & Frank Upham, The Evolution of Relational Property Rights: A
Case of Chinese Rural Land Reform, 100 IOWA L. REV. 2479 (2015).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT