Property System in Traditional China and Its Enlightenment

• Author: Wang Yang and Li Beini
• Pages: 88-113

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88 TSINGHUA CHINA LAW REVIEW [Vol. 12:87

PROPERTY SYSTEM IN TRADITIONAL CHINA AND ITS

ENLIGHTENMENT

Wang Yang

Li Beini

Abstract

The real property system in the Ming and the Qing Dynasties

manifested itself as a dual structure of the macro and micro real

property order spontaneously formed in local society. Taking “ye”

(property) as the core concept and private contracts as the tool, the

property rights system was composed of various managing

hierarchies and transaction forms. The managing hierarchies were

based on four influencing factors: operating profit, negotiability,

management period and taxation risk. Various types of real property

transactions, based on present and future values, formed a unified

trading chain. The complex real property structure had the positive

function of clarifying property rights and reducing transaction costs,

and it was rooted in the socio-economic transformation of the Ming

and the Qing Dynasties. Our observation is that the characteristics

of the real property system in the Ming and the Qing Dynasties, i.e.

concepts of abstraction and relativity, and flexibility of terms, are

different from the property concept in the civil law system, whose

core is the absolute ownership and the structure of “dominium ius in

re ali ena”. This observation can provide a useful reference for the

current reform in China that aims at the separation of rural land

rights.

I. INTRODUCT ION

The inherent civil law rules concerning farmland industry in the

Ming and the Qing Dynasties included special property arrangement

rules, such as the two-owners-of-one-land system, the property rights

of dien, live sale and absolute sale. Many Chinese scholars studying

the economic history and legal history have accumulated a wealth of

research on the basis of detailed first-hand historical materials, but

there are still few theoretical studies from the perspective of civil law

or property law. Taking a historical perspective, this paper explores

the property system in the Ming and the Qing Dynasties by virtue of

4 ESSAY_PROPERTY.DOC (DO NOT DELETE) 12/20/19 11:59 AM

2019] PROPE RTY SYSTEM IN T RADITIONAL CHI NA AND ITS ENL IGHTENMENT 89

the theories of new institutional economics and modern property

laws, from a perspective of functional comparison.

II. DUAL STRUCTURE OF LAND RIGHTS IN THE MING AND THE QING

DYNASTIES

New Institutional Economics holds that there are two

indispensable tools for understanding institutional structures, namely,

state theory and property rights theory.

1

The property structure in the

Ming and the Qing Dynasties shall be understood from the

perspectives of state theory and property rights theory, which forms a

dual structure. At the macro level, the property structure was subject

to the state’s political powers, and at the micro level, the property

structure was spontaneously formed in the civil society.

At the state level, North believes that the state has a comparative

advantage of exercising power, and the essence of property rights is

exclusive power.

2

Traditionally in China, there was no source

outperforming the state’s powers on land issues. Therefore, every

citizen was a “customer” to be resettled. The decisive factor of land

rights structure was not economic, but the consideration of

“rewarding, granting, and awarding.”

3

As the old saying goes, “all

the land under heaven belongs to the king”, and thus the rights of

landholders could not be expressed as “ownership”. Political power

control and land control (land occupation) were inextricably

intertwined, i.e., the stability of political power promoted the

periodic stability of property relations, and the turbulence of political

power led to the reorganization of property patterns.

The state would provide a set of services (such as judicial

protection), and thus the effect of property system imposed by the

government was nothing more than the collections of taxes and

maintenance of local peace. This stimulated the flourishing of civil

society.

4

At a stage where political situation was relatively stable, a

1

DOUGLASS C. NORTH, STRUCTURE AND CHANGE IN ECONOMIC HISTORY (1st ed. 1981).

2

Id.

3

Wu Xianghong (吴向红), Dian zhi Fengsu yu Dian zhi Falü (典之风俗与典之法律) [The

Custom and the Law of Dian] 68 (2 009).

4

See Cheng Nianqi (程念祺), Guojia de Liliang yu Zhongguo Jingji de Lishi Bianqian (国家的力

量与中国经济的历史变迁) [National Power and the Change of Economic Power in China] 41 (2006).