Evolution of property rights in the Chinese legal system, with particular reference to ecclesiastical property

There is no doubt that China is going through a period of great social, economic and legal changes: for some time now, there has been an increasing ‘legalization’ of areas that affect both state organization and the sphere of the individual citizen. For the purposes of this study, the introduction of the property guarantee is the focus of attention. Mention should also be made of the adoption of a new property law in 2007, the introduction of the new Civil Code and other regulatory developments in subsequent years that are related to the guarantee of property. However, it will be the task of this work to take a closer look at developments hastily placed in the context of the rule of law and (fundamental) legal guarantees. The assumption of ‘legalization’, usually understood as the process of transferring issues from a purely political to a legal level, already implies the conceivable possibility of a separation between the two spheres. Certainly, the establishment of a constitutional regime for the protection of private property rights in China necessarily requires the construction of an effective system of constitutional review for acts of the state that may violate private property rights. In October 2017, at the 19th National Congress of the CPC, President XI Jinping proclaimed that the CPC ensures ‘We will strengthen oversight to ensure compliance with the Constitution, advance constitutionality review, and safeguard the authority of the Constitution’. This is the first time that ‘constitutionality review’ appears in China’s official documents, which could be very significant in the coming years for the constitutional protection of private property rights. The current property situation and the constitutional categorization of the new property guarantee cannot be understood in terms of Western values, but are still rooted in traditional Chinese legal thought and China’s socialist constitutional tradition and understanding of the state. In this sense, determining the meaning of today’s Chinese property law can only fall back on the description of the traditional elements of Chinese law. Such inclusion of legal philosophical and sociological foundations, necessarily limited in scope, is indispensable for the understanding and correct categorization of current legal phenomena. This is because property as a concept, and even more so as a ‘right’, always exists in its social and political context.