Government Issues New Draft Regulations on Demolishing Residential Buildings on State-owned Land

According to an article posted on the Web site of the Ministry of Land and Resources, in September 2010, the PRC State Council Legislative Affairs Office called together a group of experts to discuss draft Regulations for Expropriation, Demolition, and Payment of Compensation for Residential Buildings on State-owned Land (New Regulations); experts who attended the meeting reported that the first draft of the New Regulations has been finalized. The Chinese government had issued a comment draft of the New Regulations on the Web site of the Ministry of Housing and Urban-Rural Development on January 29, 2010. The September conference and creation of a formal draft follow a period of increasing protests over demolitions and calls for reform. A September 2010 article in Southern Metropolis Daily profiles three competing draft pieces of legislation on expropriation put forth by different Beijing lawyers in hopes of speeding up work on the New Regulations.

Currently, the 2001 Regulations on Government Housing Demolition in Urban Areas (2001 Regulations) govern the demolition of housing on state-owned land in urban areas. There have been reports of abuses in property demolitions, including a February 2010 report by the non-governmental organization, Chinese Human Rights Defenders, which notes, "The current legal framework governing demolition and eviction offers little protection to homeowners." According to a December 2009 Reuters report, five law professors from Peking University had sent an open letter to the National People's Congress calling for repeal or amendment of the 2001 Regulations. The professors said the regulations did not comply with the Constitution and the Property Law, which provide that citizens should receive fair compensation for property which has been taken. Under the 2001 Regulations, there is no requirement that the government show public interest in requisitioning land, as required under Article 42 of the Property Law, or Article 10 of the Constitution.

The January comment draft includes detailed procedures for requisitions and payments of compensation, requires that requisitions be in the public interest in most cases, and provides some clarity concerning the term "public interest." However, Article 40 of the January comment draft still allows requisitions other than in the public interest under certain circumstances. While a full-text version of the first formal draft of the New Regulations (as discussed at the September meeting) has yet to be released, the September 2010 Ministry of Land and Resources article identifies the following key points of the legislation:

• Sufficient compensation must be provided before property demolition in the name of public interest can be carried out.
• The government must clearly show distinction between public and private interests.
• A dispute resolution agency to determine whether a demolition is truly serving the public interest and/or whether the occupant has been adequately compensated must be created.
• The occupant and the party performing the demolition must enter into an agreement detailing the occupant's consent to the demolition and the amount of compensation, before demolition can take place.
• In order to carry out the renovation of old and dangerous buildings, 90 percent of the building occupants must agree to the project.
• Compensation should be equal to the market value of the residential structure as determined by the consideration of the building's location, use, type, age and location.

According to a Voice of America article in May, "The seizure of land is being described by some analysts as perhaps the biggest threat to the Beijing government." An October 22, 2010 article in Xinhua reported that an anonymous blogger in China has created a "Blood Stained Housing Map" of illegal land grabs and demolitions. According to an October 29 Wall Street Journal article, the map had received over 340,000 views in the three weeks since going up on October 8.

For more information on urban land expropriation, see Section III—Commercial Rule of Law in the CECC 2010 Annual Report.