Implementing Housing Rights in China: Reinterpreting Chinese Constitutional Property

This dissertation, "Implementing Housing Rights in China: Reinterpreting Chinese Constitutional Property" by Gengzhao, Chen, 陈耿釗, was obtained from The University of Hong Kong (Pokfulam, Hong Kong) and is being sold pursuant to Creative Commons: Attribution 3.0 Hong Kong License. The content of this dissertation has not been altered in any way. We have altered the formatting in order to facilitate the ease of printing and reading of the dissertation. All rights not granted by the above license are retained by the author. Abstract: This thesis explores the impact of housing rights jurisprudence on Chinese legal and policy frameworks in the housing sector, examines the key related issues, and assesses whether current practices are in line with international best practice. The thesis considers three major questions, viz. 1 What are housing rights? 2 What is the significance of housing rights in the Chinese context? 3 Given the features and nature of housing rights, and China's transitional societal background, how could housing rights be implemented? By looking at the jurisprudence and jurisprudential development of housing rights in international law and related humanitarian jurisprudence, this thesis proposes a three-layer framework of housing rights, which encompasses property and resource dimensions. While the property dimension requires the state to refrain from interfering in property interest in housing, the resource dimension establishes a set of principles for directing governmental duties in utilizing and redistributing resources. The governments should enable equal and equitable access to housing and housing-related resources, and ensure housing development is a human-centered, sustainability-oriented process. China is a transitional society, where the Constitution shows a trend towards strengthening property rights protection, but institutional constraints on property rights remain. There are also transformative schemes in the housing sector that take the form of land reform and public housing programs. An overview of the housing regime in China identifies three primary limitations: an incoherent legal framework of Chinese takings law related to the property dimension of housing rights; problems with equal and equitable access to land resource as reflected by the urban-rural divide in the land tenure system; and the lack of a sustainability vision in public housing development. It is, therefore, argued that implementing housing rights involves enshrining values and principles related to housing rights in the domestic constitution. This can take the form of reinterpreting the Chinese constitutional property according to the three-layer framework of housing rights. Such a reinterpretation sheds further light on how to resolve the key issues in the current housing regime. This study concludes that housing rights require Chinese constitutional property to strike a balance between protecting existing property-holdings and the transformative schemes in the housing sector. For the property dimension of Chinese constitutional property, housing rights help to construct a coherent jurisprudence for Chinese takings law. The resource dimension of housing rights serves as an assessment tool for the policy framework to guide both the utilization and redistribution of land resources and the development of public housing programs. This facilitates the legal and policy framework in the housing sector to be informed by humanitarian jurisprudence and be in line with international best practice. The pioneering nature of this thesis lies in its exploration of humanitarian jurisprudence which is new to Chinese constitutional reasoning, and the extension of jurisprudential discussion of housing rights to public policy formulation. It is also innovative in proposing the three-layer framework of housing rights. Some of the findings from the discussion of international jurispruden