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2 SUN WUKONG China's
rough ideological transition By
Wu Zhong, China Editor
HONG KONG - China's
program of economic reform and opening up to the
world has never gone smoothly. Every major move
has been met with strong opposition from orthodox
Communist Party ideologues and Marxist scholars.
Progress has been made only after a hard struggle
between the reformists and the conservatives, or
"leftists" as the latter are called in China.
Although the voices against reform and
opening up to the
international community get
weaker and weaker with the passage of time, they
nevertheless try to make themselves heard at every
A good example of the ongoing
ideological struggle occurred two years ago when a
Marxist law professor at Peking University voiced
opposition to China's first legislation aimed at
protecting real-property rights. "Real property"
here refers to tangible property in general,
including real estate and movable property.
China's sweeping reforms, started by Deng
Xiaoping in 1979, have largely transformed the
country's Stalinist-style command economy into a
free-wheeling market-oriented one, with the
private sector playing an increasingly important
role in the country's economy.
to a 2006 blue paper on non-public economy by the
All-China Federation of Industry and Commerce, a
non-governmental chamber of commerce composed of
private industrialists and business people, the
private sector was contributing 50% of China's
gross domestic product (GDP) by the end of 2005.
If foreign investors are taken into account, the
contribution to the national economy by the
private sector in the broader sense amounted to
And the private sector has become a
major source of tax revenue for the state.
According to the blue paper, taxes paid by the
private sector at the end of 2005 exceeded those
of the state-owned enterprises. In some regions,
70-80% of the local governments' revenues came
from the private sector.
For this reason
it is only logical to call for legislation to
protect private businesses and private property.
Thus, in March 2004, the National People's
Congress (NPC), China's parliament, revised the
constitution to include a new clause: "Citizens'
legal private property is inviolable." This marked
China's departure from socialism with the
constitutional recognition and protection of
Since China has largely
adopted a continental legal system, with such a
revision it is natural and necessary to enact
relevant laws to back up the new clause in the
constitution. Hence the passage of a real-rights
law is a must.
China already has laws on
intellectual-property rights in force. With a law
on real-property rights, legal protection of
private property would be more complete as both
tangible and intangible properties would be under
In fact, as early as
1998, the Standing Committee of the NPC had
already set up a nine-member team to oversee the
drafting of a real-property law. After the
constitutional revision, a draft real-property law
was ready to be scrutinized and passed by the NPC
in its annual session in March 2006.
However, in August 2005, Gong Xiantian, a
Peking University law professor and Communist
Party member who had studied in the former
socialist Yugoslavia, submitted an open petition
to the NPC Standing Committee saying that the
draft real-rights law "violates the principles of
the constitution". His petition was supported by
about 200 scholars and retired officials.
Gong said the essence of the draft law was
to protect the real rights of the extremely rich
minority, though in form it sounded as if
everyone's rights would be protected. "It equally
protects a rich man's limousine and a beggar's
rod," he said sarcastically.
he slammed the draft law for not copying another
clause in the constitution stipulating that "state
property is inviolable", saying that if legislated
and implemented, the law could cause more
Such an argument is
absurd and not worth refuting. State-asset losses
are largely caused by collusion between corrupt
officials and business people, not because of a
lack of legal protection. In fact, there are legal
stipulations to protect state assets and deal with
such criminal offenses.
As an analogy, no
one can say Hong Kong is short on legal protection
of the banking industry if a bank gets robbed.
Gong obviously based his criticism on an
ideological argument instead of a legal point of
view. As such, he acted in a way that defeated his
own purpose. The draft law is an elaboration of a
new clause in the constitution, and any criticism
must focus on whether it deviates from the spirit
of the constitution. Failing to do this, his
criticism becomes pointless.
perhaps Gong's bluff about "state-asset losses"
touched a sensitive political nerve; NPC chairman