ACADEMICS, LEGAL PROFESSIONALS AND OFFICIALS DEBATE PROPERTY

C O N F I D E N T I A L SECTION 01 OF 02 SHANGHAI 000518

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STATE PLEASE PASS DOJ
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E.O. 12958: DECL: 8/17/2017
TAGS: PGOV PHUM PINR KJUS ECON CH
SUBJECT: ACADEMICS, LEGAL PROFESSIONALS AND OFFICIALS DEBATE PROPERTY
RIGHTS AT ADMINISTRATIVE LAW CONFERENCE


CLASSIFIED BY: Christopher Beede, Pol/Econ Section Chief, U.S.
Consulate , Shanghai .
REASON: 1.4 (b),(d)




1. (C) Summary: During the August 6-8 National Administrative
Law Society Annual Conference in Nanjing, Chinese legal experts
and officials had lively exchanges on the role of the government
in property disputes. Academics argued for less government
intervention in property dispute cases and more public
supervision of the sale of state-owned assets. Academics also
called on the government to respect the private property rights
of common people and not unduly confiscate private houses in the
name of public interest without due process and full
compensation. Officials attending the conference asserted that
the government needs to actively manage state-owned assets and
the protection of state-owned assets is a political decision to
be decided by the Party and government and not the law. End
Summary.

Property Rights: Less Government, More Public Supervision
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2. (SBU) The National Administrative Law Society held its
annual conference in Nanjing, Jiangsu Province on August 6-8.
The National Administrative Law Society is a semi-governmental
organization with members from government, congress, courts and
universities. Some of its members are involved in drafting
national administrative laws. The theme of this year's
conference was administrative law and property rights
protection. Around 250 Chinese scholars, judges, government
officials and lawyers, as well as FSN Rule of Law Coordinator
attended the conference. The conference was not open to the
media and considered to be an internal conference.


3. (C) During the conference, many scholars called for less
government intervention on property rights disputes. West-South
China University of Law and Politics Professor Wang Xuhui said
the government should use self-restraint and not actively
intervene in property cases at its own will. In addition, the
government should let the market take its own course and
determine property issues. Shandong University Law School Dean
Professor Xiao Jinming said that currently only half of the
government's income comes from taxes and much income comes from
collecting fees from land and selling land use rights. These
functions are not under the People's Congress's supervision and
common people have no voice in property decisions. According to
Xiao, more must be done to strengthen property rights to prevent
the government from being able to dispose of property without
input from the people.


4. (C) The State Council Legislative Affairs Office Policy and
Law Center Director Li Yuede disagreed with the academics. He
said that although there are cases in which the government
should take a back seat and not intervene in property disputes,
there are other cases in which the government must actively
intervene, especially when state-owned enterprises are involved.
The government has two different roles in relation to property.
Government agencies that act as public affairs administrators
should be more impartial and passive on property issues.
However, those agencies that manage state property should act as
asset managers and actively manage their property.

Protection of State-Owned Assets: Legal or Political Issue?
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5. (C) Academics and government officials also disagreed as to
whether the protection of state-owned assets should be governed
by the law or political considerations. Chongqing Municipal
Government Legal Affairs Office Director Li Jianxin claimed that
the issue of protecting state-owned assets is a political issue
and should be decided by the government and Party not by the
law. Suzhou University Professor Huang Xuexian strongly
disagreed and said state-owned assets and private property
should be protected equally under the law. Using the political
system is an excuse and reform of the property system is
necessary. Fudan University Professor Shen Fujun agreed with
Huang and said that only the law should prevail in property

SHANGHAI 00000518 002 OF 002


issues. Some officials should change their minds instead of
changing the law.

Due Process and Full Compensation for Confiscated Property
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6. (C) Participants also debated the issue of land and housing
confiscation. Most academics called on the government to
respect the private property rights of common people and to not
confiscate private houses in the name of public interest without
due process and full compensation. China University of Politics
and Law Professor Zhang Shuyi said that in the current market
economy era, the traditional theory of supreme status of public
interest should be changed. The purpose of the government
should be based on the protection of its citizens' private
property and respecting citizens' land and housing rights is
crucial. China Administrative Law Society Vice Secretary
General Professor Mo Yucuan said confiscation of farmers' land
should be compensated fully not just "reasonably" and the
government should not make profit on such confiscations. He
added that farmers should also be allowed to have their own
representative to help them bargain with the government when
their land is confiscated.


7. (C) Beijing High Court Vice President Wang Zhengqin assured
participants that his court is well prepared for the
implementation of China's Property Law that will enter into
force on October 10. The court will protect farmers' land and
houses, which he called "the lifeline of common people."

It's Not East Being a Lawyer
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8. (C) In one of the more interesting sessions of the
conference, Zhibang Law Firm Partner Li Chen, who was also a
conference sponsor, complained publicly about the dilemma faced
by many administrative litigation lawyers who represent people
suing the government. He said the practice environment for
administrative litigation lawyers is very difficult. Lawyers
often face pressure from the government and many consider it to
be a high risk job. For example, after one trial, he was unable
to leave the courtroom for hours because he was surrounded by
disgruntled people.

Comment
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9. (C) Although the conference was open to academics and
students, it was considered to be an internal conference where
legal experts could candidly discuss issues without the presence
of the media. The discussions provide a rare glimpse into the
type of debates going on among academics and legal professionals
on these sensitive issues and are an indication that at least
some academics and legal professionals are pushing for change.
JARRETT