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Gender and Land Rights Database

China

Rights entrenched in the Constitution

The Constitution, adopted in 1982:
- Article 4 states that all nationalities are equal. “The state protects the lawful rights and interests of the minority nationalities.” Discrimination against and oppression of any nationality are prohibited.

- Article 6: “The basis of the socialist economic system is socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people”.

- Article 8: “Rural people’s communes, agricultural producers’ co-operatives, and other forms of co- operative economy belong to the sector of socialist economy under collective ownership by the working people. Working people who are members of rural economic collectives have the right...to farm private plots of cropland and hilly land, engage in household sideline production and raise privately owned livestock.”

- Article 9: “Mineral resources, waters, forests, mountains, grassland, unreclaimed land, beaches and other natural resources are owned by the state, that is, by the whole people, with the exception of the forests, mountains, grassland, unreclaimed land and beaches that are owned by collectives.”

- Article 10 states that land in the cities is owned by the state.

- Article 12: “Socialist public property is sacred and inviolable.”

- Article 13: “The state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property” and the right of citizens to inherit private property.

- Article 17: “Collective economic organizations have decision-making power in conducting independent economic activities.”

- Article 48 states that women and men enjoy equal rights in all spheres of life, in political, economic, cultural, social, and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike, and trains and selects cadres from among women (14).

- Article 49 stipulates that: “Marriage, the family, mother and child are protected by the State. Both husband and wife have the duty to practice family planning … violation of the freedom of marriage is prohibited. Maltreatment of old people, women, and children is prohibited.” (11)

Women's property and use rights in personal laws

Property Rights Law, 2007:
- Article 2: “This Law shall apply to civil relationship arising from the ownership and utilization of property.”

- Article 4 states that the property rights of the State, collective, individual and other entities are protected by the law and shall not be infringed by any institute or individuals.

- Article 16: “The Real Property Register shall be the basis of evidence pertaining to the ownership and content of the property rights and shall be supervised by the registration department.”

- Article 39: “The owner shall have the right to possess, utilize, dispose off and obtain profits from its real or movable property in accordance with the laws.”

- Article 93 states that real or movable property may be owned jointly by two or more institutions or individuals in co-ownership by proportion and common ownership.

- Article 94: “Each of the co-owners by shares shall enjoy the ownership in respect of the joint real or movable property in proportion to its share”.

- Article 95: “Each of the common owners shall enjoy the ownership in respect of the joint real or movable property.”
- Article 117 states that the owner of the usufructuary right shall enjoy the rights to possess, utilize and obtain profits from the real or movable properties owned by others (20). 

Marriage Law, 1980, amended in 2001
- Articles 2-3 state that marriage must be based on the free choice of partners, on monogamy and on equality between man and woman.

- Article 8 states that after marriage registration, the woman may become a member of the man’s family or vice versa, depending on the agreed wishes of the two parties.

- Article 13: Husband and wife shall have equal status in the family.

- Article 17: The following items of property acquired by husband and wife during marriage shall be jointly possessed: i. pay and bonus; ii. earnings from production and operation; iii. earnings from intellectual property rights; iv. property obtained from inheritance or gift except as provided for in Article 18 of this Law; and v. any other items of property which shall be jointly possessed. Husband and wife shall enjoy equal rights in the disposition of their jointly possessed property.

- Article 18: Prenuptial property in separate possession and property going only to husband or wife, as specified in a will or a gift contract shall be in husband’s or wife’s separate property.

- Article 19: Husband and wife may agree whether they should be in the separate possession, joint possession or partly separate or partly joined of property acquired during marriage and pre-nuptial property. The agreement should be made in writing and shall be binding. Husband and wife shall enjoy equal rights in the disposition of their jointly possessed property.

- Article 31: Husband and wife may apply for divorce to the marriage registration office. The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate arrangements have been made for the care of any children and the disposition of property, shall issue divorce certificates.

- Article 32:  When one party alone desires a divorce, the organizations concerned may carry out mediation, or the party may appeal directly to a people’s court to start divorce proceedings.

- Article 39: Upon divorce, the two parties should reach an agreement on the disposition of the property in the joint possession. If an agreement cannot be reached, the people’s court shall make a judgment in consideration of the actual circumstance of the property and based on the principle of favouring rights of women and interests of children.
The rights and interests enjoyed by husband or wife in the operation of land under a contract based on the household shall be protected according to law.

- Article 40: According to a couple’s written agreement, the items of property acquired during their marriage are in the separate possession. If one party performs more duties in rearing their children, looking after their elders and assisting the other party in work, he or she shall have the right at the time of divorce to request compensation from the other party who shall make the compensation.

- Article 47:  When the couple’s joint property is divided, the party may get smaller or no share of the property if s/he conceals, transfers, sells off, destroys the joint property, or forges debts to convert the other party’s property at the time of divorce. After divorce, an action may be filed in a people’s court making a request for another division of the joint property (15).

Law on the Protection of Rights and Interests of Women, 1992, called Women’s Act: 

- It provides for equality in ownership of property, inheritance rights, and access to education.

- Article 28 states that the state ensures women to have equal rights to property with men.

- Article 29 stipulates that the lawful rights and interests of women in joint ownership relations, as well as in marriage and the family, shall not be infringed. 
- It stipulates that women enjoy rights equal with those of men in the distribution of land under the household contract responsibility system, as well as in the allocation of private plots for growing crops or building houses.

-  Article 30 states that women and men have equal rights to farmland and to foundation plots for housing construction, and that women’s land rights should be protected upon marriage or divorce.

- Article 43 states that wives and husbands have equal rights to possess, use, and benefit from and disposal of the lawful, jointly-owned property, regardless of their respective income levels.

- Article 44 stipulates that, in the case of divorce, the living quarters jointly rented by the husband and wife shall be divided by mutual agreement (16).

Labour Act, 1994:
- Article 13 states that women shall enjoy equal rights as men in employment (17).

Inheritance legal mechanisms

Law of Succession, 1985:
- Article 3 lists inheritable personal properties: i. income; ii. houses, savings, and articles of everyday use; iii. forest trees; iv. cultural objects, books, and reference materials; v. means of production lawfully owned by the deceased; vi. property rights pertaining to copyrights and patent rights; and vii. other lawful property.
- The fifth enumeration of the law exceptionally allows means of production to be privately inherited, as means of production belong to the state (15).
- Article 4 provides that heirs may inherit rights to the subject matter that was contracted to the legator.
- The estate of the deceased includes the land rights he or she obtained during his or her lifetime.
- Article 9 recognizes equal inheritance rights to males and females.
- Articles 10 and 13 grant equal rights to women and men to distribute the estate.
- Article 30 states that the wife has the right to dispose of the property inherited from her deceased husband even if she remarries, without interference (16).

Marriage Law, 1980, amended in 2001:
- Article 24 states that husband and wife shall have the right to inherit each other's property, as shall parents and children (15).

Law on the Protection of Rights and Interests of Women, 1992, called Women’s Act:
- Article 32 states that a widowed woman who was the primary caretaker of her parents-in-law shall be regarded as the first priority heir of the parents-in-law, and her right of inheritance may not be superseded by her children’s right of inheritance (18)

Agriculture Law, 1993:
- Article 13 allows inheritance of rural land rights (18).

Law on Land Contract in Rural Areas, 2003:
- Article 31 explicitly permits inheritance of rights to forested land.
 - Arable land is contracted to household rather than individual members of the household, and one member’s death should not affect the property structure of household landholdings (18).

Land Legislation

Land Administration Law, 1998:
- Article 14 aims to increase households’ land tenure security in three ways: i. extending the length of use term to 30 years; ii. requiring written land use contracts that contain the duration and breadth of household rights to land; iii. reducing the frequency and scope of land  readjustments.

- Land readjustment must be i. appropriate and conducted between isolated farmer households; ii. agreed by 2/3 of the villager assembly or 2/3 of villager representatives; and iii. approved by the township government and the county administrative agency responsible for agriculture.

- Families with daughters who marry out of their village will no longer lose their daughters’ portion of the household land entitlement in their village for the entire 30-year term, nor will the new families of such daughters gain an entitlement at the next readjustment in the husband’s village (16).

Law on Land Contract in Rural Areas, 2003:
- Article 27 stipulates that farmer’s land tenure security must be maintained for at least 30 years during which period no land reallocation are to be carried out, except in case of natural disaster.

- It explicitly stipulates that women shall enjoy the same rights as men in land contracting and management, and that land contracting issues for married, divorced and widowed women shall be properly addressed.

- It forbids mortgage of arable land-use rights, which remain explicitly prohibited under Article 36 of the 1995 Guarantee Law.

- Article 30 states that the contract-issuing party - the collective entity - of a woman’s original residence may not take back her land share when she marries, divorces or widows and moves to a new residence unless she receives an allocation in that new residence (18).

- Any contract issuer who deprives women of their legal rights with regard to land contracting and management or violate such rights shall bear civil liability for cessation of infringements, restitution, rehabilitation, removal of obstacles, elimination of dangers and compensation for losses (19).

- Land contracts are issued in the name of the head of household. Household members’ names may or may not be listed in the contract, but no specific land parcel or parcels are attributed to individual members (20).

- Article 32 states that farmers’ land rights “may be transferred, leased, exchanged, assigned, or transacted by other means in accordance with law”.

- Articles 33, 34 and 35 emphasize the principle of “equal consultation, voluntariness and with compensation”, establishes farmers as  the party to any transactions of rural land use rights and explicitly prohibits local officials from acting to “intercept or reduce” the proceeds from such land transactions (18). 

Agriculture Law, 1993:
- Chapter I states that land in rural and suburban areas is owned by collectives except for those portions belonging to the State.
Forests, mountains, grasslands, non-reclaimed lands, beaches, waters and other natural resources are owned by the State, with the exception of those that are owned by collectives in accordance with the law (20).

Property Rights Law, 2007:
- The purpose of this Law is to clarify the ownership of property and to protect property rights including rights relating to land. The general provisions regarding ownership and utilization of property are listed under the property and use rights in Civil Code subsection.

- Article 42: For the purpose of public interest, the collectively-owned land, houses and other real property owned by institutes or individuals may be expropriated.

- Article 43: The State shall limit the transfer of agriculture land to construction land so as to control the total quantity of construction land. No expropriation of the collectively-owned land shall be allowed.

- Articles 46-48: The State owns all mineral resources, urban lands and natural resources such as forests, mountains, grassland, unclaimed land and beaches, with the exception of the resources that are collectively-owned (20).

General Principles of Civil Law, 1986
- Article 80 includes farmers’ contracting rights to collectively owned land under the general category of “Civil Rights” and the sub-category of “Property Ownership and other Property Rights Related to Property Ownership.” (15)

- In October 2008, the Communist Party of China Central Committee issued a policy document as guidelines to further support land reform and rural development. The policy states that markets for the lease of contracted farmland and transfer of farmland usage rights shall be set up and improved to allow farmers to sub-contract, lease, exchange and swap their land-use rights, or joined share-holding entities with their farmland. Under the policy, farmers are allowed to lease their contracted farmland or transfer their land use rights without going through the village collectives.

The policy also implies that an extension of the 30-year use-right tenure will be guaranteed. However, the nature of collective ownership should not be changed in the transferring or leasing of use right or farmers’ housing plots should not be collaterized.

In the long run, the policy aims at establishing “a uniform market for both urban and rural construction land” giving equal legal status to state-owned and collectively owned construction land and restricting rural land acquisition by local governments (13).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

Law on the Protection of Rights and Interests of Women, 1992, called Women’s Act:
- Stipulates that government agencies, social organizations, enterprises, institutions and grass-roots organizations in urban and rural areas shall ensure that women are able to exercise their rights under the law, and that the State shall create the conditions necessary for them to do so.
- Women organizations, such as the All-China Women’s Federation, may take notice of complaints from women whose rights and interests have been violated and present demand for those cases be investigated and dealt with by the relevant authorities.
- All levels of the Government are responsible for coordinating, examining and supervising the work of the relevant departments in protecting women’s rights and interests (11).

- The 1998 Organic Law of the Villagers’ Committees introduced a provision to suggest an appropriate proportion of female leaders in the village committees and provided a rationale for local agencies to set quotas for women in village elections (11). 

- The 1995-2000 Programme for the Development of Chinese Women set out 11 objectives to be met by the end of the twentieth century with respect to women’s political participation, employment, labour protection, education, health care, poverty alleviation and individual’s rights, as well as related policy measures for their achievement (22).

- The 2001-2010 Programme for the Development of Chinese Women focuses on the implementation of the basic national policy for gender equality, promoting women’s full participation in the economic and social development.
The main objectives of the programme are:
i. to ensure the equal access of women to employment and economic resources;
ii. to ensure women’s political rights and  enhance their participation in the administration, management and decision-making in state institutions;
iii. to guarantee women’s equal access to education, by promoting the improvement of the formal educational level of women;
iv. to make sure that women have access to primary health care services;
v. to support women’s equal access to legal protection and safeguard women’s rights and interests;
vi. to improve the quality of life of women and promote the cause of women’s advancement (23).

- The National Working Committee on Children and Women (NWCCW) was created in 1992 under the State Council as a coordination agency in charge of work pertaining to women and children.
NWCCW prepares and implements national programmes to support women and children, and mainstreams the protection of the rights of women and children to other government departments. NWCCW also provides gender training in the Central Party School to raise the gender- awareness of policy makers so as to support gender sensitive analysis and planning.
Local governments have also established local working committees on women and children, thus creating a network linking all government organizations or departments (11).

- The Ministry of Agriculture has promulgated regulations on labour administration in rural enterprises. These provisions include strict provisions for monitoring the employment of and the health safeguards for women and children, and prohibit enterprises to assign women workers to tasks in underground mines, to any work involving a high level of physical intensity, or other work prohibited by law. Enterprises shall not terminate labour contracts with women employees during pregnancy, the prenatal period or while nursing (19).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography