Compulsory Land Acquisition Reform in China : A

Comparative Analysis with the United States and Australia

Author:
Qu, Xiaomeng
Publication Date:
2021
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 Compulsory Land Acquisition Reform in China:
A Comparative Analysis with the United States and Australia

Xiaomeng Qu

A thesis in fulfilment of the requirements for the degree of Doctor of

Philosophy

Faculty of Law

October 2020
2
 Thesis/Dissertation Sheet

Surname/Family Name : Qu
Given Name/s : Xiaomeng
Abbreviation for degree as give in the University calendar : PhD
Faculty : Faculty of Law
School : Law
Compulsory Land Acquisition Reform in China: A Comparative Analysis with
Thesis Title :
the United States and Australia

Abstract 350 words maximum: (PLEASE TYPE)

The thesis investigates the adequacy of the current compulsory land acquisition regime in China. This issue has become one of the most researched
topics in Chinese academic discourse for more than a decade. This thesis makes an original and significant contribution to the ongoing scholarly debate
by offering a comparative review of the development of the Chinese compulsory land acquisition regime. As is the case with their Chinese counterparts,
the tensions between public and private interests have generated considerate debate in the two Western countries chosen, leading to a significant body
of recent case law and statutory reforms, as well as providing a large amount of empirical evidence about the effectiveness or otherwise of the reforms.

The thesis argues that China has largely developed an adequate land acquisition regime in recent years, which has the potential to achieve a proper
balance between public interests and private property rights. In comparing the three selected regimes, the thesis analyses their respective approaches
to the control of compulsory acquisition power and the payment of just compensation to appropriated landholders. The thesis offers a critical evaluation
of the remaining deficiencies in the Chinese regime and recommendations for improvement drawing on the approaches developed in the United States
and Australia. It is submitted that these recommendations will contribute to achieving a better balance between public and private interests in China’s
compulsory acquisition regime.

Declaration relating to disposition of project thesis/dissertation

I hereby grant to the University of New South Wales or its agents a non-exclusive licence to archive and to make available (including to members of the
public) my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known. I acknowledge that I retain
all intellectual property rights which subsist in my thesis or dissertation, such as copyright and patent rights, subject to applicable law. I also retain the
right to use all or part of my thesis or dissertation in future works (such as articles or books).

…………………………………………………………… ……….……………………...…….…
Signature Date
The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction
for a period of up to 2 years can be made when submitting the final copies of your thesis to the UNSW Library. Requests for a longer period of
restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research.
ORIGINALITY STATEMENT

‘I hereby declare that this submission is my own work and to the best of my
knowledge it contains no materials previously published or written by another
person, or substantial proportions of material which have been accepted for the
award of any other degree or diploma at UNSW or any other educational
institution, except where due acknowledgement is made in the thesis. Any
contribution made to the research by others, with whom I have worked at
UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that
the intellectual content of this thesis is the product of my own work, except to
the extent that assistance from others in the project's design and conception or
in style, presentation and linguistic expression is acknowledged.’

Signed ……………………………………………..............

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after known. I acknowledge that I retain all intellectual property rights which subsist in
my thesis or dissertation, such as copyright and patent rights, subject to applicable law.
I also retain the right to use all or part of my thesis or dissertation in future works (such
as articles or books).’

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 INCLUSION OF PUBLICATIONS STATEMENT

UNSW is supportive of candidates publishing their research results during their candidature
as detailed in the UNSW Thesis Examination Procedure.

Publications can be used in their thesis in lieu of a Chapter if:

• The candidate contributed greater than 50% of the content in the publication and is the
“primary author”, ie. the candidate was responsible primarily for the planning, execution
and preparation of the work for publication
• The candidate has approval to include the publication in their thesis in lieu of a Chapter
from their supervisor and Postgraduate Coordinator.
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party that would constrain its inclusion in the thesis

Please indicate whether this thesis contains published material or not:

☒ This thesis contains no publications, either published or submitted for publication

(if this box is checked, you may delete all the material on page 2)

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(if this box is checked, you may delete all the material on page 2)

☐ This thesis has publications (either published or submitted for publication)

incorporated into it in lieu of a chapter and the details are presented below

CANDIDATE’S DECLARATION
I declare that:
• I have complied with the UNSW Thesis Examination Procedure
• where I have used a publication in lieu of a Chapter, the listed publication(s) below
meet(s) the requirements to be included in the thesis.
Candidate’s Name Signature Date (dd/mm/yy)
Xiaomeng Qu
 Acknowledgements

This research was only possible with the guidance, support and encouragement of
many people. I would like to acknowledge the many helpful hands that reached out to
me during this long and fruitful journey.

I owe the most sincere gratitude to my primary supervisor, Professor Brendan

Edgeworth, for his valuable insights, patient guidance, detailed comments on every
draft of this thesis and timely encouragement at every stage of this research. Without
his mentoring, I could have not completed this thesis on time.

I am also truly grateful to my joint supervisor, Dr Weihuan Zhou, for his constructive
and achievable suggestions on the writing of the thesis, as well as his continuous
support in many aspects of my research and life. He has been an invaluable guide in
many ways during the course of my candidature.

Many thanks also to the members of my Annual Review Panel – Professors Cameron
Holley and Heng Wang, as well as Associate Professors Cathy Sherry and Kun Fan. Their
insightful comments on various drafts of my thesis chapters have been very valuable to
my research.

I am particularly grateful for all the generous support I received during my PhD study.
First, I should mention to the Chinese Scholarship Council for granting me the Full
Research Scholarship, which covered tuition fees and living expenses in Sydney for four
years. And I deeply appreciate Jenny Jarret for her considerate and patient support in
administrative matters. I am also highly grateful to all my friends with whom I shared
both the happiness and the frustrations during the past four years.

Finally, I am greatly indebted to my dear family. Their unlimited love and

understanding have supported me through this particular and often lonely journey in
Australia, as well as encouraged me to pursue my dream as they always do.
 TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................. i

LIST OF FIGURES AND TABLES................................................................... vi
ACRONYMS AND ABBREVIATIONS ...........................................................vii
CHAPTER 1 INTRODUCTION ....................................................................... 1
1.1 INTRODUCTION ...................................................................................................... 1
1.2 AN OVERVIEW OF THE COMPULSORY ACQUISITION REGIME IN CHINA, THE
UNITED STATES AND AUSTRALIA................................................................................. 3
1.3 EXISTING LITERATURE REVIEW AND THE GAPS .................................................... 5
1.4 RESEARCH METHODOLOGY ................................................................................... 8
1.4.1 Doctrinal Research .......................................................................................... 8
1.4.2 Comparative Research .................................................................................. 10
1.5 OUTLINE OF THESIS CHAPTERS ............................................................................ 11
CHAPTER 2 COMPULSORY ACQUISITION REGIMES OF THE UNITED
STATES AND AUSTRALIA: ESTABLISHMENT AND DEVELOPMENT ........... 15
2.1 INTRODUCTION .................................................................................................... 15
2.2 COMPULSORY ACQUISITION IN THE UNITED STATES ......................................... 16
2.2.1 The Ratification of the Fifth Amendment..................................................... 17
2.2.2 Current Compulsory Acquisition Regime in the United States .................... 19
2.2.3 Historical Evolution and Recent Developments of the Compulsory
Acquisition Regime ................................................................................................. 20
2.2.3.1 The 19th century: strong constitutional protection of property ............. 21
2.2.3.2 The 20th century: limited constitutional protection of property ............ 23
2.2.3.3 The 21st century: enhanced statutory protection of property rights...... 24
2.3 COMPULSORY ACQUISITION IN AUSTRALIA ....................................................... 26
2.3.1 Historical Roots of the Current Compulsory Acquisition Regime ................ 26
2.3.2 Current framework of Australian Compulsory Acquisition Law .................. 28

i
 2.3.2.1 Constitutional position ............................................................................ 29
2.3.2.2 Statutory framework ............................................................................... 29
2.3.3 Recent Developments of the Compulsory Acquisition Regime ................... 31
2.4 CONCLUSION ........................................................................................................ 33

CHAPTER 3 PROTECTION OF PROPERTY RIGHTS UNDER CHINA’S

PREVIOUS COMPULSORY LAND ACQUISITION REGIME (PRE-2020) ........ 35
3.1 INTRODUCTION .................................................................................................... 35
3.2 HISTORICAL EVOLUTION OF CHINA’S PREVIOUS COMPULSORY LAND
ACQUISITION REGIME ................................................................................................ 36
3.2.1 Phase 1: Formation (1953–1957) .................................................................. 36
3.2.2 Phase 2: Transition and Overhaul (1958–1977) ........................................... 41
3.2.3 Phase 3: Transformation and Improvement (1978–2019)........................... 45
3.3 CHINA’S POLITICAL AND LEGAL SYSTEM ............................................................. 49
3.3.1 The Party: the Role of the CPC ...................................................................... 49
3.3.2 The State: the Legislature, Executive and Judiciary ..................................... 52
3.3.3 The Law-making Power and the Legislative Framework ............................. 55
3.4 PREVIOUS FRAMEWORK OF CHINA’S COMPULSORY LAND ACQUISITION LAW 58
3.4.1 Substantive Requirements ............................................................................ 58
3.4.2 Procedural Requirements ............................................................................. 61
3.4.2.1 The acquisition notice ............................................................................. 62
3.4.2.2 Claims and determination of compensation ........................................... 62
3.4.2.3 Challenging the amount of compensation .............................................. 63
3.5 WEAKNESSES INHERENT IN CHINA’S PREVIOUS COMPULSORY LAND
ACQUISITION REGIME ................................................................................................ 64
3.5.1 Symbolised Public Interest Requirement ..................................................... 64
3.5.1.1 The absence of a clear definition of ‘public interest’ .............................. 65
3.5.1.2 The executive’s unilateral determination of ‘public interest’ ................. 68
3.5.1.3 Impracticality in the land administration system .................................... 70
3.5.2 Unjust Compensation for Compulsory Acquisition ...................................... 73
3.5.2.1 Unjust standard for the valuation of the acquired land ......................... 73
3.5.2.2 Limited elements for the determination of compensation .................... 75
ii
 3.5.2.3 Administrative discretion in the determination of compensation ......... 77
3.6 CONCLUSION ........................................................................................................ 79
CHAPTER 4 REFORMS AND LATEST DEVELOPMENTS: THE
ESTABLISHMENT OF CHINA’S CURRENT LAND ACQUISITION REGIME .... 82
4.1 INTRODUCTION .................................................................................................... 82
4.2 AN OVERVIEW OF THE PILOT REFORMS (INCLUDING THE LEGISLATIVE PROCESS
OF THE 2019 LAL)........................................................................................................ 83
4.2.1 An Overview of China’s Reform Strategy ..................................................... 83
4.2.2 The Reform Measures and Legislative Process of the 2019 LAL .................. 84
4.2.2.1 The first phase: 2004–2012 ..................................................................... 85
4.2.2.2 The second phase: 2013–2017 ................................................................ 87
4.2.2.3 The third phase: 2017–2019.................................................................... 89
4.3 DEVELOPMENTS AND REMAINING ISSUES OF THE 2019 LAL ............................. 90
4.3.1 Amendment to the Public Interest Requirement ........................................ 90
4.3.1.1 Developments on narrowing down the scope of rural land acquisition . 91
4.3.1.2 Remaining weaknesses of the public interest prerequisite .................... 95
4.3.2 Amendment to the Compensation for Land Acquisition ............................. 98
4.3.2.1 Developments on establishing a reasonable, regularised and
multidimensional safeguard mechanism ............................................................ 98
4.3.2.2 Remaining weaknesses inherent in the compensation regime ............ 102
4.3.3 Amendment to the Procedures of Land Acquisition .................................. 103
4.3.3.1 Developments on standardising acquisition procedures ...................... 103
4.3.3.2 Remaining weaknesses in land acquisition procedures ........................ 106
4.4 THE CAUSE OF REMAINING ISSUES AND OPPORTUNITIES FOR FUTURE REFORM
.................................................................................................................................. 108
4.4.1 The Key Cause of Remaining Issues in the 2019 LAL .................................. 108
4.4.2 Opportunities for Future Reform of China’s Land Acquisition Regime ..... 110
4.5 CONCLUSION ...................................................................................................... 112
CHAPTER 5 CONTROLS OVER THE POWER OF COMPULSORY
ACQUISITION ......................................................................................... 114
5.1 INTRODUCTION .................................................................................................. 114

iii
 5.2 THE PUBLIC USE REQUIREMENT IN THE UNITED STATES ................................. 115
5.2.1 Public Use Tests and the Kelo Decision ...................................................... 116
5.2.2 Post-Kelo Developments: Imposing Legislative Restrictions on the Use of
the Takings Power ................................................................................................ 121
5.2.2.1 Substantive arrangements: narrowing the legitimate scope of ‘public use’
........................................................................................................................... 121
5.2.2.2 Procedural arrangements: adding additional pre-expropriation
procedures ......................................................................................................... 127
5.3 THE LEGISLATION-BASED APPROACH IN AUSTRALIA ....................................... 130
5.3.1 Controls on the Power of Compulsory Acquisition and the Fazzolari Case
............................................................................................................................... 130
5.3.2 Latest Procedural Improvements in New South Wales: Including additional
Pre-acquisition Procedures .................................................................................. 134
5.4 LESSONS FOR CHINA’S LAND ACQUISITION LAW AND PRACTICE .................... 138
5.4.1 Tract Development Acquisition under the 2019 LAL ................................. 139
5.4.2 The Functions of Chinese Courts in Land Acquisition ................................ 140
5.4.2.1 The general policy of judicial deference ............................................... 140
5.4.2.2 Chinese courts’ strategic approach to compulsory acquisitions ........... 141
5.4.3 Procedural Recommendations for China’s Land Acquisition Law ............. 147
5.4.3.1 Introducing an acquisition-by-agreement mechanism ......................... 148
5.4.3.2 Providing additional pre-acquisition procedures .................................. 149
5.4.3.3 Establishing a post-acquisition information disclosure mechanism ..... 150
5.5 CONCLUSION ...................................................................................................... 151
CHAPTER 6 JUST COMPENSATION FOR COMPULSORY LAND ACQUISITION
............................................................................................................... 152
6.1 INTRODUCTION .................................................................................................. 152
6.2 FUNDAMENTAL THEORIES OF COMPENSATION FOR COMPULSORY
ACQUISITION ............................................................................................................ 153
6.3 JUST COMPENSATION IN THE UNITED STATES ................................................. 156
6.3.1 Constitutional Measures of Just Compensation ........................................ 156
6.3.1.1 Fair market value standard and measures of valuation ........................ 156
6.3.1.2 Evaluation of the fair market value standard ........................................ 160
iv
 6.3.2 Post-Kelo Developments: Providing Increased Compensation ................. 164
6.4 JUST TERMS COMPENSATION IN AUSTRALIA ................................................... 168
6.4.1 General Principles of Just Terms Compensation ........................................ 169
6.4.2 Recent Development of the New South Wales Compensation Regime ... 174
6.5 LESSONS FOR CHINA’S COMPENSATION LAW AND PRACTICE ......................... 176
6.5.1 Compensation Regime under China’s Existing Land Acquisition Law ....... 177
6.5.1.1 Compensating for all three categories of loss ....................................... 177
6.5.1.2 Replacing the market value with replacement value ............................ 179
6.5.1.3 Improving the compensation process ................................................... 180
6.5.2 Recommendations for China’s Land Acquisition Law ................................ 180
6.5.2.1 Allowing an increased compensation standard .................................... 181
6.5.2.2 Allowing the recovery of legal costs and lawyers’ fees ......................... 182
6.5.2.3 Awarding solatium to the displaced homeowners ............................... 185
6.6 CONCLUSION ...................................................................................................... 193
CHAPTER 7 CONCLUSION ....................................................................... 194
7.1 INTRODUCTION .................................................................................................. 194
7.2 THESIS QUESTIONS AND FINDINGS ................................................................... 194
7.3 FINDINGS AND RATIONALES .............................................................................. 196
7.3.1 Constitutional Protection of Property Rights and Statutory Compensation
under the Three Jurisdictions............................................................................... 196
7.3.2 The United States and Australian Approaches to Achieve An Appropriate
Balance .................................................................................................................. 197
7.3.3 Lessons for China ......................................................................................... 198
7.4 OBJECTIVES OF THE THESIS ................................................................................ 201
BIBLIOGRAPHY....................................................................................... 204

v
 LIST OF FIGURES AND TABLES

Figures:

Figure 3.1 Hierarchy of China’s Legislative Framework ................................................. 58

Figure 3.2 Rural Land Acquisitions in China in the Past Two Decades ........................... 68
Figure 3.3 Interaction between Three Land Administrative Institutions ....................... 72
Figure 4.1 Two Ways to Obtain Rural Land .................................................................... 94

Tables:

Table 3.1 Compensation Provisions in the 2004 LAL...................................................... 59

Table 3.2 The Weaknesses of China’s Previous Land Acquisition Regime ..................... 80
Table 4.1 Changes to the Land Acquisition Procedures ............................................... 106
Table 4.2 Major Improvements and Remaining Issues under the 2019 LAL................ 112

vi
 ACRONYMS AND ABBREVIATIONS

ALL Administrative Litigation Law

ARL Administrative Reconsideration Law

Berman Berman v Parker, 348 US 26 (1954)

CPC Communist Party of China

Durham Durham Holdings Pty Ltd v New South Wales [2001] HCA 7

Fazzolari R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty
Limited v Parramatta City Council (2009) 237 CLR 603

FRCL For-profit Rural Construction Land

Housing Acquisition NSW Housing Acquisition Review Summary Report

Review

Kelo Kelo v City of New London, 545 US 469 (2005)

LAL Land Administration Law

LAL Regulation Regulation on the Implementation of the Land Administration Law

LUMP Land Use Master Plan

LURs Land Use Rights

Measures of Measures of Ma’anshan Municipality on Compensation and

Ma’anshan Resettlement in the Expropriation of Collective Land
Municipality

Measures of Measures of Shaoyang Municipality on the Expropriation of Rural

Shaoyang Collective Land and Compensation and Resettlement for Housing
Municipality Demolition and Relocation

Midkiff Hawaii Housing Authority v Midkiff, 467 US 229 (1984)

vii
Miller United States v Miller, 317 US 369 (1943)

MLR Ministry of Land and Resources

MNR Ministry of Natural Resources

MPNLE Measures for Public Notice of Land Expropriation

NPC National People’s Congress

NSW Government NSW Government Response to Review of the NSW Land Acquisition
Response (Just Terms) Compensation Act 1991 and Housing Acquisition Review
(2016)

Olson Olson v United States, 292 US 246 (1934)

PHLR Provisions on the Hearings of Land and Resources

Poletown Poletown Neighbourhood Council v City of Detroit, 304 NW 2d 455

(Mich, 1981)

PRC People’s Republic of China

RECHSL Regulation on Expropriation and Compensation of Houses above

State-owned Land

Rules of the Rules of the Supreme People’s Court on Several Issues concerning the
Supreme People’s Trial of Administrative Cases involving Rural Collectively Owned Land
Court on Several
Issues

Russell Review Review of the Land Acquisition (Just Terms Compensation) Act 1991

SCNPC Standing Committee of National People’s Congress

Spencer Spencer v Commonwealth [1907] 5 CLR 418

Typical Cases of Typical Cases of Expropriation and Demolition from People’s Courts
Expropriation and (the Second Batch)
Demolition

Urban China Urban China: Toward Efficient, Inclusive, and Sustainable Urbanization

2004 Reform Decision of the State Council on Deepening Reforms and Intensifying
viii
Decision Strict Land Administration

2005 Notice Notice of the Ministry of Land and Resources on Formulating

Expropriation Unified Annual Output Standard and Comprehensive
Land Section Price

2017 Explanatory Explanatory Report on the Exposure Draft of Amendment to the Land
Report on the Administration Law
Exposure Draft of
Amendment to the
LAL

2018 Summary Summary Report on the Trial Reform of Rural Land Acquisition,
Report on the Trial Marketisation of Collective-owned For-profit Rural Construction Land
Reform and Residential Land Regimes

564.54 Acres of Land United States v 564.54 Acres of Land, 441 US 506 (1979)

ix
 CHAPTER 1 INTRODUCTION

1.1 INTRODUCTION

The fast-growing demand for new cities and public infrastructure has created an
increasingly pressing need for compulsory acquisition of land by governments in all
societies. China is no exception, with the scale of urban development and land
acquisition reaching an historical high. For instance, the Chinese government
expropriated more than 5.2 million hectares land in rural areas (around 13 million
acres) from 2004 to 2017 for large public infrastructure projects (ie, railways, airports,
roads, and high-speed rail) and commercial, residential as well as industrial
development, in order to meet social and economic needs.1

The consequence has been, as in many other societies, heightened tensions between
public interests and private property rights. As a consequence, the Chinese land
acquisition regulatory regime, which has undergone significant developments in the
past three decades, has become even more important today. This thesis will critically
review the establishment and development of China’s compulsory land acquisition
regime to explore its strengths and weaknesses, with a focus on the most recent
regulatory reforms.2 It will also compare the Chinese regulatory approaches with those
developed in the United States and Australia and draw lessons and guidance for the
improvement of the Chinese regime with regard to the fundamental question of how
to strike an appropriate balance so as to prevent the pursuit of public goods from
unduly impeding the need to respect people’s property rights.3

To achieve these research objectives, the research proposes to explore three

interrelated issues:

1
Calculated from data recorded in China’s land resource statistical yearbooks. See Chapter 3.
2
See Chapters 3 and 4.
3
See Chapters 2, 5 and 6.

1
1. How Chinese approaches to constitutional property on the one hand, and statutory
compensation regimes on the other, compare with those of the United States and
Australia.

2. Whether the United States and Australian current approaches achieve a reasonable
balance?

3. Which aspects, if any, of the United States or Australian approaches might be

adopted and how these approaches might be deployed to improve China’s law?

In general terms, therefore, this thesis aims to investigate the adequacy of the current
compulsory land acquisition regime in China. This issue has become one of the most
researched topics in Chinese academic discourse for more than a decade.4 This thesis
proposes to make an original and significant contribution to the ongoing scholarly
debate by offering a comparative review of the development of the Chinese
compulsory land acquisition regime. As is the case with their Chinese counterparts, the
tensions between public and private interests have generated considerate debate in
the two Western countries chosen, leading to a significant body of recent case law and
statutory reforms, as well as providing a large amount of empirical evidence about the
effectiveness or otherwise of the reforms.

The thesis argues that China has largely developed an adequate land acquisition
regime in recent years, which has the potential to achieve a proper balance between
public interests and private property rights. In comparing the three selected regimes,
the thesis analyses their respective approaches to the control of compulsory
acquisition power and the payment of just compensation to appropriated landholders.
The thesis offers a critical evaluation of the remaining deficiencies in the Chinese
regime and recommendations for improvement drawing on the approaches developed

4
See, eg, Chun Peng, Rural Land Takings Law in Modern China: Origin and Evolution (Cambridge
University Press, 2018); Chuanhui Wang, The Constitutional Protection of Private Property in China:
Historical Evolution and Comparative Research (Cambridge University Press, 2016); Ting Xu, The Revival
of Private Property and Its Limits in Post-Mao China (Wildy, Simmonds & Hill Publishing, 2014). See more
detail in Section 1.3.

2
in the United States and Australia. It is submitted that these recommendations will
contribute to achieving a better balance between public and private interests in
China’s compulsory acquisition regime.

1.2 AN OVERVIEW OF THE COMPULSORY ACQUISITION REGIME IN CHINA,

THE UNITED STATES AND AUSTRALIA

The assembly of numerous parcels of contiguous land is essential for all major
infrastructure projects in all societies. Thus, it is uncontroversial that governments
have the right to acquire private property for public purpose.5 This right is an inherent,
rather than contingent one, for every sovereign state.6

While private land ownership is not recognised in China, the land acquisition power is
indispensable for the state for the reason that China established a dual-track land
ownership system in the 1980s: urban land is owned by the state while rural land is
owned by rural collectives.7 Rural land accounts for nearly half of China’s land area,8
and thus the compulsory acquisition of collective-owned parcels (commonly referred
to as rural land acquisition) is important for the construction of essential public
infrastructure by governments. Accordingly, compulsory land acquisition in China
refers to the compulsory transfer of collective-owned rural land to the state, which is
enshrined in art 10 of the Constitution of the People’s Republic of China (2018

5
Gregory Alexander and Eduardo Peñalver, An Introduction to Property Theory (Cambridge University
Press, 2012) 157.
6
F A Mann, ‘Outlines of a History of Expropriation’ (1959) 75 Law Quarterly Review 188, 189.
7
《中华人民共和国宪法（2018 修正）》[Constitution of the People’s Republic of China (2018
Amendment)] art 10(1)–(2) (‘2018 Constitution’) (‘Land in the urban area is owned by the state. Land in
the rural and suburban area is owned by collectives except for those potions that belong to the state in
accordance with the law; residential sites and privately farmed plots of cropland and hilly land are also
owned by collectives’). The evolution of China’s property system will be discussed in Chapter 3.
8
Calculated from data recorded in China Science Centre of International Eurasian Academy of Sciences
et al, The State of China’s Cities 2014/2015 (March 2014) 20
<https://unhabitat.org/sites/default/files/download-manager-files/State%20of%20China%20Cities.pdf>.
The third national land survey launched by the Ministry of Natural Resources will be completed by the
end of 2020.

3
Amendment).9 It provides that ‘[t]he state may expropriate or requisition land for the
public interest, and pay compensation in accordance with the law’.10

Significantly for this thesis, this provision seems to place similar constitutional
limitations on the power of land expropriation as those found in other countries, most
notably the United States. The Fifth Amendment to the United States Constitution
provides that ‘nor shall private property be taken for public use, without just
compensation’.11 While the form of Chinese constitutional acquisition provision differs
slightly from the United States Fifth Amendment, the similarities between the two
provisions are hard to overlook: that is, the common requirements of public interest
and compensation, which limit the compulsory acquisition power of all levels of
government.12 It follows that the federal law sets the baseline for land expropriation
issues in the United States. Nevertheless, there is considerable diversity in the laws
adopted by individual states, as exemplified in extensive statutory reforms in response
to the Supreme Court’s ruling in the high-profile Kelo v City of New London.13

Similarly, section 51(xxxi) of the Australian Constitution, which was influenced by the
United States provision,14 also shares some similarities with China’s constitutional land
acquisition provision. It provides that the Parliament has the power to make laws with
respect to ‘the acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make laws’.15 Even though
there is no express reference to limiting land acquisition power to ‘public purpose’, 16 s
51(xxxi), like its Chinese counterpart, is expressed in the form of a grant of power. This
characteristic makes Chinese and Australian provisions diverge from most other
9
2018 Constitution art 10(3).
10
The compulsory acquisition of land is also referred to as ‘expropriation’ in China and ‘eminent domain’
or ‘takings’ in the United States. Requisition of property, under the Property Law, refers to temporary
acquisition of use rights of real or movable properties of entities or individuals for the purpose of
emergency handling and disaster relief.
11
United States Constitution amend V.
12
See Chapters 2 and 3.
13
545 US 469 (2005). See Chapters 5 and 6.
14
See Chapter 2.
15
Australian Constitution s 51(xxxi).
16
For the notion of public purpose in Australia regime, see more detail in Chapter 5.

4
constitutional land acquisition provisions in the world.17 However, unlike the position
in China and the United States, property is not constitutionally protected in the
Australian states and territories, but by various state legislation. This asymmetry of
protection between the federal and state spheres will be discussed in detail in Chapter
2.

In addition to explicit textual similarities between the three countries’ constitutional

acquisition provisions, the United States and Australian systems are comparable from
two broader perspectives: property regime and political system. First, while the
philosophical basis for the three property systems runs the ideological gamut from the
radical left (communism) to the conservative right (classic liberalism), they all provide
moderate private property protection through the payment of more or less generous
compensation to property holders.18 Second, even though the three countries have
different political regimes, they all vest considerable authority in their legislatures to
draw a proper line between public and private spheres.19 These similarities provide the
socio-legal background essential for drawing lessons from the United States and
Australia for the improvement of the Chinese system.

1.3 EXISTING LITERATURE REVIEW AND THE GAPS

As noted above, the existing literature on the developments of China’s land acquisition
regime over the past decades is extensive. Some studies have concentrated on the
issue of public interest requirements. For instance, Jialong Liang, Jinguang Hu and Kai
Wang focus on establishing a narrower or clearly defined definition of ‘public interest’
to restrain the abuse of land acquisition power.20 By contrast, Qianfan Zhang and

17
See generally, AJ van der Walt, Constitutional Property Clauses: A Comparative Analysis (Juta, 1999);
Björn Hoops et al (eds), Rethinking Expropriation Law I: Public Interest in Expropriation (Eleven
International Publishing, 2015).
18
See Chapters 2 and 3.
19
Ibid.
20
廖加龙 [Liao Jialong], 《关于 “公共利益” 的范围》[On the Scope of Public Interest] (2006) 7 人大研
究 People’s Congress Research 29; 胡锦光, 王锴 [Hu Jinguang and Wang Kai], 《论我国宪法中 “公共利
益” 的界定》 [The Definition of Public Interest in Chinese Constitution] (2005) 1 中国法学 China Legal
Science 18.

5
Xiangmin Liu approach the issue by comparing it with that in the United States,
proposing that the legislature should be involved in the decision-making process.21
Liming Wang addresses the public interest requirement in the property law, arguing
that it is necessary to empower the judiciary to determine whether the acquisition in
question meets the requirement of public interest in specific cases.22 Other studies
have looked at the compensation issue in the land acquisition context. For example,
Maohui Qu and Zhifang Zhou explore the deficiencies of China’s compensation regime
by focusing on local regulations on compensation standards for land acquisition.23
Zhang, Liu and Zhihong Song outline the fair market value principle in the United States
and propose the importation of that standard.24

Today, discussions on these two issues still play a role in the recent literature of
China’s land acquisition regime. For example, in a comprehensive analysis of private
property rights in general in recent Chinese history, Ting Xu has pointed out that
private property rights are still vulnerable to land acquisition due to the inadequate
compensation and ambiguous meaning of ‘public interest’ provided by the law.25
However important and path-breaking the above range of scholarly work is, it does not
address the land acquisition issues in detail.

21
张千帆 [Zhang Qianfan], 《 “公共利益” 的困境与出路：美国公用征收条款的宪法解释及其对中国
的启示》[The Dilemma and Solution of Public Interest: The Constitutional Interpretation of the
American Takings Clause and its Implications to China] (2005) 5 中国法学 China Legal Science 36; 刘向
民 [Liu Xiangmin] 《中美征收制度重要问题之比较研究》 [A Comparative Study of the Important
Issues in Compulsory Acquisition Regimes in China and the United States] (2007) 6 中国法学 China Legal
Science 3.
22
王利明 [Wang Liming], 《论征收制度中的公共利益》[On Public Interest in the Expropriation
Regime] (2009) 2 政法论坛 Tribune of Political Science and Law 22. Liming Wang is one of the foremost
civil law scholars in China and is also one of the drafters of the 2007 Property Law. The drafting of the
Property Law will be examined in Chapter 3.
23
屈茂辉、周志芳 [Qu Maohui, Zhou Zhifang], 《中国土地征收补偿标准研究—基于地方立法文本的
分析》 [Study on Compensation Standards for Land Expropriation in China — An Analysis based on
Local Legislative Texts] (2009) 3 法学研究 Chinese Journal of Law 163.
24
张千帆 [Zhang Qianfan], 《 “ 公正补偿” 与征收 权 的宪法限 制》 [Just Compensation and
Constitutional Limitations on the Compulsory Acquisition Power] (2005) 2 法学研究 Chinese Journal of
Law 25; 刘向民 [Liu Xiangmin], above n 21; 宋志红 [Song Zhihong], 《美国征收补偿的公平市场价值
标准及对我国的启示》[The Fair Market Value Standard in the Compensation for Eminent Domain in
the United States and Implications for China] (2014) 6 法学家 The Jurists 123.
25
Xu, above n 4, 141–2.

6
Moreover, in an important recent systematic and comparative analysis of the
constitutional protection of private property in China, Chuanhui Wang reveals ‘the
unfairness, unjustness and insufficiency in China’s application of three constitutional
doctrines – public use, just compensation and due process or procedure’ by comparing
China with the United States, Germany and India.26 He further points out that ‘[t]he
reform progress of relevant legislation in executing the three prongs of the “taking
clause” is still limited and … is far from the common standards of Western countries’.27
Thus, China should draw on the experiences of these countries to achieve a reasonable
balance between the protection of private property and the needs of the public
interest.28

More recently, Chun Peng explores why these hotly-debated issues have not been
addressed in the past decades. In contrast to Wang’s comparative research, Peng’s
work centres on the immanent critique of China’s law. By examining the origin and
evolution of the land acquisition law, Peng observes an enduring tradition of land
acquisition for social transformation in China, under which the law was designed to be
power-confirming rather than power-constraining like the United States model.29 On
the other hand, given the changed socio-political circumstances and a new rights-
protecting constitutional agenda, Peng points out a rebalance of the law is underway,
but only within existing parameters. This is because, unlike Wang, Peng observes that
China’s law grows out of its own history and value and thus will be unlikely to conform
to Western legal approaches (constraining the land acquisition power), especially that
adopted by the United States.

The originality of this thesis lies in the specific way it adopts a comparative approach. It
looks at the most recent developments in Australia (which is a typical example of the

26
Wang, above n 4, title page.
27
Ibid 307.
28
Ibid 4.
29
Peng, above n 4, title page. The changing agenda of the Chinese constitutional land acquisition
provision will be discussed in Chapter 3.

7
statutory balancing of public and private interests),30 but also takes into account much
more recent United States Kelo-related constitutional jurisprudence as well as the
post-Kelo legislative reforms.31 The thesis also focuses in detail on the procedural
mechanisms for protecting private property holders, which receives scant attention in
compulsory acquisition scholarship. These developments will be set against important
recent changes to China’s land acquisition law in 2019, which have not to date been
analysed in depth.32 This comparative exercise will then be developed to inform ways
to improve the current Chinese regime in ways that would establish a fairer balance
between public and private interests.

1.4 RESEARCH METHODOLOGY

The thesis conducts a mix of doctrinal and comparative research to address the
research questions set out in Section 1.1.

1.4.1 Doctrinal Research

This thesis uses doctrinal research to investigate China’s land acquisition regime
because, as Peng has observed, a comparative approach treats Chinese legal system
explicitly or implicitly as an imperfect realisation of the Western legal system (referred

30
For example, in China Sino-United States comparative studies are prevalent. By contrast, there are
only two studies have briefly introduced Australian land acquisition regimes. See Michael Crommelin, 胡
玉桃（译）[Hu Yutao trans], 《澳大利亚的土地权益及其征收与管理》 [Land Rights, Compulsory
Land Acquisition and Land Management in Australia] in 张千帆（主编）[Zhang Qianfan (ed)], 《土地管
理制度比较研究》 [A Comparative Study of Land Reform] (中国民主法制出版社 [China Democracy
and Legal System Publishing House], 2013) 116–26 (introducing the constitutional background, land
rights system, compulsory land acquisition regimes and land use planning); 李志强 [Li Zhiqiang], 《澳大
利亚土地征收制度初探》[A Preliminary Study of Land Expropriation System in Australia] in 姜明安
（主编）[Jiang Minan (ed)], 行政法论丛（第 14 卷）[Administrative Law Review (vol 14)] (法律出版
社 [Law Press China], 2011) 73–93 (introducing the land tenure system and compulsory land acquisition
regime concerning the procedures and the determination of compensation). These researches do not
provide a comprehensive review of Australian compulsory acquisition regime.
31
For example, both Wang’s and Peng’s analyses do not contain a detailed discussion of recent post-
Kelo legislative reforms concerning the control of government’s expropriation power and just
compensation in the United States.
32
Both Wang’s and Peng’s analyses were published before the 2019 legislative changes.

8
to as the ‘ideal Western legal order’33), and thus has difficulty clarifying its ‘internal
structures, values and dynamics’. 34 The findings of the doctrinal research will
constitute the basis of the discussions of China’s land acquisition regime and the
comparison with those of the United States and Australia.

Specifically, the research employs both descriptive and interpretive approaches to

outline and explain the Chinese regime.35 First, in order to offer a systematic overview
of the evolution process of China’s land acquisition regime, this thesis divides the
process into four phases: formation (1953–1957), transition and overhaul (1958–1977),
transformation (1978–2019), 36 as well as pilot reforms and recent developments
(2004–2020).37 It is important to note that the overlap between the third and last
phases is due to the adoption of an ‘experimental strategy’ by the Chinese government
in the pilot reforms (2004–2018).38 In general, pilot reform policies are not formal
statutory rules, which are only implemented in a few selected pilot areas. It follows
that land acquisitions in China were governed by a mixture of laws (apply nationwide)
and pilot policies (apply in selected areas) from 2004 to 2018. A brief overview of the
pilot reforms is necessary because some successfully trialled measures have been
incorporated into the 2019 Amendment to the Land Administration Law of the
People’s Republic of China (2019 LAL), 39 the main body of law relating to land
expropriation. The 2019 LAL commenced on 1 January 2020, which represented the
establishment of China’s current land acquisition regime.

33
Donald Clarke, ‘Puzzling Observations in Chinese Law: When Is a Riddle Just a Mistake?’ in C Stephen
Hsu (ed), Understanding China’s Legal System (New York University Press, 2003) 93–121.
34
Peng, above n 4, 24–5.
35
Various approaches have been employed to conduct doctrinal research. See generally, Mark Van
Hoecke (ed), Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? (Hart
Publishing, 2013) x.
36
See Chapter 3.
37
See Chapter 4. The pilot reforms started just two months after the amendment of Land
Administration Law in 2004.
38
This strategy will be discussed in Chapter 4.
39
《中华人民共和国土地管理法（2019 修正）》[Land Administration Law of the People’s Republic
of China (2019 Amendment)] (People’s Republic of China) Standing Committee of the National People’s
Congress, 26 August 2019, art 48. The LAL was enacted in 1988 and was amended in 1988, 2004 and
2019.

9
Second, in order to provide an interpretive account of the current land acquisition
regime, this thesis compares it with the previous one (employed before 1 January 2020)
in three key respects: the public use requirement in land acquisition, compensation for
land acquisition, and land acquisition procedures. The comparisons are essential for
exploring the strengths and weaknesses of China’s existing land acquisition regime.

However, the law in action may not always be consistent with ‘law in the books’, so
that the thesis will also consider the state-society interaction in compulsory land
acquisition in the relevant sections. Specifically, Chapter 3 will discuss the historical
development of China’s expropriation regime in the broader context of China’s
political and legal system. Moreover, in making recommendations for amendments of
procedural rules in Chapters 5 and 6, the thesis will discuss the feasibility of these
recommendations in practice. But it should be emphasised at this point that this thesis
focuses on the reforms to the legal framework, not their practical implementation or
effects. Therefore, a comprehensive and thorough social-legal analysis, as Yun-chien
Chang has adopted in his research,40 is beyond the scope of this thesis.

1.4.2 Comparative Research

This thesis employs comparative research to discover the difference and similarities
between the approaches adopted by China, the United States and Australia to address
certain land acquisition issues. The thesis also contrasts the United States approaches
with those of Australia to provide a bigger picture of the different property protection
models in the Western system.

This comparative approach has two dimensions. The first dimension entails a contrast
of the general models of property protection in China, the United States and Australia.
This thesis uses the ‘structural method’ to construct the comparison. Structural

40
Yun-chien Chang, Private Property and Takings Compensation: Theoretical Framework and Empirical
Analysis (Edward Elgar Publishing, 2013). Using econometric methods and unique data from both New
York City and Taiwan, Chang empirically examines the takings compensation awarded under different
assessment methods and provides policy suggestions. Chang’s empirical analysis and suggestions will be
discussed in Chapter 6.

10
analyses focus on ‘the structures hidden within the phenomenon being observed’, and
‘may be made in many different ways, on the basis of a large variety of distinctions and
criteria’. 41 Accordingly, this thesis discovers and clarifies the similarities and
distinctions ‘hidden’ within the similar model of protection of property rights in the
three countries from two perspectives: that is, the property and political systems
(Chapters 2 and 3). 42 These comparisons also provide a macro-level contextual
background for the second dimension.

The second dimension analyses the protection of property rights from legislative
encroachment at the micro-level. The ‘functional method’ is used to construct the
comparison. It is based on the theory that ‘rules and concepts may be different, but
that most legal systems will eventually solve legal problems in a similar way’.43 Thus,
this thesis identifies the approaches adopted by China, the United States and Australia
to controlling the power of compulsory acquisition and offering just compensation to
appropriated landholders (that is, the functional equivalents at the level of the
solutions) in order to address the tensions between public interests and private
property rights, and makes comparison among them.

1.5 OUTLINE OF THESIS CHAPTERS

The thesis is structured as follows.

Chapter 2 examines in general terms the establishment and development of the

United States and Australian compulsory acquisition regimes, as well as explores the
mode of property protection that they provide. The Chapter begins by examining the
ratification of the United States Fifth Amendment and the changed policies and models
of property protection over the last two centuries in that country. The Chapter then
discusses the compulsory acquisition regime in Australia, which entails both the
federal and state laws. The Chapter ends by offering observations about broader

41
Mark Van Hoecke, ‘Methodology of Comparative Legal Research’ (2015) 12 Law and Method 1, 11–13.
42
Ibid.
43
Ibid 9.

11
similarities shared by the two countries in their property and political contexts, with a
focus on their positions on property protection.

Chapter 3 provides a comprehensive and systematic review of China’s historical land

acquisition regimes (1953–2019) to explore the varying protection of property rights
accorded by the law. The Chapter also provides an overview of the political and legal
systems in order to facilitate the understanding of the development of Chinese land
acquisition regime over recent decades. The Chapter then briefly outlines China’s
previous framework of land acquisition law, followed by an in-depth analysis of its
deficiencies. In so doing, it lays the foundation of the comparison between China’s
previous and current land acquisition regimes (Chapter 4). The Chapter concludes with
a summary of the broader similarities between China, the United States and Australia
in the property and political systems (as identified in Chapters 2 and 3), as well as the
weaknesses inherent in China’s previous land acquisition regime.

Chapter 4 focuses on recent pilot reforms and China’s current land acquisition regime.
The Chapter begins by reviewing the pilot policies rolled out by the CPC since the early
2000s. The Chapter examines the changes to land acquisition provisions in the 2019
LAL to explore whether the weaknesses discussed in Chapter 3 have been properly
addressed. It observes that the new law has largely addressed those deficiencies, and
thus China’s current regime has the potential to achieve an appropriate balance
between the public interest and property rights. However, two issues concerning the
breadth of the land expropriation power and the payment of unjust compensation
remain unsettled: that is, the lack of statutory limitations on tract development
acquisition and injustices associated with standards and components of compensation.
Finally, the Chapter explores the reason why the new law has not completely resolved
those issues and whether there are any opportunities for further improvement of
China’s land acquisition law.

Chapters 5 and 6 aims to explore feasible approaches to address the remaining issues
noted above. Specifically, Chapter 5 focuses on the first issue (the lack of statutory

12
limitations on tract development acquisition) by exploring the United States and
Australian approaches to controlling the power of compulsory acquisition. The Chapter
discusses the ‘pubic use’ requirement in the United States by examining the public use
tests developed by the courts, especially the issues addressed in the controversial Kelo
case, as well as recent legislative reforms at the state level. The Chapter reviews the
limitations that Australian regimes (both federal and state regimes) have imposed on
the compulsory acquisition power, with a focus on land acquisition regime in New
South Wales. The Chapter goes on to compare the regulatory approaches to an
expropriation involving a third party transfer (or a private-to-private expropriation) in
the three selected jurisdictions. It concludes that, supported by the experience and
practice of the two Western jurisdictions, China’s land acquisition law has achieved a
reasonable balance between public and private interests. Based on this finding, the
Chapter proposes several procedural measures to contribute to a better balance.

Chapter 6 explores a range of viable approaches to address the compensation issue of

China’s existing land acquisition law. The Chapter begins with a brief overview of
fundamental theories of compensation for land acquisition so as to set out an
analytical framework for subsequent discussions of the United States, Australian and
Chinese compensation regimes. The Chapter examines the constitutional requirement
of ‘just compensation’ in the United States and recent legislative reforms that aims to
provide fairer compensation to the aggrieved property owners. The Chapter discusses
the compensation regimes for compulsory acquisition in Australia, focusing on that of
New South Wales and the latest reform regarding the improvement of compensation
standards and the valuation process. The Chapter finally examines the inadequacies of
China’s current compensation regime in ensuring just compensation. It observes that
Chinese existing approaches to just compensation are mostly consonant with those of
the two Western jurisdictions, and thereby, in general, has achieved a proper balance
between the public interest and private property rights. The Chapter also puts forward
several recommendations for the improvement of China’s compensation regime,
aiming to achieve a more equitable balance.

13
Chapter 7 reflects upon the conclusions that have already been made in each of the
previous chapters. It underlines the findings to the three questions raised. It
summarises the rationales in support of each of the findings. It also highlights the
objectives of the thesis.

14
 CHAPTER 2 COMPULSORY ACQUISITION REGIMES OF THE
UNITED STATES AND AUSTRALIA: ESTABLISHMENT AND
DEVELOPMENT

2.1 INTRODUCTION

This chapter gives a systematic overview of the United States and Australian
compulsory land acquisition regimes and explores the form of protection for property
rights that they provide. By placing those regimes in their historical, social and political
context, this chapter also provides the contextual background essential for the
comparison between the Chinese regime and that of the United States and Australia in
the following chapters.

Section 2.2 discusses the historical evolution and recent developments of compulsory
acquisition system in the United States. This section begins by providing a brief
overview of the ratification of the Fifth Amendment to the United States Constitution.
It then examines the current framework of compulsory acquisition law. Finally, it
provides a critical analysis of the law and the changed models of property protection
over the last two centuries.

Section 2.3 discusses the compulsory land acquisition regime in Australia, which entails
both federal and state laws. It examines firstly the historical roots and then the current
framework of Australian compulsory acquisition law. Finally, this section explores
recent developments of Australian compulsory acquisition regime in both federal and
state spheres.

Section 2.4 ends the Chapter with observations about the model of property
protection in the United States and Australia, as well as broader similarities shared by
the two jurisdictions in their property and political contexts.

15
 2.2 COMPULSORY ACQUISITION IN THE UNITED STATES

The United States’ legal system has long been praised for strong protection of property
rights. While the 1787 Constitution of the United States contains no declaration of
property, it protects individual property rights by limiting the power of the sovereign
through ‘procedural and jurisdiction protections’. 1 More importantly, the Fifth
Amendment to the United States Constitution (Fifth Amendment) was specifically
inserted to protect property rights in 1791. It provides that ‘nor shall private property
be taken for public use without just compensation’. This provision is framed negatively,
in line with the pre-20th century perception that a property clause is intended to
provide negative, defensive guarantee against any state interference with individual
property rights.2 It also implies that the takings power in the United States is not an
express grant by the Constitution or legislation but rather an attribute of sovereignty
that exists in the federal and state governments.3 But at the same time, the power is
subject to two explicit requirements or conditions – the expropriation must be for
‘public use’ and the government must pay ‘just compensation’.4

The Fifth Amendment is fundamentally important because it also applies to the

legislative power of the states.5 Moreover, under its influence, all state constitutions
set out similar public use and just compensation limitations against the government’s
takings power.6 It follows that most instances of expropriation of property in the
United States are governed by the federal constitutional provision. The discussion

1
Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press,
1985) 16–7. Procedural protections refer to procedural schemes that prevent the concentration of
power in a few hands, relating to the separation of powers and the mode of selection. Jurisdictional
protections relate to limiting the federal power by ruling certain areas out of bounds to collective
governance.
2
AJ van der Walt, Constitutional Property Clauses: A Comparative Analysis (Juta, 1999) 403.
3
See, eg, Kohl v United States, 91 US 367, 371–2 (Strong J) (1875); Georgia v Chattanooga, 264 US 472,
480 (Butler J) (1924).
4
See, eg, Brown v Legal Foundation of Wash, 538 US 216, 231–2 (Stevens J) (2003).
5
The two constitutional limitations bind the states after the Supreme Court of the United States
(Supreme Court) held that the Fifth Amendment was incorporated in the Due Process Clause of the
Fourteenth Amendment in 1897. See Chicago, Burlington & Quincy Railroad Co v City of Chicago, 166 US
226, 239 (Harlan J) (1897).
6
Van der Walt, above n 2, 423.

16
below will focus first on the history of the ratification of the Fifth Amendment, in order
to understand the current framework of compulsory acquisition law.

2.2.1 The Ratification of the Fifth Amendment

The takings power originated at English common law but appeared in colonial America
as early as the 17th century on a statutory basis, most evidenced by various acts for
roads building.7 These statutes conferred limited rights to compensation. For example,
where private land was taken for roads, colonial governments compensated
landowners only for improved or enclosed land but not for unimproved land.8

In the revolutionary era (1765-1787), several states offered greater protection for
private property. Fearful that an unrestrained legislature would undermine property
rights,9 some states elevated the common law principle to a constitutional status that
required governments to pay compensation when they expropriated private property
for public use. 10 These constitutional provisions were forerunners of the Fifth
Amendment. On the other hand, those states that did not adopt constitutional
provisions requiring compensation often recognised the principle in the legislation. For
example, Virginia lawmakers for the first time required compensation for
expropriation of unimproved land for a roadway.11

With federation, the leading founders had placed substantial emphasis on the
protection of private property rights. Alexander Hamilton, for example, claimed that
‘[o]ne great obje[ct] of Gov[ernment] is the personal protection and security of

7
William Stoebuck, ‘A General Theory of Eminent Domain’ (1972) 47 Washington Law Review 553, 580–
2. English common law presumed that the right of the Crown to expropriate private property was one
element of the prerogative power. See Stoebuck, 562–3.
8
Ibid. There are two different interpretations of the general failure to compensate when unimproved
lands were expropriated for roads. See generally, William Treanor, ‘The Origins and Original Significance
of the Just Compensation Clause of the Fifth Amendment’ (1985) 94 Yale Law Journal 694, 695 n 6.
9
The keen concern about property rights in the revolutionary period was the result of the British
Parliament’s tight control over the economic affairs of American colonies and the influence of a liberal
view of English legal thought on property rights. See, James Ely, The Guardian of Every Other Right: A
Constitutional History of Property Rights (Oxford University Press, 3rd ed, 2007) 26–8.
10
Ibid; Treanor, above n 8, 701–8.
11
Ely, above n 9, 31.

17
Property.’ 12 James Madison, the ‘father of the Constitution’, observed that
‘Government is instituted to protect property of every sort’.13 In short, most founders
believed that property rights were natural rights and hoped to restrain attacks on
property rights.14 This view on property rights can be traced to prior English legal
thought, such as those of John Locke. Locke’s theory begins with the natural law’s
premise that property is rooted in natural rights which exist at the time the
government is formed. The government cannot take away private property without
the owner’s consent. This is because preservation of property is ‘the end of
government’, and that for which ‘the people submitted themselves to legislators of
their own making’.15

Meanwhile, many leading founders, especially Madison, were deeply suspicious of

democracy.16 They feared that unconstrained democratic process might pose a threat
to property rights, both because the tyrannical majority might threaten property rights
of the minority and because the latter could use their political influence to threaten
property rights of the common people.17 Consequently, Madison proposed the Fifth

12
Max Farrand (ed), The Records of the Federal Convention of 1787 (Yale University Press, revised ed,
1937) vol 1, 534.
13
James Madison, ‘Property’ (1792) in Philip Kurland and Ralph Lerner (eds), The Founders’ Constitution
(University of Chicago Press, 1987) vol 1, 598.
14
Ely, above n 9, 42–59; Jennifer Nedelsky, Private Property and the Limits of American
Constitutionalism (University of Chicago Press, 1990) 103–4, 152–3. There is a long-standing general
debate about the extent to which the founders were influenced by republican ideology, as opposed to
liberal theory, that held individual rights was subject to the common good. For arguments that
republican ideology was dominant, see, eg, J G A Pocock, The Machiavellian Moment: Florentine Political
Thought and the Atlantic Republican Tradition (Princeton University Press, first published in 1975, 2016
ed); For arguments that held liberal ideology had strongly influenced the founders, see, eg, Bernard
Bailyn, The Ideological Origins of the American Revolution (Harvard University Press, first published in
1967, 1992 ed).
15
John Locke, ‘The Second Treaties of Government’ in Peter Laslett (ed), Locke: Two Treatises of
Government (Cambridge University Press, 1988) 412 [222] (‘[t]he reason why men enter into society, is
the preservation of their property; and the end why they choose and authorise a legislative, is, that
there may be laws made, and rules set, as guards and fences to the properties of all the members of the
society, to limit the power, and moderate the dominion of every part and member of the society. For
since it can never be supposed to be the will of the society, that the legislative should have a power to
destroy that, which every one designs to secure, by entering into society, and for which the people
submitted themselves to legislators of their own making’).
16
Nedelsky, above n 14, 78 (‘all the Framers recognised the dangers of the “democratic elements”, its
instability and its threat to property’).
17
Ibid 80–1.

18
Amendment to provide special protection from legislative interference. This provision
is innovative for the reason that it imposes specific limitations on legislative power.18
Specifically, it prohibits the uncompensated expropriation by the federal government
even for public use.

Also, like its forerunners in state constitutions, the Fifth Amendment created a
judicially enforceable barrier to the redistribution of property. That is to say, based on
this specific clause, ‘[i]ndependent tribunals of justice will consider themselves in a
peculiar manner the guardians of those rights… they [the first ten amendments] will be
naturally led to resist every encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights’.19 As noted above, the Fifth Amendment also
applies to state governments. It thus becomes the main component of the takings law
in the United States, which has generated ‘the largest and most diverse collection of
constitutional property case law’ in the world.20

2.2.2 Current Compulsory Acquisition Regime in the United States

The takings law contains both the substantive and procedural elements that work
together to ensure the government properly exercise the takings power and
appropriately protect private property rights.

The substantive elements are public use and just compensation requirements as
specified in the Fifth Amendment and state constitutions. Specifically, public use
criteria limit the purposes for which the government can exercise the takings power. In
light of the lack of clear definition in constitutions, the courts have issued a body of
case law and adopted different approaches to explaining what the limitation means. As
a result, public use has been a focus of debate for over two hundred years.

18
A constitutional property protection provision is usually contained within a grant of legislative power.
See generally, Van der Walt, above n 2.
19
Madison Speech Proposing the Bill of Rights (8 June 1789) American History <
http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-
1789.php> (citation omitted).
20
Van der Walt, above n 2, 400.

19
The just compensation requirement considers the payment of losses caused by
expropriation for public use. As with the public use requirement, nowhere in the
constitutions can definitions of the meaning of ‘just compensation’ be found. Thus, the
courts have developed various measures of just compensation. In contrast to their
shifting positions on the definition of public use, the courts have been consistent in
their interpretations of just compensation as the fair market value of the expropriated
property.21

The procedural elements contain the set of procedures for how private property may
be expropriated and what procedural rights are available to the expropriated owners.
Unlike the two substantive elements, the legislature has broad discretion to develop
procedural rules. While detailed arrangements may vary among states of the United
States, some procedures are widely accepted and implemented. For example, the
government should give landowners advance notice of its intention to expropriate
some private parcels. Besides, the owners have the right to challenge the takings in
court on public grounds, or the amount of the compensation offered.22

In short, the takings law of the United States provides constitutional property
protection by limiting the government’s takings power and providing compensation. At
the same time, it offers supplementary statutory protection in the acquisition process.
Given the unanimous understanding of the meaning of the term ‘just compensation’
and broad discretion of state legislatures in formulating the acquisition process, the
courts’ changing interpretation of the public use requirement has arguably driven the
development of the takings law. The following section analyses the historical evolution
and recent developments of the law, the role of the judiciary, and the recently
changed model of property protection.

2.2.3 Historical Evolution and Recent Developments of the Compulsory Acquisition

Regime

21
The compensation regime will be examined in detail in Chapter 6 (Section 6.3.1).
22
The statutory procedures will be briefly discussed in Chapter 5 (Section 5.2.2.2).

20
As noted above, United States constitutions do not provide express textual guidance
for the application of the public use requirement in specific cases. Therefore, both
federal and state courts have, for centuries, expounded the boundary of the
constitutional public use limitation when reviewing individual cases. They, however,
have not provided an explicit definition of public use due to the concern that ‘any
definition which the courts might give may be inappropriate as times and conditions
change’.23 Instead, they have formulated two judicial tests – a narrow one and a broad
one – to determine the constitutionality of the exercise of the takings power.

2.2.3.1 The 19th century: strong constitutional protection of property

The Supreme Court and a substantial majority of state supreme courts endorsed the
narrow test in the 19th century.24 It allows the exercise of the takings power when the
land would be used by the public (ie, public roads, railroads, ferries, military bases or
public mills)25, or be transferred to a private entity that has a legal obligation to serve
the public (eg, public utilities or common carriers).26 Any other purely private taking
that ‘takes property from A and gives it to B’ is prohibited.27 In this way, the takings
power is subject to tight judicially enforceable limits. This means that the courts are
able to strike down regulatory and redistributive initiatives by governments. Thus, the
courts create a broad, clearly-delineated sphere where individuals’ private property
has priority, and existing property-holdings are largely immune to legislative
interference. This approach has been described by Jennifer Nedelsky as a ‘guarantee-

23
Alfred Jahr, Law of Eminent Domain: Valuation and Procedure (Clark Boardman, 1953) 15.
24
Until the enactment of the Fourteenth Amendment in 1868, the Fifth Amendment did not constrain
land expropriations by state and local governments. Thus, there was very little litigation on public issues
during the Founding era. On the contrary, state courts issued numerous rulings in this field throughout
the 19th century. See further, Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits
of Eminent Domain (University of Chicago Press, 2015) 43–55. Somin is the leading critic of the Supreme
Court’s Kelo decision.
25
See, eg, John Lewis, A Treatise on the Law of Eminent Domain in the United States (Callaghan, 1888)
227–8, 234–241, 243, 246. This Treatise is the leading treatise on the takings law in the 19 th century.
26
See, eg, Beekman v Saratoga & Schenectady Railroad Co, 3 P 45 (NY, 1831).
27
Calder v Bull, 3 US 386, 388 (Chase J) (1798). See also, Wilkinson v Leland, 27 US 627, 658 (Story J)
(1829).

21
oriented’ constitutional property jurisprudence that favours existing property holdings
and fosters a laissez-faire economic system.28

The strong constitutional property protection at that time was consistent with the
‘understanding that property is a natural, fundamental right’ as noted. 29 That is to say,
the narrow test focuses attention on the importance of securing private property
rights. As explained by Story J, who was also the leading treatise writer on
constitutional law, in Wilkinson v Leland:

We know of no case in which a legislative act to transfer the property of A to B without his
consent has ever been held a constitutional exercise of legislative power in any state in the
Union. On the contrary, it has been constantly resisted as inconsistent with just principles
by every judicial tribunal in which it has been attempted to be enforced. … The
fundamental maxims of a free government seem to require that the rights of personal
liberty and private property should be held sacred.30

He further emphasised in his influential 1833 Commentaries on the Constitution of the

United States that ‘in a free government, almost all other rights would become utterly
worthless, if the government had an uncontrollable power over the private fortune of
every citizen’.31 Other leading authorities on constitutional law during the era also
recognised the property protection function of this approach. For example, Thomas
Cooley, the influential, late 19th century Michigan Supreme Court Justice, observed in
his highly influential 1868 work that ‘public use implies a possession, occupation, and
enjoyment of the land by the public or public agencies; and there could be no
protection whatever to private property, if the right of the government to seize and

28
Van der Walt has adopted two terms – ‘guarantee-oriented’ and ‘limitation-oriented’ – to describe
two model of property protection originally put forward by Jennifer Nedelsky: see AJ van der Walt, ‘The
Constitutional Property Clause: Striking a Balance Between Guarantee and Limitation’ in Janet McLean
(ed), Property and the Constitution (Hart Publishing, 1999) 109–46; Nedelsky, above n 14.
29
Kelo v City of New London, 545 US 469, 498, 510 (Thomas J) (2005).
30
Wilkinson v Leland, 27 US 627, 658 (1829).
31
Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray, and Company;
Brown, Shattuck and Company, 1833) vol 3, ch 38, sec 1784.

22
appropriate it could exist for any other use’.32 In short, in the 19th century, the courts
played an important role in the protection of property rights and served as guardians
of those rights as Madison conceived them when drafting the Fifth Amendment.

2.2.3.2 The 20th century: limited constitutional protection of property

In the early 20th century, the courts gradually shifted from the relatively narrow ‘use-
by-the-public’ test to a broader test by roughly defining public use as ‘public purpose’,
which included almost any sort of potential benefits that might result from a taking.33
This approach provides the legislature considerable room to further regulate and
redistribute private property in the public interest so long as it pays just
compensation. 34 In this way, it appears to fall into the ‘limitation-oriented’
constitutional property jurisprudence supported by Nedelsky, which is more
democratically accountable and better balances private rights and the public interest.35

The limited protection of property rights was the result of changed social needs and
political climate during the 20th century. The necessity of promoting social and
economic development by government regulation took precedence over the
protection of property rights at that time. Specifically, beginning in the early 1900s,
many reform-minded commentators attacked strong judicial protection for property
rights under the narrow test for the reason that it blocked effective government
policies and benefited the wealthy as the expense of the poor.36 The Great Depression

32
Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of
the States of the American Union (Little, Brown and Company, 1868) 531 (emphasis added). Cooley was
the most influential late 19th century authority on state constitutional law. The definition of public use
he put forward has been adopted by many state laws in the post-Kelo reform, which will be discussed in
Chapter 5 (Section 5.2.2.1).
33
Thomas Merrill, ‘The Economics of Public Use’ (1986) 72 Cornell Law Review 61, 68.
34
See, eg, Hawaii Housing Authority v Midkiff, 467 US 229 (1984) (‘Midkiff’) (endorsing land
expropriations for land reform); Poletown Neighbourhood Council v City of Detroit, 304 NW 2d 455
(Mich, 1981) (upholding land expropriations for economic development). While the broad test expanded
governments’ takings power, the Court did not enhance the compensation payable to the expropriated
property owner. Therefore, scholars have consistently criticised just compensation for under under-
compensating expropriated property owners. The issue of under-compensation will be discussed in
Chapter 6 (Section 6.3.1.2).
35
See above n 28.
36
Somin, above n 24, 56.

23
of the 1930s further discredited judicial protection as the public generally believed
that laissez-faire economic policies had caused this crisis and the terrible suffering.
Judicial opposition to the New Deal provided a critical event for the reduction of
judicial protection. In particular, the Democratic Party, which favoured bigger
government and controlled the presidency for 20 years after 1932, emphasised
‘hostility to judicial invalidation of economic legislation as one of its main litmus tests
for appointees to the federal judiciary’.37 This part of history of public use seems to
provide rich evidence for Nedelsky’s firm objections to the constitutionalisation of
property for the reason that constitutional property provisions tend to produce
undesirable anti-redistribution, anti-regulation and anti-public interest effects.38

In response to the strong call for government regulation of property rights, the courts
retreated from the defender of property rights and adopted a broad public use test
that is more compatible with regulatory and redistributive policies by the government.
As Douglas J summarised in the landmark case of Berman v Parker:

when the legislature has spoken, the public interest has been declared in terms well-nigh
conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the
public needs to be served by social legislation.39

In doing so, the courts have resolved the major problem for a regulatory state that
seeks to impose limitations on property holders and strengthened public authority
over private property in the broader public interest. But at the same time, they have
offered limited constitutional protection to property owners.

2.2.3.3 The 21st century: enhanced statutory protection of property rights

Over the last century, the courts have consistently interpreted the public use
requirement broadly and allowed the use of takings for various purposes (ie, urban

37
Ibid. See also, Merrill, above n 33, 68 (arguing that a change in the Supreme Court personnel
produced a fundamental shift in judicial attitude in the question of public use).
38
For a summary of Nedelsky’s objections to the inclusion of a property provision in the constitution,
see Van der Walt, above n 28, 114–7.
39
Berman v Parker, 348 US 26, 32 (1954). See also, Midkiff, 467 US 229, 244 (O’Connor J) (1984).

24
renewal, land reform and, mostly, economic development) and even the transfer of
the acquired land to private developers.40 The broad test was not seriously challenged
for many years until in the landmark case of Kelo v City of New London (‘Kelo’) in
2005,41 which came at a time when protection for property rights was experiencing a
modest revival after years of activism by property rights movements seeking to limit
governmental authority over property rights.42 This time, however, the ideological
charged political climate did not find its way into the Court’s decision in public use
cases. In Kelo, the Court explicitly rejected the narrow public use and adhered to
precedent, ruling that the exercise of the takings power for economic development
satisfied the public use requirement of the Fifth Amendment.43

Although the Court set the bar low on the constitutional constraint on the federal
government’s power, it gave green light to the states to impose stricter ‘public use’
requirements than the federal baseline.44 Accordingly, 45 states enacted reform laws
to curb the expropriation of private property for economic development purposes,
which have afforded greater protection for property rights. 45 The extensive Kelo
backlash has also represented an important change in the overall framework of
property protection in the United States.46 That is to say, the regime has shifted from a
basic constitutional form of property protection to an ordinary (as opposed to

40
See more detail in Chapter 5 (Section 5.2.1).
41
David Dana and Thomas Merrill, Property: Takings (Foundation Press, 2002) 196 (concluding that
‘nearly all courts have settled on a broader understanding that requires only that the taking yield some
public benefit or advantage); Somin, above n 24, 35 (observing that ‘the United States moved from a
legal regime where the government was often tightly constrained in its ability to take property to one
where takings like those in Kelo were far from unusual’).
42
Somin, above n 24, 60–1. The courts have strengthened protection of property rights on other fronts.
For an overview of the rise of the property rights movement in late 1980s and early 1990s, see Ely,
above n 9, 155–70 (observing that by 1970, national political and intellectual currents had turned in a
more conservative direction). For the work of leading conservative scholars in this field, see, eg, Epstein,
above n 1.
43
Kelo, 545 US 469, 484 (Stevens J) (2005). For the discussion of the Kelo case, see Chapter 5 (Section
5.2.1).
44
Ibid 489.
45
The reform laws will be discussed and evaluated in Chapter 5 (Section 5.2.2).
46
Few states enhanced the constitutional protection of property rights, which will be noted in Chapter 5
(Section 5.2.2).

25
constitutional) statute-based model in most circumstances, like that in Australia (which
will be discussed in Section 2.3.2.1).

However, it appears that state legislators do not intend to offer as strong a level of
protection to property owners as the courts did in the 19 th century. Specifically, while
narrowing the scope of public use, most states have not categorically banned
economic development takings in recent reforms. This reform approach indicates that
the policy implicit in the legislation is one of achieving a balance between the
guarantee of property rights and the broader policy objective in the public interest.

To conclude, the expropriation regime of the United States has undergone gradual and
significant developments over the last two centuries. Beginning with a constitutional
form of property protection that offered property holders strong and later limited
protection, the regime recently tends to rely on an ordinary statute-based model that
steers a middle course between protecting property rights and promoting of social and
economic developments. As will be discussed below, the Australian regime has
generally adopted a similar approach to private property protection in recent decades.

2.3 COMPULSORY ACQUISITION IN AUSTRALIA

On the whole, Australian compulsory acquisition regime is more complicated than its
United States counterpart because the federal constitution has no application to the
legislative power of the states. Moreover, the federal government’s power to legislate
with respect to land does not extend to the states. Instead, this legislation power is the
province of the states. Thus, the law at both the federal and state level will be
discussed to grasp the full picture of the current framework of Australian compulsory
acquisition law. Before turning to that exercise, it is necessary to provide a brief
overview of the historical roots of the current regime.

2.3.1 Historical Roots of the Current Compulsory Acquisition Regime

As in the United States, the power of compulsory acquisition in Australia is derived

from English law. But when Great Britain established the Australian colonies in the
latter half of the 18th century, the right of compulsory acquisition was not based on the

26
royal prerogative but on a statutory footing, as evidenced by various private enclosure
acts that provided limited rights to compensation.47 As Blackstone concluded in his
influential Commentaries on the Laws of England:

All that the legislature does is to oblige the owner to alienate his possessions for a
reasonable price; and even this is an exertion of power, which the legislature indulges with
caution, and which nothing but the legislature can perform.48

By the middle of the 19th century, the British Parliament established a clearer statutory
basis for the acquisition power. It enacted the Land Clauses Consolidation Act 1845 (UK)
(1845 Act) to promote consistency given the rapid growth in the number of private
acts for the construction of railways and public utility entities with the advent of the
Industrial Revolution.49 The Act contained two innovations. First, it provided a uniform
code of land acquisition and dispensed with the necessity of private acts. Second, it
provided detailed provisions for the acquisition procedure and the determination of
compensation for compulsory acquisition.50

The 1845 Act substantially influenced the land acquisition statutes enacted in Australia
in the 19th century. Specifically, after the Australian colonies acquired their legislative
power toward land, the 1845 Act was adopted in modified form to suit local
conditions. 51 For example, in New South Wales, after the enactment of specific
statutes for particular acquisitions,52 the colonial legislature enacted the first general
acquisition statute, Lands for Public Purposes Acquisition Act 1880, for the acquisition
for the construction of public works (ie, water supply and sewerage, public schools,

47
Brendan Edgeworth, Butt’s Land Law (Thomson Reuters, 7th ed, 2017) 1157. See further, Keith Davies,
Law of Compulsory Purchase and Compensation (Butterworths, 4th ed, 1984) 5–11.
48
William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) vol 1, 139.
49
Before the enactment of the Land Clauses Consolidation Act 1845, private acts were the preferred
mode of compulsory acquisition in the 18th and early 19th centuries, which achieved the acquisition of
property and dealt with the compensation to be paid. See further, Davies, above n 47.
50
Marcus Jacobs, Law of Compulsory Land Acquisition (Thomson Reuters, 2nd ed, 2015) 6–7.
51
Edgeworth, above n 47, 1158.
52
For example, Roads and Streets Act 1833 (NSW) was passed for building or improving roads and
streets throughout the colony and compensating the proprietors when their land was required for such
roadworks.

27
libraries and hospitals) and to provide compensation for lands so acquired.53 The
colonial legislation was repealed and replaced by the current statutes, with the result
that today there are nine land acquisition statutes in Australia, one for each of the
states and territories, and one for the Commonwealth.

With Federation, the Federal Government needed its own power to acquire land to
fully carry out its functions. However, unlike the states that have a constitutionally
unfettered right flowing from the sovereignty of each parliament, the Federal
Government’s rights to enact legislation to expropriate property are explicitly specified
in the federal constitution. Section 51(xxxi) of the Australian Constitution provides that
the Parliament has power to make laws with respect to ‘the acquisition of property on
just terms from any State or person for any purpose in respect of which the Parliament
has power to make laws’. Given that s 51(xxxi) is phrased as a grant of power, it differs
significantly from a classic constitution property clause that consists of a negative
guarantee, such as the United States Fifth Amendment. But at the same time, the Fifth
Amendment influenced the drafting of s 51(xxxi).54 Specifically, while the Australian
provision was intended to ensure that the federal government had a sufficiently broad
legislative power for the purposes of compulsory acquisition, the Australian
Convention debates in 1898 also suggested that the two provisions were intended to
accomplish the same purpose – limiting the legislative power to certain purposes.55
Also, both provide the constitutional protection that requires the payment of
compensation to former property holders.

2.3.2 Current framework of Australian Compulsory Acquisition Law

53
This Act was ultimately replaced by the Public Works Act 1912 (NSW), which was the forerunner of the
current statute in New South Wales. See Edgeworth, above n 47, 1158.
54
See, eg, Andrews v Howell (1941) 65 CLR 255, 282 (Dixon J) (holding that the Fifth Amendment was
the source of s 51(xxxi)); Wurridjal v Commonwealth [2009] HCA 2 [306] (Kirby J) (stating that s 51(xxxi)
was inspired by the Fifth Amendment). There is some debate about whether s 51(xxxi) was modelled on
the Fifth Amendment: see generally, Duane Ostler, ‘The Drafting of the Australian Commonwealth
Acquisition Clause’ (2009) 28 University of Tasmania Law Review 211 (examining the Convention
debates about the federal acquisition provision).
55
Mason CJ has recognised this limitation function in Mutual Pools & Staff Pty Ltd v Commonwealth
(1948) 179 CLR 155, 168–9 (concluding that ‘[t]hey confine the exercise of the power to an
implementation of a purpose within the field of Commonwealth legislative power’).

28
Given that s 51(xxxi) does not apply to the states, the constitutional framework in the
state sphere and the overall statutory framework is examined below.

2.3.2.1 Constitutional position

Unlike the federal constitution and their United States counterparts, the Australian
state constitutions do not provide comparable property protection. For example, s 5 of
the Constitution Act 1902 (NSW) simply provides that ‘[t] he Legislature shall … have
power to make laws for the peace, welfare and good government of New South Wales’.
Thus, the right to legislate in respect of land acquisition is wholly statutory at the state
level. As French CJ has noted, ‘[i]t was and has remained the case in England and
Australia that compulsory acquisition and compensation for such acquisition is entirely
the creation of statute’.56 Besides, no prescriptive terms like s 51(xxxi) appear in state
constitutions. The states, consistent with the principle of parliamentary sovereignty,
are free to enact legalisation to regulate the compulsory acquisition of land with
limited or even no compensation.57 To that extent, state regimes have followed the
British model that based on the statutes.

This striking asymmetry of property protection between the federal and state
constitutions has been a frequent focus of political debate. For example, a federal
referendum, held in 1988, proposed to extend the federal constitutional property
protection to the states, but it ultimately failed. 58 Given that most compulsory
acquisitions take place at the state level, not the federal level, in most instance
expropriated property holders are not covered by the federal constitutional protection
but statutory protection that are offered by state legislation as discussed below.

2.3.2.2 Statutory framework

56
R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council
(2009) 237 CLR 603, 16[41] (‘Fazzolari’).
57
See, eg, Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 (15 February 2001) [55] (Kirby J).
This issue will be discussed further in Section 6.4.1.
58
Edgeworth, above n 47, 1160.

29
As noted above, in Australia there are currently nine principal land acquisition statutes
(including one federal legislation) in place. 59 This section examines the statutory
frameworks from three respects: the power to acquire, the compensation for land
acquisition and the acquisition procedures.

With respect to the power to acquire, some acquisition statutes make express
provisions for the grant of land acquisition power. Most statutes follow the British
tradition that limits the ambit to questions of procedure and compensation. The power
of land acquisition must accordingly be sought in other specific legislation ‘governing
the powers and duties of a particular authority’.60 For instance, s 7(1) of the Land
Acquisition (Just Terms Compensation) Act 1991 (NSW) provides that ‘this Act does not
empower an authority of the State to acquire land if it does not have the power (apart
from this Act) to acquire the land’. Section 4 of the Land Acquisition and Compensation
Act 1986 (Vic) refers to ‘a special Act’ that empowers an authority to acquire an
interest in land by compulsory process.61

In terms of compensation, while the principal statutes are different in detail from each
other, each sets out the matters that should be considered when determining the
amount of compensation. On the whole, the principles of compensation in the nine
regimes are broadly similar. All statutes focus on finding the market value of the
acquired land and provide payments for other associated losses, in order to ensure fair
and just compensation for the expropriated landowners.62

Each of the principal statutes prescribes the procedures an acquiring authority must
follow to acquire land. Like compensation regimes, there are some common

59
The nine statutes are: (1) Lands Acquisition Act 1989 (Cth); (2) Land Acquisition (Just Terms
Compensation) Act 1991 (NSW); (3) Lands Acquisition Act 1978 (NT); (4) Acquisition of Land Act 1967
(Qld); (5) Land Acquisition Act 1969 (SA); (6) Land Acquisition Act 1993 (Tas); (7) Land Acquisition Act
1994 (ACT); (8) Land Acquisition and Compensation Act 1986 (Vic); (9) Land Administration Act 1997
(WA).
60
Douglas Brown, Land Acquisition: An Examination of the Principles of Law Governing the Compulsory
Acquisition or Resumption of Land in Australia (LexisNexis Butterworths, 6th ed, 2009) 55.
61
Article 4 of the Land Acquisition and Compensation Act 1986 (Vic) reads: ‘An Authority which is
empowered under a special Act to acquire an interest in land by compulsory process must not acquire
that interest by compulsory process or by agreement except in accordance with this Part’.
62
Australian compensation regimes will be discussed in detail in Chapter 6 (Section 6.4).

30
procedures required by all statutes such as issuing the written notice of acquisition.
Given that the compulsory acquisition statute in New South Wales is ‘a typical example
of the legislative framework in all the States and Territories’,63 the acquisition process
prescribed by this statute will be examined in Chapter 5.

In short, the current Australian compulsory regime provides constitutional property

protection in the federal sphere by requiring the payment of just terms compensation.
By contrast, the protection of property rights is statute-based in the state sphere. All
principal statutes contain provisions to compensate private property holders for the
expropriation of their property. The section below examines developments of the
Australian acquisition regime in both federal and state (recent reforms in New South
Wales) spheres to explore their position on property protection.

2.3.3 Recent Developments of the Compulsory Acquisition Regime

As noted above, s 51(xxxi) was intended to ensure the federal government had the
power of compulsory acquisition. As Dixon J concluded in Grace Brothers Pty Ltd v
Commonwealth, s 51(xxxi) was ‘primarily to make certain that the Commonwealth
possessed a power compulsorily to acquire property, particularly from the States’.64
However, it also imposes a condition that requires the power to be exercised on just
terms. In this form, s 51(xxxi) is both a grant of power and a guarantee against the
abuse of power. This ‘double purpose’ was confirmed by Dixon J in the important early
case of Bank of New South Wales v Commonwealth:

Section 51 (xxxi) serves a double purpose. It provides the Commonwealth Parliament with
a legislative power of acquiring property: at the same time as a condition upon the
exercise of the power it provides the individual or the State, affected with a protection
against governmental interferences with his proprietary rights without just recompense.65

Further, the Court has extended the guarantee to any other federal legislative power.
Specifically, it subjects the acquisition of property involved in the exercise of those

63
Edgeworth, above n 47,
64
Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269, 290–1.
65
Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349–50.

31
constitutional powers (such as telegraphic and telephone services and naval and
military defence set out in s 51) to the ‘just terms’ restriction imposed by s 51(xxxi). As
Brennan J summarised in Mutual Pools & Staff Pty Ltd v Commonwealth, s 51(xxxi)
‘abstracts the power to support a law for the compulsory acquisition of property from
any other legislative power’. 66 Thereby, the legislature cannot obviate the
constitutional requirement to pay just terms by construing other legislative powers in a
way that limits the just terms requirement. In this way, s 51(xxxi) imposes extensive
limits on federal legislative powers and provide strong protection of property rights.

However, a much clearer limitation-oriented body of case law has emerged in recent
years.67 As is the case with the United States, the changes happened in the context of a
more conservative political climate that favours the priority of property rights, but the
High Court’s recent reasoning indicates a clear non-ideological trajectory. 68
Specifically, recently body of case law decided under s 51(xxxi) has implied that not
every deprivation of property rights qualifies for compensation on just terms. For
example, in a most recent comprehensive analysis of relevant case law in this field,
Brendan Edgeworth has observed that ‘the courts have found a strikingly diverse
number of ways of limiting the circumstances in which compensation is payable’. 69 He
also identified at least nine exceptions to the requirement of just terms where
property rights were impacted by legislation.70 The effect of these exceptions is that
the courts withhold full protection of private property rights from critical areas in the
public interest (ie, telecommunications privatisation the control of water supply),
thereby avoiding many of the criticisms made by Nedelsky about the excessive favour
of private property rights due to the constitutionalisation of property rights (as noted

66
Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 188.
67
This discussion is based on arguments presented by Brendan Edgeworth and Van der Walt. See
Brendan Edgeworth, ‘When Does State Action Amount to Expropriation? Recent Australian
Developments’ in Björn Hoops et al (eds), Rethinking Expropriation Law I: Public Interest in Expropriation
(Eleven International Publishing, 2015) 389; Van der Walt, above n 28.
68
Edgeworth, above n 67, 408–9.
69
Ibid 397–8.
70
Ibid 398–407. For an analysis of exceptions to the requirement of just terms decided before 1997, see
Van der Walt, above n 28, 131–4. These exceptions are not relevant to the subject of this thesis.

32
in Section 2.2.3.2). Thus, it appears reasonably clear that, as with the United States
courts, Australian courts have developed a limitation-oriented jurisprudence.

In the state sphere, the NSW Government has reformed its compulsory acquisition
regime recently. It has improved the compensation and procedural systems to better
support those expropriated landholders.71 On the whole, like post-Kelo reforms in the
United States, recent developments in New South Wales have had the effect of
affirming governmental power to expropriate land for essential infrastructure
purposes, as well as ensuring the protection of private property rights.

To sum up, both the federal and state parliaments have attached importance to
property rights. However, after gradual developments in the past century, current
Australian regimes tend to offer, from a pure liberal perspective, limited protection to
those rights while allowing substantial legislative control of property rights for public
benefit, in order to achieve a balance between the demands of public interest in
regulating property rights and the protection of property holders.

2.4 CONCLUSION

This chapter has examined in general terms the compulsory acquisition regimes in the
United States and Australia and the models of protection of property rights that they
provide. It has observed that, while providing constitutional protection to property
holders (except Australian states), statutory protection constitutes the major model of
property protection in the United States and Australia. The chapter also reveals two
broader similarities shared by the two jurisdictions. First, both jurisdictions have
established liberal property systems that offer generous compensation to expropriated
property owners. 72 Second, from the political perspective, both have vested
considerable authority in their legislatures to draw a proper line between public and

71
The reform measured will be discussed in detail in Chapters 5 and 6.
72
As will be discussed in Chapter 6, Australian laws provide more generous compensation to
expropriated landholders that the United States laws. Besides, even though state constitutions in
Australia allow the parliament to authorise compulsory acquisition without compensation, property
owners are normally compensated justly for the acquired property.

33
private spheres. Both governments have underscored the need for a more equitable
balance between property rights of property holders and the public interest. As a
result, while acknowledging that property rights are fundamental rights, the legal
protections for private property in the United States and Australian have in recent
years become more compatible with redistributive and regulatory government
initiatives and offer property owners more limited protection than the thorough-going
liberal approach would require. The following chapter will examine the historical
evolution of the Chinese regime.

34
CHAPTER 3 PROTECTION OF PROPERTY RIGHTS UNDER CHINA’S
PREVIOUS COMPULSORY LAND ACQUISITION REGIME (PRE-
2020)

3.1 INTRODUCTION

This chapter examines China’s previous compulsory land acquisition regime (employed
before 1 January 2020) in its historical, social and political context.1 The discussion is
essential for an analysis of the outstanding deficiencies that the latest reforms sought
to address and also for a comparative study with the United States and Australian
compulsory acquisition regimes.2

Section 3.2 provides an overview of the historical evolution of Chinese compulsory

land acquisition regime. This section shows how the Communist Party of China’s (CPC
or Party) policies has played a critical role in driving the formation and development of
China’s land acquisition regime. It also explores the form of property protection in
China compared with those in the United States and Australia.

Section 3.3 gives a brief overview of China’s political and legal systems, which is
important for a better understanding of the development of China’s compulsory
acquisition regime over recent decades. It provides a critical analysis of the CPC’s
changing role in China’s current political system. It also reviews land acquisition-
related state institutions in China, followed by an examination of China’s legislative
framework.

1
The Land Administration Law of the People’s Republic of China (‘LAL’) has been the main component of
China’s compulsory land acquisition regime since its enactment in 1986. It was revised in 1988, 1998,
2004 and 2019. The existing 2019 version of LAL replaced the 2004 version and commenced on 1
January 2020. China’s previous land acquisition regime refers to the system that has been developed
before the promulgation of the 2019 LAL.
2
The latest pilot reforms will be discussed in detail in Chapter 4.

35
Section 3.4 explores China’s previous framework of compulsory land acquisition law by
outlining its substantive and procedural requirements.

Section 3.5 offers a detailed analysis of inherent deficiencies of China’s previous

compulsory land acquisition regimes, focusing on the public interest requirement and
the compensation scheme for land acquisition.

Section 3.6 concludes the chapter with an outline of the similarities between China
and the two Western countries chosen in the property, political and legal contexts. It
also provides a summary of the weaknesses inherent in China’s previous compulsory
acquisition regime.

3.2 HISTORICAL EVOLUTION OF CHINA’S PREVIOUS COMPULSORY LAND

ACQUISITION REGIME

This section divides the evolution into three phases3 and provides an overview of the
major developments in each phase with a focus on the CPC’s policies and legislation
relating to the protection of private property rights.

3.2.1 Phase 1: Formation (1953–1957)

The first phase witnessed the formation of China’s land acquisition regime after the
founding of the People’s Republic of China (PRC) in 1949. While aiming to develop a
communist regime advocating public property,4 the Chinese government recognised
private property in land as the result of the first nationwide land reform in the 1950s
(1950–1953). During the reform, it confiscated the land of landlords and then
redistributed the land to millions of individual farmers.5 This reform was significant as

3
The latest legislative changes, that is, the 2019 Amendment to the LAL, is not included; it will be
discussed in detail in Chapter 4.
4
The philosophical basis of China’s property regime will be discussed in Section 3.2.2.
5
The Chinese government conducted the reform according to the 1950 Land Reform Law, which was
enacted to legitimatise and guide the land reform. See《中华人民共和国土地改革法》（失效）
[Land Reform Law of the People’s Republic of China] (Repealed) (People’s Republic of China) State
Council, 28 June 1950, arts 2, 10. See further, Chuanhui Wang, The Constitutional Protection of Private
Property in China: Historical Evolution and Comparative Research (Cambridge University Press, 2016) 46
(Observing that the government only reserved a small portion of the confiscated land for local

36
it granted complete private ownership to farmers, with every farmer enjoying both
ownership and the right to use and transfer the allocated land in the market. However,
the CPC launched this reform out of highly pragmatic concerns about social stability
rather than the preservation of private property that was outscored by founding
fathers of the United States (as noted in Section 2.2.1). The reform was, as Ting Xu has
observed, ‘not particularly socialist; rather it was a project of ‘land-to-the tiller’
through which the CCP6 consolidated its newly established regime and gain support
from farmers who constituted most of Chinese population’.7

Meanwhile, after decades of war, there was a huge demand in the newly established
PRC for essential public infrastructure, resulting in a powerful need for governments to
retain the power to acquire private land for the development of public infrastructure.
For that purpose, the first regulation concerning compulsory land acquisition,
Measures on the Requisition of Land for State Construction (1953 MRLSC), 8 was
enacted in 1953.9 The 1953 MRLSC had three innovative features. First, it created a
uniform code for land acquisition,10 as is the case in Australia (as noted in Section
2.3.1). Second, it limited the power of land acquisition to the purpose of ‘state
construction’ and set up a definitive list of qualified projects for state construction.11
These purposes virtually constituted the notion of ‘public interest’ and thus can be
seen as the first time that public interest doctrine was incorporated into China’s land

governments. The state media reported that by early 1953, approximately 700 million mu of land was
distributed to more than 300 million farmers).
6
‘CPC’ is the official abbreviation of the Communist Party of China that is used by state media. ‘CCP’ or
‘Chinese Communist Party’ is not officially used by China but is commonly used in Western circles.
7
Ting Xu, The Revival of Private Property and Its Limits in Post-Mao China (Wildy, Simmonds & Hill
Publishing, 2014) 70. At that time, more than four-fifths of the population lived in rural areas.
8
《国家建设征用土地办法》（失效）[Measures on the Requisition of Land for State Construction]
(Repealed) (People’s Republic of China) State Council, 5 December 1953 (‘1953 MRLSC’). Before the
amendment to the existing Constitution in 2004, ‘land requisition’ was usually considered to be
interchangeable with ‘land acquisition’.
9
Regulations promulgated by China’s central government (Beijing) is the third level of China’s legal
system, which will be discussed in Section 3.3.2.
10
Before the 1953 MRLSC, there were various regulations for land expropriation for specific purposes,
most evidenced by various regulations for roads and railways building, as is the case with colonial
American. See, Chun Peng, Rural Land Takings Law in Modern China: Origin and Evolution (Cambridge
University Press, 2018) 96 nn 33, 97 nn 41.
11
1953 MRLSC art 13 (including ‘defence projects, factories and mines, railways, transportation, water
conservancy projects, municipal construction and other economic and cultural construction’).

37
acquisition regime. 12 Third, it set out detailed procedural requirements for the
expropriation of land including measures for the assessment of compensation.
Specifically, it not only allowed the farmers to get ‘value-based’ 13 monetary
compensation but also required local governments to conduct the unified
resettlement of expropriated farmers (ie, providing land for farming or offering new
jobs). 14 Moreover, it required governments to negotiate with landowners in the
determination of compensation.15 In doing so, the 1953 MRLSC provided statutory
protection to expropriated landholders’ property rights. This regulation is the
forerunner of current Land Administration Law, which will be discussed in Section 3.5.

The first Chinese Constitution, enacted in 1954, strengthened farmer’s property rights
in land by providing that the state should protect farmers’ ownership of rural land in
accordance with the law.16 Nevertheless, the Constitution emphasised the communist
idea that private interests must conform to the needs of the public interest. Article 14
set out a general announcement that the state prohibited the use of private property
by any person to the detriment of the public interest. More specifically, Article 13

12
This notion of public interest is in line with the narrow term of ‘public use’ in the United States law
and specific empowerment in Australian law both at the state and federal level. The approaches
adopted by the United States and Australia will be discussed in Chapter 5.
13
This term is used by Lei Chen to describe the calculation of compensation in China, which is contrasted
with the Western notion of ‘market value’. See Lei Chen, ‘Legal and Institutional Analysis of Land
Expropriation in China’ in Hualing Fu and John Gillespie (eds), Resolving Land Disputes in East Asia
(Cambridge University Press, 2014) 59, 78. This production value-based measurement will be discussed
in Section 3.5.2.1.
14
1953 MRLSC arts 8, 13.
15
Ibid art 8.
16
《中华人民共和国宪法》 (1954)（失效）[Constitution of the People’s Republic of China] (Repealed)
art 8 (‘1954 Constitution’). Four constitutions (1954, 1975, 1978 and 1982) have been enacted by
the national legislative body since the People’s Republic of China (PRC) was founded. The 1975
Constitution and the 1978 Constitution that highlighted the importance of Marxist conceptions of class
struggle only existed for a short period due to their transitional nature. The existing constitution is the
1982 Constitution. Key elements of the 1982 Constitution were modified in 1988, 1993, 1999, 2004 and
2018 on the basis of the changing social situation. In China, the Constitution has been revised by
majority vote of the highest organ of state power and its permanent body. The 2018 version of China’s
Constitution provides, ‘[a]mendments to the Constitution are to be proposed by the Standing
Committee of the National People’s Congress or by more than one-fifth of the deputies to the National
People’s Congress and adopted by a vote of more than two-thirds of all the deputies to the Congress’.
See 《中华人民共和国宪法（2018修正）》[Constitution of the People’s Republic of China (2018
Amendment)] art 64 (‘2018 Constitution’). The Chinese state institutions will be discussed in detail in
Section 3.3.2.

38
allowed legislative interference with existing property-holdings by providing that ‘[t] he
state may compulsorily purchase, requisition or nationalise land and other means of
production for the public interest both in cities and countryside according to law’.17

This 1954 constitutional expropriation provision presented several similarities with

that of the United States and Australian on the surface. These similarities include a
‘public use’ requirement as is the case with the United States Fifth Amendment, as
well as a grant of power served by s 51(xxxi) of the Australian Constitution (as
discussed in Sections 2.2 and 2.3). Despite those explicit similarities, China’s 1954
provision differed from the United States and Australian counterparts in three key
respects.

First, unlike a general power of compulsory acquisition specified in the United States
and Australian provisions, China’s 1954 provision enumerated three types of
expropriation power – compulsory purchase, requisition and nationalisation. Land
requisition referred to the compulsory land acquisition regime prescribed in the 1953
MRLSC. It was renamed as ‘land acquisition’ by the existing 1982 Constitution in
2004.18 However, there were no uniform legal documents for compulsory purchase
and nationalisation on the national level. They can be found scattered throughout
various CPC policies and some local regulations.19 As Chun Peng observed in a recent
systematic and comprehensive analysis of rural land acquisition law in China, the term
‘compulsory purchase’ had at least three known meanings by 1954.20 Nationalisation
normally referred to the non-compensatory acquisition, which had been envisaged by
the CPC as a tool to implement the 1950 land reform campaign mentioned above and

17
Based on the Marxist tradition, the 1954 Constitution established a property regime that divided
private property into the private ownership of means of production (ie, land, factories and other
facilities, machines and raw materials) and that of the means of subsistence (ie, legal incomes, savings
and home). The state also protected citizens’ private ownership of the means of subsistence (art 11).
The classic Marxist approach will be discussed in Section 3.2.2.
18
《中华人民共和国宪法 （2004 修正）》[已被修订] [Constitution of the People’s Republic of China
(2004 Amendment)] (Revised) art 10 (‘2014 Constitution’).
19
For a comprehensive discussion of these three types of expropriation power, see Peng, above n 10,
94–102. Peng observed that these three powers of compulsory acquisition had been already exercised
by the CPC before the promulgation of China’s 1954 Constitution.
20
Peng, above n 10, 96–101.

39
the following 1953 campaign of socialist transformation of means of production.21
After the establishment of public ownership, the compulsory purchase and
nationalisation regimes were left out of the constitution in 1982.22

Secondly, it contained no explicit requirement for compensation, which was unique in

modern constitutional acquisition provisions. The possible reason for this arrangement
was the coexistence of three different types of expropriation power. Given the
existence of non-compensatory nationalisation of land, it would not be suitable to set
up ‘a general requirement of compensation’ in the Constitution.23

Finally, article 13 was not judicially enforceable as China’s Constitution differs from
liberal constitutions which function as legal documents (ie, the United States and
Australian constitutions). Specifically, where legislation contravenes relevant
constitutional provisions, a citizen can challenge the legislation as being
unconstitutional. However, Chinese courts have no power to apply and interpret the
Constitution. 24 The Constitution is interpreted by the national legislative bodies
through two mechanisms: (1) the review of the constitutionality of laws and
regulations;25 and (2) the ‘formal requirements of constitution review’ in the legislative

21
Ibid 101–2. Nationalisation was conducted in the socialist transformation campaign to change the
means of production from private ownership to public ownership. The campaign will be discussed in
Section 3.2.2.
22
Public land ownership was recognised by the 1982 Constitution after the completion of
collectivisation in rural areas and nationalisation in urban areas (see Section 3.2.2). Since nationalisation
and compulsory purchase of land were mainly policy tools and only existed very briefly in history, they
lie outside the discussion of this thesis and will only be briefly noted where relevant.
23
This discussion is based on arguments presented by Peng. See, Peng, above n 10, 103. There is
controversy over the absence of the compensation requirement. For example, Chuanhui Wang held that
there was no compensation requirement because the acquisition provision was not aimed to afford
property protection to landowners. See Wang, above n 5, 62 (arguing that ‘[i]n essence, the purpose of
the expropriation provision was to offer constitutional assistance to the government in transferring
ownership of private property to the national government or to the collectives, or to serve social
reconstruction purposes, rather than to protect private property owners’).
24
The judiciary in China had attempted earlier in this century to create the power to interpret the
Constitution through case law in a kind of Marbury v Madison approach. However, the initiative was
rebuffed by the Supreme People’s Court of China. See generally Robert Morris, ‘China’s Marbury: Qi
Yuling v. Chen Xiaoqi – The Once and Future Trial of Both Education & Constitutionalization’ (2010) 2
Tsinghua China Law Review 273.
25
Article 67 of the 2018 Constitution empowers the Standing Committee of the National People’s
Congress (SCNPC, the permanent body of the highest organ of state power) to ‘interpret the
Constitution and supervise the enforcement of the Constitution’ (art 67). Based on this constitutional

40
process,26 which is more commonly used than the first method. Normally, the national
legislative bodies will revise relevant statutes and regulations consistent with the
amendment to the Constitution. For example, the 2004 Amendment to the 1982
Constitution resulted in the revision of land acquisition provisions in the Land
Administration Law of the People’s Republic of China (LAL) in 2004.27 Therefore, it is
reasonable to conclude that Chinese constitutional principles are applied through
relevant laws and regulations. (The legal system will be briefly discussed in Section
3.3.3).

In short, the communist principle of supremacy of public interest over private interest
was embedded in China’s compulsory land acquisition regime. The Constitution
imposed minimally restrictions on the use of that power and offered no constitutional
protection to expropriation landholders. Besides, while the 1953 MRLSC provided
some statutory protection to former landholders, that protection was reduced in the
second phase due to a series of economic and social-development initiatives by the
CPC, which is discussed below.

3.2.2 Phase 2: Transition and Overhaul (1958–1977)

power, the Legislation Law further entrusts the SCNPC to review and repeal any regulations issued by
the State Council and local legislatures if they contravene the Constitution. Besides, state organs, public
organisations, enterprises, institutions and citizens can make written recommendations for the review
of constitutionality of regulations noted above. See 《中华人民共和国立法法（2015 修正）》
[Legislation Law of the People’s Republic of China (2015 Amendment)] (People’s Republic of China)
National People’s Congress, 15 March 2015, arts 96–9 (‘2015 Legislation Law’). The law was issued on 15
March 2020 and was last amended in 2015. It was enacted to standardise lawmaking activities and to
improve state legislative institution. However, Peng points out that the reviewing power of the SCNPC
has never been deployed publicly. See Peng, above n 10, 49.
26
This mechanism has also been regarded as an ‘invisible mechanism’ for the interpretation of China’s
Constitution. For example, Yan Lin and Tom Ginsburg has observed that the ‘formal requirements of
constitution review’ in the legislative process ‘have helped the legislature to resolve complex disputes
about the relationships among different government organs, the economic system, and even rights
claims’. See generally, Yan Lin and Tom Ginsburg, ‘Constitutional Interpretation in Lawmaking: China’s
Invisible Constitutional Enforcement Mechanism’ (2015) 63 The American Journal of Comparative Law
467.
27
《中华人民共和国土地管理法（2004 修正）》[已被修订] [Land Administration Law of the
People’s Republic of China (2004 Amendment)] (Revised) (People’s Republic of China) Standing
Committee of the National People’s Congress, 8 August 2004 (‘2004 LAL’).

41
The CPC had started to plan the transformation to socialism since the early 1950s. This
policy was strongly influenced by classic Marxism and the Soviet experience. Karl Marx
rejected the liberal idea that private property was a natural right that should be
protected by the state. He viewed rights-based justification as nothing but a cloak for
the interests of the ruling class to disguise the primitive fact of conquest.28 Specifically,
he argued that ‘[l]anded property is based on the monopoly by certain persons over
definite portions of the globe’.29 Therefore, the state should abolish property in land
and use all rents of land to public purpose.30 In addition, the success of the Soviet land
nationalisation and agricultural collectivisation programs offered further guidance on
the transformation in China. Accordingly, the CPC initiated its first Five Year Plan for
national economic and social development (1953–1957), 31 which was explicitly
modelled on Soviet experience. 32 The ‘socialist industrialisation’ 33 and ‘socialist
transformation’ (the means of production in all sectors) campaigns became key
programs of the Plan.

The massive ‘transformation’ was carried out through two ways: (1) the nationalisation
of handicrafts and capitalist industry and commerce, and (2) the collectivisation (quasi-

28
Karl Marx, ‘The Nationalisation of the Land’ (1872) 11 The International Herald
<https://www.marxists.org/archive/marx/works/1872/04/nationalisation-land.htm> (‘The
Nationalisation of the Land’).
29
Karl Marx, Capital (International Publishers, 1959) vol 3, 442 (arguing that the monopoly is capitalised
through the rent income that landowners have obtained from those who farmed the land. Thus, land
rent is also a form of unearned income indicative of exploitation, as is the case with capitalist profit,
which is an extortion of surplus labour value).
30
Karl Marx and Frederick Engels, Manifesto of the Communist Party (February 1848) 22
<https://www.marxists.org/archive/marx/works/download/pdf/Manifesto.pdf>.
31
China’s five-year plans are blueprints providing overall guidelines and goals regarding social and
economic development. Its name was changed to ‘Five-Year Guidance’ in 2006, with the latest guidance
issued in 2020, covering the period 2021–2025. See further, 历次五年计划 [Successive Five-Year
Guidance (Plan)] < http://dangshi.people.com.cn/GB/151935/204121/>.
32
Chao Xi, ‘Transforming Chinese Enterprises: Ideology, Efficiency and Instrumentalism in the Process of
Reform’ in John Gillespie and Pip Nicholson (eds), Asian Socialism and Legal Change: the Dynamics of
Vietnamese and Chinese Reform (Asia Pacific Press, 2005) 93; Barry Naughton, The Chinese Economy:
Transitions and Growth (The MIT Press, 2007) 65–6.
33
The ‘socialist industrialisation’ program focused on the building of modern advanced industries, which
aimed to establish the primary foundations for China’s socialist industrialisation. It also supported the
development of urgently needed defence industry. See Justin Yifu Lin and Zhongkai Shen, ‘Reform and
development strategy’ in Ross Garnaut, Ligang Song and Cai Fang (eds), China’s 40 Years of Reform and
Development: 1978–2018 (ANU Press, 2018) 117, 122; Naughton, above n 32, 66. This program is not
the subject of this thesis.

42
nationalisation) of agriculture to promote economic development. 34 The
nationalisation program indirectly led to the nationalisation of part of urban land.35 At
the same time, agricultural collectivisation contributed to the establishment of public
land ownership in rural areas. Specifically, it collectivised private agricultural land by
promoting various agricultural production cooperatives, which were in charge of
managing the use and later the ownership of rural land . 36 This communist
collectivisation program severely undermined landholders’ private property rights as
farmers who joined the co-operatives were deprived of the benefits of landholding de
facto.37 They became members of cooperatives and received income based on their
work in local cooperatives. The different approaches to acquiring private land in urban
and rural areas resulted in current dual-track land ownership system in China: state-
owned land in urban areas and collective-owned land in rural areas (as noted in
Section 1.2).

The widespread establishment of these ‘quasi-state-owned economic organisations’38

resulted in the radical change of land ownership and ultimately led to a revision of the
1953 MRLSC in 1958 (1958 MRLSC).39 The 1958 MRLSC reduced the payment of

34
The choice of adopting a nationalisation approach to urban property and a collectivisation approach
to rural property was strongly influenced by classic Marxism and the Russian experience. See Peng,
above n 10, 113–29.
35
Peng has observed that when the CPC took over the cities in 1949, about 20 per cent of urban land
was owned by foreign capitalists and bureaucratic bourgeoisie and 10 per cent by national bourgeoisie.
The remaining 70 per cent was held by individual owners. Thus, nationalisation of capital industry and
commerce led to the nationalisation of 30 per cent of urban land. For the examination of nationalisation
of urban land, see Peng, above n 10, 160–92.
36
For a brief discussion of collectivisation, see Xu, above n 7, 69–71. For more information, see Wu
Jinglian and Ma Guochuan, Whither China?: Restarting the Reform Agenda (Xiaofeng Hua and Nancy
Hearst trans, Oxford University Press, 2016) 75–81.
37
Farmers were only allowed to retain ownership of their homes and a few farm animals. They also
retained a small plot of private land for growing supplementary foodstuffs.
38
This term was used by Wu and Ma based on officials’ control of farmers’ property. They observed that
‘[t]he cooperative was no different from a state-owned enterprise, except in terms of wages and
welfare benefits.’ See Wu and Ma, above n 36, 78.
39
陶希晋 [Tao Xijin],《关于国家建设征用土地办法修正草案的说明》[Explanatory Report on the
Draft Regulation on Measures on the Requisition of Land for State Construction] 人民日报 People’s
Daily, 7 January 1958.

43
compensation by lowering the compensation standard40 and allowing the state to
expropriate rural land with no compensation in some circumstances.41 Evidently, these
changes did not confront any constitutional obstacle as there was no general
requirement of compensation in the 1954 Constitution.

Furthermore, the establishment of public ownership led to the removal of the public
interest requirement from compulsory acquisition provisions in the 1975 Constitution
and the 1978 Constitution.42 Given that land in China was generally owned and
regulated by the public, either by rural collectives or the state, it was unnecessary to
require the government to acquire land for the public interest due to the general
elimination of private interests.

However, the constitutional changes in 1975 and 1978 did not lead to the revision of
the 1958 MRLSC. The main reason was the non-enforcement of the 1958 MRLSC since
the tumultuous socio-political movement, the Great Proletarian Cultural Revolution.43
Mao Zedong, the founding father of the PRC and the Chairman of the CPC (1949–1976),
carried out the Cultural Revolution from 1966 to 1976 to ‘revolutionise the
bureaucratic establishment and to inculcate socialist values and beliefs’ through

40
《国家建设征用土地办法 （1958 修正）》（失效） [Measures on the Requisition of Land for State
Construction (1958 Revision)] (Repealed) (People’s Republic of China) State Council, 6 January 1958, art
7.
41
Ibid art 9 (providing that when expropriating the land owned by rural cooperatives, the state did not
have to provide compensation if the general meeting of cooperative members or the cooperative
members’ representative assembly considered the loss of land did not substantially influence
cooperative members’ lives).
42
《中华人民共和国宪法》 (1975) （失效）[Constitution of the People’s Republic of China] (Repealed)
art 6; 《中华人民共和国宪法》 (1978) （失效）[Constitution of the People’s Republic of China]
(Repealed) art 6.
43
This reason was deduced by Peng from the official explanatory note of a new Regulation on Land
Requisition for State Construction that was issued months prior to the enactment of the 1982
Constitution. For the translation of this note, see Peng, above n 10, 167. The Regulation replaced the
1953 MRLSC with more detailed procedural and compensation requirements for the expropriation of
land. Moreover, it abolished the provision that limited the payment of compensation. See《国家建设征
用土地条例》（失效）[Regulation on the Requisition of Land for State Construction] (Repealed)
(People’s Republic of China) State Council, 14 May 1982, arts 7–15. However, the Regulation was only
enforced for four years. The SCNPC repealed the 1982 Regulation by the enactment of the LAL in 1986,
and expropriation-related provisions were revised and incorporated to the LAL.

44
violent class struggle.44 This ten-year period of havoc severely paralysed China’s legal
system. During this period, legislative work stalled.45 Party policies superseded the law
and ‘most of the traces of a formal legal system disappeared’.46 Thus, Mao’s era was
considered as the era of ‘lawlessness’.47 It follows that, as Peng observes, ‘although the
1958 MRLSC was never formally repealed, its implementation had stopped, or at least
been severely disrupted’.48

In short, the CPC’s changing regulatory and redistributive policies relating to property
holding have driven the development of China’s compulsory acquisition regime in the
second phase. On the one hand, the regime granted unlimited expropriation power to
the state as a result of the removal of the constitutional public interest requirement.
On the other hand, it reduced the compensation paid to the expropriated landholder.
In doing so, the underlying policy was one of advancing the public interest at the
expense of private property rights.

3.2.3 Phase 3: Transformation and Improvement (1978–2019)

The last phase started from the launch of the far-reaching economic reform in 1978,
which aimed to build a market economy based on the public ownership system in
China.49 The economic reform began in rural areas with the ‘household responsibility

44
Shao-Chuan Leng, ‘The Role of Law in the People’s Republic of China as Reflecting Mao Tse-Tung’s
Influence’ (1977) 68 Journal of Criminal Law and Criminology 356, 358. The class struggle was conducted
under Mao’s revolutionary doctrine, which was inspired by traditional Marist conception. Mao divided
people by ‘class’: those who followed the CPC’s leadership and supported socialist public ownership
were ‘revolutionary’; if not, they were classified as ‘counter-revolutionary’. He further radicalised this
classification by classifying those in power who expressed sympathy for individual rights and private
ownership as ‘capitalist roaders’. The Cultural Revolution was purposed to eliminate all leading capitalist
roaders in the CPC, including Xiaoping Deng, the ‘architect’ of China’s landmark economic reform in
1978. See Mo Zhang, ‘From Public to Private: The Newly Enacted Chinese Property Law and the
Protection of Property Rights in China’ (2008) 5(2) Berkeley Business Law Journal 317, 326–37.
45
A 1964 draft of the civil code was interrupted by the Cultural Revolution. See Xu, above n 7, 43–4. For
a discussion on the setback for the jural model during this period, see Leng, above n 44.
46
William Jones, ‘Trying to Understand the Current Chinese Legal System’ in Stephen Hsu (ed),
Understanding China's Legal System (New York University Press, 2003) 57, 359–60.
47
See, eg, Laszlo Ladany, Law and Legality in China: The Testament of a China-Watcher (University of
Hawaii Press, 1992) 52.
48
Peng, above n 10, 167.
49
The CPC adopted the economic reform policy initiated by Deng during the Third Plenary Session of the
11th Central Committee Congress of the CPC with an absence of a blueprint. The CPC carried out the

45
system’ (or the ‘household contracting system’). Eighteen rural households, at
Fengyang County in Anhui Province, set up this system and achieved a significantly
higher output in the following year. The big success of this experimental reform
program motivated the CPC to recognise and extend the system nationwide by 1983 in
order to resolve the severe food shortage across the country.50 Under this system,
rural collectives divided up their land and contracted it out to individual households.
Although collectives retained the ownership of rural land, they granted contractual
management rights to farmers for the possession and use of rural land for farming
purposes.51 This bottom-up reform ultimately led to the demise of collectivised
agriculture (known as ‘decollectivisation’) and the establishment of privatised
agriculture, and more importantly, as Xu has observed, ‘enabling the existence of
private land rights in a collective land system’.52

Besides contractual management rights,53 various rural land use rights (LURs) emerged
under the public ownership framework, and then were readmitted and integrated into

economic reform by trial and error at each step, which described by Deng as ‘crossing the river by
feeling the stones’. For a brief overview of the reform, see Bert Hofman, ‘Reflections on 40 years of
China’s reforms’ in Ross Garnaut, Ligang Song and Cai Fang (eds), China’s 40 Years of Reform and
Development: 1978–2018 (ANU Press, 2018) 53, 56–8. China has also applied this experimental
approach to the reform of land expropriation regime since the early 2000s, which will be discussed in
Chapter 4.
50
Collectivisation in rural areas had resulted in a sharp decline in agricultural output and finally a
nationwide food shortage. Hundreds of thousands of farmers died of hunger. The decline was caused by
the inefficiency of collectivised agricultural production. There was no incentive mechanism linking
remunerations with results, and thus seriously damaged the farmers’ work ethic. See Wu and Ma, above
n 36, 78–80; Justin Yifu Lin, ‘Collectivization and China’s Agricultural Crisis in 1959–1961’ (1990) 98
Journal of Political Economy 1228, 1245–9.
51
Xu, above n 7, 73–4. The CPC also reformed the urban market system and assigned land use rights
(LURs) freely or with transfer fees. The establishment of the LURs system in urban areas, along with a
relaxation of laws around commercial housing, led to the formation of urban property markets in China.
For the re-emergence of urban property markets, see Xu, above n 7, 118–27; Wang, above n 5, 54–9.
52
Ting Xu, ‘Towards an Evolutionary Theory of Property? A Longitudinal Analysis of Property Regime
Transformation in China’ (2017) 12 Journal of Comparative Law 496, 513.
53
The land contracting system was firstly entrenched in the LAL in 1986. In 2002, the NPC enacted a
specific law, the Rural Land Contracting Law, for regulating rural land contracts, which was revised in
2009 and 2018. See《中华人民共和国农村土地承包法（2018 修正）》 [Rural Land Contracting Law
of the People’s Republic of China (2018 Amendment)] (People’s Republic of China) National People’s
Congress, 29 December 2018. The Property Law consolidates and refines the land tenure system, and
categorises LURs of collective rural land as ‘usufruct’, which refers to the right to use others’ property.
See Property Law art 125.

46
relevant laws after the CPC started to rebuild China’s legal system.54 These rights
include LURs of construction land and LURs of house sites.55 LURs of construction land
refer to the right to use rural construction land for construction purposes such as
public infrastructure and industrial or commercial developments.56 LURs of residential
plots are for farmers’ residential purposes on collectively-owned rural land.57

This revival of private property rights in rural areas revoked some of the more liberal
approaches to property in the Constitution and other laws in the post-Mao era. The
1982 Constitution reintroduced the ‘public interest’ requirement to restrict the
exercise of land acquisition power in the emerging property market. More importantly,
the 2004 Amendment to the Constitution included the compensation requirement in
the compulsory acquisition provision. Article 10 provides that ‘[t]he state may
expropriate or requisition land for the public interest, and pay compensation in
accordance with the law’ (remained unaltered in the 2018 version of the
Constitution).58 In doing so, as with the United States Constitution and the Australian
Constitution, the Chinese Constitution grants expropriated landholders a greater level
of protection. Specifically, legislative bodies can no longer enact legislation to
compulsorily acquire rural land with no compensation. In this form, similar to its
Australian counterpart, article 10 serves a double purpose: both a grant of power and
a guarantee of private property rights. Or, in the terms expressed by Peng, ‘it is both

54
Realising the severe damage caused by the lawlessness of Mao’s era, the CPC started to rebuild
China’s system in the late 1970s by enacting laws and regulations at an accelerated pace. Statistics show
that from 1979 to 2008, the NPC promulgated more than 200 laws and the State Council enacted over
600 regulations. See Mo Zhang, ‘The Socialist Legal System with Chinese Characteristics: China’s
Discourse for the Rule of Law and a Bitter Experience’ (2010) 24 Temple International & Comparative
Law Journal 1, 13, 34–5.
55
《中华人民共和国物权法》 [Property Law of the People’s Republic of China] (People’s Republic of
China) National People’s Congress, 16 March 2007, chs 11, 12 and 13 (‘Property Law’). The LAL also
prescribes the land ownership and LURs because it was enacted before the promulgated of the Property
Law. Besides, as a public law, it focuses on the administration of the use of land by the state.
56
2004 LAL art 60.
57
Ibid art 62. By art 62, Each rural household can only hold one parcel of land distributed by the rural
collective with no charge. They are not allowed to apply for a new parcel after selling or leasing houses.
This rule expresses the notion that housing is for living in and not for speculation, thereby encouraging
rural residents to save and efficiently use the residential land in order to avoid unnecessary conversion
of rural land from agricultural use to residential use.
58
As noted in Section 1.2, Land expropriation is used to define the transfer of land ownership from the
rural collective to the state. Requisition refers to temporary acquisition of LURs.

47
power-confirming and power-constraining’.59

Besides, two statutes have reiterated the constitutional land expropriation provision
and formulated detailed rules to apply it in specific cases. The first statute is the LAL,
which has superseded previous regulation regarding land expropriation60 and served
as the basic source of law for land expropriation since its enactment in 1986. The
enactment of the 2004 Amendment to LAL (2004 LAL) represents the establishment of
China’s previous land acquisition regime. Another relevant statute is the Property Law
of the People’s Republic of China (Property Law), which was enacted in 2007 to serve
as the basic law for property rights. The Property Law mainly regulates property rights
in the sphere of private law. Therefore, it only designs one provision to supplement the
assessment of compensation prescribed in the 2004 LAL. In general, the two statutes
contain detailed provisions for procedures of land acquisition as well as relevant
matters and standards for the determination of the amount of compensation.

In short, the third phase witnessed a transformation and improvement – from the
perspective of property holders – of China’s land acquisition regime, which also
provides some support for Xu’s discourse on the revival and development of private
property in post-Mao China. As with its United States and Australian counterparts, the
Chinese Constitution allows the government to regulate and redistribute private
property rights for the public interest as well as confers protection to landholders by
offering compensation to the expropriated property. From this line of reasoning, it
appears that in China there has been a growing shift towards, to use Jennifer
Nedelsky’s influential terminology, a ‘limitation-oriented’ approach to constitutional
property rights.61 At the same time, since the Chinese Constitution is not judicially
enforceable, China has developed a statutory compensation regime (including rules set
out in the LAL and the Property Law) to apply the compensation requirement. The
compensation requirement is mainly applied through the compensation provisions of

59
Peng, above n 10, 313.
60
See above n 43.
61
Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (University of
Chicago Press, 1990).

48
the LAL and the Property Law, which will be discussed in Section 3.4.

To summarise, China’s land acquisition regime has undergone gradual and significant
evolutionary developments over the latter half of the 20 th century. The developments
have evidently gone hand in hand with the CPC’s economic and property policies.
Accordingly, before expounding upon the details of the previous land acquisition
regime, it is essential to provide an overview of the political context in which that
regime has evolved.

3.3 CHINA’S POLITICAL AND LEGAL SYSTEM

Given that the political and economic reordering of the PRC after 1949 was modelled
after the Soviet party-state,62 this section first briefly discusses the role of the CPC in
China’s political system, which will lead to an understanding of the functions of the
state institutions.

3.3.1 The Party: the Role of the CPC

Even though there are no detailed provisions concerning the functions of the CPC in
the Constitution, its leading and ruling position in China’s political system is
uncontroversial. Article 1 of the Constitution provides that ‘the socialist system is the
basic system of the People’s Republic of China. The defining feature of socialism with
Chinese characteristics is the leadership of the Communist Party of China’.63 In reality,
the CPC is the ultimate decision-maker in China. It has the overarching power to devise
policies that have nationwide application, such as the promulgation of a series of pilot
reform policies since the early 2000s, aiming to enhance the protection of landholders’
property rights in land expropriation (which will be discussed in Section 4.2).

62
For the adaptation of the Soviet party-state to Chinese circumstances, see Sebastian Heilmann (ed),
China’s Political System (Rowman & Littlefield, 2016) 46–56.
63
2018 Constitution art 1. This arrangement was influenced by the Soviet model, which also included a
general rule concerning the leadership of the communist party. See Heilmann, above n 62, 56 (arguing
that ‘[k]ey elements of the state institutions set forth in China’s first constitution in 1954 adhered to the
Soviet model, particularly the constitution of the Soviet Union of 1936 that had been enacted under
Stalin).

49
Evidently, there has been a radical change of CPC’s position on private property, which
largely resulted from the far-reaching 1978 economic reforms for two reasons. First,
the increased growth of the private economy and its significant contribution to China’s
economy have compelled the CPC to accept and even protect private property.
Specifically, in addition to the launch of economic reform, the Party leader Deng
Xiaoping determined to shift the focus of the CPC from traditional Marxist conceptions
of the class struggle to a more pragmatic focus on economic development. This shift
indicates that the political legitimacy of the CCP leadership rests primarily on its
economic performance rather than on the former communist ideology. 64 It follows
that the Party must protect private property under the pressure to achieve economic
success, in order to keep its promise of prosperity for the people. Second, the
communist idea that universally prioritises public interest over private property rights
is nowadays not prevalent among Chinese citizens. Personal wealth has generally
increased since the 1978 economic reform, which in turn has led to popular demands
for the protection of property rights.65 The growing activism on the issue of land rights
protection has provided rich evidence of this change.66 In consequence, the CPC is now
unlikely to carry out massive uncompensated land expropriation of private property
rights.

In addition, the Party nowadays lacks the capacity to implement those types of
expropriations for the reason that economic reforms also ‘resulted in undeniable

64
This argument is based on comprehensive and systematic discussions of Randall Peerenboom and
Sebastian Heilmann on the political role of the CPC. See Randall Peerenboom, China’s Long March
toward Rule of Law (Cambridge University Press, 2002) chs 4, 5 (observing that communist ideology has
little appeal for the citizens or even the party members; many individuals join the party not out of
ideological commitment but as a means of social advancement); Heilmann, above n 62, chs 2, 4, 5
(observing that ‘a lack of ideological orientation are common at all levels of the party organization. … To
a greater extent, however, they [local party officials] were unable to justify their power by means of the
ideology propagated by party headquarters’).
65
For example, an investigation initiated by the China Economic Monitoring Centre and China Central
Television in 2002 showed that 93 per cent of citizens hoped the Constitution could protect private
property rights. See 韩大元 [Han Dayuan], 《私有财产权入宪的意义》 [Significance of the Inclusion of
Private Property Rights in the Constitution]
<http://www.people.com.cn/GB/14576/28320/31049/31055/2288546.html>.
66
Xu, above n 7, 137; Peerenboom, above n 64, 206–7.

50
decentralisation and fragmentation of authority’. 67 In the late 1980s, the CPC
leadership proclaimed several institutional forms which reform of the political system
might take to deepen economic reforms.68 The first one was the ‘separation of party
and state’, which led to the transfer of much of the Party’s daily governance to the
usual state institutions: the legislature, executive, and judiciary over the last three
decades. The role of CPC has changed toward micromanagement and policy setting.69
For instance, in the economic sphere, the CPC transferred most economic powers from
party bodies to government organisations, in order to ‘provide economic
administration with more room for manoeuvre, and thereby to promote flexibility with
regard to economic policy’.70 Party bodies with economic responsibilities only focus on
indirect and macroeconomic control such as formulating long-term economic planning
(ie, the five-year plan). Accordingly, the Party is not able to exert direct administrative
control over private property as it did in the 1950s socialist transformation campaign.

Besides, the ‘decentralisation of powers’ reform also diminished the Party’s ability to
directly impact society at large. Specifically, decentralisation empowered provincial-
level (sub-national) and local governments.71 For instance, provincial governments not
only have their owner revenue streams (known as ‘fiscal decentralisation’) but also are
responsible for a large share of public expenditure in China, including almost all public
expenditure on education, health and other social services.72 Beside, provinces have
the law-making power to enact their own regulations, as long as the rules do not

67
Peerenboom, above n 64, 210 (observing that a variety of factors, such as technological advancement
and globalisation, has contributed to the CPC’s diminished capacity and stake in daily governance, but
the major force behind the changes has been economic reforms).
68
At the 13th National Congress of the CPC in 1987, the general secretary of the Party delivered a report
that enumerated a number of institutional forms which reform of the political system might take. See
further, Stuart Schram, ‘China after the 13th Congress’ (1988) 114 The China Quarterly 177.
69
For a comprehensive discussion of the retreat of the CPC, see Peerenboom, above n 64, 188–226. For
the Party’s diminished role in the daily operation of the legal system, see Suli Zhu, ‘The Party and the
Courts’ in Randall Peerenboom (ed), Judicial Independence in China (Cambridge University Press, 2009)
52, 68.
70
Heilmann, above n 62, 73.
71
Levels of administration will be discussed in Section 3.3.2.
72
For a detailed discussion of fiscal decentralisation in China, see Heilmann, above n 62, 105–9. There is
mismatch between revenues and expenditure responsibilities for subnational governments, which partly
led to large-scale land acquisition in China over the last two decades. This issue will be discussed in
Chapter 4 (Section 4.4.1).

51
conflict with national laws and regulations (see Section 3.3.3). As confirmed in a report
for the United States Congress in 2013, ‘Beijing gives provinces considerable leeway in
adopting policies to boost economic growth and encourages provinces to undertake
approved policy experiments’.73 Thus, lower-level governments may not implement
such types of central policies that could impede local economic growth.

In short, economic reforms have made it increasingly unpopular and difficult for the
CPC to interfere excessively with property rights. This line of argument is supported by
Chuanhui Wang in an important recent systematic and comparative analysis of the
constitutional protection of private property in China. He has observed that
‘[g]overnment will not and cannot move forward with more aggressive steps to
expropriate private property because the people have shown strong intolerance of
ruthless and untamed expropriations’.74 After reviewing the changing role of the CPC
in the regulation of property rights, it is important to provide an overview of current
state institutions that are involved in the daily regulation of compulsory land
acquisition in China, including the legislature, executive and judiciary.

3.3.2 The State: the Legislature, Executive and Judiciary

According to the Constitution, the National People’s Congress (NPC), is the ‘highest
organ of state power’; its permanent body is the Standing Committee of the NPC
(SCNPC),75 which takes over the NPC’s functions when it is not in session.76 The
Constitution gives the NPC broad political powers and functions, such as to elect or
choose top officials of the state and judiciary,77 to supervise the work of other state

73
Susan Lawrence and Michael Martin, Understanding China’s Political System (20 March 2013)
<https://www.fas.org/sgp/crs/row/R41007.pdf> 10. The approved policy experiments in the context of
compulsory land acquisition will be discussed in Chapter 4 (Section 4.2).
74
Wang, above n 5, 167.
75
2018 Constitution art 57.
76
Ibid art 67.
77
Ibid art 62 ( for example, the NPC has the power to elect the President and the Vice-President of the
NPC; to choose the Premier of the State Council from among those nominated by the President of China
and to choose the Ministers in charge of ministries or commissions upon those nominated by the
Premier; and to elect the President of the Supreme People’s Court).

52
institutions,78 and to examine and approve the state budget and the national economic
and social development (that is, the five-year plan).79 More importantly, the NPC (and
SCNPC) exercises the legislative power of the state.80 For example, the NPC has the
power to amend the Constitution and supervise its enforcement, and to enact and
amend the basic laws governing criminal offences, civil affairs, the state organs and
other matters.81 Meanwhile, the SCNPC has the power to interpret the constitution
and to enact and amend laws other than those should be enacted by the NPC. 82 In
consequence, it is suggested that ‘[t]he NPC’s most significant power is its ability to
initiate and shape legislation’.83

The State Council, that is, the ‘Central People’s Government’, is defined in the
Constitution as ‘the executive body’ of the NPC and as the ‘highest organ of state
administration’. 84 It functions as ‘China’s cabinet’ that manages the day-to-day
administration of the country.85 The Constitution grants massive powers to the State
Council, such as to enact administrative regulations (the law-making power), to submit
proposals to the NPC or the SCNPC, and to formulate the tasks and responsibilities of
the ministries and commissions of the State Council.86 Under its unified leadership, the
ministries and commissions (collectively referred to as ‘constituent agencies’) take
charge of specialised work and exercises the basic administrative functions of the State
Council according to law.87 The Ministry of Natural Resources,88 which oversees the

78
Ibid.
79
Ibid.
80
Ibid art 58.
81
Ibid art 62.
82
Ibid art 67.
83
Lawrence and Martin, above n 73, 4. See further, Peerenboom, above n 64, 215; Heilmann, above n
62, 132–4. For an empirical analysis of the assertive role played by the NPC in the law-making process,
see Wenbo Chen, ‘Is the label “minimal legislature” still appropriate? The role of the National People’s
Congress in China’s political system’ (2016) 22 The Journal of Legislative Studies 257. The law-making
process is prescribed in the 2015 Legislation Law.
84
2018 Constitution art 85.
85
Lawrence and Martin, above n 73, 29.
86
2018 Constitution art 89.
87
《国务院行政机构设置和编制管理条例》 [Regulation on Administration of the Establishment and
Staffing of the Administrative Agencies of the State Council] (National People’s Congress) State Council,
3 August 1997, art 6 (the administrative agencies of the State Council are, according to their functions,
divided into six categories, including the General Office of the State Council, the constituent ministries

53
protection and development of natural resources, is involved in the regulation work of
land acquisition in China.

The Supreme People’s Court is the ‘highest judicial organ’ in China and oversees the
lower courts.89 Importantly, it is responsible to the organ of state power. Article 42 of
the Constitution provides that ‘the Supreme People’s Court is responsible to the
National People’s Congress and its Standing Committee’.

There are local equivalents of the central state institutions. On the whole, China has
three levels of local institutions: provincial (subnational) level, county/municipal level,
and township level.90 Local people’s congresses (local legislatures) at various local
levels are also the local organs of state power.91 Local people’s governments (local
governments) 92 act as the executive bodies of local legislatures at the corresponding
levels and the local organs of state administration.93 Accordingly, they are responsible
and accountable to both local legislatures at the corresponding levels and the state
administrative organs at the next higher level (under the unified leadership of the
State Council).94 Local people’s courts are deployed by and are responsible to local
legislatures.95 These local organisations are not discussed given that their functions at
their specific administrative levels essentially correspond to those of the central
institutions.

and commissions of the State Council, the directly subordinate agencies of the State Council,
administrative offices of the State Council, the State agencies administrated by the constituent
ministries or commissions of the State Council and the deliberation and coordination agencies of the
State Council).
88
The Ministry of Natural Resources took over the responsibilities of the dissolved Ministry of Land and
Resources (MLR) in March 2018, which was formally in charge of the unified regulation, management,
preservation and exploitation of natural resources (ie, land, mines and maritime resources) in the
country.
89
2018 Constitution art 132.
90
Ibid art 95. See further, 《中华人民共和国地方各级人民代表大会和地方各级人民政府组织法
（2015 修正）》 [Organic Law of the Local People’s Congresses and Local People’s Governments of the
People’s Republic of China (2015 Amendment)] (People’s Republic of China) National People’s Congress,
29 August 2015. The law was enacted on 1 July 1979, and was last amended in 2015.
91
2018 Constitution art 96.
92
In China, the term ‘governments’ normally refers to the executive bodies.
93
2018 Constitution art 105.
94
Ibid art 110.
95
Ibid art 133.

54
The above overview reveals that China does not observe the ‘Western notion’ of
separation of powers that involves a supposedly independent judiciary.96 According to
the Constitution, the state power is concentrated in the legislature at various
administrative levels. The executive and the judiciary at the same level are responsible
to the legislature.97 Besides, the judiciary has no law-making power, which is enjoyed
by the legislature and the executive. The section below provides a brief overview of
Chinese government institutions’ law-making power and the legislative framework,
which is needed to facilitate understanding of China’s regulatory framework for
compulsory land acquisition.

3.3.3 The Law-making Power and the Legislative Framework

China’s legislative structure has five levels of hierarchy,98 with regulation regarding
compulsory land acquisition scattered across each level. The first level is the supreme
Constitution. No laws or regulations may contravene the Constitution.99

The second level is the ‘Law’ (or ‘national law’) enacted by the NPC or the SCNPC in
line with the Constitution.100 The law is the highest level of legal instruments, just
below the Constitution in legal authority and has national application. As a
consequence, the LAL and the Property Law, the only two laws on this level regulating
the exercise of the expropriation power and determining the legal protections
afforded to property holders, constitute the major sources of China’s compulsory land
acquisition regime.

96
The judicial independence issue will be discussed further in Section 5.4.2.
97
2018 Constitution art 3 (providing that ‘[a]ll administrative, judicial and procuratorial organs of the
state are created by the people’s congresses to which they are responsible and by which they are
overseen’).
98
See generally, the 2015 Legislation Law. As noted in above n 25, the law was promulgated by the NPC
in accordance with the Constitution. It focuses on the clarification of the hierarchy of China’s legislative
framework and, specifically, the regulation of the law-making process: art 2 provides that ‘the
enactment, amendment and repeal of any laws, administrative regulation and local regulations should
be governed by this law; the enactment, amendment and repeal of rules promulgated by departments
under the State Council and by local governments should be carried out in accordance with the relevant
provisions of this law’.
99
2018 Constitution art 5.
100
Ibid arts 62, 67.

55
The third level is the ‘administrative regulations’ that are enacted by the State
Council. 101 One regulation on this level regulates the exercise of compulsory
acquisition power, that is, the Regulation on the Implementation of the Land
Administration Law of the People’s Republic of China (RILAL).102 This regulation mainly
details land acquisition procedures prescribed in the LAL (to be discussed in Section
3.4.2).

On the fourth level are ‘local regulations’ promulgated by provincial people’s

congresses or their standing committees (also referred to as ‘local legislative
bodies’).103 They cannot contravene the rules prescribed in the Constitution, laws, and
administrative regulations.104

The fifth level are rules developed by departments directly under the State Council and
local governments (mainly provincial level) with their jurisdictions. 105 In the land
acquisition context, two rules enacted by the Ministry of Natural Resources (and the
dissolved Ministry of Land and Resources)106 have influenced the land acquisition
procedures. One concerns the public notice procedure,107 the other focuses on the
procedure of public hearings.108 The two rules will be outlined in Section 3.4.2.

101
Ibid art 89.
102
《中华人民共和国土地管理法实施条例（2014 修订）》 [Regulation on the Implementation of
the Land Administration Law of the People’s Republic of China (2014 Amendment)] (People’s Republic of
China) State Council, 29 July 2014 (‘2014 LAL Regulation’). It was enacted on 27 December 1998, and
was revised in 2011 and 2014. However, provisions concerning land acquisition procedures remain
unaltered.
103
2018 Constitution art 100.
104
Ibid.
105
2015 Legislation Law arts 80, 82.
106
See above n 88.
107
《征收土地公告办法（2010 修正）》（失效） [Measures for Public Notice of Land Expropriation
(2010 Amendment)] (Repealed) (People’s Republic of China) Ministry of Land and Resources, 30
November 2010 (‘2010 MPNLE’). The Measures was enacted on 18 October 2001. It was amended in
2012 and merely replaced the term ‘land requisition’ with ‘land acquisition’. It was repealed by the MNR
on 20 March 2020 as the procedures prescribed in this rule were inconsistent with the revised
procedures in the 2019 LAL. See《自然资源部关于第二批废止和修改的部门规章的决定》 [Decision
of the Ministry of Natural Resources on the Second Group of Repealed and Amended Department Rules]
(People’s Republic of China) Ministry of Natural Resources, 20 March 2020 (‘Decision on the Repealed
and Amended Department Rules’).
108
《国土资源听证规定》[已被修订] [Provisions on the Hearings of Land and Resources] (Revised)
Ministry of Land and Resources, 30 December 2003 (‘PHLR’). It was enacted on 9 January 2004, and was

56
As a civil law country, the Chinese judiciary has no legislative power. Chinese courts
can only apply and interpret laws and regulations in particular cases, and case-by-case
interpretation does not bind lower courts in similar cases in the future. One exception
is the decisions of the Supreme People’s Court. The Court has the power to release
legally binding opinions on specific legal issues by judicial interpretation. However, to
date, the Court has only brought down one opinion relating to land acquisition, that is,
the Rules of the Supreme People’s Court on Several Issues concerning the Trial of
Administrative Cases involving Rural Collectively Owned Land.109

All in all, unlike the federal system in the United States and Australia,110 within the
overarching Constitution framework, China’s has developed a unified legislative
structure, with the general principle that regulations on the higher levels prevail over
those on the lower levels (Figure 3.1).111 In contrast to the Constitution, laws and
regulations are judicially enforceable. It follows that China’s regulatory framework of
compulsory land acquisition is mainly statutory and regulatory, which is similar to the
Australian states’ framework of compulsory acquisition law (as discussed in Section
2.3.2). The section below examines the previous land acquisition regime, focusing on
relevant laws and administrative regulations that have national application. Local
regulations are developed based on these basic rules to ensure consistency.

last amended in 2020 with some minor changes to the terms and concepts related to land acquisition, in
order to ensure consistency with the wording used in the 2019 LAL. See Decision on the Repealed and
Amended Department Rules, above n 107.
109
《最高人民法院关于审理涉及农村集体土地行政案件若干问题的规定》 [Rules of the Supreme
People’s Court on Several Issues concerning the Trial of Administrative Cases involving Rural Collectively
Owned Land] (People’s Republic of China) Supreme People’s Court, Order No 20, 7 August 2011 (‘Rules
of the Supreme People’s Court on Several Issues’).
110
As discussed in Chapter 2 (Sections 2.2.2 and 2.3.2, based on federalism, there is no unitary land
acquisition regime in the United States and Australia. The divergence has become greater in the United
States after the backlash triggered by the Supreme Court’s decision in Kelo v City of New London, which
will be discussed in Chapters 5 and 6.
111
2015 Legislation Law arts 87–9, 91.

57
 Figure 3.1 Hierarchy of China’s Legislative Framework

Constitution

Laws
(by NPC or SCNPC)

Administrative Regulations
(by State Council)

Local Regulations
(by local legislatures)

Rules Rules
(by local governments) (by Departments under
the State Council)

3.4 PREVIOUS FRAMEWORK OF CHINA’S COMPULSORY LAND

ACQUISITION LAW

3.4.1 Substantive Requirements

As in the United States, there are two major substantive requirements in compulsory
land acquisition in China: public interest and compensation. Consistent with the
constitutional land acquisition provision, the 2004 LAL and Property Law both require
that land acquisition should be conducted ‘for public interest’ and the ‘compensation’
must be paid to expropriated landholders.112

In respect of the public interest requirement, it limits the purpose for which the state
can exercise its power of compulsory land acquisition, thereby defining the scope of
the acquisition power. However, neither the 2004 LAL nor the Property Law provides

112
2004 LAL art 2; Property Law art 42.

58
any clear definition but merely a broad criterion, similar to the ‘public use’
requirement in the United States law.113 This issue will be discussed further in Section
3.5.1.

In contrast to the public interest requirement, the two laws formulate detailed rules
for the compensation requirement. The 2004 LAL is the primary source for the
calculation of compensation in land acquisition process (art 47), which sets up the
principle, elements and standards of compensation (see Table 3.1). Moreover, article
42 of the Property Law supplements the 2004 LAL by incorporating the social insurance
subsidies into the elements of compensation, which will be used for the payment of all
sorts of social insurance and endowment insurance for the expropriated
landholders.114 Compensation provisions in these two laws are used as a baseline for
payable compensation for acquired rural land across China. Local regulations could
provide more generous compensation in the nature of a ‘top-up’ over and above the
amount of compensation required by the 2004 LAL and Property Law. For example,
several local legislatures have designed additional compensation payments in the
reforms since the early 2000s.115

Table 3.1 Compensation Provisions in the 2004 LAL

Principle of Category Elements of Standards of

Compensation of Land Compensation Compensation

The original Compensation for the 6 to 10 times the average

use of acquired land annual output value of the
acquired land acquired land over the
three years preceding the

113
See above Section 2.2.1. The ‘public use’ requirement in the United States law will be discussed
further in Section 5.2.
114
Based on the Social Insurance Law, China has established a social insurance system to provide
material assistance to citizens in case of old age, illness, work-related injuries, unemployment and
childbirth. The social insurance system includes basic pension insurance, basic medical insurance,
employment injury insurance, unemployment insurance and maternity insurance. See《中华人民共和
国社会保险法（2018 修正）》 [Social Insurance Law of the People’s Republic of China (2018
Amendment)] (People’s Republic of China) Standing Committee of the National People’s Congress, 29
December 2018. It was enacted on 28 October 2010, and was last amended in 2018.
115
Some examples of providing additional compensation payments at the local level will be noted in
Chapter 4 (Section 4.2.2.1) and Chapter 6 (Section 6.5).

59
 land acquisition

Cultivated Resettlement subsidies subsidies for each

land agricultural population
needing to be resettled is
4 to 6 times the average
annual output value of the
acquired land over the
three years before land
acquisition116

Compensation for determined by the

aboveground fixtures provincial people’s
and young crops on the congress
acquired land

Compensation for the determined by the

acquired land provincial people’s
congress by reference to
Resettlement subsidies standards of cultivated
land
Other
types of Compensation for determined by the
land aboveground fixtures provincial people’s
and young crops on the congress
acquired land

Cap on the total land compensation and resettlement subsidies: 30 times the
average annual output value of the acquired land over the three years preceding
the land acquisition

(Note: statutory formula of compensation standards = average annual output x multiplier)

As shown in the table, a compensation package includes three elements:

compensation for the acquired land, resettlement subsidies and compensation for
aboveground fixtures and young crops on the acquired land.

With the determination of compensation for the acquired land, China’s land
acquisition law does not adopt the generally accepted ‘market value’ of Western,

116
The subsidies for expropriated cultivated land are calculated according to the number of agricultural
populations to be resettled. The number of agricultural populations to be resettled shall be calculated
by dividing the amount of cultivated land expropriated by the per capita land occupied by the unit
whose land is expropriated. See 2004 LAL art 47(1).

60
liberal compulsory acquisition law methods, 117 which is commonly calculated by
reference to the notion of a willing but not anxious vendor selling to a willing but not
anxious purchaser.118 This is because China’s rural land market is underdeveloped and
under strict control against transfer.119 Accordingly, it cannot provide sufficient market
information to adequately evaluate and appraise the value of rural land. Hence, the
law uses the annual output value as an alternative method, which in essence is an
‘income capitalisation approach’.120 This approach, as will be discussed in Chapter 6, is
used in the United States and Australia to measure the market value of the land where
the ‘comparative sales approach’ (or market data approach) cannot be used.

The law includes resettlement subsidies having regard to the fact that compensation
payments for the loss of land alone are often insufficient for restoring rural livelihoods
in rural China where land is commonly used to make a living. The subsidies thus
supplement compensation for expropriated land to ensure that the expropriated
landholders are no worse off after land acquisition.

In terms of compensation for aboveground fixtures (including rural housing) and young
crops on the acquired land, in practice, it is normally calculated by reference to the
actual loss to the landholders.121

3.4.2 Procedural Requirements

The principal procedures include the issue of acquisition notice and the claim and
determination of compensation. The expropriated landholders’ right to challenge the
amount of compensation will also be examined below.

117
The market value standard in the United States and Australia will be discussed in Chapter 6.
118
See, eg, United States v Miller, 317 US 369 (1943); Spencer v Commonwealth [1907] 5 CLR 418. This
approach will be discussed in detail in Chapter 6.
119
The control over land use and land transfer will be discussed in Section 3.5.1.3.
120
Wang has arrived at a similar conclusion, see above n 5, 231 (‘annual output, which is, in essence, an
income or capitalisation approach’).
121
This argument is based on the discussion of Maohui Qu and Zhifang Zhang, who conducted a
comprehensive analysis of compensation standards prescribed in local regulations. See 屈茂辉、周志芳
[Qu Maohui, Zhou Zhifang], 《中国土地征收补偿标准研究—基于地方立法文本的分析》 [Study on
Compensation Standards for Land Expropriation in China — An Analysis based on Local Legislative Texts]
(2009) 3 法学研究 Chinese Journal of Law 163, 170–1.

61
3.4.2.1 The acquisition notice

Under the 2004 LAL, local governments above county level (mostly the
county/municipal governments) are obliged to inform expropriated landholders by
publishing a public notice within the village or town territory.122 The notice is not a
casual letter indicating that an acquiring authority intends to acquire the land; it is a
formal document that declares the executive bodies’ decisions on land acquisition. The
notice is required to include several matters, including the approving authority (or
decision-making authority),123 the approved document number, purpose of acquisition,
the scope and square metres of the acquired land, the compensation standards and
mode of resettlement as well as the time limit and location for the claim of
compensation.124

3.4.2.2 Claims and determination of compensation

A person who wants to claim compensation must register with the land bureau of local
governments and provide certifications of property titles so as to help determine the
amount of compensation.125 After receiving a claim for compensation, the land bureau
must, within 45 days after the publication of the acquisition notice, consult other
relevant departments of local governments to formulate and publish a detailed
compensation plan to inform expropriated farmers of the amount of compensation and
the mode of resettlement.126

At this stage, the proposed compensation plan does not have legal effect. If dissatisfied
with the compensation amount, the expropriated person can lodge an objection or a
request for a public hearing with the land bureau within ten days after the publication
of the compensation plan.127 Where it is necessary to revise the plan, the land bureau
must modify it in accordance with relevant laws, regulations and approved land

122
2004 LAL art 45.
123
The acquiring authority and approving authority will be discussed in Section 3.5.1.2.
124
2014 LAL Regulation art 25; 2010 MPNLE art 4
125
2004 LAL art 46.
126
2014 LAL Regulation art 25; 2010 MPNLE art 7.
127
2010 MPNLE art 10. The process of public hearings is prescribed in the 2020 PHLR.

62
acquisition projects, and then submit the updated plan to local governments (that is,
acquiring authorities) for review and approval.128 The amount of compensation is
determined by acquiring authorities.

3.4.2.3 Challenging the amount of compensation

The land acquisition regime envisages a two-stage process for the expropriated person
to challenge the amount of compensation determined by acquiring authorities. First,
the dispute over compensation must be mediated by the acquiring authorities; if
mediation has failed, the property holder can apply for adjudication by the approving
authorities (provincial governments and the State Council) that have approved the
land acquisition plan.129 The Supreme People’s Court has considered exhaustion of this
mediation-adjudication procedure as a ‘precondition’ for applying for administrative
reconsideration and appealing to the court.130 The administrative reconsideration is an
internal review within the executive system, which provides the administrative
authority with an opportunity to reconsider and correct any illegal or improper
decision before courts become involved.131 Moreover, if the expropriated are not
satisfied with the result of administrative reconsideration, they can still bring a suit to
the court.132

It is important to note that, even though there are no legal grounds for expropriated
landholders to challenge government land acquisition decisions, they can file
administrative reconsideration and litigation against these decisions on the basis that

128
2010 MPNLE art 10.
129
2014 LAL Regulation art 25.
130
Rules of the Supreme People’s Court on Several Issues, above n 109, art 10.
131
See《中华人民共和国行政复议法（2017 修正）》 [Administrative Reconsideration Law of the
People’s Republic of China (2017 Amendment)] (People’s Republic of China) Standing Committee of the
National People’s Congress, 1 September 2017, art 1 (‘2017 ARL’). The law was enacted in 1999, and was
amended in 2009 and 2017. It provides that if any party refuses to accept a specific administrative act of
local governments, it shall apply for administrative reconsideration to the local government at the next
highest level (art 13); if the specific administrative act is made by a department under the State Council
or a provincial government, the applicant shall apply for administrative reconsideration to the
department under the State Council or the provincial government (art 14).
132
Ibid art 14.

63
they consider the acquiring authorities’ administrative acts unjustifiably infringe their
property rights.

From the above overview of the key features of China’s compulsory acquisition regime,
China appears to establish a regime which is quite similar to that in the United States
and Australia (as discussed in Sections 2.2.2 and Section 2.3.2). Accordingly, the state’s
position seems to strike a balance between the public interest and property rights, as
is the case with the United States and Australia. However, the balance is beset by
several weaknesses inherent in previous land acquisition law, especially the 2004 LAL.
As discussed below, these deficiencies have unduly burdened property rights in the
land acquisition process.

3.5 WEAKNESSES INHERENT IN CHINA’S PREVIOUS COMPULSORY LAND

ACQUISITION REGIME

The weaknesses are reflected in two major respects, including, in the terms expressed
by Wang, ‘symbolised public interest requirement’ and ‘unjust compensation’.133

3.5.1 Symbolised Public Interest Requirement

The public interest requirement is central to ensure that land acquisition will only be
conducted if it is in the public interest. However, it has not effectively limited
governments’ abuse of land acquisition power in China. As with local governments in
the United States (as noted in Section 2.2.3.3), 134 Chinese local governments
frequently expropriate land in the name of public interest and transfer the acquired

133
Wang, above n 5, 75. In addition to these two deficiencies, Wang observes that the procedural
provisions in land acquisition law are ineffective in limiting governments’ power. Those ‘ineffective
procedural constraints’ focus on the ‘one-sided decision procedure’ of land acquisition and the lack of
negotiation procedure for compensation. Since these procedural issues are closely related to the public
interest and compensation requirements, they will be integrated into the discussion of these two
substantive elements in this thesis.
134
See more detail in Chapter 5 (Section 5.2.1).

64
land to a private actor.135 The symbolic role of the public interest requirement can be
ascribed to three factors.

3.5.1.1 The absence of a clear definition of ‘public interest’

The first factor is the omission of a clear definition of public interest. No organisations
that have law-making powers defined the scope of ‘public interest’ in the land
acquisition context before 2020. At the national level, neither the NPC nor the SCNPC
provided any explanation of the constitutional public interest requirement in the 2004
LAL and the Property Law. Besides, the State Council never defined the meaning of
public interest in the administrative regulation concerning land expropriation.136 At the
local level, local legislatures remained silent on the definition issue where land
acquisition is concerned. Meanwhile, in contrast to the United States courts, the
Chinese courts have not issued any interpretation of public interest stipulated in the
2004 LAL and the Property Law in cases.137

However, this does not mean that the legislative bodies pay no attention to the public
interest prerequisite. This legal requirement has been a frequent focus of law-making
in China. For instance, during the drafting of the Property Law, there was extensive
debate over the formulation of the public interest.138 Huixing Liang, an eminent civil
law expert, suggested an enumerative method to define the meaning of public interest.
Additionally, in his team’s draft of property law, they provided a list of specific
purposes that can qualify as public interest in land expropriation, such as the

135
This kind of abuse is prevalent nationwide. A 2003 report by the MLR revealed that, in the 16
provinces investigated, 21.9 per cent of acquired land had been used for commercial purposes such as
golf courses, shopping malls, commercial housing and so on. See 鹿心社 主编 [Lu Xinshe (ed)], 《研究
征地问题探索改革之路》 [Studying the Problems of Land Acquisition and Exploring the Path of Reform]
(中国大地出版社 [China Dadi Press], 2003) 46. The editor was then the deputy minister of the MLR.
Moreover, a survey conducted by the Southeastern College of Land Management showed that between
2001 and 2002, in Zhejiang Province, 22 percent of acquired land was used for commercial projects such
as industrial and housing projects. See Chengri Ding, ‘Policy and Praxis of Land Acquisition in China’
(2007) 24 Land Use Policy 1, 7–8.
136
For the specific regulation, see above n 102.
137
This point will be discussed in Section 3.5.1.2.
138
The Legislative Affairs Committee of the NPC commissioned two teams, composed of experts in civil
law, to each prepare a draft property law. One was led by Professor Huixing Liang and another was led
by Professor Liming Wang. See Xu, above n 7, 49.

65
construction of infrastructure for transportation and water and public projects in the
areas of science and technology, education, culture, health, environment protection,
disaster prevention and protection of cultural relics.139 The NPC, however, did not
adopt this suggestion and accepted the proposal provided by Liming Wang, leader of
the other team. In consideration of rapid change and development in China, Wang
recommended maintaining the general term of public interest without defining its
meaning.140

Moreover, the State Council has clarified the definition of public interest in another
regulation – the Regulation on Expropriation and Compensation of Houses above State-
owned Land,141 which focused on the withdrawal of LURs of state-owned urban land
and simultaneous expropriation of houses on the land by the state. The Regulation
enumerated six separate situations that qualify as public interest: (1) national defence
and foreign affairs; (2) infrastructure construction projects concerning energy,
communication and water conservancy, and other infrastructure; (3) public utilities
such as science and technology, education, culture, health, sports, environment and
resource protection, disaster prevention and mitigation, protection of cultural relics,
social welfare or municipal utilities; (4) public security housing projects; (5) renewal of
old cities where dilapidated buildings abound and infrastructure lags behind; and (6)
other public interest as prescribed by a law or administrative regulation (art 8). 142 This
move has been welcomed as the first time in China that the public interest doctrine
has been deployed to produce actual restrictions on the government’s power of
compulsory acquisition and to protect individual property.143 However, this new rule
applies exclusively to the acquisition of residential property on state-owned land. It

139
梁 彗 星 [Liang Huixing], 《 中 国 物 权 法 草 案 建 议 稿 ： 条 文 、 说 明 、 理 由 与 参 考 立 法 例 》
[Recommended Draft of Chinese Property Law: Clauses, Explanations, Rationales and Reference
Legislative Models] (社会科学文献出版社 [Social Sciences Academic Press (China)], 2000) 191–3.
140
王利明 [Wang Liming], 《界定公共利益：物权法不能承受之重》 [Defining Public Interest: the
Unbearable Weight on the Property Law] 法制日报 Legal Daily, 21 October 2006.
141
《国有土地上房屋征收与补偿条例》 [Regulation on the Expropriation and Compensation of
Houses above State-owned Land] (People’s Republic of China) State Council, 21 January 2011.
142
It is a common arrangement in China’s laws and regulations to have a catchall clause (ie, category (6))
in a definitive list. This issue will be discussed further in Chapter 4.
143
For a discussion of public interest clauses in this regulation, see Wang, above n 5, 129–33.

66
follows that the public interest requirement was still vague in the context of land
expropriation of collective-owned rural land.

The lack of a clear definition of public interest has left considerable discretion to local
governments in compulsory land acquisition. They have used the discretion not only
for traditional and unproblematic purposes such as public facilities and transport
infrastructure (ie, high-speed rail projects)144 but also frequently to boost the local
economy by transferring the acquired land to private developers for commercial and
industrial use. Reports and surveys have revealed that around 80 per cent of acquired
rural land was used for industrial and real estate development.145 As is the case with
the private-to-private expropriation in the United States,146 Chinese local governments
frequently explained that even the acquired land ended up in the hands of private
developers, the expropriation of land could stimulate local economic development and
thereby satisfied the public interest requirement. Accordingly, the concept of ‘public
interest’ under China’s previous regime is similar to ‘public purpose’ in the United
States regime that merely requires the exercise of the expropriation power to
potentially create some sort of public benefit. In practice, therefore, public interest has
become a screen behind which governments can expropriate land for any purposes.147
As a result of the almost unlimited power of compulsory acquisition, the past two

144
China’s High-Speed Rail network, which began operation in 2008, reached 35 000 km by the end of
2019 and is set to extend even further in 2020. See Xinhua, China aims to add 2000 km high-speed
railways in 2020 (4 January 2020) < http://www.xinhuanet.com/english/2020-01/04/c_138677830.htm>.
145
See, eg, 赵蕾 [Zhao Lei], 《土地法律修改将提速, 保障农民权益是重心》 [The Revision of Land Law
is Accelerated and Centred on Protection of Farmer’s Rights and Interests] 南方周末 Southern Weekend,
16 October 2008; 佀连涛, 丁 文 [Si Liantao, Ding Wen] 《土地征收制度改革中农民土地权益保护研究
—基于 9 省 920 个被征地农户样本的分析》 [Study on the Protection of Farmers’ Land Rights and
Interests during the Reform of Land Expropriation System — Based on the Analysis of 920 Samples of
Expropriated Farmers in Nine Provinces] (2018) 1 中国农村研究 China Rural Studies 118. The survey
listed various uses of acquired land in nine provinces, including: energy facilities (0.5 per cent), transport
infrastructure (1.1 per cent), water conservancy (4.9 per cent), public security housing and municipal
public facilities (6.2 per cent) and commercial use (87.3 per cent).
146
Private-to-private land acquisition also happens in the United States and Australia, which will be
discussed in Chapter 5.
147
For similar views, see, eg, Chenglin Liu, ‘Informal Rules, Transaction Costs, and the Failure of the
“Takings” Law in China’ (2005) 29 Hastings International and Comparative Law Review 1, 7 (arguing that
‘Chinese scholars analogized the term “public use” to a big “basket”, into which local governments
threw every conceivable project’).

67
decades have witnessed historically unprecedented growth in land acquisition in China

Figure 3.2 Rural Land Acquisitions in China in the Past Two Decades

(Figure 3.2).148

3.5.1.2 The executive’s unilateral determination of ‘public interest’

The second reason why the public interest requirement has become merely symbolic is
that there is no impartial arbitrator to interpret what qualifies as public interest in
specific cases. Instead, approving authorities can make a unilateral determination of
the meaning of public interest for three reasons.

First, the law confines the decision-making process of land acquisition ‘within the
government system through a top-down review and approval mechanism’.149 Unlike in
the United States and Australia, China’s acquiring authorities (the county/municipal
148
This figure is derived from data recorded in China’s land resource statistical yearbooks. See 中华人民
共和国国土资源部(编) [Ministry of Land and Resources of the People’s Republic of China (ed)], 《中国
国土资源统计年鉴 2012》 [China Land and Resources Statistical Yearbook 2012] (地质出版社
[Geological Publishing House], 2012) 77; 中华人民共和国国土资源部(编) [Ministry of Land and
Resources of the People’s Republic of China (ed)], 《中国国土资源统计年鉴 2015》 [China Land and
Resources Statistical Yearbook 2015] (地质出版社 [Geological Publishing House], 2015) 89; 中华人民共
和国自然资源部(编) [Ministry of Natural Resources of the People’s Republic of China (ed)], 《中国国土
资源统计年鉴 2018》 [China Land and Resources Statistical Yearbook 2018] (地质出版社 [Geological
Publishing House], 2018) 77. The MLR and then the MNR started to compile and public official statistics
on the scale of rural land acquisition annually from 2008. The 2019 yearbook has not been published yet.
149
Peng, above n 10, 35.

68
governments) have no decision-making power. They are obliged to submit an
application to approving authorities (provincial governments and the State Council)150
with the so-called ‘one report and four plans’, including (1) an application report on
the construction land program, (2) an agricultural land conversion plan, (3) a cultivated
land supplementation plan, (4) a land expropriation plan, and (5) a land supply plan.151
Approving authorities will review these materials and make decisions according to
relevant criteria. 152 Once approved, the acquiring authorities will organise the
implementation of these plans and publish a public notice of the approved land
acquisition decisions.

Second, under existing law, the reconsideration authorities are the approving
authorities. It follows that the central and provincial governments have a conflict of
interest as they are also the reconsideration authorities responsible for reviewing land

150
The State Council is responsible for approving the acquisition of the following land: (1) prime
farmland; (2) cultivated land (excluding prime farmland) exceeding 35 hectares; and (3) other land
exceeding 70 hectares. Expropriation of land other than that which falls within the State Council’s
approval authority shall be approved by the provincial governments and submitted to the State Council
for the record. See 2004 LAL art 45.
151
《建设用地审查报批管理办法（2016 修正）》[Measures on the Administration of Examination
and Application of Construction Land (2016 Amendment)] (People’s Republic of China) Ministry of Land
and Resources, 29 November 2016, arts 10, 11 (‘2016 MAEACL’). The Measure was enacted in 1999, and
was revised in 2010 and 2016, and the ‘one report and four plans’ remain unaltered. The application
report on the construction land program specifies the proposed use of the agricultural land to be
acquired (art 10); the agricultural land conversion plan specifies the type, amount and quality of the
agricultural land to be acquired; the cultivated land supplementation plan specifies the location, amount,
quality and timeframe of the supplementary cultivated land which will replace the agricultural land to
be acquired and thus maintain the amount of arable land for national food security; the land acquisition
plan specifies the scope, type, amount, rights over the land to be acquired and the compensation
arrangement; the land supply plan specifies the pattern (the transfer of LURs of urban construction land
to land users freely or with transfer fees), amount and uses of land supply (art 11).
152
Ibid arts 12–16. First, the application report on the construction land program, the agricultural land
conversion plan and the cultivated land supplementation plan must demonstrate that the proposed land
acquisition is within the quota controls set by the relevant land use master plan (LUMP). These quotas
include: (1) the maximum amount of urban and rural construction land, (2) the minimum amount of
agricultural land, (3) the maximum amount of agricultural land allowed to be converted to construction
land, and (4) the minimum amount of supplementary agricultural land needed to make up for the loss of
cultivated land caused by land conversion. Second, the land expropriation plan should meet three
criteria: (1) the location, type and amount of the acquired land are clear and there is no dispute over the
land rights; (2) the compensation standards conform with relevant laws and regulations; and (3) the
resettlement arrangement is feasible. Third, the land supply plan should be in line with the national land
supply policies, and the amount of land to be applied should accord with the standards for the use of
construction land and the requirement of extensive land use. For an extensive discussion of the LUMP
and quotas, see Peng, above n 10, 241–7.

69
acquisition plans approved by them. Thus, the executive bodies may arbitrarily
interpret any purpose such as economic development as being in the public interest.

Third, the previous regime provided no grounds for the expropriated landholders to
challenge governments’ determination of public interest in court. As mentioned above,
even though the affected farmers can bring a suit against land acquisition decisions,
the decisions have long been immune to judicial review. That situation is not due to
limited judicial law-making but because Chinese courts have classified land acquisition
decisions as ‘administrative decisions with finality’ in 2005 in considering potential
political and economic objectives behind land acquisition projects. In doing so, land
acquisition decisions have been excluded from the scope of judicial review according
to the Administrative Litigation Law of the People’s Republic of China (ALL),153 which
authorises private lawsuits against governments to defend their rights against the
abuse of state power by administrative agencies or officials. In this way, the courts
defer to governments in the determination of public interest.

In short, the above discussions reveal that governments can determine the meaning of
public interest unilaterally in land expropriation. In the absence of adequate checks
and balances as well as a clear definition of public use, they have unfettered power to
determine what specific purposes can be characterised as a public interest.

3.5.1.3 Impracticality in the land administration system

153
《中华人民共和国行政诉讼法（2017 修正）》 [Administrative Litigation Law of the People’s
Republic of China (2017 Amendment)] (People’s Republic of China) Standing Committee of the National
People’s Congress, 27 June 2017, art 13 (providing that ‘administrative decisions with finality’ are not
within the scope of judicial review) (‘2017 ALL’). The law was enacted in 1989, and was amended in 2014
and 2017. Before the ALL was amended in 2014, there was no explicit provision to bring disputes over
land acquisition decisions to the courts. The Supreme People’s Court used to describe land acquisition
decisions as ‘administrative decisions with finality’ under art 30 of the 1999 ARL (remain unaltered in
the latest 2017 ARL). See 《最高人民法院关于适用〈中华人民共和国行政复议法〉第三十条第二款
有关问题的答复》 [Reply of the Supreme People2.1.’s Court on Relevant Issues concerning the
Application of the Paragraph 2, Article 30 of the Administrative Reconsideration Law of the People’s
Republic of China] (People’s Republic of China) Supreme People’s Court, Order No 23, 20 September
2005. Since the Supreme People’s Court issued the 2005 Reply, it has been frequently quoted by local
courts. Besides, even though the 2014 Amendment to ALL explicitly incorporated land acquisition
decisions into the scope of judicial review, the courts have yet issued any interpretation of public
interest. The reason for the courts’ deference to the executive branch in public interest issues will be
discussed in Chapter 5 (Section 5.4.2).

70
The symbolic role of the public interest requirement is also due to institutional
contradictions in China’s land administration system. To be specific, two land
institutions – dual-track land ownership and land use control – render the public
interest limitation a ‘dead letter’ in restraining the government’s power of land
acquisition.154

As mentioned above, land in China can be classified according to the type of ownership,
with urban land owned by the state and rural land owned by rural collectives. Except
for compulsory land acquisition, the ownership of each parcel of land cannot be freely
transferred or converted from one type to the other.155 Besides this classification, the
2004 LAL classifies land according to its use, including agricultural land, construction
land and unused land.156 In order to protect valuable cultivated land, the state places
strict controls on land use conversion from agricultural to construction use. Each parcel
of land is assigned a specific use, and the conversion of use must be approved by local
governments. 157 These two institutional restrictions confine state-owned land to
construction use.

However, under the 2004 LAL, any entity or individual that needs land for construction
purposes must apply for the use of state-owned land.158 They were not allowed to
directly acquire collective-owned rural land as ‘lawful usage of rural land is confined to
agricultural purposes’.159 Rural land could only be used for construction purposes after
the change of ownership and the subsequent conversion of land use.160 In this way,

154
‘Dead letter’ is a term used by Thomas Merrill in an early analysis of the public use clause in the Fifth
Amendment to the United States Constitution: see Thomas Merrill, ‘The Economics of Public Use’ (1986)
72 Cornell Law Review 61.
155
2018 Constitution art 10.
156
2004 LAL art 4. The whole framework of China’s rural land is that ‘rural land’ can be categorised into
three sorts of land based on land use (article 4): (1) ‘agricultural land’, which means land used for
agricultural production; (2) ‘rural construction land’, which refers to collective-owned land that can be
used for construction purposes, including: (a) public entities and infrastructure for rural villagers (article
61), (b) residence for rural villagers (article 62) and (c) for-profit construction; and (3) unused land. This
classification remains unaltered in the 2019 LAL.
157
Ibid art 44. This provision remains unaltered in the 2019 LAL.
158
Ibid art 43. The 2019 LAL removes this provision, which will be discussed in Chapter 4 (4.3.1.1).
159
Peng, above n 10, 33.
160
There is one exception. Article 43 of the 2004 LAL allowed rural collectives to use rural land for
construction purposes if the land is allocated to the building of township enterprises, houses for

71
dual-track land ownership, land use control and land acquisition systems were closely
related and tied together to provide land for urban construction. The 2004 LAL also
confirmed this practice by providing that state-owned construction land included land
initially owned by the state and land compulsorily acquired from rural collectives.161

This mode of land supply under the previous regime has presented a paradox
regarding the public interest prerequisite for land expropriation (see Figure 3.3). When
private individuals or entities need land for non-agricultural use, regardless of whether
in pursuance of public interest or not, they must apply for the use of state-owned land.
However, the amount of state-owned construction land is limited. Once land supply
cannot meet demand, land use conversion is inevitable. To achieve this conversion,
land ownership of rural land should first be transferred from rural collectives to the
state through land expropriation. In consequence, whenever land is needed for
construction, it is supplied through land acquisition no matter for public use or private
use, and consequently, the public interest criterion becomes a dead letter in
preventing abusive use of land acquisition power for the benefit of private developers.

Figure 3.3 Interaction between Three Land Administrative Institutions

Originally owned by the

Urban Construction state
Land owned by the
Construction Land
State Compulsorily Acquired
Rural Land (all types of
Rural Construction land)
Land owned by Rural
Collectives

Public Use

Commercial Use

villagers’ local public facilities or public welfare facilities. Except for these particular uses, non-
agricultural uses of rural land by rural collectives should also go through compulsory acquisition and
subsequent transfer of the LURs.
161
2004 LAL art 43.

72
In summary, it is reasonable to conclude that the public interest requirement in
China’s previous land acquisition regime has imposed minimal restrictions on
governments’ exercise of land acquisition power. In consequence, it has failed to
provide for an effective guarantee against the abuse of arbitrary deprivation of
landholders’ property rights in practice. As Peng has concluded: ‘the constitutional
public interest prerequisite has neither substantive nor procedural guarantee’ in the
former Chinese legal regime.162

3.5.2 Unjust Compensation for Compulsory Acquisition

As noted above, the Chinese legislature has formulated detailed rules for the payment
of compensation to expropriated landholders since the 1950s. Nevertheless, without a
‘just’ compensation principle, the Constitution leaves the legislature with substantial
flexibility to formulate whatever compensation standards it sees adequate ,163 which
resulted in an unjust system of compensation under the previous compensation
regime. In general, the injustice is reflected in three aspects.

3.5.2.1 Unjust standard for the valuation of the acquired land

The first aspect relates to the compensation standard for the acquired land. It is the
most controversial part of the compensation measurement as the land value is the
principal component of the total amount of compensation paid to the expropriated
landholder. As shown in Table 3.1, the compensation for cultivated land is calculated
on the statutory formula of ‘average annual output value x multiplier’. 164 This
‘production value-based’ standard is unjust for two reasons.

162
Peng, above n 10, 36.
163
This is the case in Australia in the states and territories. State Parliaments may enact legislation to
acquire land without compensation or with reduced compensation. This point will be discussed in
Chapter 6 (Section 6.4).
164
Local regulations do not set out the specific price of all types of land. In conformity with the form of
article 47 of the LAL, local legislatures merely set the average annual output of cultivated land as the
benchmark and may set out different multipliers for other types of land. For a comprehensive discussion
of compensation standards in local regulations, see 屈茂辉、周志芳 [Qu Maohui, Zhou Zhifang], above
n 121, 163; Wang, above n 5, 222–3.

73
First, it does not reflect the current value of the acquired cultivated land. On the one
hand, the annual output value is not determined by the market, which is contrasted
with the valuation of expropriated property in the United States and Australia.165 As
Chengri Ding observed in an early analysis of China’s land policies, in China it is local
governments that determine the annual output value (income) of land. 166 The
governments can use pricing policy to suppress agricultural prices, which results in a
lower value of annual output compared to its liberal model. Hence, Ding points out
that ‘pricing policy and government control on farmland uses fundamentally
challenges the merits and grounds of the approach’.167 On the other hand, the law has
fixed the scale of the multiplier (that is, 6 to 10 times) without any periodical
adjustment. This rigid standard is also a legacy from the highly centralised planned
economy, which does not take into account changing market factors.

Second, it depresses the value of some types of land. As shown in Table 3.1, the law
empowers local legislatures to formulate relevant compensation standards by
reference to the standards for cultivated land.168 This rule is unjust as it sets the
compensation for cultivated land as the benchmark for calculating all sorts of land in
rural areas, even though other types of land may have higher economic value than that
of cultivated land. For example, an important recent study of 83 local regulations
reveals that in most provinces local regulations set the highest ‘multiplier’ for
cultivated land.169 This arrangement may result from China’s national land policy that

165
The United States and Australian law adopt the income investment or economic approach that values
the property based on its actual or market rental income. This approach will be discussed in Chapter 6.
166
Ding observes that the pricing policy is inherited by the old planned economy to indirectly subsidise
industrial development by artificially suppressing the price of agricultural goods. He pointed out that
‘This is consistent with the phenomena observed in many other developing countries in which industrial
and urban expansion was achieved at the expense of agricultural and rural growth.’ See Ding, above n
135, 8.
167
Ibid.
168
According to the statistics, land in rural areas mainly includes: (1) basic agricultural land; (2) general
agricultural land; (3) forest; (4) grassland; (5) aquaculture ponds; (6) garden lots; (7) residential land; (8)
construction land for township enterprises and public infrastructure; (9) land for productive use, such as
threshing ground and grain-sunning ground, and (10) unused land. See 屈茂辉、周志芳 [Qu Maohui,
Zhou Zhifang], above n 121, 169.
169
Ibid 170.

74
values cultivated land higher than other types of land.170 It, however, cannot stand
because, as Wang points out, ‘land’s real value is decided by the market or exchange.
For the same reason, some uncultivated land may have greater market value than
nearby cultivated land’. 171 For example, in most instances, the income of an
aquaculture pond, garden plot or residential plot is higher than that of cultivated
land.172 Consequently, the cultivated land-based compensation standard may force
landholders of other types of land to make an uneven sacrifice for the promotion of
public interest.

In short, as Wang has concluded, ‘[t]he use of annual output as the method for
calculating compensation moves compensation away from the expropriated land’s real
market value’.173Accordingly, the payable amount determined under the previous land
acquisition regime cannot recover the true property loss and thereby is unjust for the
expropriated landholders.

3.5.2.2 Limited elements for the determination of compensation

The second aspect concerns limited elements for the determination of the amount of
compensation. As mentioned above, the previous regime only provides compensation
for acquired land, resettlement subsidies, aboveground fixtures and young crops on
the acquired land as well as social insurance subsidies. Specific losses relating to the
expropriation of other types of land are not considered, in particular losses in relation
to the acquisition of residential land where owners usually place a higher value on the
land than the market does.

170
In China, the preservation of cultivated land is highly related to the state’s food security. Thus, in
addition to strict land use control, local legislatures make the compulsory acquisition of cultivated land
the costliest to prevent the unnecessary waste of cultivated land. See further, 屈茂辉、周志芳 [Qu
Maohui, Zhou Zhifang], above n 121, 169. Specifically, Chinese government set up a red line of no less
than 1.9 billion mu (120 million hectares) of arable land, aiming at underpinning the sufficient supply of
major agricultural products. For a discussion of land use, food security and farmland preservation
policies, see generally, Ding, above n 135.
171
Wang, above n 5, 224.
172
屈茂辉、周志芳 [Qu Maohui, Zhou Zhifang], above n 121, 173.
173
Wang, above n 5, 231.

75
Another highly controversial issue is that the previous regime disregards any increase
in the land value after land acquisition. This increase in value supposedly flows from
the very process of land acquisition that removes all land use controls over rural land
mentioned above. After being classified as urban land, the acquired rural land is no
longer limited to agricultural use and a minimal range of construction uses. Local
governments then can transfer the LURs of acquired land to private developers for
high-value purposes, especially commercial and real estate development, in the urban
land market by public bidding, auction or negotiated agreement. 174 Thus, as Xu
observes, ‘local governments may acquire rural land from farmers at a low price and
sell it to property developers at a much higher price’.175

The disregarding of the increased land value (known as ‘expropriation surplus’) in the
compensation valuation has been heavily criticised as unjust by leading Chinese
scholars for various reasons. For instance, Wang suggests this arrangement is unjust as
it disregards the increased value of the land which possible future uses may generate.
It is thereby contrasted with the commonly accepted fair market value, which is
determined by ‘the best and highest use of the land’.176 However, Wang has not noted
that in those jurisdictions that adopted the fair market value, the highest and best use
of the acquired land must be its permitted use under existing zoning and planning
regulations.177 In this sense, in China, the expropriated rural landholders may not be
entitled to any share of the increased land value generated by removing the land use
restrictions. Besides, Peng argues that affected farmers ‘deserve at least part of the
expropriation surplus not because they have somewhat created or are responsible for
the increased value, but because they have shouldered a heavier burden than their

174
China’s urban land market consists of two levels. The transfer of LURs from the state to developers
operates in the ‘primary land market’. Land users who have obtained LURs from the state can transfer
the LURs to others, which has created a ‘secondary land market’. For a brief explanation of the LURs
allocation system, see Xu, above n 7, 118–20.
175
Xu, above n 7, 141.
176
Wang, above n 5, 230.
177
When determining the highest and best use of the acquired land, all restrictions attaching to the land
should be taken into account, including any statutory restrictions, zoning restrictions and the like. The
‘highest and best use’ principle will be discussed in Chapter 6.

76
urban counterparts in obeying the spatial plans’.178 However, all rural land is subject to
land use plans, not just the expropriated land. Thus, Peng’s argument may create new
inequities between the expropriated person and other rural landholders whose land
has not been acquired by the government. In other words, the disparity between
urban areas and rural areas should be eliminated by government policies such as tax
reduction or agricultural subsidies rather than compensation through the land
acquisition process.

The injustice inherent in the distribution of the increased value may result from the
two different valuation systems for rural land and urban land in China. This makes
sense when one compares China’s land acquisition regime with that in the United
States and Australia. Specifically, although the two Western jurisdictions do not
distribute any share of future land value increase to the landowner, the compensation
for acquired land is determined by expert valuers based on the market value, which is
arguably objective and transparent.179 By contrast, in China, local governments are in
charge of determining the compensation for acquired rural land while the transfer
price of the acquired land is determined by the market (urban land market).
Accordingly, the nontransparent and essentially subjective valuation process may
make the expropriated landholders feel that they are disadvantaged and are not fairly
treated by local governments. The section below discussed how could the local
administrative bodies play a decisive role in the valuation process.

3.5.2.3 Administrative discretion in the determination of compensation

As mentioned above, the law allows affected landholders to participate in the

valuation process. Nevertheless, the acquiring authority is in charge of determining
compensation for compulsory acquisition. Also, dispute resolution bodies for
compensation disputes are acquiring authorities (for mediation) and approving
authorities (for adjudication and reconsideration). Accordingly, the determination of

178
Peng, above n 10, 318. The spatial plans refer to planning instruments, including land use master
plans and urban and rural plans that control the land use in urban and rural areas. For an overview of
these plans, see Peng, 241–9.
179
This point will be discussed in Chapter 6.

77
compensation operates within the administrative system, thereby exposing
expropriated landholders to the potential risks of being under-compensated.

Besides, Chinese courts have a limited role in determining compensation compared to

United States courts.180 Specifically, the ALL empowers the courts to examine the
legality of administrative acts rather than the appropriateness of them. 181 It means
that the courts can only review whether specific compensation plan in individual cases
is in line with compensation standards prescribed in local regulations concerning land
expropriation. They are not able to enhance the compensation in individual cases if the
standards fall within the range allowed by local regulations. As the Administrative Trial
Division of the High People’s Court of Jiangsu Province explains, ‘most affected people
initiate administrative proceedings in order to obtain a satisfactory amount of
compensation. However, judicial adjudication can only review the legality of specific
administrative acts, and hence may not be able to meet their needs’. 182 Besides, as
shown above, the compensation standards in both the national law and local
regulations are formulated very broadly. Accordingly, acquiring authorities have wide
discretion to work out specific standards in individual cases within the breadth of
statutory standards. Therefore, as Peng observes, ‘the courts’ hands are in effect still
tied when it comes to questioning the lawfulness of local compensation standards’. 183

To conclude, the above discussion reveals the deficiencies of public use and
compensation requirements inherent in China’s previous land acquisition regime,
which have resulted in roughly unlimited compulsory acquisition power and vary
limited protection of expropriated landholders. In consequence, the previous regime is
compatible with redistributive policies by local people’s governments but has imposed
disproportionate burdens on property rights. Therefore, it is reasonable to conclude

180
The role of United States courts in the determination of compensation will be discussed in Section
6.3.1.1.
181
2017 ALL art 6.
182
See 江苏省高级人民法院行政审判庭 [Administrative Trial Division of the High People’s Court of
Jiangsu Province], 《农村集体土地征收行政案件审理疑难问题研究》 [Research on Knotty Problems
of Trial of Administrative Cases of Rural Collective Land Expropriation] (2010) 6 法律适用 Journal of Law
Application 10, 11.
183
Peng, above n 10, 44.

78
that China’s previous land acquisition regime has not achieved a proper balance
between the promotion of the public interest and the protection of property rights.184

3.6 CONCLUSION

This chapter has examined the historical evolution of China’s land acquisition regime
before 2020. It has revealed broad similarities shared by China, the United States and
Australia in three aspects.

The first aspect relates to the property system. China has historically established a
property system that follows a communist tradition which prioritises the public
interest over private property rights. However, private property rights came to be
afforded formal legal protection after the 1978 economic reform. Specifically, the 2004
Amendment to the Constitution recognised the legal status of private property rights
and offered constitutional protection by requiring the payment of compensation for
compulsory land acquisition.185 As a result, Chinese property system is moving closer
to the models of the United States and Australia which offer generous protection to
property holders (as noted in Section 2.4). Accordingly, a balance that approached the
liberal model began to appear.

The second aspect concerns the political system. In light of the CPC’s retreat from daily
governance of the state, the Chinese legislature is in charge of drawing the line
between public and private spheres as well as determining the extent of protection
that is afforded to private property holders, as is the case in the United States and
Australia (in the state sphere. Also, in light of the revival of private property in the
Chinese Constitution and legislation, the underlying policy seems to be similar to that
shared by the United States and Australia, that is, achieving a balance between the
public interest and landholders’ property rights.

184
For similar views, see Wang, above n 5, 4.
185
2014 Constitution art 10 (‘The state may expropriate or requisition land for the public interest, and
pay compensation in accordance with the law’). The Chinese text is “国家为了公共利益的需要，可以
依照法律规定对土地实行征收或者征用并给予补偿”.

79
The third aspect is the mode of property protection. Given that China is a civil law
country and the Chinese Constitution was not judicially enforceable, China has
developed a statutory-based model of protection of property rights (that is, the legal
protections offered by the LAL and the Property Law) as its United States and
Australian counterparts in most instances.

Based on these contextual similarities above, it is reasonable to suggest that the social
conditions in China are comparable with those in the United States and Australia,
which allow China to draw lessons and guidance from the two Western countries for
the improvement of China’s land acquisition law.

Besides, the in-depth analysis of China’s previous regime in this chapter has revealed
that there are several weaknesses inherent in the previous land acquisition regime
(Table 3.2). As a result, governments have arguably unlimited power to expropriated
private property rights in rural land with limited compensation, and, thereby impede
the appropriate balancing between public interest and private property protection.

Table 3.2 The Weaknesses of China’s Previous Land Acquisition Regime

Subject Matter Key Legal Provisions Major Weaknesses

Public interest Article 2 of the 2004 (1) the lack of a clear definition;
criterion LAL;
(2) the executives’ unilateral
Article 42 of the determination of ‘public interest’;
Property Law
(3) impracticality in the land
administration system.

Compensation Article 47 of the (1) unjust standards for the valuation of

requirement 2004 LAL acquired land;

(2) limited elements for the

determination of compensation;

(3) administrative discretion in the

determination of compensation.

80
In consequence, the CPC has since the turn of this century rolled out a series of reform
policies and experimental programs to find adequate ways to improve the acquisition
regime, which will be discussed in the following chapter.

81
 CHAPTER 4 REFORMS AND LATEST DEVELOPMENTS: THE
ESTABLISHMENT OF CHINA’S CURRENT LAND ACQUISITION
REGIME

4.1 INTRODUCTION

This chapter investigates China’s current compulsory land acquisition regime. It

explores whether the weaknesses discussed in Chapter 3 have been properly
addressed in recent developments, in light of the experience of the United States and
Australia.

Section 4.2 briefly discusses the reform measures and the legislative process of the
new Land Administration Law. It begins by examining pilot reforms launched by the
Communist Party of China (CPC) and conducted by the State Council since the early
2000s. These reform schemes are important because some successful initiatives have
been included in the 2019 Amendment to the Land Administration Law of the People’s
Republic of China1 (2019 LAL). This section also provides an overview of the legislative
process of the 2019 LAL.

Section 4.3 offers a detailed analysis of the key changes to the 2019 LAL relating to the
public interest requirement, the compensation scheme and the procedural dimension
of compulsory land acquisition. After comparing them with the previous regime, it
concludes that while the new law has not completely addressed all the weaknesses as
discussed in Chapter 3, it has the potential to achieve a reasonable balance between
public interest and property rights.

1
《中华人民共和国土地管理法（2019 修正）》[Land Administration Law of the People’s Republic of
China (2019 Amendment)] (People’s Republic of China) Standing Committee of the National People’s
Congress, 26 August 2019 (‘2019 LAL’). The 2019 LAL commenced on 1 January 2020.

82
Section 4.4 explores the reasons for the existence of these remaining issues in current
land acquisition regime. It then investigates potential opportunities for further
improvement of China’s land acquisition law.

4.2 AN OVERVIEW OF THE PILOT REFORMS (INCLUDING THE LEGISLATIVE

PROCESS OF THE 2019 LAL)

4.2.1 An Overview of China’s Reform Strategy

The Chinese government has long adopted an ‘experimental strategy’ in economic

reforms starting with pilot programs in local areas before a general application across
the nation. As Sebastian Heilmann has observed, this experimental approach normally
consists of three steps:

First, local ‘experimentation points’ or ‘experimentation zones’ are established. Second,

from these pilot projects successful ‘model experiments’ are identified and expanded ‘from
point to surface’ to test the extent to which the new policy options can be generalised or
require modification. Third, the policies are not implemented in national legislation until
they have been thoroughly tried and tested in a real-life administrative environment, a
process that usually takes a number of years.2

The CPC or the State Council issues the overarching policies setting out the objectives
of reforms and general rules and guidance for local reform initiatives and reform
experiments. Even though experimental policies have been carried out in selected
areas in practice, the formal law remains in operation nationwide. This practice is an
example of ‘benign illegality’ in China, which refers to ‘a situation where certain reform
measures are considered to be positive and necessary in a fast-changing society, even
though their formal legality is questionable as their breach of the written law is not
expressly acknowledged or justified’.3

2
Sebastian Heilmann (ed), China’s Political System (Rowman & Littlefield, 2016) 303 (citations omitted).
3
Chun Peng, Rural Land Takings Law in Modern China: Origin and Evolution (Cambridge University Press,
2018) 57 (citations omitted).

83
This experimental approach has also been applied to the reform of the land acquisition
regime. For example, the CPC and State Council proposed as early as 2003 that the
legislative bodies should improve regulations regarding land acquisition based on
investigation and research conducted by relevant government departments. 4
Accordingly, consistent with the wording used in the 2004 Amendment to the
Constitution, the ‘land requisition’ was renamed ‘land acquisition’ in the 2004
Amendment to the LAL (2004 LAL). Other substantial and procedural rules would be
revised later in light of local reform experiments.5 Besides, the Chinese government
began a process of reform under the principle of ‘guaranteeing property rights of
farmers and controlling the scale of acquisitions’.6 The reform can be divided into
three phases based on Heilmann’s theory.

4.2.2 The Reform Measures and Legislative Process of the 2019 LAL

At the outset, it is important to note that all these experimental policies noted below
are not formal statutory rules as those have been outlined in Section 3.3.3 (the
legislative framework). That is to say, they are not legally binding. Local governments
may not obey these policies until there is a revision to formal laws (ie, the amendment
to the LAL in 2019)7 or they are explicitly required by the National People’s Congress
(NPC) and its Standing Committee (SCNPC) to do so (which will be discussed in Section
4.2.2.2). In short, the discussion of the previous land acquisition regime (formal laws)

4
《中共中央、国务院关于做好农业和农村工作的意见》[Opinions of the Central Committee of the
Communist Party of China and the State Council on Improving Work of Agriculture and Countryside]
(People’s Republic of China ) Central Committee of the Communist Party of China and the State Council,
16 January 2003, point 13.
5
《关于<中华人民共和国土地管理法修正案（草案）>的说明》 [Explanatory Report on the Draft
Amendment to the Land Administration Law] (People’s Republic of China) Ministry of Land and
Resources, 23 August 2004. The 2004 version of the Draft Amendment to the LAL had been shelved
because the modification was not comprehensive, only modifying stipulations concerning the
compensation regime.
6
《中共中央关于关于完善社会主义市场经济体制若干问题的决定》 [Decision of the Central
Committee of the Communist Party of China on Several Issues concerning the Improvement of the
Socialist Market Economy System] (People’s Republic of China) Central Committee of the Communist
Party of China, 21 October 2003.
7
For example, not all provinces adopted the experimental compensation standards before the
enactment of 2019 LAL.

84
in Chapter 3 remains accurate, even though experiments policies outlined below have
been conducted in some areas at the same time.

4.2.2.1 The first phase: 2004–2012

The first phase began with the promulgation of the Decision of the State Council on
Deepening Reforms and Intensifying Strict Land Administration8 (the Decision) in 2004,
just two months after the enactment of the 2004 LAL. The Decision focused on the
improvement of compensation and resettlement system and proposed four major
measures. First, it removed the cap on the total amount of compensation for land and
resettlement subsidies stipulated in the LAL.9 Second, it set up two new compensation
standards to provide a unified compensation standard: that is, the ‘comprehensive
land section price’ (land section price) and the ‘unified annual output value standard’.
The Decision encouraged local governments to adopt the land section price if local
conditions permit, which included more market factors such as the location of land,
the supply and demand of land and the development of the local economy (which will
be discussed in Section 4.3.1).10 The latter standard served as an alternative for those
areas without resources to apply the highly technical land section price method.11

8
《国务院关于深化改革严格土地管理的决定》[Decision of the State Council on Deepening Reforms
and Intensifying Strict Land Administration] (People’s Republic of China) State Council, 21 October 2004
(‘2004 Reform Decision’).
9
Ibid point 12.
10
Ibid. Consistent with the 2004 Reform Decision, the Ministry of Land and Resources (MLR) released
one follow-up policy that provided comprehensive guidelines for local governments setting up
comprehensive land section price (land section price). See《国土资源部关于开展制订征地统一年产
值标准和征地区片综合地价工作的通知》（失效） [Notice of the Ministry of Land and Resources on
Formulating Expropriation Unified Annual Output Standard and Comprehensive Land Section Price]
(Repealed) (People’s Republic of China) Ministry of Land and Resources, 23 July 2005 (‘2005 Notice’).
The Notice was repealed in 2020 for the purpose of implementing the new 2019 LAL. See 《自然资源部
关于公布第二批已废止或者失效的规范性文件目录的公告》 [Announcement of the Ministry of
Natural Resources on Issuing the Catalogue of the Second Group of Repealed or Invalidated Regulatory
Documents] (People’s Republic of China) Ministry of Natural Resources, 24 March 2020. In response,
several local governments incorporated the ‘land section price’ approach in their reformed regulations.
See, eg, 《马鞍山市土地征收补偿安置办法》（失效）[Measures of Ma’anshan Municipality on
Compensation and Resettlement in Land Expropriation] (Repealed) (People’s Republic of China)
Ma’anshan Municipality Government, 29 February 2008, art 13.
11
2004 Reform Decision, above n 8, point 12. This method made minor changes to the original ‘annual
output value standard’ and has not been adopted by the 2019 LAL. For a discussion of this approach, see
Chuanhui Wang, The Constitutional Protection of Private Property in China: Historical Evolution and
Comparative Research (Cambridge University Press, 2016) 225–6.

85
Third, it recommended the application of non-monetary methods to resettle
expropriated farmers such as providing them with government-supplied housing,
farming land or jobs.12 Fourth, it included additional pre-acquisition procedures that
local governments must comply with, including: (1) a proposed land acquisition notice
and subsequent consultation with the expropriated farmers; and (2) public hearings
concerning the notice if so required by them. In short, these reform measures sought
to increase the amount of compensation, provide more support, and deliver a fairer
result to the expropriated farmers.

In 2008, the CPC began to reform the ‘heart of China’s land acquisition regime’ 13 – the
public interest requirement – to constrain the broad power of compulsory land
acquisition. Specifically, the CPC required local reforms to strictly define construction
land for public interest and for-profit use, thereby gradually narrowing down the scope
of land acquisition.14 Accordingly, the Ministry of Land and Resources (MLR) selected
seven cities as experimentation zones and conducted pilot projects that aimed to limit
the circumstances where land acquisition was involved, in order to ensure the power is

12
2004 Reform Decision, above n 8, point 13. Accordingly, two relevant departments of the State
Council have issued a series of guidelines in this regard since 2006. See, eg, 《劳动保障部关于做好被
征地农民就业培训和社会保障工作指导意见》 [Guiding Opinions of the Ministry of Labour and Social
Security on the Work of Providing Occupational Training and Social Security to the Expropriated Farmers]
(People’s Republic of China) Ministry of Labour and Social Security, 10 April 2006;《劳动和社会保障部、
国土资源部关于切实做好被征地农民社会保障工作有关问题的通知》 [Notice of the Ministry of
Labour and Social Security and Ministry of Land and Resources on the Questions Relevant to Guarantee
Social Security for Expropriated Farmers] (People’s Republic of China) Ministry of Labour and Social
Security and Ministry of Land and Resources, 28 April 2007. However, after years of trials, only two
country-wide reform practices, the social welfare support and non-monetary method regarding housing,
have been incorporated in the 2019 LAL. Even so, several local regulations include certain reform
compensation measures that were formulated on the basis of local situations and did not contravene
current laws. See, eg, 《马鞍山市集体土地征收补偿安置办法》 [Measures of Ma’anshan Municipality
on Compensation and Resettlement in the Expropriation of Collective Land] (People’s Republic of China)
Ma’anshan Municipality Government, 15 March 2019, chs 3, 5, 6 (including the ‘employment
resettlement’ approach and additional compensation payments). For example, the ‘employment
resettlement’ approach and additional compensation payments introduced by the 2008 version of
Measures remain. Some additional payments will be noted in Chapter 6 (section 6.5).
13
唐健 [Tang Jian], 《征地制度改革的回顾与思考》[Review and Discussion on Land Acquisition
Reform] (2011) 25 中国土地科学 China Land Science 3, 4. The author is an official of the MLR.
14
《中共中央关于推进农村改革发展若干重大问题的决定》 [Decision of the Central Committee of
the Communist Party of China on Several Major Issues concerning Promoting Rural Reform and
Development] (People’s Republic of China) Central Committee of the Communist Party of China, 12
October 2008, part 3, point 2.

86
used for genuinely public interest purposes.15 Generally, these pilot cities developed a
twofold approach: (1) issuing a public interest catalogue to define public interest and
non-public interest; and (2) transferring land use rights (LURs) of rural land directly to
private developers where the land was proposed for purposes categorised as non-
public use.16 For example, in Wuhan, the municipal government drafted and published
a non-public land use list that categorised land use for residence, commerce and
business facilities, industry, manufacturing, logistics and warehousing as non-public
uses.17 For any of these non-public purposes, LURs of rural land would be transferred
openly to private developers without having to go through a process of expropriation
and subsequent conversion into state-owned urban land.18

In short, the first phase witnessed positive reforms that sought to explore various
feasible approaches to limit the scope of land acquisition and improve the
compensation system. However, the pilot reforms were beset by ‘the short duration
and limited scale of reform’ as the legality of some measures was questionable.19 For
example, the direct transfer of LURs of rural land to private developers and the new
compensation standards contravened formal legal rules in the 2004 LAL (as discussed
in Section 3.4).

4.2.2.2 The second phase: 2013–2017

15
《2010 年国土资源重点改革安排》（失效）[Key Reform Arrangements of the Ministry of Land and
Resources in 2010] (Repealed) (People’s Republic of China) Ministry of Land and Resources, 20 April
2010, point 4.
16
叶红玲 [Ye Hongling],《征地制度改革冲击波—从七城市试点看 “缩小征地范围” 的改革前景》
[The Shock of Land Expropriation Reform — Assessing the Reform Prospects of Narrowing Down the
Scope of Land Expropriation from Pilot Projects in Seven Cities] (2014) 4 中国土地 China Land 6.
17
Ibid 10. The list was drafted based on the classification of urban land use. Under the existing land use
classification, urban construction land can be used for 43 purposes. Land use for residential, commercial
and business facilities, industrial, manufacturing, logistics and warehousing purposes are non-public
uses. See《城市用地分类与规划建设用地标》 [Code for Classification of Urban Land Use and Planning
Standards of Development Land] (People’s Republic of China) Ministry of Housing and Urban-Rural
Development, 24 December 2010.
18
叶红玲 [Ye Hongling], above n 16, 10–11. As discussed in Section 3.5.1.3, the 2004 LAL placed strict
use control upon land transfer. The land use rights (LURs) of rural land could not be transferred directly
to private entities via the market; it first had to be expropriated and converted into state-owned land.
Private developers then could acquire the LURs of state-owned land on the primary urban land market.
19
唐健 [Tang Jian], above n 13, 5–6.

87
The reform has undergone significant upgrades in two dimensions. First, the Party put
forward a comprehensive reform agenda in the Third Plenary Session of the 18th
Central Committee of the CPC in 2013: namely, ‘narrowing down the scope of land
acquisition, standardising land acquisition procedure and developing a reasonable,
regularised and multidimensional safeguard mechanism for expropriated peasants’.20
Second, the SCNPC authorised the State Council to suspend the enforcement of
expropriation-related provisions of the 2004 LAL in selected pilot areas until the end of
2017,21 thereby resolving the legitimacy problem inherent in the first-phase reforms
as well as making way for the second stage of reforms: that is, expanding successful
model experiments to more experimentation zones.

Consistent with the CPC’s reform objectives and the SCNPC’s authorisation, the State
Council expanded the pilot projects to 33 localities across the country to test the
extent to which those model approaches could be generalised or required modification.
For the purpose of limiting the scope of land acquisition, most pilot areas drew up a list
that constituted a public interest test based on the Regulation on Expropriation and
Compensation of Houses above State-owned Land (RECHSL). 22 Construction for

20
《中共中央关于全面深化改革若干重大问题的决定》 [Decision of the Central Committee of the
Communist Party of China on Major Issues concerning Comprehensive Deepening Reforms] (People’s
Republic of China) Central Committee of the Communist Party of China, 15 November 2013, point 11.
21
《全国人民代表大会常务委员会关于授权国务院在北京市大兴区等三十三个试点县（市、区）
行政区域暂时调整实施有关法律规定的决定》 [Decision of the Standing Committee of the National
People’s Congress on Authorising the State Council to Provisionally Adjust the Implementation of
Relevant Legal Provisions in the Administrative Areas of 33 Counties (Municipalities and Districts) under
the Pilot Program including Daxing District of Beijing Municipality] (People’s Republic of China) Standing
Committee of the National People’s Congress, 27 February 2015. The Standing Committee of the
National People’s Congress (SCNPC) decided to extend the authorisation to the end of 2018 at the 30th
Plenary Session of the 12th SCNPC on 31 October 2017. The legal basis of NPC’s authorisation lies in the
Legislation Law, which empowers the National People’s Congress (NPC) and SCNPC, ‘according to the
demands of reform and development, to authorise temporary adjustment or suspension of certain legal
provisions concerning certain issues in the area of administrative management in some localities within
a period of time’. See《中华人民共和国立法法（2015 修正）》 [Legislation Law of the People’s
Republic of China (2015 Amendment)] (People’s Republic of China) National People’s Congress, 15
March 2015, art 13 (‘2015 Legislation Law’).
22
《国有土地上房屋征收与补偿条例》 [Regulation on the Expropriation and Compensation of Houses
above State-owned Land] (People’s Republic of China) State Council, 21 January 2011, art 8. The list was
discussed in Section 3.5.1.1.

88
implementing urban planning has also been included in the list. 23 Besides, they carried
out the marketisation of rural construction land for commercial purposes, known as
‘for-profit rural construction land’, which is one category of collective-owned rural land
(to be discussed in Section 4.3.1).24 In terms of compensation, trial localities adopted
the land section price standard, provided social insurance subsidies and explored more
approaches to the protection of expropriated homeowners’ property rights (to be
discussed in Section 4.3.2).25 Furthermore, they experimented with more consultation
mechanisms in the acquisition process, such as preliminary compensation agreements
between local governments and the expropriated farmers (to be discussed in Section
4.3.3).26

4.2.2.3 The third phase: 2017–2019

The third phase has witnessed the legislative process of some reform initiatives that
have been thoroughly trialled and proven feasible during the pilot reforms. These
reform measures were incorporated in the 2019 LAL through the legislation process
prescribed in the Legislation Law.27 Specifically, the MLR was commissioned to draft
the bill by reference to the reform experience and practice.28 After completing the bill

23
《关于农村土地征收、集体经营性建设用地入市、宅基地制度改革试点情况的总结报告》
[Summary Report on the Trial Reform of Rural Land Acquisition, Marketisation of Collective-owned For-
profit Rural Construction Land and Residential Land Regimes] (People’s Republic of China) State Council,
23 December 2018, part 2, point 1 (‘2018 Summary Report on the Trial Reform’). The State Council
reported the results of trial reform in the Seventh Plenary Session of the 13th SCNPC in 2018.
24
Under the 2019 LAL, ‘rural land’ generally refers to land owned by the rural collective (article 9). The
‘for-profit rural construction land’ refers to land that can be used for commercial and industrial
purposes such as building factories and shopping malls (article 63). The for-profit rural construction land
is owned by the rural collective but can be leased to rural villagers for a period of time (based on their
agreement). For the classification of rural land, see Section 3.5.1.3, n 156.
25
2018 Summary Report on the Trial Reform, above n 23, part 2, point 1.
26
Ibid.
27
2015 Legislation Law arts 7-64 (including bill drafting, initiation, deliberation, vote and promulgation).
28
An empirical analysis observes that the NPC and SCNPC focus on the drafting of constitutional-related
law, criminal law and litigation and non-litigation procedural law. They normally commission the
executive body to draft civil and commercial, administrative, as well as economic laws for the reason
that ‘the complexity of these specialised areas requires a great deal of skill and knowledge’. See Wenbo
Chen, ‘Is the label “minimal legislature” still appropriate? The role of the National People’s Congress in
China’s political system’ (2016) 22 The Journal of Legislative Studies 257, 266.

89
drafting, the MLR published the bill on the website to solicit public opinion and revised
the bill correspondingly before submitting it to the State Council in 2017.29

After approving by the State Council, the bill was submitted to the SCNPC for
deliberation.30 The Legislation Law sets up a threefold deliberation procedure, which
requires that a bill shall be put to a vote after deliberation at three sessions of the
SCNPC.31 Besides, the SCNPC published the draft law after the first (in December 2018)
and second (in June 2019) deliberations to solicit public opinions and modified the bill
correspondingly. Finally, the SCNPC enacted the formal Amendment to the LAL on 29
August 2019, which commenced on 1 January 2020.

All in all, local governments have developed and trialled a series of reform measures in
recent decades, which sought to ‘search for a proper balance between power-
confirming and power-constraining/rights-protecting agendas in China’s rural land
expropriation law’.32 However, whether those reform approaches that have been
included in the 2019 LAL will effectively address the weaknesses inherent in the
previous regime have not yet been examined in depth. To answer this question, the
section below turns to explore the strengths and weaknesses of the newly enacted
2019 LAL.

4.3 DEVELOPMENTS AND REMAINING ISSUES OF THE 2019 LAL

This section reviews legislative changes to substantive elements of compulsory land

acquisition before examining the changes to procedural rules.

4.3.1 Amendment to the Public Interest Requirement

29
《关于<中华人民共和国土地管理法(修正案)> (征求意见稿) 的说明》[Explanatory Report on the
Exposure Draft of Amendment to the Land Administration Law] (People’s Republic of China) Ministry of
Land and Resources, 23 May 2017 (‘2017 Explanatory Report on the Exposure Draft of Amendment to
the LAL’). The Ministry received 840 revised opinions from the public and made 18 modifications to the
draft law.
30
《关于<中华人民共和国土地管理法>、<中华人民共和国城市房地产管理法>修正案(草案)的说明》
[Explanatory Report on the Draft Amendment to the Land Administration Law and the Urban Real Estate
Administration Law] (People’s Republic of China) Ministry of Natural Resources, 23 December 2018.
31
2015 Legislation Law art 29.
32
Peng, above n 3, 315. As discussed in Section 3.2.3, China’s constitutional land acquisition provision is
both a grant of power and a guarantee of private property rights.

90
4.3.1.1 Developments on narrowing down the scope of rural land acquisition

As discussed in Section 3.5.1.1, one major weakness of the previous regime concerns
the largely symbolic public interest requirement, which has resulted in the frequent
abuse of land acquisition power for non-public purposes. The 2019 LAL has addressed
this weakness in two major respects.

The first respect relates to a narrower and more refined statutory definition of the
public interest requirement. Importantly, this is the first time in the history of the LAL
that the meaning of the term ‘public interest’ has been spelled out. Following the
model of the RECHSL, article 45 of the 2019 LAL sets out a list of matters that may be
regarded as ‘public interest’. These include:33

(1) military and diplomatic purposes;

(2) infrastructure construction projects concerning energy, transportation, water
conservancy, communications, postal services, and other infrastructure organised
by the government;
(3) public utilities such as science and technology, education, culture, public health,
sports, ecological environment and resource protection, disaster prevention and
mitigation, cultural relics protection, construction of comprehensive service
facilities of communities, social welfare, municipal utilities, veteran benefits and
resettlement, commending heroes and martyrs, and other public utilities organised
by the government;
(4) the construction of low-income housing projects organised and implemented by
the government;
(5) land required for tract development and construction approved by the government
above provincial level and implemented by local governments above the county
level, within the scope of urban construction land determined by the land use
master plans (LUMPs); and

33
2019 LAL art 45.

91
(6) other circumstances under which collective-owned rural land may be acquired for
public interest as specified in laws.

This clearly defined list would help reduce the administrative discretion in the
determination of public interest. More importantly, given that the courts are
empowered to review land acquisition decisions,34 this list not only provides a legal
basis for judicial review of the purpose of specific acquisition decision but also offers
some textual guidance to courts for the determination of public interest in individual
cases. In doing so, the way this list constrains land expropriation power is evolving to
the approach implicitly adopted by Australian law, which confines the expropriation
power to statutes that deal with public affairs such as education, road building and
environmental protection (to be discussed in Section 5.3.1).35 Accordingly, the courts
can intervene on the grounds that acquiring authorities have gone beyond the
acquisition powers granted by relevant statutes, thereby preventing the abuse of
compulsory acquisition power.

It is important to note that even though the category (6) allows the legislature to
expand the scope of public interest, it is unlikely to undermine the public interest
requirement for three reasons. First, as noted in Section 3.5.1.1, this kind of catchall
provision is a common arrangement in a definitive list due to fast-changing situations
in China. Nevertheless, the legislature has seldom legislated to broaden the power. For
example, while article 8 of the RECHSL allows the NPC and State Council to add other
projects to the public interest list, these law-making authorities have never done so.
Second, the catchall provision in the public interest list is not the focus of debate as it
is virtually impossible to propose an exhaustive definition of a concept as elastic as
‘public interest’.36 Therefore, many scholars have supported the inclusion of this kind
of catchall provision on the basis of ensuring the flexibility of the public interest

34
As discussed in Section 3.5.1.2, land acquisition decisions have been included in the scope of judicial
review in 2004.
35
The Australian approach to controlling the power of compulsory acquisition will be discussed further
in Chapter 5 (Section 5.3).
36
王利明 [Wang Liming], 《<物权法>的实施与征收征用的完善》[On Application of the Property Law
and Improvement on Expropriation and Requisition] (2008) 4 法学杂志 Law Science Magazine 15.

92
requirement.37 Third, the category (6) only allows the scope of public interest to be
enlarged by specific national laws enacted by the NPC and SCNPC. In light of the
complex legislation process of national laws as noted above, it would be unlikely for
the legislature to include anything in the public interest list.

The second respect relates to the separation of for-profit expropriation from the rural
land acquisition regime. As discussed in Section 3.5.1.3, institutional contradictions in
China’s land administration system have rendered the public interest requirement
impracticable: that is, governments have to expropriate collective-owned land in rural
areas when there is no state-owned land available for construction purpose, no matter
for public infrastructure projects or private use. The 2019 LAL addresses this issue by
allowing private developers to directly use one specific type of rural land: for-profit
rural construction land (FRCL). To be more specific, the law has removed the
requirement that individuals and entities must use state-owned land or land acquired
from rural collectives to conduct non-agricultural construction, thereby paving the way
for the incorporation of a successfully trialled scheme – the marketisation of FRCL – in
the new law. Article 63 then provides that landholders are allowed to transfer or lease
the LURs of FRCL to private developers for non-public purposes, while the land
ownership remains in the hands of rural collectives.38 In doing so, the new rule has
eliminated the conflict between the public interest requirement and the land use
control institution. It follows that private developers do not have to lobby local
governments to expropriate rural land for their private use as they are allowed to
obtain the parcels they need directly from rural collectives by agreement (see Figure
4.1). A survey of the 2008 seven-city trial reform has provided two typical examples in
this regard. One example is that a private developer has successfully acquired the LURs
of some parcels for tourism from a rural collective in Wuhan municipality through

37
See, eg, 姜明安 [Jiang Mingan], 《界定 “公共利益” 完善法律规范》 [Defining the Meaning of ‘Public
Interest’ and Improving laws and Regulations] 法制日报 Legal Daily, 1 July 2004; 高飞 [Gao Fei], 《集体
土地征收中公共利益条款的法理反思与制度回应》[Jurisprudential Review and System Response to
Public Interest Clauses in Expropriation of Collective-owned Land] (2018) 1 甘肃政法学院学报 Journal
of Gansu Political Science and Law Institute 47.
38
2019 LAL art 63.

93
voluntary transfer. 39 Another example is a land acquisition project in Chongqing
Municipality, where a technology company has obtained the needed parcels of rural
land through a public listing.40 In short, the new approach would help ensure the
compulsory acquisition power is exercised for the genuinely public interest, thereby
narrowing down the scope of land expropriation.

Figure 4.1 Two Ways to Obtain Rural Land

Compulsorily acquire all types of

rural land (the acquired land is
owned by the state while its LURs
Government Public interests can then be transferred to private
s entities in the urban land market)

Obtain the LURs of RFCL by

Private Land Private interests agreements (transfer of LURs of
Users rural land without changing land
ownership)

Also, the marketisation of FRCL may provide an opportunity for acquiring authorities to
acquire the land they need by agreement before resorting to coercion (discussed in
Chapter 5). In doing so, China’s land acquisition system will become more aligned with
international practices on the expropriation process, such as that in the United States
and Australia.41

From the above discussion, it is reasonable to suggest that the 2019 legislative changes
have made dramatic headway in addressing the weaknesses of the previous regime,
including the lack of a clear definition of public interest, local governments’ unilateral

39
叶红玲 [Ye Hongling], above n 16, 11–12. The amount of land transfer fee was determined on the
basis of expert valuations by reference to the recent sale of other comparable state-owned lands in the
area of the land expropriated.
40
Ibid 12–13. This listing procedure was modelled on the national standardised procedures of LURs
transfer in the urban land market (as noted in Section 3.5.2.2).
41
The compulsory acquisition process in the United States and Australia will be discussed in Chapter 5.

94
determination of public interest, and the impracticality of public interest requirement
in China’s land administration system. It follows that there appears to be little
evidence to substantiate Chun Peng’s concerns about the weaknesses of public
interest requirement,42 which have been considered as some of the root causes that
prevent Chinese land acquisition regime moving closer to its United States counterpart.
Besides, Peng has expressed concerns on the marketisation of FRCL. He argues that
this mechanism might not resolve the impractical issue of public interest requirement
due to the limited amount of FRCL. More specifically, he points out that the stock of
FRCL (42 million mu) only accounted for 6.36 per cent of rural land (660 million mu).
This means that land acquisition would still be needed for most non-agricultural
purposes (including private purposes). 43 This concern, however, can be arguably
addressed by taking into account the annual average area of acquired rural land. Given
that the annual average area is 1460 square kilometres,44 the stock of FRCL can supply
relevant land for nearly two decades. In this sense, the available FRCL is likely to meet
the social need for a long period.

4.3.1.2 Remaining weaknesses of the public interest prerequisite

Despite the above positive changes to the public interest requirement, the scope of
land acquisition may remain broad due to item (5) of the public interest list: that is, the
use of land acquisition for tract development. It leaves flexibility for local governments
to transfer acquired land to private developers in two ways.

First, the public interest test does not specify how the land acquired after tract
development should be used. It is generally understood that tract development falls
within the primary land development system whereby the preliminary development of
state-owned land or acquired rural land is organised by governments to ensure land

42
Peng, above n 3, 270–1 (including the lack of a ‘refined specification public interest’ and ‘virtually
redundant’ public interest requirement in China’s land administration system).
43
Ibid 62.
44
World Bank and Development Research Centre of the State Council of the People’s Republic of China,
Urban China: Toward Efficient, Inclusive, and Sustainable Urbanization (2014) 271 <
https://elibrary.worldbank.org/doi/10.1596/978-1-4648-0206-5_ch4#> (‘Urban China’).

95
supply.45 For example, article 2 of the Interim Measures for the Administration of the
Foreign-invested Development and Management of Tracts of Land provides that:

the term ‘tract development’ as used in this Measure means that after obtaining the LURs
of state-owned land, the investors shall carry out, as planned, comprehensive
development and construction on the land, including levelling the ground and constructing
such public works as water supply and drainage systems, power and heat supply systems,
roads and communications networks, and communications facilities, so that conditions
shall be created for the land to be used for industrial or other construction purposes. The
investor shall then transfer the LURs for operating public utilities, or proceed to construct
such above-ground buildings as industrial houses and the supporting facilities for
production and everyday life services and engage in the business activities of transferring
or leasing these above-ground buildings.46

Therefore, tract development is not a specific construction project but preliminary

work such as levelling the ground and constructing necessary infrastructure, in
preparation for LURs transfer in the primary urban land market. In practice, however,
local governments frequently transfer preliminary-developed land to private users for
commercial purposes.47 It is reported that, for example, in Hannan Municipality local
governments have transferred vast stretches of land after tract development to private
developers for real estate development since 2006.48 Consequently, including tract
development as part of the public interest test without further restricting the

45
There is no interpretation of tract development in existing national laws. For a detailed analysis of
primary land development, see 楼建波等 主编 [Lou Jianbo et al (eds)], 《土地储备及土地一级开发法
律制度》 [Legal Framework of Land Reserve and Primary Land Development] (中国法制出版社 [China
Legal Publishing House], 2009).
46
《外商投资开发经营成片土地暂行管理办法》（失效）[Interim Measures on the Administration of
the Foreign-invested Development and Management of Tracts of Land] (Repealed) (People’s Republic of
China) State Council, 19 May 1990, art 2.
47
During the third deliberation of the bill, some members of the SCNPC pointed out that in practice, the
tract development construction normally related to real estate developments and commercial
developments such as luxurious shopping malls. See《土地管理法草案：成片开发征地须省级以上政
府批准》 [The Draft of the Land Administration Law: Land Acquisition for the Tract Development should
be Approved by Governments above the Provincial Level] (22 August 2019)
<https://news.sina.com.cn/c/2019-08-22/doc-ihytcitn1011620.shtml>.
48
《海南省严禁以各种开发名义圈占土地》[Hainan Province Strictly Prohibits Seizing and Occupying
Land in the Name of Various Development] (5 November 2013)
<http://hainan.ifeng.com/news/zaobanche/detail_2013_11/05/1419372_0.shtml>.

96
subsequent use of acquired land would open the door for governments to continue
the practice of transferring the acquired land to private developers.

Second, the statutory conditions and procedural constraints imposed on tract

development acquisition cannot ensure that the acquired land will be used for public
purposes. The conditions prescribed in art 45 include several planning instruments that
limit the available uses of a land parcel, including the national economic and social
development plans (as noted in Section 3.2.2), the LUMPs, urban and rural plans,49 and
specialised plans 50 . However, these planning instruments contain economic
development arrangements and urban development layouts. Thus, local governments
are likely to transfer the acquired to private developers for the construction of
industrial, business and residential premises. In consequence, as in Kelo,51 a deliberate
plan cannot guarantee that the use of each piece of acquired land will meet the public
interest requirement.

In fact, the legislature also expressed concerns about the possible abuse inherent in
tract development acquisition. During the legislative process of the 2019 LAL, the
public and some members of the SCNPC have recommended imposing stricter limits
on the use of land acquisition power for tract development.52 In response, besides

49
The urban and rural plans specify the urban development strategy at the national, provincial,
county/municipal, township and village levels. They also provide various zonings according to land use
as well as define the specific purpose the land situated in each zone must be used for. See《中华人民共
和国城乡规划法（2019 修正）》 [Urban and Rural Planning Law of the People’s Republic of China
(2019 Amendment)] (People’s Republic of China) Standing Committee of the National People’s Congress,
23 April 2019. The law was issued in 2007, and was last amended in 2019.
50
Specialised plans refine the master plans of national economic and social development in certain
fields such as industrial development, construction of infrastructure, development and protection of
important resources, public entities and services, a strategic task (such as urbanisation) and major
projects specified by the master plans.
51
Kelo v City of New London, 545 US 469 (2005). The development plan in the Kelo case encompassed
seven parcels with at least four parcels designated for commercial and residential use and one parcel for
private use (Pfizer Inc.). The case will be discussed in Chapter 5 (Section 5.2.1).
52
See above n 47; 《全国人民代表大会宪法和法律委员会关于《<中华人民共和国土地管理法>、<
中 华 人 民 共 和 国 城 市 房 地 产 管 理 法 > 修 正 案 （ 草 案 ） 》 修 改 情 况 的 汇 报 》 [Report of the
Constitution and Law Committee of the National People’s Congress on the Revision of the Draft
Amendment to the Land Administration Law and Urban Real Estate Administration Law] (People’s
Republic of China) Constitution and Law Committee of the National People’s Congress, 25 June 2019,
point 2; 《全国人民代表大会宪法和法律委员会关于《<中华人民共和国土地管理法>、<中华人民
共和国城市房地产管理法>修正案（草案）》审议结果的报告》[Report of the Constitution and Law

97
imposing specific conditions and procedures on tract development acquisition, the
2019 LAL also provides that the proposed land acquisition plan must be reviewed and
approved by provincial governments or the State Council and must be carried out by
governments at the county level or above (art 45). Nevertheless, this requirement is no
more than a reiteration of the previous decision-making system (as discussed in
Section 3.5.1.2). Further, the 2019 LAL empowers the Ministry of Natural Resources
(MNR) to set up detailed standards for tract development (art 45), but the MNR has
not enacted matching regulations in this field yet.

To summarise, like the post-Kelo developments in the United States, the recent
development of China’s compulsory land acquisition law has also shifted towards a
narrower legitimate scope of ‘public interest’. In addition, the 2019 LAL has liberalised
the voluntary transfer of LURs of FRCL to narrow down the scope of land expropriation.
Nevertheless, it may not effectively eliminate the abuse of land acquisition for private
interests due to the broad stipulation concerning tract development.

4.3.2 Amendment to the Compensation for Land Acquisition

4.3.2.1 Developments on establishing a reasonable, regularised and multidimensional

safeguard mechanism

As discussed in Section 3.5.2, another substantive weakness inherent in the previous

regime relates to unjust compensation. To address this issue, the 2019 LAL has
improved the compensation regime in four major respects.

The first respect relates to a defined and clear principle of compensation for land
acquisition. Article 48 (1) sets up the principle of ‘just and reasonable compensation’
to ‘ensure the original living standards of expropriated farmers are not reduced, and
their long-term livelihood is guaranteed’. This is also the first time China’s land

Committee of the National People’s Congress on the Result of Deliberation of the Draft Amendment to
the Land Administration Law and Urban Real Estate Administration Law] (People’s Republic of China)
Constitution and Law Committee of the National People’s Congress, 22 August 2019, part 1, point 3.

98
acquisition law has required ‘just compensation’, bringing it closer to the United States
and Australian laws.

The second respect deals with an enlarged scope of compensation. Besides the original
three components prescribed in the 2004 LAL (compensation for acquired land,
resettlement subsidies, compensation for aboveground fixtures and young crops),
article 48 (2) and (4) include another three relevant matters that must be considered in
determining the amount of compensation, including (1) compensation for rural houses,
(2) social security subsidies, and (3) expenses caused by land acquisition such as costs
of relocation and temporary resettlement. This new compensation list will attract a
larger compensation figure for the expropriated farmers. Moreover, since the Property
Law also incorporates the social security subsidies in the compensation scope (as
noted in Section 3.4.1), the new rule unifies the regulation of compensation under the
current land acquisition regime.

The third respect concerns a diversified mode of the payment of compensation. Article
48 (4) provides that for acquired rural houses, governments should ‘respect rural
residents’ willingness, and provide just and reasonable compensation by rearranging a
new residential plot for house building, providing resettlement houses or paying
monetary compensation’. This new rule provides more choices that may better meet
the needs of expropriated homeowners. Meanwhile, by 48(5), governments are
obligated to include expropriated farmers in the corresponding social insurance
systems such as pensions.53 This new arrangement would not only secure long-term
livelihood of expropriated farmers but also prevent potential financial difficulties being
incurred by farmers in cases where they quickly spend the entire amount of monetary
compensation.54

The last respect involves a more just compensation standard. Art 48 (3) has replaced
the long-standing ‘average annual output value x multiplier’ method with the

53
Article 48 of the 2019 LAL also requires that the newly added social security subsidies should mainly
be used for paying insurance expenses.
54
Peng has observed that many expropriate farmers quickly squander the compensation they have
received. See Peng, above n 3, 67.

99
successfully tested ‘land section price’ method in determining the value of acquired
land and resettlement subsidies for expropriated landholders.55 The land section price
method means compensation for the acquired land is determined by the price of a
specific land section where it is situated. Specifically, local governments
(county/municipal level) are required to classify land within their jurisdictions into
different sections at different grades (usually 4 to 6 grades). They must formulate and
publish various compensation standards for all land sections in the form of local rules
(usually enacted by provincial governments). Typically, the higher the grade, the higher
the compensation standard. For land with the same grade, the compensation standard
is the same, regardless of the purpose of acquisition and subsequent use of the
acquired land (known as ‘same land same price’).56 The new compensation standard is
fairer than the previous standard in three aspects.

First, it is more likely to approach the real value of the acquired land. Compared to the
original production-based standard, the law requires governments to take into account
more economical and market factors when formulating land section price standards,
including ‘the original use of acquired land, land resource conditions, output value of
acquired land, location, supply-demand relationship, local population, economic and
social development level and other factors’.57 Further, governments must periodically
adjust or re-announce the land section price standards.58 In consequence, the new
compensation standard better reflects the current economic value of acquired land in
rural areas, and thereby raise the overall amount of compensation payable to the
expropriated farmers. The 2015 trial reforms provide rich evidence to support this line
of argument. It showed that in all 33 trial areas which adopted the land section price

55
2019 LAL art 48 (3).
56
2005 Notice, above n 10, Annex II.
57
2019 LAL art 48 (3).
58
Ibid. According to a survey I conducted of published local rules concerning the land section price
standards, three provincial governments have revised their compensation standards in early 2020. See,
eg, 《关于公布全省征地区片综合地价的通知》 [Notice on the Promulgation of the Comprehensive
Land Section Price in the Whole Province] (People’s Republic of China) Jiangxi Provincial People’s
Government, 28 February 2020.

100
method, compensation standards have increased dramatically. 59 For example, in
Horinger County compensation standards for all villages have risen by an average of
20.56 per cent.60 More recent local practice also provides some support for this
argument. For example, it was reported that the Hubei Provincial People’s
Government has adjusted and published its latest land section price standards in 2019.
The new standards were determined having regard to comprehensive factors, such as
economic development indicators, the consumer price index and the adjustment range
of adjoining provinces, which resulted in an increase of up to 34.37 per cent of the
previous standard.61

Second, it affords more procedural fairness to the expropriated landholders in the

valuation process. Specifically, when formulating the compensation standards, local
governments are obliged to hold public hearings to solicit opinions and suggestions
from relevant departments, experts, rural collectives, farmers and the public.62 In this
way, expropriated landholders have more opportunities to engage in the valuation
process to raise any issues or concerns that are relevant to the land section price. Also,
local governments cannot make unilateral decisions as they used to.

Third, it enhances the consistency and transparency of the compensation regime by

adopting pre-published local rules. Compared with the previous ‘annual output value
standard’ standards determined by local governments on a case-by-case basis, the new
method reduces the opportunity that local governments had to suppress the

59
2018 Summary Report on the Trial Reform, above n 23, part 1, point 3.
60
戴娜敏, 包亮 [Dai Namin, Bao Liang] 《安置补偿改革研究—以内蒙古自治区和林格尔县为例》
[Research on the Reform of Resettlement and Compensation — Horinger County of the Inner Mongolia
Autonomous Region as the example] (2019) 2 Journal of Inner Mongolia Radio & TV University 49, 52.
61
《湖北省征地补偿标准调高 34.37% 平均每亩 4.433 万元》[The Compensation Standard for Land
Acquisition in Hubei Province was enhanced by 34.37 per cent to an average of ¥44 330 per mu] (29
October 2019) Hubei Provincial People’s Government <
http://www.hubei.gov.cn/zwgk/bmdt/201910/t20191029_1418059.shtml> (‘The Compensation
Standard for Land Acquisition in Hubei Province’).
62
2005 Notice, above n 10, part 4, point 3. For example, it was reported that the latest land section price
of the Hubei Province was drafted through a series of procedures, including preliminary adjustment by
county governments, internal review and balance by municipal governments, review and balance by the
provincial government, public hearings, and final review and announcement. See The Compensation
Standard for Land Acquisition in Hubei Province, above n 61.

101
compensation standard by manipulating the grade of the land and corresponding
compensation standard. In short, while the 2019 LAL has not adopted the ‘fair market
value standard’ as Peng recommended, the new compensation standard becomes
more objective, transparent, consistent, broad-based and generous, thereby enabling
China’s law to further draw on the experience of the United States and Australian
counterparts.63

In light of the above, it is reasonable to conclude that the 2019 LAL has made
significant improvements to the compensation system of land acquisition. The
legislative changes can be seen to establish a reasonable, regularised and
multidimensional safeguard mechanism for property holders. However, as discussed
below, the inequity issue remains under the current compensation regime.

4.3.2.2 Remaining weaknesses inherent in the compensation regime

The injustice manifests itself in two respects. The first respect relates to the land
section price method, which may result in a new type of unfairness as acquired land
classified in the same section may have different outputs or values. Given the ‘same
land same price’ principle, this valuation method may lower the amount of
compensation paid to those landholders whose land has higher output or greater value
than others’ land located in the same section. Thereby, it may not fairly compensate
for the land loss of some expropriated landholders and force them to bear an uneven
burden for the public interest.

The second respect concerns a specific matter to which regard must be had in
determining the amount of compensation payable. Specifically, although the 2019 LAL
includes compensation for house and relocation expenses, it does not consider the
disruption and inconvenience resulting from relocation (known as ‘subjective loss’ or
‘solatium’64) as affected residents are actually being forced out of their home. This
issue is significant in rural China where residents usually build their houses themselves

63
This issue will be discussed further in Chapter 6 (Section 6.5.1).
64
‘Solatium’ refers to disadvantage resulting from relocation. Solatium payments in the United States
and Australia will be discussed in Chapter 6.

102
and invest much of their time, effort and resources in making the houses the best they
can be. Moreover, neighbourly and community bonds are stronger than those in urban
areas. As Ting Xu has observed, ‘native place was (and still is) the tie to keep people
close’ in China. 65 Thus, lack of compensation for subjective loss would
undercompensate the displaced homeowner for the real loss they incur. Wang has also
expressed concern in this regard. He points out that ‘although subjective value cannot
be practically calculated, a solatium can be given as compensation to ease the
compulsory nature of expropriation’.66 Consequently, some compensation for this kind
of loss needs to be considered under the ‘just compensation’ principle.

To summarise, the 2019 changes to the compensation regime have largely resolved
the weaknesses of the previous regime by raising compensation standards, enlarging
the scope of compensation and enriching modes of compensation. Despite some
inequity issues, on the whole, these developments would result in an enhancement of
the protection of property holders.

4.3.3 Amendment to the Procedures of Land Acquisition

4.3.3.1 Developments on standardising acquisition procedures

As discussed in Section 3.5, expropriated landholders are not fully engaged in the
process of land acquisition. To address this matter, the 2019 LAL develops two types of
pre-acquisition procedural requirements to protect the expropriated landholders’
‘right to know, participation right and right of supervision’.67

The first type of procedures relates to the proposed acquisition notice and
consultation before the decision-making process. The 2019 LAL requires local
governments to carry out a survey of the land to be acquired and an assessment of
social stability risks, and then to publish a proposed acquisition notice at least 30

65
Ting Xu, The Revival of Private Property and Its Limits in Post-Mao China (Wildy, Simmonds & Hill
Publishing, 2014) 29. Xu provides a comprehensive discussion of the relationship between social-
economic conditions and property in late imperial China.
66
Wang, above n 11, 233. This issue will be discussed in detail in Chapter 6 (Section 6.5.2.3).
67
2018 Summary Report on the Trial Reform, above n 23, part 2, point 1.

103
days.68 They are also required to solicit opinions from the potential expropriated
landholders before submitting a land acquisition application to approving authorities
for determination.69 Compared with the previous procedure, where the expropriated
landholders were not informed until an acquisition decision was made, the new law
allows affected landholders to engage in the acquisition process as early a stage as
possible. Accordingly, they would have more opportunities to obtain answers to their
concerns and express their opinions on the proposed acquisition project. For example,
rural residents can question whether the proposed land acquisition plan meet the
public interest requirement. In this way, this set of prior procedures open the
government acts to public scrutiny from the preliminary stage, and thus are likely to
result in the more cautious exercise of the land acquisition power.

The second type of rules concerns public hearings of the proposed compensation plan
and the preliminary compensation agreements. Under the 2019 LAL, acquiring
authorities should hold public hearings to address compensation-related concerns and
objections when the majority of the potential expropriated landholders believe the
proposed compensation plan contravenes relevant laws and regulations. 70 Meanwhile,
they are under an obligation to enter into preliminary compensation agreements with
the expropriated landholders; if it is difficult to reach agreements in individual cases,
they must report on the outcome of negotiation to the relevant authorities when
submitting the proposed land acquisition plan for approval. 71 The preliminary
compensation agreements mechenism not only provides for a statutory guarantee that
landholders generally participate more fully in the determination of compensation but
brings China’s acquisition process closer to the United States and Australian liberal
counterparts: that is, encouraging the compensation determined by the agreement
under the law without being subject to the burdensome judicial proceedings. 72 More

68
2019 LAL art 47(2)
69
Ibid. The public notice should include major factors such as a description of the land to be taken, the
purpose of the proposed land acquisition and corresponding compensation standards.
70
Ibid art 47(3). Local governments should revise the plan according to the provisions of laws and
regulations and the outcomes of the hearing.
71
Ibid art 47(4).
72
The negotiation process will be discussed in Chapter 6.

104
importantly, this set of prior procedures may contribute to a higher amount of
compensation. By underscoring governments’ accountability by way of negotiation,
they provide more opportunities for expropriated landholders to raise any issues
relevant to the amount offered by acquiring authorities and to bring to the attention
of the authorities any additional matters that would like considered. Given that
landholders normally better understand the information relied upon to determine the
compensation, the improved procedures are likely to produce a fair result for them.
This line of argument finds supports in some empirical analyses conducted during the
reform era. For example, an analysis of 12-city survey data reveals that expropriated
landholders may get a higher amount of compensation than governments’ final offer
so long as they are involved in negotiations.73 Another 6-city survey observes that two
procedural rights, that is, the right to know and participation right, have a positive
impact on the compensation amount paid to expropriated landholders.74 It concludes
that ‘the guarantee of the procedural rights will help to improve the farmers’ efficient
participation in land acquisition, improve their ability to conduct negotiations with the
governments as well as regulate the exercise of land acquisition power by local
governments, thereby promoting the protection of private property rights’.75

In short, the 2019 changes standardise the pre-acquisition process and grant more
procedural rights to the expropriated owner (Table 4.1). These improvements are likely
to contribute to a more fair, transparent and consisted land acquisition process.
Further, they will complement other mechanisms aimed at preventing the abuse of
land acquisition power and protecting private property rights of expropriated
landholders. As will be discussed in Chapters 5 and 6, the United States adopted a
similar approach, that is, a combination of procedural and substantive changes, in
recent statutory reforms.

73
汪晖, 陈箫 [Wang Hui and Chen Xiao], 《土地征收中的农民抗争、谈判和补偿—基于大样本调查
的实证分析》[Farmers’ Struggle, Negotiation and Compensation for Land Acquisition — Based on a
Nationally Survey Data] (2015) 8 农业经济问题 Issues in Agricultural Economy 63.
74
吕图, 刘向南, 刘鹏 [Lv Tu, Liu Xiangnan and Liu Peng], 《程序公正与征地补偿: 基于程序性权利保
障的影响分析》[Procedural Justice and Land Acquisition Compensation: Based on the Influential
Analysis of Procedural Rights Guarantee] (2018) 9 资源科学 Resources Science 1742.
75
Ibid 1747.

105
 Table 4.1 Changes to the Land Acquisition Procedures

Phases The 2004 LAL The 2019 LAL

Pre-acquisition No preliminary work Publication of a proposed

process acquisition notice

Registration for compensation

Compensation negotiation (the

preliminary compensation
agreements)

Post- Publication of an acquisition Publication of an acquisition

acquisition notice notice and the implementation
process (or, of the land acquisition project
post-decision- Registration for compensation
making
process) Compensation negotiation

Publication of the proposed

compensation plan

Determination and
implementation of an approved
compensation plan

4.3.3.2 Remaining weaknesses in land acquisition procedures

Generally, despite the developments discussed above, the 2019 LAL has not changed
the administrative nature of the land acquisition process. As Peng has criticised,
‘despite the added procedural requirement that the expropriated be informed of
expropriation applications before submission, there is still no way for them to
participate in the decision-making process’.76 Moreover, he has observed that China’s
decision-making process contrasts sharply with those in many countries, including the
United States, which demand ‘democratic authorisation of and public input into the
decision-making of takings’.77 In fact, the unilateral determination on the part of the

76
Peng, above n 3, 271.
77
Ibid 35.

106
acquiring authority is not an issue unique to China’s land acquisition regime. As will be
discussed in Chapter 5, it is a common phenomenon in the United States and Australia
that land acquisition is an administrative process. Therefore, the lack of public
participation in the decision-making process should not be considered as one of the
root causes that has brought China’s land acquisition regime away from the Western
model. Nevertheless, given the broad provisions regarding tract development
acquisition, China’s land acquisition regime should introduce more statutory
procedures, as in the United States and Australia, in the pre- or post-decision-making
process to balance the considerable administrative discretion.

Besides, there is an issue concerning the pre-acquisition negation procedure. The 2019
LAL does not set up a period of time in which an acquiring authority should seek to
enter an agreement with the targeted landholders. It is within governments’ discretion
to determine a proper period. Therefore, expropriated landholders may not have
adequate time for consideration, negotiation and decision-making where the
negotiation period is limited. Also, the acquiring authority may engage in protracted
negotiations, and impose stress and disruption on the property owners during the
negotiation period. This issue will be further discussed in Chapter 5.

To concludes, the above analysis demonstrates that the 2019 LAL has significantly
developed China’s land acquisition law by constraining the power of land acquisition
and establishing a more just compensation regime as well as a more equitable process,
thereby addressing most of the weaknesses inherent in the previous land acquisition
regime. In general, even though private property rights are open to legislative
regulation and redistribution for public purposes, the current land acquisition reform
affords private property holders stronger protection. Thus, it is reasonable to conclude
that China’s land acquisition regime has the potential to achieve an equitable balance
between public and private interests. However, the weaknesses concerning the broad
scope of land acquisition and unjust compensation remain. Why are they not
completely resolved in the new law?

107
4.4 THE CAUSE OF REMAINING ISSUES AND OPPORTUNITIES FOR FUTURE
REFORM

4.4.1 The Key Cause of Remaining Issues in the 2019 LAL

The key cause of the existence of these remaining issues may be the significance of
economic development in China. In fact, compulsory acquisition for the purpose of
economic development exists in many countries such as, and typically, the United
States. As in the Kelo case, the city council proposed to provide more job opportunities
and increase tax revenue through the use of land acquisition. This type of acquisition
takes place more frequently in China due to China’s land-based economic growth
model.78

Land-based economic growth is a kind of investment-led economic growth. Specifically,

the transferable LURs of construction land in the urban market constitute a production
factor invested in by local governments. On the one hand, governments seek to attract
investors by providing LURs of industrial land at a low price. While may incur financial
losses in the short term, this practice is essential ‘not only to meet economic growth
targets but also to generate sustainable tax revenue’ as well as provide more new

78
For a comprehensive discussion of the land tenure system and economic growth, see Shouying Liu,
‘The Structure of and Changes to China’s Land System’ in Ross Garnaut, Ligang Song and Cai Fang (eds),
China’s 40 Years of Reform and Development: 1978–2018 (ANU Press, 2018) 427, 437. Liu has observed
that the emergence and proliferation of this land-dependent growth model in the 1990s are ‘an
outcome of the combination of a unique regulatory regime for land, competition for economic growth
between localities, and the fiscal centralisation policy and tax reform of the mid-1990s’. First, under
China’s land system, local governments are the de facto owners of urban land within their jurisdictions
and are responsible for determining the use of existing urban land and acquired rural land. Second,
there was fierce competition for economic growth between localities as gross domestic product (GDP)
growth is the evaluation standard. Third, the fiscal reforms in 1994 introduced a tax-sharing system to
centralise revenues, with a large share of local governments’ tax revenue turning over to the central
government. However, the reforms dealt with only income sharing and left out expenditure sharing, and
so local governments remained responsible for economic development, employment generation as well
as providing a wide range of public and social services such as public transport, education and health.
Thus, the fiscal reforms resulted in a huge mismatch between local governments’ revenues and
expenditure responsibilities. Consequently, the economic development obligation and fiscal shortage
propelled local governments to seek land-based income as land was the ‘single most important asset’
under their control. See further, Urban China, above n 44, 268–9; Peng, above n 3, 79–83; Wang, above
n 11, 173–4.

108
jobs.79 On the other hand, they transfer LURs of commercial and residential land via
competitive public tender, auction or listing, which generates enormous amounts of
LURs’ transfer income.80 In this way, local governments have successfully capitalised
on the increasing demand for urban land, and LURs transfer income has become a vital
source of local revenue (known as ‘land finance’),81 which are used to finance various
public services and infrastructure provided by local governments.82 However, this land-
based growth model has triggered large-scale land acquisition by local governments in
China. As noted in Section 3.5.1.1, roughly 80 per cent of the acquired land was
transferred to private developers for industrial and real estate developments. In this
sense, it is suggested that the land acquisition regime has ‘played a pivotal role in
promoting this pattern of economic development’, which in turn drives local
governments toward more land acquisition.83

Against this background, we can make sense of the remaining issues related to the
scope of and compensation for land acquisition. With respect to the power of
compulsory acquisition, a strictly constrained scope of public interest (that is, purely
public goods or services) will undoubtedly impair the government’s capacity to acquire
the land it needs to effectuate economic development plans. Besides, even though the
marketisation of FRCL sometimes can provide parcels that are suitable for large-scale
development projects, it may not able to replace the compulsory acquisition of land in
some situations due to the immovability of land. Consequently, it is necessary to
include tract development as a category of ‘public interest’ to generate tax revenue

79
Urban China, above n 44, 269. Wang has observed that local governments heavily subsidise industrial
development because ‘industrialisation can always stimulate growth or GDP much faster than
agricultural development’. See Wang, above n 11, 174.
80
Peng, above n 3, 77–8.
81
It is recorded that LURs transfer income comprised more than 70 per cent of local revenue in 2010
across China but has declined to about 45 per cent since then. For more information, see Urban China,
above n 44, 275–6.
82
A survey showed that, local governments have spent profits from LURs transfer of acquired land
between 2008 and 2012 on: urban construction (55 per cent), subsidised housing (10 per cent), state-
land profit fund (18 per cent), rural infrastructure (8 per cent), irrigation and water conservation (4 per
cent), education (5 per cent). See Urban China, above n 44, 279.
83
Ibid 268.

109
and create jobs, as well as guarantee the land supply for the needs of economic
growth.

On the other hand, full compensation might undermine local governments’ ability to
perform their functions from two respect. First, it will result in the prohibitive cost of
large public infrastructure projects, and thereby restricts governments capacity to
respond to the infrastructure needs of the general public. For example, full
compensation may impede the advancement of high-speed rail projects. A World Bank
report has revealed that the rapid development of China’s high-speed rail network in
the past decade was supported by a low cost of building HSR lines, partly resulting
from a relatively low cost of land acquisition and resettlement.84 Second, it will reduce
LURs’ transfer profits, which may pose a threat to public funds on important public
services such as education and health.

Following this line of reasoning, the 2019 LAL retains tract development acquisition
and incomplete compensation measure in China’s land expropriation regime so as to
ensure that protection of private property rights will not unduly impede the
implementation of government projects in the public interest. This observation finds
support in the Explanatory Report on Exposure Draft of Amendment to the Land
Administration Law, issued in 2017, which explicitly stated that the focus of
amendment was ‘keeping a balance between guaranteeing national development and
safeguarding farmers’ rights and interests’.85

4.4.2 Opportunities for Future Reform of China’s Land Acquisition Regime

The discussions above have suggested that the legislature has not sought to address
the outstanding weaknesses in the 2019 LAL once and for all. However, there is room

84
Gerald Ollivier, Jitendra Sondhi and Nanyan Zhou, High-Speed Railways in China: A Look at
Construction Costs (China Transport Topics No 9, World Bank, July 2014) 8
<http://documents.worldbank.org/curated/en/695111468024545450/pdf/892000BRI0Box3000china0tr
ansport09.pdf> (observing that the cost of building HSR lines in China is much lower than that in Europe
and the United States. For example, the site work and right-of-way costs in California HSR is estimated
at $10 million per km, contributing 17.6 per cent of the total cost, while in China land acquisition and
resettlement costs are below 8 per cent of the project cost).
85
2017 Explanatory Report on the Exposure Draft of Amendment to the LAL, above n 29, part 4.

110
for achieving an optimal balance between the public interest and property rights as
China is pursuing further economic development based on a new model of economic
growth.

China’s economic growth will be less reliant on land supply for three main reasons: (1)
economic transformation; (2) industrial transformation and upgrading; and (3) a new
revenue system. China’s economy has experienced an economic downturn since the
global economic crisis of 2008, resulting in profound changes to its economic structure.
Specifically, China has pushed towards a consumption-driven growth model because
the traditional approach (that is, the increase in land supply for industrial use) proved
to be inefficient in restoring the high-speed growth in China.86 As a result, productivity
improvements and innovation have replaced land as a major driving force for
economic growth in the new development stage.87 A good example would be the
‘main targets for development in 2020 and the overall plan for the next stage of work’
provided in the Report on the Work of the Government, which announced that
‘consumption continued to serve as the main engine driving growth’.88

Also, in light of industrial transformation and upgrades, China’s industrial development

will no longer heavily rely on cheap land. Enterprises have tended to focus on quality
improvements and industrial upgrades, making low land costs less attractive to
investors. Besides, the industrial structure is shifting to the service industry that does
not require as much land as the manufacturing industry. Thus, as Shouying Liu points
out, the change of industrial structure will ‘weaken the role of land in the future
industrial development’.89

Furthermore, the central government has developed many other approaches to

reduce local governments’ dependence on land finance. For example, it has not only

86
Liu, above n 78, 442–3.
87
Ibid 446.
88
《 政 府 工 作 报 告 》 [Report on the Work of the Government] (22 May 2020)
<http://www.gov.cn/zhuanti/2020lhzfgzbg/index.htm>. The report was delivered by Premier Li Keqiang
at the third session of the 13th National People’s Congress.
89
Liu, above n 78, 446.

111
increased transfer payments to local governments but has guided local governments
to explore new revenue sources, reduce administration-related costs and activate
stock assets.90

Against this background, we can expect that governments will rein in the exercise of
the land acquisition power. In addition, the transition to a new model of economic
growth indicates there are opportunities for improvement to batter balance the public
interest and the needs of property owners.

4.5 CONCLUSION

This chapter has reviewed China’s pilot reforms since the early 2000s and examined
the more recent developments in the 2019 LAL. It has observed that the new law has
largely addressed the deficiencies inherent in the previous acquisition regime by
substantially limiting the scope of expropriation power and improving the
compensation and procedures of compulsory land acquisition (Table 4.2). It has also
shown that these legislative changes have driven China’s compulsory acquisition
regime closer to its United States and Australian counterparts. Therefore, it is
reasonable to conclude that China’s current land acquisition regime is likely to achieve
a balance between public interest and private property rights. In light of potential
opportunities to improve the regime further in China, the following chapters will
explore the approaches developed in the United States and Australia that China’s land
acquisition law might learn from to resolve remaining weaknesses in the current
regime. The issue concerning the public interest requirement will be discussed in
Chapter 5 (including issues relating to the pre-acquisition negation procedure) and the
compensation issue in Chapter 6.

Table 4.2 Major Improvements and Remaining Issues under the 2019 LAL

Subject Matter Major Improvements Remaining Major

90
See, eg, 《税减了费降了，财政收入为何还能增长》 [How Can Revenue Increase when Tax and
Fees were Reduced?] (20 April 2019) <http://www.gov.cn/xinwen/2019–04/20/content_5384662.htm>.

112
 Issues

Public interest (1) formulating a public interest list; the lack of

requirement statutory
(2) marketising for-profit rural construction limitations on
land; tract
(3) introducing proposed acquisition notice development
and consultation mechanisms. acquisition;

Compensation (1) setting up the principle of ‘just and (1) unjust

requirement reasonable compensation’; compensation
standard;
(2) introducing the ‘land section price’
compensation standard; (2) the lack of the
solatium
(3) enlarging the scope of compensation; payment;
(4) providing a diversified mode of
compensation;

(5) introducing public hearings and

preliminary compensation agreement
mechanisms.

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 CHAPTER 5 CONTROLS OVER THE POWER OF COMPULSORY
ACQUISITION

5.1 INTRODUCTION

The previous chapter examined compulsory land acquisition provisions in the Land
Administration Law of the People’s Republic of China (2019 Amendment)1 (2019 LAL).
This chapter explores feasible approaches to address the first major issue of the
current law, that is, the lack of adequate statutory limitations on tract development
acquisition, which leaves wide discretion for governments to transfer acquired land to
private developers for non-public interests.2 This chapter offers an original analysis of
how the land acquisition law in China may be improved by drawing on the United
States and Australian approaches in regulating private-to-private expropriation (which
involves similar issues as tract development acquisition in China).

Section 5.2 discusses the constitutional requirement of ‘public use’ and recent reforms
in the United States. It begins by examining the public use tests developed by United
States’ courts, especially the issues addressed in Kelo v City of New London3 (‘Kelo’).4 It

1
《中华人民共和国土地管理法（2019 修正）》[Land Administration Law of the People’s Republic of
China (2019 Amendment)] (People’s Republic of China) Standing Committee of the National People’s
Congress, 26 August 2019 (‘2019 LAL’).
2
As noted in Section 3.5.1.3, in China the acquired rural land will be converted into state-owned urban
land and transferred in the urban land market after land acquisition. However, under the public land
ownership system, the individual and private entity can only hold the land use rights (LURs) of the urban
land while the ownership remains in the hands of the state.
3
Kelo v City of New London, 545 US 469 (2005) (‘Kelo’).
4
The Kelo case has been frequently referred to in Chinese academic discourse on the issue of legitimate
scope of land acquisition. For example, the full decision of Kelo has been translated into Chinese by
Professor Shengping Gao and is considered a classic precedent, see 高圣平 [Gao Shengping], 《发展经
济是土地征收的正当理由吗？—凯洛诉新伦敦市案》 [Is Developing the Economy a Due Cause for
Land Acquisition? — Kelo v City of New London] (2014) 2 苏州大学学报(法学版) Journal of Soochow
University (Law Edition) 126, 126–45. For legal articles that have referred to Kelo, see, eg, 汪庆华 [Wang
Qinghua], 《土地征收、公共使用与公平补偿—评 Kelo v City of New London 一案判决》[Takings,
Public Use and Fair Compensation — Comments on Kelo v City of New London] (2007) 8 北大法律评论
Peking University Law Review 479; 林彦， 姚佐莲 [Lin Yan and Yao Zuolian], 《美国土地征收中公共用
途的司法判定—财产权地位降格背景下的思考兼对我国的启示》 [Judicial Determination of Public

114
then investigates recent wide-ranging post-Kelo statutory reforms that aim to tighten
restrictions on the exercise of the compulsory acquisition power.

Section 5.3 explores the limitations the Australian regime has imposed on
governments’ land acquisition activities. It starts by examining the controls on the
power of compulsory acquisition at the federal and state level, with a focus on the
approaches to private-to-private expropriation applied in R & R Fazzolari Pty Limited v
Parramatta City Council; Mac's Pty Limited v Parramatta City Council5 (‘Fazzolari’). It
then discusses recent reforms in New South Wales relating to the control of the
acquisition power.

Section 5.4 puts forward recommendations for the improvement of China’s land
acquisition law. It compares the Chinese approaches to tract development acquisition
with those of the United States and Australian to private-to-private expropriation. It
then critically reviews the functions of Chinese judiciary in practice to explore whether
similar statutory provisions may achieve the same outcomes in China. It argues that
the Chinese law has largely achieved an appropriate balance between the promotion
of the public interest and the protection of private rights, although some procedural
issues need to be addressed to reduce broad administrative discretion in the
acquisition process.

5.2 THE PUBLIC USE REQUIREMENT IN THE UNITED STATES

Use in US Land Acquisition — Reflection under the Degradation of Property Rights and Implications for
China] (2010) 1 交大法学 SJTU Law Review 211 (discussing the decision of Kelo through the background
of the degradation of property rights as a result of the judicial deference policy. The discussion, however,
does not provide an in-depth analysis of the implications for China); 衡爱民 [Heng Aiming], 《美国土地
征收制度的历史考察》 [Historical Investigation into the Land Acquisition System of the United States]
(2016) 1 法学评论 Law Review 159, 160–1; Chuanhui Wang, The Constitutional Protection of Private
Property in China: Historical Evolution and Comparative Research (Cambridge University Press, 2016)
139–45, 164, 168. Wang has put forward several reform suggestions by reference to some constitutional
principles, such as the proportionality principle applied in land acquisition cases in Germany and the
United States. These suggestions will not be discussed here because the thesis observes that a
legislative approach is more effective than the constitutional approach in limiting governments’ power
of land acquisition. This issue will be discussed throughout this chapter.
5
(2009) 237 CLR 603 (‘Fazzolari’).

115
As noted in Section 2.2, the Fifth Amendment to the United States Constitution (Fifth
Amendment), as well as similar provisions in nearly all state constitutions, provides
that private property shall not be ‘taken’ for ‘public use’ without ‘just compensation’.
For some two hundred years, the courts have consistently interpreted the
constitutional public use requirement as an outer limitation to circumscribe the very
scope of the takings power in a series of cases. The absence of an appropriate public
benefit will result in a taking being unconstitutional and able to be enjoined. This
section examines this constitutional limitation with the aim of drawing lessons for
China.

5.2.1 Public Use Tests and the Kelo Decision

As noted in Section 2.2.3, United States courts have formulated two judicial tests to
determine whether a particular use proposed by the legislature for a taking is
sufficiently ‘public’ in nature. The narrow test requires the literal use of the acquired
land by the public. By contrast, the broad test requires only that the takings yield some
benefits or advantages, such as preventing and reducing blight areas (where most of
the house is beyond repair),6 eliminating the ‘social and economic evils of a land
oligopoly’,7 as well as increasing tax revenue and employment opportunities.8 Besides,
the broad test differs from the narrow test in that the determination of what
constitutes ‘public use’ is a matter for legislative consideration: namely, when the

6
Berman v Parker, 348 US 26 (1954) (‘Berman’). The Supreme Court unanimously upheld the
constitutionality of the proposed takings that expropriated slums and blighted neighbourhoods in urban
areas and transferred them to private developers for community redevelopment. See further, Wendell
Pritchett, ‘The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain’
(2003) 21 Yale Law & Policy Review 1.
7
Hawaii Housing Authority v Midkiff, 467 US 229, 241–2 (O’Connor J) (1984) (‘Midkiff’). Midkiff is
another leading precedent addressing the meaning of public use, in which the Supreme Court endorsed
private takings for land reform in favour of reducing the concentration of land ownership.
8
Poletown Neighbourhood Council v City of Detroit, 304 NW 2d 455 (Mich, 1981) (‘Poletown’). The
Michigan Supreme Court upheld an economic development taking that forcibly displaced thousands of
Detroit residents in order to transfer their land to General Motors to build a new plant. Many state
courts then cited Poletown as the leading decision approving private takings for economic development.
See, eg, Wilmington Parking Authority v Land with Improvements, 521 A 2d 227 (Del, 1986); Common
Cause v State, 455 A 2d 1 (Me, 1983). The Connecticut Supreme Court relied heavily on Poletown to
justify Kelo by arguing that Poletown ‘illustrates amply how the use of eminent domain for a
development project that benefits a private entity nevertheless can rise to the level of a constitutionally
valid public benefit’. See Kelo v City of New London, 843 A 2d 500 (Conn, 2004).

116
legislature has spoken, the public use underlying the taking is unequivocally affirmed.9
This deferential approach to justify the legitimacy of the proposed economic
development takings was affirmed in Kelo, which remains the latest major Supreme
Court public use case.

The Kelo case arose from the acquisition of 15 residential properties in the city of New
London (City) for the purpose of transferring the expropriated land to another private
owner (the Pfizer Corporation) to further economic development. The proposed
takings were part of a municipal redevelopment plan designed to revitalise the city’s
economy. The City council purchased most of the property earmarked for the project
from willing sellers but initiated the expropriation proceedings when the Kelo plaintiffs,
the owners of the remainder of the property, refused to sell. The Kelo plaintiffs
disagreed, arguing that ‘economic development’ did not qualify as a valid ‘public use’
under the Fifth Amendment.

In a close 5:4 decision delivered by Stevens J, the majority justices held that the
proposed land expropriation pursuant to an economic development plan satisfied the
constitutional ‘public use’ requirement. They largely held that the land expropriation
at issue was not purely private because it was not simply intended for Pfizer or other
private businesses. 10 It would be carried out under a ‘carefully considered’
development plan, as was the case in Berman, that the City believed would provide
‘appreciable benefits to the community, including – but by no means limited to – new
jobs and increased tax revenue’.11

On the other hand, the majority acknowledged that while the expropriated land would
not be used by the public, it did not necessarily indicate the proposed acquisition

9
See, Berman, 348 US 26, 32–3 (Douglas J) (1954); Midkiff, 467 US 229, 244 (O’Connor J) (1984).
10
As noted, a purely private-to-private acquisition is forbidden. See, eg, Midkiff, 467 US 229, 245
(O’Connor J) (1984) (‘[a] purely private taking could not withstand the scrutiny of the public use
requirement; it would serve no legitimate purpose of government, and would thus be void’).
11
Kelo, 545 US 469, 483 (Stevens J) (2005).

117
would violate the public use restriction because the narrow test was ‘repeatedly and
consistently rejected’.12 The reason for this result was that, as Stevens J explained:

Not only was the ‘use by the public’ test difficult to administer … but it proved to be
impractical given the diverse and always evolving needs of society. Accordingly, when this
Court began applying the Fifth Amendment to the States at the close of the 19th century,
it embraced the broader and more natural interpretation of public use as ‘public
purpose’.13

It follows that the disposition of this case turns on the question of whether ‘economic
development’ serves a valid ‘public purpose’. Reaffirming Berman’s deferential
approach to legislative judgements in this field, the Supreme Court concluded that the
takings challenged in this case satisfied the public use requirement of the Fifth
Amendment as ‘[the City’s] determination that the area was sufficiently distressed to
justify a program of economic rejuvenation is entitled to our deference’.14

Further, the majority rejected the petitioners’ argument that the Supreme Court
should draw a clear line prohibiting takings for economic development. It stressed that
the promotion of economic development was ‘a traditional long-accepted function of
government’ and assured that there was ‘no principled way of distinguishing economic
development from the other public purposes that we have recognised’.15

In addition, the Supreme Court declined to ‘second-guess’ the City’s judgements about
the efficacy of the development plan as a constitutional efficacy requirement ‘would
unquestionably impose a significant impediment to the successful consummation of
many such plans’.16 It also refused to second-guess the City’s determinations as to

12
Ibid 480.
13
Ibid 479.
14
Ibid 483.
15
Ibid 484–5.
16
Ibid 488. This argument was guided by the Midkiff decision, which held that ‘our cases make clear that
empirical debates over the wisdom of takings – no less than debates over the wisdom of other kinds of
socioeconomic legislation – are not to be carried out in the federal courts’. See Midkiff, 467 US 229,
242–3 (O’Connor J) (1984).

118
what lands they need to acquire because the decision-making of the project was, as
stated in Berman, rested at the discretion of the legislature.17

The above overview reveals that the broad public use test is less effective in limiting
the takings power than the narrow test. The narrow test adopts a bright-line rule that
leaves little or no room for varying interpretation of public use, thereby providing a
strong constitutional guarantee against the abuse of power (as noted in Section
2.2.3.1). By contrast, the broad test places few if any limits on the takings power. Given
that ‘public purpose’ is very broadly defined, the public use requirement cannot
prevent the government from transferring the acquired property to another private
owner so long as the government believes the transfer will provide appreciable
economic benefits (ie, creating new jobs and enhancing tax revenue) to the
community. As O’Connor J noted in the dissenting opinion of the Kelo decision,
‘[n]othing is to prevent the State from replacing any Motel 6 with a Ritz–Carlton, any
home with a shopping mall, or any farm with a factory’.18 Therefore, the effect of the
broad interpretation of public use is conferring the government unlimited power to
expropriate private property rather than limiting the grounds on which takings may be
exercised, as with the symbolic ‘public interest’ requirement under China’s previous
land acquisition regime (as discussed in Section 3.5.1.1).

17
Kelo, 545 US 469, 488–9 (Stevens J) (2005). In Berman, the Court held that ‘[i]t is not for the courts to
oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once
the question of the public purpose has been decided, the amount and character of land to be taken for
the project and the need for a particular tract to complete the integrated plan rests in the discretion of
the legislative branch.’ See Berman, 348 US 26, 35–6 (Douglas J) (1954). See also, Shoemaker v United
States, 147 US 282 (1893); United States ex rel. TVA v Welch, 327 US 546 (1946); United States v
Carmack, 329 US 230 (1946). Moreover, the legislative body has frequently delegated to the executive
branch since the 19th century but to a lesser extent today. Government agencies or municipal
corporations’ decisions on whether to undertake the compulsory acquisition, if reasonable, are also final.
See, Philip Nichols, The Law of Eminent Domain: A Treatise on the Principles Which Affect the Taking of
Property for the Public Use, Volume II (Albany, NY: Matthew Bender, 2nd ed, 1917), 345. See also, Casino
Reinvestment Development Authority v Banin, 727 A 2d 102 (1998); In re: Condemnation of 110
Washington St, 788 A 2d 1154 (2001); 99 Cent Only Store v Lancaster Redevelopment Authority, 237 F
Supp 2d 1123 (2001); Southwestern Illinois Development Authority v National City Environmental, 768
NE 2d 1 (2002).
18
Kelo, 545 US 469, 503 (O’Connor J) (2005) and accompanying cases.

119
The extensive scholarly criticisms of the broad test and overwhelming political and
public opposition to the Kelo decision can be seen to provide rich evidence for this line
of argument.19 Many leading scholars, such as Richard Epstein and Bruce Ackerman,
have long observed that the public use requirement is almost dead as a practical limit
on the takings power.20 Moreover, the Kelo decision set off a fierce and widespread
backlash. It attracted extensive criticism from politicians and activists across the
ideological spectrum. Not only the Republican politicians (all four of the dissenting
justices were Republican appointees) who supported ‘small state’ theory but also
numerous Democratic political leaders (favouring bigger government) who heavily
relied on governments’ regulation of the economy excoriated the ruling in Kelo.
Further, in the face of the ever-impending threat of governments’ takings power, 90
per cent of Americans opposed for economic development takings that were allowed
by Kelo – a consensus that cut across gender, racial, ethnic, and partisan lines.21 As will
be shown below, most of the public outrage Kelo generated has been channelled into
efforts to curb the use of the takings power, especially for the purpose of economic
development.

In addition, while it upheld the proposed takings in Kelo, the Supreme Court broke the
perceived consensus in favour of the broad test among jurists (as exemplified in
Berman and Midkiff). O’Connor (who wrote for the unanimous court in Midkiff) and
Thomas JJ, the dissenting justices in Kelo, challenged the previously dominant broad
test and argued that economic development takings that involve transfers of acquired

19
For a critical overview of critiques of private takings, see John Lovett, ‘Towards Sustainable
Community Ownership: A Comparative Assessment of Scotland’s New Compulsory Community Right to
Buy’ in Malcolm Combe, Jayne Glass and Annie Tindley (eds), Land Reform in Scotland: History, Law and
Policy (Edinburgh University Press, 2020) 177, 181–93.
20
Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press,
1985) 162; Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press,
1977) 190–1 n 5. See also Buckner Melton, ‘Eminent Domain, Public Use, and the Conundrum of Original
Intent’ (1996) 36 Natural Resources Journal 59, 77–9; Thomas Merrill, ‘The Economics of Public Use’
(1986) 72 Cornell Law Review 61.
21
Two national surveys conducted in the fall of 2005 showed that 81 per cent and 95 per cent of
respondents were opposed to Kelo. For more information about the surveys, see Ilya Somin, The
Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago
Press, 2015) 138–41.

120
property to private parties should be categorically banned.22 Moreover, while the
majority set the bar low on the constitutional limit on the takings power, the Court
acknowledged the hardship that takings might entail, notwithstanding the payment of
just compensation, and gave a green light to the state to impose stricter limits on the
takings power than the federal baseline.23 In response, a groundswell of states quickly
enacted legislation that placed further restrictions, of both a substantive and
procedural nature, on their exercise of the takings power. In addition to the well-
known legislative backlash, Kelo also had an impact on public use litigation. However,
the judicial reaction is not the focus of this thesis.24

5.2.2 Post-Kelo Developments: Imposing Legislative Restrictions on the Use of the

Takings Power

5.2.2.1 Substantive arrangements: narrowing the legitimate scope of ‘public use’

22
The dissenting opinions are not the focus of this thesis. For more comprehensive discussions, see
Somin, above n 21, 126–34; Julia Mahoney, ‘Kelo’s Legacy: Eminent Domain and the Future of Property
Rights’ (2005) 2005 The Supreme Court Review 103, 120–5.
23
Kelo, 545 US 469, 489 (Stevens J) (2005).
24
The judicial reaction is not the focus of this section for two reasons. First, unlike the dramatic and
sweeping legislative reforms, the judicial reaction to Kelo was fragmented and often sceptical.
Specifically, there were much fewer public use cases and there was no consensus on public issues
among state courts. Second, these post-Kelo judicial reactions may not provide viable lessons for the
improvement of China’s law, which will be discussed in Section 5.4.3. Nevertheless, a number of
important, post-Kelo state court decisions worth mentioning here to illustrate how state courts play a
significant role in addressing the permissible scope of and justification for expropriation. Some states
courts have monitored, and in some cases, actually rejected, local government legislative decisions
about the permissible scope of and justification for expropriation. See, eg, Norwood v Horney, 853 N E
2d 1115 (Ohio, 2006) (explicitly criticised Kelo and held that economic or financial benefit alone is
insufficient to meet the requirement of public use); Gallenthin Realty Development, Inc v Borough of
Paulsboro, 924 A 2d 447 (NJ, 2007) (rejecting the idea that private property can be expropriated
according to state statute because the property was not full productive and can be put to a higher
economic use after the expropriation). See also, Bd of County Comm'rs of Muskogee County v Lowery,
136 P 3d 639 (Okla, 2006); Middletown Township v Lands of Stone, 939 A 2d 331 (Pa, 2007); Centene
Plaza Redevelopment Corp v Mint Properties, 225 S W 3d 431 (Mo, 2007); Missouri ex rel Jackson v
Dolan, 398 S W 3d 472 (Mo, 2013); Salt Lake City Corp v Evans Dev Group, LLC, 369 P 3d 1236 (Utah,
2016). Two leading New York state court decisions are high-profile as they are significant exceptions to
the above trend. That is to say, the decisions generally followed the approach used in Kelo and upheld
economic development takings even though they applied New York state law. See Goldstein v New York
State Urban Development Corp, 921 N E 2d 164 (NY, 2009); Kaur v New York State Urban Development
Corp, 933 N E 2d 721 (NY, 2010).

121
The unlimited scope of ‘public use’, as was reflected in Kelo, triggered significant
legislative reaction, with 45 states enacting reform laws to limit the use of takings
power. Few Supreme Court decisions have attracted more extensive legislative
reaction than that of Kelo.25 In general, the reform adopted four approaches:

(1) restricting or prohibiting economic development takings, which is the most radical
legislative approach seeking to repel Kelo. 26 There is no uniform definition of
‘economic development takings’ in reform laws. However, the term is generally used
to refer to private-to-private takings that are intended to increase tax revenue and
employment or promote economic growth;27

25
An examination of the 50 State Report Card and the Partisan Composition of State Legislatures 2002–
2014 shows that both Republican-controlled and Democrat-controlled legislatures passed post-Kelo
reform laws. Although Democrat-controlled legislatures outnumbered Republican-controlled
legislatures, reform laws enacted by Republican-controlled legislatures appeared to be more effective in
evaluations conducted by both the Institute for Justice and Somin. This result was consistent with
Republican economic policies, which support limited government regulation of the economy. See Castle
Coalition, 50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo (August 2007)
<https://ij.org/wp-content/uploads/2015/03/50_State_Report.pdf> (this study, conducted by the
Institute for Justice, briefly introduces the post-Kelo laws in all states with an evaluation of the quality
and strength of reforms); Somin, above n 21, 143; National Conference of State Legislatures, Partisan
composition of State Legislatures 2002–2014
<https://www.ncsl.org/documents/statevote/legiscontrol_2002_2014.pdf>. Further, there is a vast
amount of legal scholarship on the states’ post-Kelo legislative reforms, see, eg, Somin, above n 10, 141–
60; Steven Eagle and Lauren Perotti, ‘Coping with Kelo: A Potpourri of Legislative and Judicial Responses’
(2008) 42 Real Property, Pronate and Trust Journal 799 (giving a state-by-state description of the
legislative and judicial responses to Kelo); Marc Mihaly and Turner Smith, ‘Kelo’s Trail: A Survey of State
and Federal Legislative and Judicial Activity Five Years Later’ (2011) 38 Ecology Law Quarterly 703
(summarising the legislative and judicial efforts to curtail the compulsory acquisition power and the
general trend in this regard).
26
Some state laws generally bar the transfer of expropriated land to a private person for ‘economic
development’ purposes with that exact term. See, eg, Texas Code Ann § 2206.0001(b) (Supp 2006);
Alaska Stat § 09.55.240(a) (2006); Ky Rev Stat Ann § 416.540 (LexisNexis Supp 2006).
27
See, eg, Ind Code § 32-24-4.15-1 (LexisNexis Supp 2006) (providing that the term ‘public use’ does not
include ‘the public benefit of economic development’, including an increase in a tax base, tax revenues,
employment, or general economic health); Ariz Rev Stat Ann § 12-1136(5)(b) (West Supp 2007)
(prohibiting the exercise of the takings power for the purpose of achieving the public benefits of an
increase in the tax base, an increase in tax revenue, more employment, or general economic stability);
SD Codified Laws § 11-7-22.1 (Supp 2007) (prohibiting the takings for transfer to any private party or for
the primary purpose of increasing tax revenue); Va Code Ann § 1-219.1(D) (Supp 2007) (requiring the
acquiring authority to ensure that the primary purpose of the takings is not private gain, benefit, or an
increase in tax revenues or employment).

122
(2) adopting a stricter rule that bans any purely private-to-private takings;28

(3) abolishing or limiting the concept of ‘blight’, which has long been expanded to
encompass almost any property where economic development could potentially be
increased;29 and

(4) redefining the definition of ‘public use’ in ways that shift it back to the traditional
narrow test. The most typical approaches are including an inclusionary provision,30 or a
list enumerating what types of projects qualify as public use (like the public-interest list
in the Chinese 2019 LAL).31

On the whole, as their Australian and Chinese counterparts did, these legislative
approaches narrowed the range of permissible takings by adopting the narrow public
use test or prohibiting some types of takings involving private-to-private activities
(such as economic development takings), thereby imposing greater restraints on the
governments’ use of the takings power.

28
See, eg, Ala Code § 11-47-170(b) (LexisNexis Supp 2006) (prohibiting the takings for the purposes of
‘private retail, office, commercial, industrial, or residential development; or primarily for enhancement
of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership,
corporation, or other business entity’); Pa Cons Stat Ann § 204 (West Supp 2007) (prohibiting the takings
for the use of a private enterprise); Tex Code Ann § 2206.0001(b) (Supp 2006) (preventing the takings
that confers a private benefit on a private party). However, it is observed that generally all state laws
allow the takings for private use or control when the owner or controlling entity is a common carrier or
utility provider. See Eagle and Perotti, above n 25, 805. As noted above, courts have long upheld this
type of taking, which qualifies as a valid public use under the narrow test.
29
Since the early 20th century, state courts have upheld governments’ use of the takings power to
acquire blighted and ‘slum neighbourhoods’ in urban areas and transfer them to private developers for
redevelopment. The Supreme Court endorsed blight acquisition in Berman.
30
Some state laws define ‘public use’ as: ownership, possession, occupation or enjoyment of the
property by the general public or governmental entities/public agencies; public facility use; or the
acquisition for blight removal, nuisance removal, reduction of abandoned property, or remediation of an
environmentally contaminated area. See, eg, NH Rev Stat Ann § 162-K:2(IX-a) (LexisNexis Supp 2006); Ky
Rev Stat Ann § 416.540 (LexisNexis Supp 2006); Wyo Stat Ann § 1-26-801(c) (2007).
31
For those state laws that create a public use list, common permissible public uses include the
construction of public buildings, public utility facilities, sewerage, roads and railways. See, eg, Fla Stat §
166.411 (West Supp 2007) (allowing the use of the takings power for streets, drainage, water and sewer
pipes, underground wires, city buildings, railroads, school lands, and improvements necessary for public
health and welfare); Ind Code § 32-24-4.15-1 (LexisNexis Supp 2006) (including the construction,
maintenance, and reconstruction of highways, bridges, airports, ports, certified technology parks,
intermodal facilities, and parks and public utility facilities).

123
It is important to note that even though the Supreme Court suggested that states
could further limit the takings power either through judicial interpretations of state
constitutions or legislative initiatives,32 most states adopted the latter (that is, the
legislative approach) in the post-Kelo reform. One possible reason behind such a
transition is a fundamental institutional constraint on judicial decision-making – the
doctrine of precedent. The courts’ hands are tied due to a long line of precedents
upholding the broad public use test. As Stevens J concluded in the Kelo decision,
‘[b]ecause over a century of our case law interpreting that provision dictates an
affirmative answer to that question, we may not grant petitioners the relief that they
seek’.33 Another possible reason is that the political process normally is more efficient
in carrying out rapid and extensive reform. This is not to say that the decision by the
courts would not bring about radical change, but only that constitutional litigation is
particularly complex and cumbersome. For example, the legal battle between property
owners and the City in Kelo lasted five years until the Supreme Court handed down its
decision in 2005. The small number of post-Kelo cases on the constitutional public use
issue also provides some support for this line of reasoning.34 The advantage of the
legislative approach will be further noted by comparison with that in the Australian
jurisdiction in Section 5.3.2.

32
Kelo, 545 US 469, 489 (Stevens J) (2005) and accompanying footnotes. The Court provided two
examples of stringent requirements at the state level. The first one is established as a matter of state
constitutional law. The Michigan Supreme Court overruled the notorious 1981 Poletown in County of
Wayne v Hathcock. The Court reinterpreted the ‘public use’ requirement under the Michigan
constitution and outlined three categories of takings where private-to-private expropriations were still
permissible. The takings at issue in this case – private-to-private takings solely on the ground of the
promotion of economic development – did not fall into any of these categories, and thus did not meet
the public use test. See County of Wayne v Hathcock, 684 NW 2d 765 (Mich, 2004). For a detailed
discussion of this case, see Ilya Somin, ‘Overcoming Poletown: County of Wayne v. Hathcock, Economic
Development Takings, and the Future of Public Use’ (2004) 2004 Michigan State Law Review 1005
(arguing that the Hathcock decision is a milestone in the takings law, but it is not a panacea for all
abuses of the takings power. Its long-term impact will largely depend on future judicial interpretation in
this regard). The second approach is legislative limitation on the grounds upon which the takings power
may be exercised, such as Cal Health & Safety Code Ann § 33030-333037 (West 1999).
33
Kelo, 545 US 469, 490 (2005). Somin also has pointed out that the reason why the Supreme Court has
not taken on any new public use cases since Kelo may be that the justices simply do not wish to return
to this controversial issue so soon after the decision. See Somin, above n 21, 239.
34
See above n 24.

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It is also worth noting that while most states returned to be highly sceptical of the
takings that would involve the transfer of expropriated property to another private
owner, they did not adopt categorical rules that would completely prohibit or narrowly
cabin economic development takings or, on a broader level, private-to-private
takings.35 That is to say, as noted in Section 2.2.3.3, most states do not intend to
provide as strong a level of protection of property rights as the courts did in the 19 th
century by confining the takings power to a narrow sphere of public use. Some
scholars criticised this approach for its inability to minimise the legislative threat to
property rights. For example, in a comprehensive and recent analysis of the public use
doctrine before and since Kelo, Ilya Somin has examined several alternatives to a
categorical ban of economic development takings, (ie, purely ‘increased compensation’
or ‘procedural safeguards’) and concluded that ‘[w]hile not without merit, such
strategies are unlikely to be as effective as a ban’.36 This view has two weaknesses.

First, a flat ban on economic development takings seems to go too far. Given that
‘promoting economic development is a traditional and long-accepted function of
government’,37 this extreme approach might impose a significant impediment to the
successful consummation of many governmental regulatory and redistributive policies
that are critical to support economic growth.38 Besides, economic development is a
wider concept and cannot be completely separated from other governmental public

35
Based on Somin’s work, only 15 state reform laws have either explicitly abolished or significantly
constrained economic development acquisition. See Somin, above n 21, 154–6.
36
See generally, Somin, above n 21, 205–31 (observing that a categorical ban is the most effective
approach to limit the abuse of the takings power); Ilya Somin, ‘Putting Kelo in Perspective’ (2016) 48
Connecticut Law Review 1483 (arguing that ‘the best way to rectify Kelo’s errors is to overrule it
completely’, so that eliminating economic development taking ‘would be a major step in the right
direction’). The same observation is made by Charles Cohen, who has argued that a flat ban on such
acquisitions is the best way to alleviate the serious concerns regarding justice and efficiency that they
raise. See Charles Cohen, ‘Eminent Domain after Kelo v. City of New London: An Argument for Banning
Economic Development Takings’ (2006) 29 Harvard Journal of Law & Public Policy 491, 543–68.
37
Kelo, 545 US 469, 470 (Stevens J) (2005)
38
For similar views, see Mahoney, above n 22, 127 (arguing that ‘[r] estricting the government’s power
to reallocate property among private entities can impair its ability to regulate commerce and industry’);
Wendell Pritchett, ‘A Solution in Search of a Problem: Kelo Reform Over Ten Years’ (2016) 48
Connecticut Law Review 1483 (arguing that ‘eminent domain is a necessary tool for governments to
promote the public interest, and that the problem of potential “abuse” can be managed by less
dramatic—and more effective—methods than categorical bans on the use of condemnation’).

125
projects. For example, the widespread urban renewal in the early 20 th century (as
outlined in Section 2.2.3) is ‘an economic development program’ in nature. 39 It follows
that a categorical prohibition of economic development takings might frustrate a
number of projects that are likely to generate real and important benefits for the
public. This line of argument finds support in the post-Kelo development in Louisiana,
for example. One criticism is that Louisiana’s anti-Kelo amendments might seriously
block post-Hurricane Katrina community redevelopment projects in New Orleans and
its environs. This resulted in a legislative change in Louisiana in 2010 which loosened
the control over the use of the takings power for natural disaster recovery.40 Therefore,
as Julia Mahoney has observed, ‘[w]hile it is incontrovertible that not all such
reconfigurations of property rights will promote the general welfare, the social costs of
erring too far on the side of interdiction can be high’.41 In short, the above potential
threats to governmental function might be part of the reason why a majority of state
legislatures were unwilling to enact such a ban.

Second, it fails to consider the effectiveness of a combination of the above alternatives.

While purely procedural or compensation remedies are unlikely to restrict the takings
power effectively, mixed reform approaches may be able to prevent the abuse of the
takings power and enhance the protection of property rights.42 As will be outlined in
the section below (procedural improvements) and Section 6.3.2 (compensation
improvements), 43 several states adopted comprehensive management remedies:
namely, they maintained the purpose for economic development in the scope of public

39
Pritchett, above n 6, 46.
40
See further, John Lovett, ‘“Somewhat at Sea”: Public Use and Third Party Transfer Limits in Two US
States’ in Björn Hoops et al (eds), Rethinking Expropriation Law I: Public Interest in Expropriation (Eleven
International Publishing, 2015) 93, 114–23.
41
Mahoney, above n 22, 127.
42
Debbie Becher’s research has provided empirical evidence to support this argument by observing that,
in controversial cases, the chief concern of Philadelphia’s public agents was making sure that
expropriated people felt adequately compensated and avoiding the appearance of an arbitrary, uncaring
state. As a result, these measures have minimised public outcry in takings. See generally, Debbie Becher,
Private Property and Public Power: Eminent Domain in Philadelphia (Oxford University Press, 2014).
43
As will be discussed in Section 6.3.2, several state reform laws provide additional compensation for
the subjective loss incurred by the landowner, thereby avoiding the major criticisms made by Somin
about the problems of increased compensation for property owners. See Somin, above n 21, 205–9.

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use while turning to procedural and compensation safeguards to prevent the abuse of
the takings power.

5.2.2.2 Procedural arrangements: adding additional pre-expropriation procedures

In general, state legislatures reformed the takings process by requiring additional pre-
expropriation procedures. Before moving into the new procedural arrangements, it is
essential to first touch upon the previous takings process (a comparison with those
under Chinese and Australian regimes will be noted in Section 5.3.3).

Unlike China’s uniform land expropriation process, the states of the United States have
broad discretion to set up the acquisition process in their jurisdictions, resulting in
various procedures that afford widely varying degrees of protection to property
owners. Under a typical takings process providing full procedural rights,44 the acquiring
authority determines what lands it needs to acquire for the project and then makes an
effort to acquire the land by agreement. Where the property owner refuses to sell, the
acquiring authority can commence expropriation proceedings against the owners in
court. The property owner is formally served and is entitled to launch a defence
against the taking ‘in the form of a motion to dismiss or similar procedure, and to
establish the baseline for compensation’.45 After a formal adversarial proceeding, a
court will determine whether the parcel at issue may be acquired.

Although numerous state laws provide for the full process, 21 states and the District of
Columbia allow for the exercise of the takings power without any advance notice or
pre-expropriation hearings concerning the legality of the proposed takings under
specific circumstances.46 The rest of the states steered the middle course by providing

44
This discussed in based on the comprehensive analysis of Zac Hudson in this field. See further, Zac
Hudson, ‘Eminent Domain Due Process’ (2010) 119 Yale Law Journal 1280 (outlining the current state of
the takings law and the content and form of the due process).
45
Ibid 1287.
46
Ibid 1288. For example, the Rhode Island State delegates the takings power to a quasi-government
entity that is allowed to make independent acquisition decisions and effectuate these decisions by
simply filing a declaration with the town clerk in the municipality. Takings in this instance is an ex parte
act of the acquiring authority without any involvement by the property owner or any review of the
takings’ public utility.

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some pre-acquisition process. In general, state laws used to give the government much
flexibility in carrying out expropriations while providing insufficient procedural
protection to property owners.

Thus, in the wake of Kelo, several states placed additional procedures to curb potential
abuse of the takings power by the government. 47 Since formal expropriation
proceedings are never commenced in the vast majority of cases,48 the procedural
reform generally focused on the pre-expropriation process in four ways:

(1) requiring the authority to formulate comprehensive redevelopment plans that are
subject to certain restrictions;49

(2) requiring approval from local legislative bodies on a case-by-case basis;50

(3) requiring the authority to negotiate in good faith with the owner in order to acquire
the property by agreement instead of exercising the takings powers;51 and

(4) requiring prior notice in various ways.52

47
This combination reform approach avoids many of the criticisms made by scholars such as Somin and
Mahoney about the ineffectiveness of purely procedural reforms for the abuse of the takings power. See
Somin, above n 21, 209–12; Mahoney, above n 22, 128. Other scholars have put forward many
suggestions to afford great procedural protections against the takings power. See, eg, Christopher Serkin,
‘Local Property Law: Adjusting the Scale of Property Protection’ (2007) 107 Columbia Law Review 883
(suggesting local governments should be allowed to adopt rules to make the exercise of acquisition
power procedurally more difficult); Patience Crowder, ‘“Ain’t No Sunshine”: Examining Informality and
State Open Meetings Acts as the Anti-Public Norm in Inner-City Redevelopment Deal Making’ (2007) 74
Tennessee Law Review 623 (suggesting that states impose additional transparency requirements to
ensure that the decision-making process is open to the public).
48
A survey showed that only 20 per cent of land expropriations resulted in the initiation of formal
proceedings, with the large majority of them accomplished through the acquisition-by-agreement
mechanism. See Nicole Stelle Garnett, ‘The Neglected Political Economy of Eminent Domain’ (2006) 105
Michigan Law Review 101, 103.
49
See, eg, Cal Health & Safety Code Ann § 33333.2(a) (West Supp 2007) (placing time limits on the
activities of the acquiring authority acting in accordance with redevelopment plans); W Va Code § 18-6
(LexisNexis Supp 2007) (providing that only slum and blighted areas in need of redevelopment can be
subject to a redevelopment plan); Md Code Ann Real Property §12-105.1 (LexisNexis Supp 2007)
(requiring the authority to implement expropriation of the parcel within four years of receiving
authorisation; otherwise, it must apply for reauthorisation).
50
See, eg, Ala Code § 29.35.030(a) (LexisNexis Supp 2006); Kan Stat Ann § 26-501a(b), 501b(f) (Supp
2006); Utah Code Ann § 78-34-4(2)(b) (Supp 2007); Georgia Constitution art IX § 2.
51
See, eg, Utah Code Ann § 78-34-4.5 (Supp 2007); Wyo Stat Ann § 1-26-509 (2007); Mant Code Ann §
70-30-111 (2007).

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These prior procedures would impose elevated burdens of justification on the
acquiring authority in relation to the exercise of the takings power. As noted above,
governments or executive agencies (when the takings power is delegated to these
agencies) can make independent decisions about the takings and effectuate these
decisions. Nevertheless, under the new prior process, they might need to provide
more details of the proposed takings to property owners, such as the efficacy of the
proposed takings, the amount and character of land to be taken and the need for a
particular tract, which will not be reviewed by the courts in the formal proceedings.53
As a consequence, the additional procedures will help decrease the likelihood of the
arbitrary or unreasonable exercise of the takings power in the service of inefficient
projects that produce largely private benefits for a private actor. In this way,
procedural reforms complement the above substantive reforms in narrowing the
scope of public use takings. Also, these new rules would provide an additional layer of
protection to private landowners against the taking of their land. This line of argument
is supported by Gregory Knapp, who has observed, ‘where the use of eminent domain
would serve the public interest and occur with full procedural protections for the
condemnee, it makes little sense to disallow the taking merely because it falls within
the disfavoured category of “economic development”’.54

From the above discussion, it is reasonable to conclude that post-Kelo reform laws
have fairly tightened the legitimate basis for using the takings power in ways that leave
the government considerable authority (eg, retain economic development acquisition
in most cases) to perform their functions. Meanwhile, the laws developed additional
procedural arrangements to decrease the administrative discretion in the takings

52
See, eg, Del Code Ann tit 29 § 9505 (Supp 2006) (requiring the holding of public hearings on proposed
takings); Minn Stat § 117.0412 (West Supp 2007) (providing that the authority must notify the
landowner in writing of a public hearing on the proposed takings, post the information on the
government website and place a public notice in the official newspaper); Wyo Stat Ann § 1-26-504 (2007)
(requiring the authority to notify the landowner by letter).
53
As noted above, the courts’ authority extends only to determining whether the proposed takings are
for a ‘public use’ within the meaning of the Fifth Amendment. They will not second-guess the
government’s determination on these discrete issues. See above n 17.
54
Gregory Knapp, ‘Maintaining Government Accountability: Calls for a “Public Use” Beyond Eminent
Domain’ (2008) 83 Indiana Law Journal 1097, 1171.

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process. In addition, as will be discussed in Chapter 6, the compensation system has
been significantly improved to provide broader compensatory protection for
landholders’ property rights. In consequence, the reform laws can be seen to achieve a
reasonable balance between the public interest and property rights. These specific
institutional safeguards that directly limit the takings power may be useful for China in
order to regulate the power of land acquisition, which will be discussed in Section 5.4.

5.3 THE LEGISLATION-BASED APPROACH IN AUSTRALIA

Unlike the United States and Chinese constitutional expropriation provisions, there is
no express reference in the Australian federal and state constitutions to confine the
power of compulsory acquisition to ‘public purpose’. However, this does not mean
that the expropriation power is unlimited in Australia. This section examines
approaches used by the federal and state governments to control the power of
compulsory acquisition. Given that most instances of land expropriation in Australia
are governed by state legislation (as noted in Section 2.3.2.1), this section focuses on
the states’ approaches in this regard.

5.3.1 Controls on the Power of Compulsory Acquisition and the Fazzolari Case

On the whole, all the Australian jurisdictions seek to avoid the vagueness of the terms
‘public purpose/public use’ by not using them in the relevant legislation/constitutional
provisions. Instead, they control the power by specifying compulsory acquisition
powers in the laws. At the federal level, as noted in Section 2.3.1, the Constitution
limits the Commonwealth’s compulsory acquisition power by subjecting it to whatever
legislative powers the legislature has constitutionally (listed in s 51 of the Australian
Constitution), such as the legislative power over postal, telegraphic, telephonic, and
other like services (placitum v), the naval and military defence (placitum vi), and
railway construction and extension (placitum xxxiv), which allow the
parliament/executive to acquire land for these purposes. At the state level, state
governments have adopted similar approaches by confining the expropriation power
to express empowerments for specific objectives set out in relevant legislation. For

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instance, in the New South Wales, Land Acquisition (Just Terms Compensation) Act
1991 (NSW) is linked to various express statutory powers, such as the power granted
by the Roads Act 1993 (NSW),55 the Transport Administration Act 1988 (NSW)56 and
the Education Act 1990 (NSW), 57 which empower the competent authorities (the
executive government agencies)58 to acquire private land compulsorily in order to
deliver public infrastructure.59 It follows that the exercise of the expropriation power
for a purpose outside the specific empowerment may render the acquisition
voidable.60 In this way, the separate legislative powers of the Commonwealth and the
specific legislation in the state sphere substantively confine the government’s power of
compulsory acquisition to the broader public good, which are closely aligned with the
United States post-Kelo reform laws and the new public-interest list in the Chinese
2019 LAL.

Nevertheless, as noted in Section 2.3.2.1, the state’s legislative powers have been
given ‘the widest possible operation, consistent with the vast variety of matters upon
which such a legislature may be expected to exercise its powers’.61 It follows that state

55
Section 177(1) of the Roads Act 1993 (NSW) reads: ‘The Minister, RMS or a council may acquire land
for any of the purposes of this Act’.
56
Transport Administration Act 1988 (NSW) ss 12 (acquisition of land by Transport Asset Holding Entity),
35F (acquisition of land by Sydney Ferries), and 124 (Acquisition of national park and other park land for
the Parramatta Rail Link).
57
Section 125(1) of the Education Act 1990 (NSW) reads: ‘The Minister may, for the purposes of this Act
or jointly for those purposes and purposes of or associated with public education or recreation, acquire
land (including an interest in land) by agreement or by compulsory process in accordance with the Land
Acquisition (Just Terms Compensation) Act 1991’.
58
The acquiring authority is normally the executive branch of government or public agencies. For
example, in New South Wales, government agencies, some state-owned corporations and local councils,
under various pieces of legislation, have the power to acquire private land for public infrastructure or
facilities. See NSW Government Response to Review of the NSW Land Acquisition (Just Terms)
Compensation Act 1991 and Housing Acquisition Review (2016) 9–10
<https://www.propertyacquisition.nsw.gov.au/sites/default/files/resources/NSW_Government_Respon
se_Property%20Acquisition%20Reform.pdf> (‘NSW Government Response’).
59
For a list of legislation in New South Wales containing acquisition powers, see David Russell SC, Review
of the Land Acquisition (Just Terms Compensation) Act 1991 (February 2014) Appendix D
<https://www.finance.nsw.gov.au/sites/default/files/David_Russell_SC_JTC_Review_Report.pdf>
(‘Russell Review’). Russell was commissioned by the Government of New South Wales to examine the
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) in 2012.
60
See, eg, Sydney Municipal Council v Campbell (1925) AC 388; Prentice v Brisbane City Council (1966)
Qd R 394.
61
Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 (15 February 2001) [55] (Kirby J).

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parliaments can empower local governments to acquire land to exercise their
functions, even in a manner or for a purpose of on-selling or leasing the acquired land
to a private developer, as in the following Fazzolari case.62

The Fazzolari case is similar to Kelo as an instance of a local government transferring

the acquired land to a private developer. The private land was required as part of an
integrated mixed-use redevelopment of the block (called ‘Civic Place’), containing
various facilities such as the residential building, commercial office tower and retail
centre and car park. The redevelopment plan was estimated to generate 8800 jobs and
approximately A$96 million in assets would be transferred to the local government.63
As in Kelo, the landowners, Fazzolari and Mac, refused to sell. The Council thus
exercised its compulsory acquisition powers under the Local Government Act 1993
(NSW) to acquire their parcels. By s 188(1) of the Act, a council may acquire land for
the purpose of resale without the owner’s consent. However, the power is subject to a
constraint set up by s 188(2)(a), which requires that the land must be part of, or
adjoins or lies in the vicinity of, other land acquired at the same time ‘for a purpose
other than the purpose of resale’. Thus, the landowners challenged the validity of the
acquisitions based on the fact that their land was acquired in order to resell it to the
private developer without other land being acquired for a purpose other than resale.

The High Court upheld an appeal against the Court of Appeal of New South Wales’
decision, which supported the Council’s argument that the purpose of the land
expropriations was the implementation of the larger urban redevelopment project and

62
See, eg, Local Government Act 1993 (NSW) ss 186, 188(1); Lands Acquisition Act 1978 (NT) 43(1). In
Griffiths, the High Court held that s 43(1) of the Lands Acquisition Act 1978, which empowered the
Ministry to acquire land for ‘any purpose whatsoever’, was unlimited in scope and therefore not subject
to any kind of public interest or public benefit requirement. See Griffiths v Minister of Lands, Planning
and Environment (2008) 235 CLR 232. See further, Sean Brennan, ‘Statutory Interpretation and
Indigenous Property Rights’ (2010) 21 Public Law Review 239.
63
Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac’s Pty Ltd [2008]
NSWCA 132 [100] (Tobias JA).

132
not a resale of the acquired land. Accordingly, it was unnecessary to deal with the
subsidiary questions arising under s 188(2)(a).64 The High Court held that:

Where a number of parcels of land are to be acquired in aid of some large scale
redevelopment, it is nevertheless the purpose of the acquisition of each such parcel of
land that is to be considered in determining whether it is within or beyond power.65

Therefore, unlike the Supreme Court of the United States’ deferential approach in the
Berman, Midkiff and Kelo decisions, the High Court concluded that resale was,
inescapably, one of the purposes of the proposed acquisition, albeit the acquisitions
could be characterised as a step towards effecting the larger redevelopment project.66
Accordingly, these were not the acquisitions permitted by the Local Government Act
1993 (NSW).67 Nevertheless, the Parliament of New South Wales promptly overturned
the High Court decision by amending the Land Acquisition (Just Terms Compensation)
Act 1991 (NSW) in 2009 to allow such acquisitions by government, even if they
contemplated on-sale to a private developer.68 This legislative change has indicated
that in cases where constitutional obstacles are not present, adverse judicial
determinations do not prevent the legislature from stepping in to amend the rules in
the relevant statutes in order to overturn these results. So in the end, the New South
Wales Government’s position – and the position is in all likelihood the same in other
Australian states – is similar to that under the Kelo decision, that is, giving the
government more rather than less power. But despite this statutory amendment, the
procedural mechanism in Fazzolari might be more effective in curbing the abuse of
compulsory acquisition power than the constitutional public use requirement in Kelo in
two respects.

First, given that the procedural constraint in Fazzolari is specific and rigid, the courts
do not have to defer to the government and expert agencies’ judgements in this field,

64
Fazzolari (2009) 237 CLR 603, 10 [24] (French CJ).
65
Ibid 20 [53] (French CJ).
66
Ibid 19 [52] (French CJ).
67
This decision has been praised as a reinforcement of private landholders right. See Maureen Peatman,
‘High Court Reinforces Private Owners’ Rights’ (2009) 15 Local Government Law Journal 80.
68
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Sch 3, cl 5.

133
thereby exercising their duty to keep the acquiring authority from exceeding its power.
The Chinese 2019 LAL imposes a similar constraint on tract development acquisition,
which will be discussed in Section 5.4.1.

Second, even though the post-amendment provision allows compulsory acquisitions of

land for re-sale, it still limits councils’ capacity in relation to direct private-to-private
acquisitions. That is, councils must first acquire land for their own use as part of a
larger development project, if the larger development project involves an on-sale to a
private developer. This requirement of councils acquiring land first creates an obstacle
to compulsory acquisitions, thereby affording protection to private owners from the
potential corruption that might arise in purely private-to-private acquisitions.

In short, the above discussion reveals that Australia’s land acquisition legislation has
provided the government considerable room to legislate to fulfil various public
functions.69 At the same time, it has imposed certain procedural constraints that are
decisive and effective in controlling the compulsory acquisition power, thereby
achieving a fair balance between public interest and property rights. This line of
argument is supported by the report that shows that in New South Wales, over 80 per
cent of acquisitions was achieved by agreement.70 This result also provides some
support for the unnecessary prohibition on economic development acquisitions.

5.3.2 Latest Procedural Improvements in New South Wales: Including additional Pre-
acquisition Procedures

While the legislative framework in New South Wales is ‘widely considered to be

fundamentally sound’, 71 it has been reformed recently to better support those
expropriated landholders. The reforms were triggered by public concerns about the
fairness and transparency of compulsory acquisition process at the time when major
transport infrastructure programs (ie, WestConnex, NorthConnex, the light rail and

69
In New South Wales, for example, a council’s functions include providing goods, services and facilities,
and carrying out activities, appropriate to the current and future needs within its local community and
of the wider public. See Local Government Act 1993 (NSW) s 24.
70
NSW Government Response, above n 58, 10.
71
Ibid 8.

134
Sydney Metro projects) were being conducted at an unprecedented pace and scale in
Sydney to meet the needs of the community and economy. 72 The infrastructure
projects invariably conflicted with existing property holdings where large numbers of
privately held parcels of land were needed.73 In response, the Government of New
South Wales (the Government) reformed the land acquisition process and the
compensation valuation system (to be discussed in Section 6.4.2) in line with reviews
undertaken by David Russell SC and the Customer Service Commissioner by reference
to submissions and feedback from a range of stakeholders.

Before examining the latest procedural reforms, a brief overview of the land
acquisition process is provided to grasp the full picture.74 On the whole, the Land
Acquisition (Just Terms Compensation) Act 1991 (NSW) allows the acquiring authority
to acquire land by two means: agreement or compulsory process.75 As with the takings
process in the United States, acquisition by agreement commences when the acquiring
authority makes an offer to the landowner about the purchase of the land. Once an
agreement is reached, the land is transferred to the acquiring authority, and
appropriate compensation is paid to landowners.76

When the agreement is not reached, the acquiring authority then has the legal
authority to compulsorily acquire the land, following a two-stage process set out by
the Land Acquisition (Just Terms Compensation) Act 1991 (NSW): (1) in the pre-
acquisition process, the acquiring authority must give a written proposed acquisition
notice to the landowner at least 90 days before the land is acquired, advising the
owner that the land needs to be acquired and requesting them to lodge a claim for

72
Ibid.
73
See, eg, Customer Service Commissioner, NSW Housing Acquisition Review Summary Report (14
September 2016) 5 <
https://www.finance.nsw.gov.au/sites/default/files/Customer_Service_Commissioner_NSW_Housing_A
cquisition_Review_Summary_Report.pdf> (‘Housing Acquisition Review’). The review shows that the
Government of New South Wales acquired 2959 properties from July 2010 to March 2016, followed by
an increase in court appeals against the amount of compensation offered by the acquiring authority.
74
The land acquisition procedures are very similar across the nine Australian jurisdictions. See further,
Marcus Jacobs, Law of Compulsory Land Acquisition (Thomson Reuters, 2nd ed, 2015), chs 4, 8, 9.
75
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 3(1) (providing that ‘The objects of this
Act are: … (e) to encourage the acquisition of land by agreement instead of compulsory process’).
76
NSW Government Response, above n 58, 10–11.

135
compensation with the acquiring authority.77 In light of the Act’s object of encouraging
acquisition by agreement, the issuing of a proposed acquisition notice does not
prevent negotiations continuing;78 (2) if agreement cannot be reached before the
proposed acquisition notice expires, the authority may declare, by notice published in
the Gazette, that any land described in the notice is acquired by compulsory process.79
The publication of notice has the effect of officially transferring ownership of the land
to the state.80 At this point, landowners are entitled to be paid compensation for land
acquisition and can appeal against the compensation offered in court.81

The above reveals that, as in the United States and China, the compulsory acquisition is
generally an administrative process. The legislation does not require either landowners
or federal and state legislatures (apart from enacting legislation) to be involved in the
decision-making of a land acquisition plan,82 which provides rich evidence to counter
Chun Peng’s criticism of China’s land acquisition process (as noted in Section 4.3.3.2).
Further, while most principal land acquisition statutes give the landowner a right to
object to the land acquisition proposal (object in writing or seek reconsideration), the
decision to confirm, amend or revoke the land acquisition proposal rests with the
acquiring authority, as is the case in China.83 The administration-dominant process
thus raised concerns about whether the compulsory acquisition power is being
conducted in a fairer manner, particularly the negotiation procedure, 84 in the

77
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 11, 13, 15.
78
Ibid ss 3(1), 11(2).
79
Ibid s 19.
80
Ibid s 20.
81
The post-acquisition procedures relating to compensation, which will be discussed in Chapter 6.
82
There may be considerable discussion within the authority before they make a firm decision and put it
into effect, but there is no statutory requirement for the authority to consult the property owner prior
to the issue of a notice of intention.
83
Six out of the nine jurisdictions give the landowner a right to object; New South Wales, Victoria and
Tasmania are the exceptions. The ‘reconsideration’ mechanism is similar to the ‘administrative
reconsideration’ mechanism in China’s land acquisition law discussed in Section 3.4.2.3. They are part of
the administrative review conducted by the acquiring authority with decision-making power, which
allows the acquiring authority to amend or cancel its acquisition notice. See further, Jacobs, above n 74,
ch 5.
84
This procedure is significant because of the prevalence of acquisition by agreement. Further, the
general provision in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) gives the acquiring
authority a considerable degree of latitude in determining the method and suitable period for the

136
increasingly prevalent case of large-scale public acquisitions. In response, the
Government has commenced a package of legislative and administrative reforms
targeting the prior negotiation process.

For the legislative improvements, the Land Acquisition (Just Terms Compensation) Act
1991 (NSW) was amended in 2016 (2016 Amendment, which commenced on 1 March
2017) and set up a fixed, six-month negotiation period for acquisition by agreement
before initiation of the compulsory process.85 This clearly defined negotiation period
significantly reduces the acquiring authority’s discretion in the negotiation process,
preventing the authority from engaging in ‘protracted negotiations conducted at a
leisurely pace’. 86 Moreover, as in the post-Kelo reform, it gives the landholders
adequate time to make all enquires relating to the proposed land acquisition, thereby
helping to reduce the misuse of the compulsory acquisition power by the government
and providing additional procedural protections to landholders affected by
expropriation.

In addition, the Government adopted three administrative changes to complement the

above legislative improvements. The three approaches are:

(1) requiring the publishment of a plain English Land Acquisition Information Guide;87

(2) requiring acquiring authorities to hold at least one face-to-face meeting with
landowners during the fixed negotiation period, with a view to negotiation of an
appropriate acquisition price;88 and

(3) requiring the publishment of data about land acquisitions by the government.89

negotiation. As suggested in the reviews, landowners experienced several difficulties in this process
such as lack of consultation and relevant information. See Russell Review, above n 59, 25–35; Housing
Acquisition Review, above n 73, 11.
85
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 10A(2).
86
Russell Review, above n 59, 35.
87
The Guide was published in December 2014, see Appendices of the NSW Government Response,
above n 58.
88
Ibid 6.
89
Ibid. The data is published on <https://www.propertyacquisition.nsw.gov.au/property-acquisition>.

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In genera;, these negotiation-centred procedures should ensure landholders are
properly engaged throughout the process. Specifically, the publishment of a guide
could help the owners have a better understanding of the acquisition process,
including rights and responsibilities of both parties. Also, as with the prior
compensation negotiation prescribed in the Chinese 2019 LAL (as noted in Section
4.3.3), the requirement of a face-to-face meeting would allow landholders to gain
insight into the valuation methods and the government offer, and thus contribute to
an appropriate acquisition price (to be further discussed in Chapter 6). Further, the
requirement concerning the publishment of data online would ensure the
performance of the acquiring authority is more readily open to public scrutiny in the
post-acquisition process. In short, these legislative and administrative changes could
arguably address the concerns raised by expropriation landowners about fairness and
transparency of the acquisition process.

The above discussion reveals the similarities shared by the state reforms in the United
States and the latest reforms in New South Wales in regulating and controlling the
expropriation power: that is, confirming the government’s power to expropriate
private land for the development of projects of broad public benefit, along with
additional procedures that contain necessary checks and balances, as well as enhanced
compensatory protection of property rights (to be discussed in Chapter 6). Therefore,
it is reasonable to conclude that the reformed land acquisition framework of New
South Wales also achieves a fairer balance between the enhancement of public
interest and the protection of property rights. As will be discussed below, Australian
approaches suggest some possible approaches that could be adopted by China’s law.

5.4 LESSONS FOR CHINA’S LAND ACQUISITION LAW AND PRACTICE

This section discusses how China may improve its land acquisition law, with a focus on
tract development acquisition. It argues that, supported by the experience and
practice of the United States and Australia, China’s land acquisition law has achieved a
proper balance between public and private interests. Nevertheless, it is submitted that
certain procedural reforms may achieve an even more satisfactory balance of interests.

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5.4.1 Tract Development Acquisition under the 2019 LAL

As noted above, both the United States (post-Kelo) and Australian laws, renowned for
their protection of property rights, have taken efforts to strike a reasonable balance
that recognises some private-to-private expropriations while putting legislative
controls on the use of the power. The Chinese law has adopted a similar approach to
reach such a balance.

On the one hand, the Chinese 2019 LAL recognises the necessity of tract development
acquisition in China. Recall the proposition that, like private-to-private expropriation in
the United States and Australia, tract development acquisition has been essential to
the Chinese economy given its contribution to tax revenue and job creation (as noted
in Section 4.4.1). Significantly, in light of China’s strict control against land transfer, the
tract development acquisition power will remain crucial in the implementation of
fundamental economic policies in the public interest. As Chuanhui Wang has observed,
‘[e]ven the United States … cannot totally erase economic development from the
domain of public use, nor can China, a country without separation of powers and with
the pressing needs of a developing economy’.90

On the other hand, as discussed in Section 4.3.1.2, the 2019 LAL imposes certain
statutory constraints (in the form of planning conditions) on tract development
acquisition. While these constraints cannot guarantee the use of acquired land for
public projects only, they could help decrease the potential abuse of compulsory
acquisition power. Specifically, under the 2019 LAL, land acquired for the purpose of
tract development should be located within the scope of urban construction land
demarcated by land use planning, and the proposed acquisition projects must comply
with several relevant planning schemes, such as the national economic and social
development plans and specialised plans. 91 It follows that the proposed land
acquisition must be included in a larger planning scheme if it involves a potential
transfer to a private entity. Accordingly, as with the statutory procedures in Fazzolari,

90
Wang, above n 4, 168.
91
2019 LAL art 45.

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these planning instruments can be major obstacles to governments’ arbitrary and
possibly corrupt expropriations for the benefit of private developers, as well as an
effective mechanism for protection of private property rights in land. One may argue
that these similar procedural conditions may not achieve the same outcomes in China,
given the different political and judicial systems as discussed in Section 3.3. The issue is
discussed below by examining the functions of Chinese courts in land acquisition in
practice.

5.4.2 The Functions of Chinese Courts in Land Acquisition

5.4.2.1 The general policy of judicial deference

Recall the argument that, due to the concentration of the state power in the
legislature, China does not observe the Western principle of separation of powers as
do the United States and Australia92 (as noted in Section 3.3.2). Besides, the courts are
mainly reliant on the executive branch for funding, even though the Chinese
government has reformed the funding system and diversified funding sources (ie, user-
pays arrangements and central government’s transfer payments).93 Also, the courts
are influenced macroscopically by the policies of the Communist Party of China (CPC)
(as noted in Section 3.3.1). Accordingly, judicial institutional independence is not yet
adequately developed in China. It follows that Chinese courts might defer to other
branches of the government and the Party where legal rules are ambiguous.

92
In fact, courts in the United States and Australia are never entirely independent from other branches
of the government. In general, the courts in these two countries apply and interpret the law made by
the legislature, and the judges are appointed by the executive. Moreover, the courts rely on other
branches for funding: United States courts are reliant on the legislature, while Australian courts rely on
the executive. Thus, it is suggested that judicial independence should focus more on independent
adjudication. For a debate on the definition of judicial independence and political structure of the
United States, see Yanrong Zhao, ‘The Way to Understand the Nature and Extent of Judicial
Independence in China’ (2019) 6 Asian Journal of Law and Society 131, 140–2. For the separation of
powers in Australia, see, eg, The Honourable TF Bathurst AC, Separation of Powers: Reality or Desirable
Fiction? (11 October 2013) < http://classic.austlii.edu.au/au/journals/NSWJSchol/2013/39.pdf>.
93
See generally, 陈永生 [Chen Yongsheng], 《司法经费与司法公正》 [Funding of the Judiciary and
Judicial Fairness] (2009) 3 中外法学 Peking University Law Review 390; 左卫民 [Zuo Weimin], 《省级统
管地方法院法官任用改革审思》 [Reflections on the Reform of Centralising the Appointment of Local
Judges to the Provincial Level] (2015) 4 法学研究 Chinese Journal of Law 23 (suggesting that there is an
increasing trend by government to reform the funding system for the courts. The personal choice,
promotion, removal and funding resources ‘are gradually controlled by the courts themselves’).

140
There is much evidence to substantiate the possible judicial deference in land
expropriation: that is, the judicial policy of deference to the administrative
determination of ‘public interest’ in the previous land acquisition regime over the last
decade. Recall that, without any express textual guidance on the application of the
public use requirement, the Supreme People’s Court implicitly left the determination
of public interest to the executive’s discretion by interpreting land acquisition
decisions made by approving authorities as ‘administrative decisions with finality’ in
2005 (as noted in Section 3.5.1.2). Also, when drafting the only binding opinion in
2011,94 the Supreme Court did not include disputes over land acquisition decisions in
the scope of administrative litigation due to the concerns expressed by the National
People’s Congress and State Council about local development and social stability.95
Furthermore, the courts so far remain silent on the meaning of public interest, even
though the 2014 Amendment to Administrative Litigation Law ultimately incorporated
land acquisition decisions into the scope of judicial review in 2014 (as noted in the
Section 3.5.1.2). Therefore, Chinese courts have played a minimal role in defining the
limits of compulsory acquisition power.

5.4.2.2 Chinese courts’ strategic approach to compulsory acquisitions

Despite the general policy of judicial deference, China’s courts are not, as many
Western scholars assert, ‘simply a passive instrument of the various levels of
government and the Party’ that cannot protect individual property rights.96 Chinese
courts (especially local courts) have in fact performed their functions through a set of

94
《最高人民法院关于审理涉及农村集体土地行政案件若干问题的规定》 [Rules of the Supreme
People’s Court on Several Issues concerning the Trial of Administrative Cases involving Rural Collectively
Owned Land] (People’s Republic of China) Supreme People’s Court, Order No 20, 7 August 2011 (‘Rules
of the Supreme People’s Court on Several Issues’).
95
江必新 主编[Jiang Bixin] (ed), 《最高人民法院关于审理涉及农村集体土地行政案件若干问题的规
定理解与适用》[Understanding and Application of the Provisions of the Supreme People’s Court on
Several Issues concerning the Trial of Administrative Cases involving Rural Collectively Owned Land] (北
京：中国法制出版社 [Beijing: China Legal Publishing House], 2013) 25. Bixin Jiang is the Vice-president
of the Supreme People’s Court.
96
For a summary of Western scholars’ opinions in this regard, see Zhao, above n 92, 149.

141
rational strategic behaviours,97 which are in line with the strategic interaction theory
that emphasises judicial initiative in its interaction with other political factors in
practice. 98

One strategic behaviour is adhering to the policy of deference to executive judgements

when it comes to ‘administrative disputes involving politics or government policies’,
but playing an active role in interpreting other ‘less sensitive issues’ that are ‘clearly
prescribed in the law’. 99 This strategy is similar to the United States courts’
longstanding policy in the public use case. Specifically, the whole point of Kelo and the
broad interpretation of public use is to defer to other branches’ judgements (mostly
the legislature) in this field and not have courts decide these matters.

This strategy of Chinese courts is perfectly exemplified in their approach to compulsory

acquisition. Specifically, the courts have relied on explicitly stipulated procedural rules
rather than on sensitive public interest requirement to restrain the overuse of the
expropriation power. On the one hand, the binding opinion issued by the Supreme
People’s Court, as noted above, only concludes 15 articles in relation to the principles
of the trial of relevant cases (ie, the scope of judicial review, eligible defendants and
plaintiffs), with no stipulation concerning the public interest requirement.100 On the
other hand, a survey that examines acquisition decisions issued by High People’s
Courts (at the provincial level) between 2014 and 2015 has revealed that the courts
voided most governmental acquisition decisions for procedural errors (above 90 per
cent). By contrast, they rarely supported claims based on public use and compensation

97
See generally, 于晓红 [Yu Xiaohong], 《策略性服从：我国法院如何推进行政诉讼》 [Strategic
Deference: How do Chinese Courts Advance Administrative Litigation] (2014) 8(4) 清华法学 Tsinghua
University Law Journal 103. Yu has discussed the strategic deference Chinese local courts (below the
Supreme People’s Court) deployed to expand judicial power in administrative cases from a big picture
point of view.
98
Many scholars have employed the ‘strategic interaction approach’ to explore the definition and extent
of judicial independence. Other than focusing on institutional variables, this approach emphasises the
institutional interaction between the government actors (judges, government, and lawmakers). For a
brief overview of this approach, see Zhao, above n 92, 140–3 (quoting Lee Epstein and Jack Knight, Zhao
stated that ‘“justices are strategic actors” who realize that the attainment of their goals depends on
their understanding of the preference of other actors’).
99
Yu, above n 97.
100
Rules of the Supreme People’s Court on Several Issues, above n 94.

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requirements.101 Further, the Supreme People’s Court in 2018 decided eight cases
concerning the expropriation of houses above state-owned land and expropriation of
collective-owned land in rural areas.102 These cases were selected by the Court from
thousands of cases adjudicated by courts nationwide from 2015 to 2017, and were
considered typical and representative in this field, which are discussed below.

Three of the eight cases concerned rural land expropriation. One case involved the
question of whether the expropriated residents were entitled to be resettled according
to relevant local rule.103 The Fangshan District People’s Court of Beijing Municipality
upheld the Housing and Urban-Rural Development Commission’s argument that the
plaintiff’s daughter-in-law and granddaughter were registered as permanent residents
of Fangshan District after relevant government department suspended the household
registration in the area of the land expropriated, and therefore did not qualify as
‘resettled population’ under relevant local rules.104 A further appeal to the Second
Intermediate People’s Court of Beijing Municipality by the plaintiff was successful. The
Court held that the household registration, in this case, fell within certain exceptions
(ie, marriage, birth, returning home from abroad, and releasing from prison) to the
suspension of registration as prescribed by the rule.105 Accordingly, the plaintiff’s
daughter-in-law and granddaughter were entitled to be resettled by the rule. The
significance of the case is twofold: first, it illustrates the strong protection of

101
乔仕彤，毛文峥 [Qiao Shitong, Mao Wenzheng], 《行政征收的司法控制之道：基于各高级法院
裁判文书的分析》[The Way of Judicial Control of Administrative Acquisitions: An Analysis based on
High People’s Courts’ Decisions] (2018) 12 清华法学 Tsinghua University Law Journal 68, 77. The 586
cases studied in this survey included expropriation of houses above state-owned land (85 per cent) and
compulsory acquisition of rural land (15 per cent). The former is not the subject of this thesis.
102
最高人民法院 [Supreme People’s Court], 《人民法院征收拆迁典型案例（第二批）》 [Typical
Cases of Expropriation and Demolition from People’s Courts (the Second Batch)] (15 May 2018)
<http://www.court.gov.cn/zixun-xiangqing-95912.html> (‘Typical Cases of Expropriation and
Demolition’). The first batch of typical cases only related to the housing acquisitions above state-owned
land, which is not the subject of this thesis.
103
Ibid. The case name is《王风俊诉北京市房山区住房和城乡建设委员会拆迁补偿安置行政裁决案》
[Wang Fengjun v Housing and Urban-Rural Development Commission of Fangshan District, Beijing —
Case of the Administrative Decision on Compensation and Resettlement for Demolition].
104
《北京市集体土地房屋拆迁管理办法》[Administration Measures of Beijing Municipality on the
Demolition of Houses above Collective-owned Land] (People’s Republic of China) Beijing Municipality
Government, 6 June 2003, art 8.
105
Ibid, art 8(1) item 3.

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expropriated landholder’s rights by the courts where relevant rules are clearly
stipulated; second, it reflects the additional protection to disadvantaged people and
other special groups that were expressed in the relevant statutory provisions.

The other two cases concerned land acquisition procedures. The first case arose from
the expropriation of an uninhabited house owned by three plaintiffs.106 The plaintiffs
refused to hand over the land to the acquiring authority as they could not reach an
agreement on compensation and resettlement issues. In order to push forward the
acquisition project, the local sub-district office (the agency of local governments)
reported to the provincial quality testing centre of construction projects and applied
for the ‘dangerous house appraisal’. After the centre had identified the plaintiffs’
house as a ‘Class D dangerous’ house, the acquiring authority issued a risk avoidance
decision requiring the demolition of the house by the residents, and then posted the
decision on the external wall of the house concerned as a notification to the plaintiffs.
As the plaintiffs failed to comply with the decision within the specified timeframe, the
acquiring authority compulsorily demolished the house. The plaintiffs challenged the
validity of the risk avoidance decision and requested the acquiring authority to rebuild
their house. The court set aside the acquiring authority’s risk avoidance decision and
held that the demolition of the house concerned was in breach of statutory
procedures in three respects: first, it was homeowners or holders that had rights to
apply for the appraisal of the dangerous house; 107 second, the decision on risk
avoidance could only be served in the form of public announcement where the person
concerned refuse to accept it or it cannot be directly served on the person
concerned;108 third, the acquiring authority should acquire the house through the
compulsory acquisition and compensation process given that the land acquisition
decision was already made. Thus, the major ground of the court’s decision concerned

106
《王江超等 3 人诉吉林省长春市九台区住房和城乡建设局紧急避险决定案》 [Wang Jiangchao et
al v Housing and Urban-Rural Development Bureau of Jiutai District, Changchun Municipality, Jilin
Province — Case of Decision on Necessity] in Typical Cases of Expropriation and Demolition, above n 102.
107
《城市危险房屋管理规定》[Rules on Administration of Dangerous Houses in Urban Areas]
(People’s Republic of China) Ministry of Construction, 20 July 2004, art 7.
108
《中华人民共和国行政强制法》[Administrative Compulsion Law of the People’s Republic of China]
(People’s Republic of China) Standing Committee of the National People’s Congress, 20 June 2011.

144
the circumvention of the statutory procedure for compulsory acquisition through risk
avoidance. However, the court rejected the plaintiffs’ request for the rebuilding of the
demolished house because the demolished house did not conform to the overall
planning of the region. The significance of this case lies in the value of statutory
procedures, which, as with the procedures in Fazzolari, proved to be an effective
approach to limiting the abusive use of compulsory acquisition power by the
government, as well as an important mechanism for protection of the residents’ rights.
Similarly, in the second case, the court held the expropriation of the landholder’s
aboveground fixtures by the acquiring authority to be unlawful due to the absence of
an acquisition notice.109

The other five cases concerned the expropriation of houses above state-owned land,
which are briefly discussed to grasp the full picture of the functions of Chinese courts
in expropriated-related cases. The courts endorsed the proposed expropriations in
three cases on the basis that: (1) the expropriated homeowner obstructed the
temporary entry of expert valuer, and therefore did not comply with the obligation of
assisting the authority with property surveys and registrations;110 (2) the homeowner
had no grounds for challenging the land acquisition decision because the decision had
not injuriously affected his private rights and interests;111 and (3) the compensation
determination and subsequent publication process were in line with statutory
procedures. 112 In the other two cases, the courts supported the expropriated
homeowners’ claim that: (1) the valuation report was invalid on the basis that the

109
《陆继尧诉江苏省泰兴市人民政府济川街道办事处强制拆除案》[Lu Jiyao v Sub-district Office of
the People’s Government of Taixing Municipality, Jiangsu Province — Case of Forced Demolition] in
Typical Cases of Expropriation and Demolition, above n 102.
110
《孙德兴诉浙江省舟山市普陀区人民政府房屋征收补偿案》[Sun Dexing v People’s Government
of Putuo District, Zhoushan Municipality, Zhejiang Province — Case of Compensation for the House
Expropriation] in Typical Cases of Expropriation and Demolition, above n 102.
111
《焦吉顺诉河南省新乡市卫滨区人民政府行政征收管理案》 [Jiao Jishun v People’s Government
of Weibin District, Xinxiang Municipality, Henan Province — Case of Administration of Administrative
Expropriation] in Typical Cases of Expropriation and Demolition, above n 102.
112
《谷玉梁、孟巧林诉江苏省盐城市亭湖区人民政府房屋征收补偿决定案》 [Gu Yuliang, Meng
Qiaolin v People’s Government of Tinghu District, Yancheng Municipality, Jiangsu Province — Case of the
Compensation Decision for House Expropriation] in Typical Cases of Expropriation and Demolition,
above n 102.

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valuer did not accord with certain statutory procedures (ie, the absence of the
signature and seal of the valuer on the report) and had not considered all relevant
matters in valuing the expropriated property;113 (2) the acquiring authority must
double the amount of compensation due to its delays in the payment of the full
amount of compensation (procedural issue).114

In general, most of the above cases selected by the Supreme People’s Court dealt with
certain procedural requirements for expropriation (including the assessment and
payment of compensation), rather than the ambiguous public use requirement. The
observation further confirms, as Shitong Qiao and Wenzheng Mao have pointed out,
‘the dominance of due process in expropriation adjudication’.115 Also, four of five
typical cases that the courts revoked governments’ expropriated-related decisions
concerned the violation of statutory procedures. This finding provides some evidence
to Qiao and Mao’s observation that ‘in general, the procedural mistakes argument is
the most likely to be upheld by the courts’ in expropriation cases.116 Therefore, it
appears that, from the perspective of Chinese courts, procedural control is the most
effective mechanism constraining the abuse of compulsory acquisition power. One
possible reason behind this judicial preference for procedure control is that procedural
rules normally are clearly stipulated and tend to be rigid. Accordingly, as exemplified in
Fazzolari, the courts are more capable of obtaining enough information to make
independent adjudications in this field than they are dealing with highly abstract and
professional public use issues (as exemplified in Kelo).117 In this way, the government’s

113
《吉林省永吉县龙达物资经销处诉吉林省永吉县人民政府征收补偿案》 [Longda Material
Distribution Centre in Yongji County, Jilin Province v People’s Government of Yongji County, Jilin
Province — Case of Compensation for Expropriation] in Typical Cases of Expropriation and Demolition,
above n 102.
114
《王艳影诉辽宁省沈阳市浑南现代商贸区管理委员会履行补偿职责案》 [Wang Yanying v
Administration Commission of Hunnan Modern Commerce and Trade Zone, Shenyang Municipality,
Liaoning Province — Case of Fulfillment the Duty to Pay Compensation] in Typical Cases of Expropriation
and Demolition, above n 102.
115
Qiao and Mao, above n 101, 77.
116
Ibid.
117
This argument is based on a discussion from a judge from Jiangsu High People’s Court. See 朱嵘 [Zhu
Rong], 《对征地行政案件司法政策的思考》 [Reflections on Judicial Policies toward Administrative
Cases of Land Acquisition] (2010) 9 人民司法 People’s Judicature 101, 103.

146
expropriation power is subject to stringent judicial enforceable limits. Therefore, as
Qiao and Mao have concluded, relying on procedures may be an adjudication strategy
for the courts to ‘exercise their functions when they are relatively weak in a power
structure’.118

In short, the above, necessarily brief, overview indicates that Chinese courts have
played a significant role in protecting property holders’ rights. Besides, in light of the
courts’ strategic policy and subsequent decisions in many expropriation cases, it is
reasonable to conclude that the unequivocal and specific procedural constraints on
tract development acquisition are likely to effectively curb governments’ abusive use
of the expropriation power in the land acquisition process, as is the case in the
Australian system.

From this line of reasoning, similar to its United States and Australian counterparts,
China’s existing land acquisition law can be seen to succeed in controlling the power of
compulsory acquisition in a way that achieves a fair balance between public interest
and property rights. Given China’s persistent need for economic development and
judicial preference for procedural rules, its future legislative reform should keep tract
development acquisition in the public-interest list while imposing additional
procedural limitations on the exercise of the expropriation power. Drawing on the
United States and Australian experience discussed in this chapter, the following section
puts forward certain procedural recommendations for the improvement of China’s law,
with the aim of reaching a better balance between public interest and property rights.

5.4.3 Procedural Recommendations for China’s Land Acquisition Law

The recommendations below are based on the existing land acquisition process under
the 2019 LAL. Since the process is fairer and more transparent than the previous one
(as noted in Section 4.3.3.1), the further reform will merely include additional
procedures to reduce the considerable administrative discretion in the whole process
(as discussed in Section 4.3.3.2). I consider three worthwhile approaches adopted

118
Qiao and Mao, above n 101, 89.

147
variously by the United States and Australia in their reforms. These are: (1) introducing
the acquisition-by-agreement mechanism; (2) providing additional pre-acquisition
procedures; and (3) establishing a post-acquisition information disclosure mechanism.
This section will also indicate how these approaches might be deployed in China’s land
acquisition regime and their major benefits.

5.4.3.1 Introducing an acquisition-by-agreement mechanism

As noted above, acquiring land by agreement is the first step and primary approach for
the United States and Australian governments to obtain land from landholders prior to
the exercise of compulsory acquisition power. This mechanism would not be difficult
to adopt and implement in China as the 2019 LAL has recognised the marketisation of
the LURs of rural for-profit construction land (RFCL) (as noted in Section 4.3.1.1). The
future reform could set exhausting the available RFCL as the precondition for the use
of land acquisition power.

More specifically, the acquiring authority should undertake detailed planning and
determine exactly what land need to be acquired in order to effectuate the project. If
there is available and suitable RFCL for the proposed project (that is, the condition for
carrying on acquisition by agreement), the acquiring authority should be under an
obligation to purchase the LURs of RFCL based on a six-month good-faith negotiation
with the landholder before resorting to the compulsory process. Where it is not
possible or practical to reach an agreement, or the available RFCL is not suitable for
the public project, the acquiring authority then would have the legal authority to
prepare for subsequent compulsory action. In this way, China’s land acquisition
process would move closer to that of the United States and Australia.

On the whole, the acquisition-by-agreement procedure could help reduce the wide
administrative discretion in the pre-acquisition process. By imposing a statutory
procedure – exhausting the available RFCL – on the use of land acquisition power, it
would reduce the overuse of the land expropriation power by the government.
Moreover, the six-month fixed negotiation period would prevent the government from
engaging in limited or protracted negotiations and allow the landholders adequate

148
time for consideration, negotiation and decision-making, without unduly delaying the
project. It would also legitimise the exercise: if most landholders agree to sell, that is
evidence of support for the project rather than resistance to it.

5.4.3.2 Providing additional pre-acquisition procedures

As noted in Section 4.3.3.1, the 2019 LAL sets up two pre-acquisition requirements: (1)
a 30-day proposed acquisition notice and consultation before the decision-making
process; and (2) public hearings on the proposed compensation plan.119 These changes
are a valuable step in improving fairness and transparency in the land acquisition
process but could advantageously be supplemented by including two additional
procedures in the preliminary work by reference to the experience of the United States
and Australia.

The first procedure concerns a land acquisition guide, such as the Land Acquisition
Information Guide provided by the New South Wales Government, including necessary
information about the land acquisition process, as well as general rights and
responsibilities of the landholder and the acquiring authority. Such information is
crucial in China because most expropriated landholders are elderly peasants with low
levels of literacy.120 Land acquisition in most cases is a complex process for them. Thus,
a timely and easy-to-understand information guide is needed to ensure the
landholders are able to understand and properly participate in the acquisition process,
as well as to provide them with certainty about what to expect and when. This
approach is recognised by the recent guidance issued by the Ministry of Natural
Resources (MNR), which suggests competent authorities of local governments (natural
resources departments and other related departments in charge of the land
acquisition) work on the explanation of policy documents. Such policy information

119
2019 LAL art 47.
120
See, eg, 缪晨刚，黄志良 [Miu Chengang, Huang Zhiliang], 《珠三角城郊失地农民生存发展状况调
查与对策研究》 [Investigation of Survival and Development Conditions of Land-losing Peasants in Pearl
Delta Suburbs and Countermeasure Research] (2008) 15 安徽农业科学 Journal of Anhui Agricultural
Sciences 6556, 6557.

149
should be accessible online and publicly available through other channels such as radio,
television, newspaper, magazines and other new media.121

The second procedure relates to public hearings concerning the land acquisition plan.
This procedure, like the one adopted in the post-Kelo reforms, would increase the
acquiring authority’s accountability to demonstrate the rationality and legality of the
plan. For example, the authority should explain the legislative authorisation of the
acquisition power, the efficacy of the public project, the amount and character of land
to be acquired and the need for a particular plot to effectuate the project. Moreover, it
could provide a formal channel for the expropriated landholders to raise any issues or
concerns that are relevant to the proposed acquisition and get a response from
acquiring authorities, thereby offering procedural fairness to affected landholders and
avoiding arbitrary or irrational use of compulsory acquisition power.

5.4.3.3 Establishing a post-acquisition information disclosure mechanism

Despite the pre-acquisition responsibilities for the resident engagement (as noted in
Section 4.3.3.1), the 2019 LAL does not add post-acquisition accountability to acquiring
authorities. Drawing on Australian reform experience mentioned above, the law
should also impose some restraints on the post-acquisition process to prevent
potential abuse of land acquisition power by acquiring authorities.

In order to regulate the implementation process, the regime should require acquiring
authorities to regularly collect and publish relevant information on the local
government website, including land survey results, acquisition and compensation plans
and the progress of the acquisition project. This approach is also perfectly exemplified
in the MNR’s guidance, which proposes that relevant local government departments
should work to collect data about the preliminary work, the submission and approval
of land acquisition plans as well as subsequent implementation, and then make them
public through various channels such as government websites, information disclosure

121
《农村集体土地征收基层政务公开标准指引》 [Guidance on Openness Standards of Rural
Collective-owned Land Expropriation Affairs] (People’s Republic of China) Ministry of Natural Resources,
27 June 2019, art 4(3).

150
platforms for land acquisition and village bulletin boards.122 In general, this approach
would allow the performance of acquiring authorities to be closely scrutinised and
monitored by the public and result in the power being used in a fair manner.

5.5 CONCLUSION

This chapter has compared the approaches that the United States and Australia have
applied to regulate and control the power of compulsory acquisition, particularly in
relation to private-to-private expropriations, and the Chinese approach in tract
development acquisition. It has argued that China’s land acquisition law in general has
achieved an equitable balance, even though it does not expressly rule out the transfer
of acquired land to private developers in the tract development context. It has also
examined the function of Chinese courts in practice and has recommended that
China’s future legislative reform focus on developing procedural limitations on the
acquisition power. More specifically, this chapter has provided three approaches to
reduce administrative discretion in the acquisition process:

• introducing an acquisition-by-agreement mechanism;

• providing additional pre-acquisition procedures, including the publishment of a
land acquisition guide and the holding of public hearings concerning the land
acquisition plan; and
• establishing a post-acquisition information disclosure mechanism.

The following chapter will discuss how to improve the compensation regime in China
to enhance the protection of property rights in land acquisition.

122
Ibid art 4(3). For a detailed category of openness standards, see 自然资源部 [Ministry of Natural
Resources],《农村集体土地征收基层政务公开标准目录》 [Category of Openness Standards of Rural
Collective-owned Land Expropriation Affairs] (27 June 2017) 中国人民共和国中央人民政府 The State
Council of the People’s Republic of China <http://www.gov.cn/xinwen/2019-
07/19/content_5411720.htm>.

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 CHAPTER 6 JUST COMPENSATION FOR COMPULSORY LAND
ACQUISITION

6.1 INTRODUCTION

This chapter explores viable approaches to address the compensation issue of China’s
existing land acquisition law, that is, the unjust compensation standard and the lack of
payment of solatium.

Section 6.2 provides a brief overview of fundamental theories of compensation for

compulsory acquisition, setting out an analytical framework for subsequent
discussions of compensation regimes in the United States, Australia and China.

Section 6.3 discusses the constitutional requirement of ‘just compensation’ in the

United States and recent reforms of the statutory compensation regimes at the state
level. It begins by reviewing the ‘fair market value’ standard formulated by the courts
as the principal measure of just compensation. It provides a critical analysis of the
adequacy of this measure and the consistency of the existing compensation formula
with the constitutional demand for justice. Finally, it examines recent reforms aiming
to provide fairer compensation for aggrieved property owners after the Supreme
Court’s controversial decision in Kelo v City of New London1 (‘Kelo’).

Section 6.4 discusses the compensation regimes for land acquisition in Australia. This
section starts by examining both federal and state compensation regimes, focusing on
that of New South Wales. It then discusses New South Wales’ latest reforms regarding
compensation standards and the valuation process in the direction of better
supporting expropriated property owners. It also reveals the common approaches
adopted in the United States and Australia to establish an adequately just
compensation regime.

1
Kelo v City of New London, 545 US 469 (2005) (‘Kelo’).

152
Section 6.5 puts forward several proposals for the improvement of China’s
compensation regime. It examines the inadequacies of China’s current compensation
regime in ensuring just compensation, based on a comparison with the approaches
adopted in the United States and Australia. It also offers recommendations on how to
enhance fairness and transparency for expropriated landholders.

6.2 FUNDAMENTAL THEORIES OF COMPENSATION FOR COMPULSORY

ACQUISITION

Compensation payable to expropriated property holders is required on the basis that

public burdens shall be borne by the society at large. Thus, the government is
obligated to pay compensation to property owners who sacrifice their property for the
good of the community in the compulsory acquisition.2 But how much should the
government pay? Unlike market transactions, the amount of compensation in a
compulsory acquisition is determined by the government because the expropriation
convert expropriated property holders’ entitlements from rights over land to its
monetary equivalent. In the influential terminology of Guido Calabresi and A. Douglas
Melamed, compensation merely entails protection of the former owner’s entitlements
by way of a liability rule (the right to get a judicially determined monetary value to
protect them with damages) rather than a property rule (the right to veto a voluntary
transaction if the buyer does not offer enough) when a land acquisition occurs. 3

When the government determines the monetary equivalent of the acquired land, the
appropriateness of the amount is a crucial issue. Insufficient compensation may induce
excessive and inefficient land acquisition actions because it allows the government to
ignore part of the costs suffered by private property holders.4 Besides, it is likely to

2
For a discussion of this conventional fairness-based justification for the compensation requirement,
see, eg, William Stoebuck, ‘A General Theory of Eminent Domain’ (1972) 47 Washington Law Review 553,
588; Gregory Alexander and Eduardo Peñalver, An Introduction to Property Theory (Cambridge
University Press, 2012) ch 8.
3
Guido Calabresi and A. Douglas Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View
of the Cathedral’ (1972) 85 Harvard Law Review 1089, 1092.
4
This theory is known as ‘fiscal illusion’, which is the most prominent efficiency-based explanation for
compensation. It describes the tendency of a government to discount any costs associated with a

153
generate widespread insecurity (known as ‘demoralisation’) among citizens in
general.5 On the other hand, the payment of full compensation may distort property
owners’ incentives, resulting in the overdevelopment of private property at the risk of
public projects. 6 From this line of reasoning, the design of an adequate just
compensation regime must balance the conflict between the state promotion of public
interest and the protection of individual property interests.

A range of approaches has been adopted across jurisdictions to develop an adequate

compensation regime. On the whole, the principle of compensation is abstract but
similar. As will be shown in the following section, the United States, Australia and
China all require the compensation to be ‘just’. They are, however, divided significantly
on specific matters such as the compensation’s coverage of the property owner’s
losses resulting from land acquisition. From an economic perspective, the losses
attributed to land acquisition can be divided into three categories. The first category is
‘property loss’, which is the monetary value of the acquired land. It is, normally, the
essential component of compensation.

The second type of loss concerns the ‘subjective loss’, relating to the loss of any
subjective value that the owner attaches to the acquired property. Typically, the
owner’s subjective value supplements the market value of the property; 7 it explains

project or decision that are not directly reflected in budgetary outlays. It is argued that the adequate
compensation can overcome the distorting effects of fiscal illusion by forcing a government to
internalise the costs of land acquisition, and thereby motivates the government to make efficient
decisions about whether to carry on land acquisition. For a detailed discussion of this efficiency-based
justification, see, eg, Lawrence Blume and Daniel Rubinfeld, ‘Compensation for Takings: An Economic
Analysis’ (1984) 72 California Law Review 569, 620–2; Michael Heller and James Krier, ‘Deterrence and
Distribution in the Law of Takings’ (1999) 112 Harvard Law Review 997, 999.
5
It is argued that unjust compensation would result in not only owners’ feeling of mistreatment and loss,
but also some ‘demoralisation’ among citizens in general, who may suffer a collective sense of insecurity
regarding their property rights. See generally, Frank Michelman, ‘Property, Utility, and Fairness:
Comments on the Ethical Foundations of “Just Compensation” Law’ (1967) 80 Harvard Law Review 1165.
6
See, eg, Lawrence Blume, Daniel Rubinfeld and Perry Shapiro, ‘The Taking of Land: When Should
Compensation be Paid?’ (1984) 99 The Quarterly Journal of Economics 71.
7
Blume and Rubinfeld, above n 4, 619. The increment by which the property holder’s subjective value
exceeds market value is referred to as ‘subjective premium’, see Thomas Merrill, ‘The Economics of
Public Use’ (1986) 72 Cornell Law Review 61, 83; Lee Anne Fennell, ‘Taking Eminent Domain Apart’ (2004)
2004 Michigan State Law Review 957, 963–5; Nicole Stelle Garnett, ‘The Neglected Political Economy of
Eminent Domain’ (2006) 105 Michigan Law Review 101, 107–9. Subjective value is sometimes termed

154
why the property, particularly one’s home, remains off the market.8 Subjective loss
concerns sentiment and convenience related to the acquired property, such as the
owner’s emotional attachment to the property, site-specific improvements and
modifications made to accommodate their unique needs, connections to the local
community, a convenient location close to school and work, or their pure desire to
avoid the hassles of relocation.9 Commercial property is presumed to have little or no
subjective value.10 Moreover, the subjective value is specifically attributable to the
owner and is of little value to others. Therefore, it cannot usually be reflected by the
market value of the acquired property.

The third category relates to the ‘consequential loss’ (or consequential damages of
land acquisition) that the holder incurs as a result of land acquisition, generally
including (1) relocation expenses; (2) costs associated with the dealing of land
acquisition, such as legal fees, appraisal costs and property registration fees; and (3)
business losses.11 The consequential loss differs from the subjective value because it is
economic in nature and can be assigned a monetary value in the market. Further, as an
economic loss, the consequential loss is different from the property loss, since it is
separate from the value of the acquired land and incurred as a consequence of land
acquisition. In general, property loss is a relatively uncontroversial element of
compensation in the United States and Australia. Their laws vary in terms of the other
two factors, which will be discussed separately.

Apart from the principle and scope of compensation, the fair and transparent
valuation process is conducive to an adequate compensation regime. Valuation
processes in the United States, Australia and China will be examined based on the
general land acquisition process discussed in Chapter 5.

‘consumer surplus’, see, eg, James Krier and Christopher Serkin, ‘Public Ruses’ (2004) 2004 Michigan
State Law Review 859, 866.
8
Krier and Serkin, above n 7, 866; Alexander and Peñalver, above n 2, 158.
9
Merrill, above n 7, 83; Fennell, above n 7, 963–4.
10
Blume and Rubinfeld, above n 4, 603–8. For a detailed examination of subjective value, see Margaret
Jane Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957.
11
Merrill, above n 7, 83; Garnett, above n 7, 106–7.

155
 6.3 JUST COMPENSATION IN THE UNITED STATES

As noted in Section 2.2, the Fifth Amendment to the United States Constitution, as well
as the state constitutions, requires the government to provide ‘just compensation’ to
individuals where their property is ‘taken for public use’. This section examines the
pre-eminent constitutional measure of just compensation and post-Kelo reforms to the
compensation formula in states. Comparisons with China and Australia are given
where relevant.12

6.3.1 Constitutional Measures of Just Compensation

6.3.1.1 Fair market value standard and measures of valuation

Like the ‘public use’ requirement, the measure of just compensation is a conventional
matter of judge-made law as constitutions are notable by failing to define the meaning
of ‘just compensation’. The Supreme Court of the United States (the Supreme Court)
has made it clear that, in the land acquisition context, ‘just compensation’ should be ‘a
compensation that would be just in regard to the public, as well as in regard to the
individual’. 13 That is to say, while serving as a constitutional limitation on the
government’s takings power (as noted in Section 2.2), just compensation regimes
should strike a balance between public and private interests. In this sense, just
compensation in constitutional law seems to be designed to achieve such a balance.

The Supreme Court has developed the ‘fair market value’ as the measure of just
compensation, which is usually defined as the price that ‘a willing buyer would pay in
cash to a willing seller at the time of the taking’.14 The owner is to be put ‘in as good a

12
As common law countries, the United States and Australia bear much resemblance to each other in
the market value standard, which will be noted in the following footnotes. Differences in compensation
will be discussed in Section 6.4.1.
13
Bauman v Ross, 167 US 548, 570 (Gary J) (1897).
14
United States v Miller, 317 US 369, 374 (McReynolds J) (1943) (‘Miller’). See also Olson v United States,
292 US 246, 255 (1934) (‘Olson’); United States v 50 Acres of Land, 469 US 24, 29 (1984). Market value
standard, known as the Spencer principle in common law, also has been recognised in some Australian
acquisition legislation. Even where there is no reference to the term ‘market value’, and the statute
merely provides a reference to ‘the value of the land’, ‘market value’ is in any event the yardstick to be

156
position pecuniarily as if his property had not been taken’.15 The determination of ‘fair
market value’, however, has generated considerable complexities. Indeed, from an
economic perspective, the market price of the property is easily ascertainable in ‘thick
markets’ where there have been several voluntary transactions. Nevertheless, the
taking in practice occurs almost exclusively in ‘thin markets’ where there is only one
seller who has a monopoly over the resources needed for a public project.16 More
specifically, governments exercise the takings power only when the voluntary
exchange has failed, and when ‘no good substitutes for the desired parcels exist’ in
markets for land insofar as the taking is concerned.17 Accordingly, the assessment of
‘fair market value’ of the property relies on, at best, an ‘assumption’ or an informed
‘guess’.18

The courts have developed several practical criteria and subsidiary methods for
assessing a hypothetical willing buyer/willing seller sale. First, the market value of the
acquired land is determined at only the time of the taking, contemporaneously paid in
money.19 The owner’s past investment, which may be more or less than the current
value of acquired land, is irrelevant to the assessment because ‘[t]he public may not by
any means confiscate the benefits, or be required to bear the burden, of the owner’s
bargain’.20

Moreover, the market value of the acquired property is determined by reference to its
‘highest and best use’, given that a prospective willing buyer will purchase land in the

applied in determining ‘the value of land’. For a more detailed discussion, see generally, Marcus Jacobs,
Law of Compulsory Land Acquisition (Thomson Reuters, 2nd ed, 2015), ch 18.
15
Olson, 292 US 246, 255 (Butler J) (1934).
16
Merrill, above n 7, 74–9.
17
Fennell, above n 7, 971.
18
Miller, 317 US 369, 374–5 (McReynolds J) (1943). Australian courts have arrived at the same
conclusion. See Spencer v Commonwealth [1907] 5 CLR 418, 442–3 (‘Spencer’); Jacobs, above n 14, 324–
45.
19
Olson, 292 US 246, 255.
20
Ibid.

157
market with an eye to both its existing use and other potentially profitable uses.21 Thus,
as Butler J observed in Olson v United States:

The sum required to be paid the owner does not depend upon the uses to which he has
devoted his land, but is to be arrived at upon just consideration of all the uses for which it
is suitable. The highest and most profitable use for which the property is adaptable and
needed or likely to be needed in the reasonably near future is to be considered not
necessarily as the measure of value, but to the full extent that the prospect of demand for
such use affects the market value while the property is privately held.22

Furthermore, the market value refers to the value which the acquired property would
command upon a fair sale in the open market, not the value to the owner. 23 Thus, the
value of property originated from ‘subjective needs and attitudes’ is not recoverable as
it is non-transferable and thus usually is not reflected in market value.24 Specifically,
the owner’s sentimental attachments to the property and the ‘special value’ of the
property – the financial or economic value of the property that is incidental to its
‘special adaptability’ to the owner’s use25 – are excluded in determining market value.
One example of special value is: where a house with accessible design has value in

21
Ibid; United States v 320.0 Acres of Land, 605 F 2d 762, 781 (Brown CJ) (5th Cir, 1979). In Australia, the
rule of highest and best value, known as the Turner principle, has been included in some land acquisition
statutes. See generally, Jacobs, above n 14, ch 26.
22
292 US 246, 255 (1934) (emphasis added). Moreover, this decision enumerated several factors that
contribute to the determination of a property’s highest and best use valuation. Specifically, the best use
must be: (1) legally permissible (permitted by zoning building codes and environmental regulations); (2)
adaptable (physically and financially feasible); (3) needed (come within the market demand); (4) carried
out in the not-too-distant future. See also McCandless v United States, 298 US 342 (1936); United States
v 1,291.83 Acres of Land, 411 F 2d 1081, 1084 (Kent J) (6th Cir, 1969); United States v 46,672.96 Acres of
Land, 521 F 2d 13, 15 (Doyle J) (10th Cir, 1975).
23
Monongahela Navigation Co v United States, 148 US 312, 326 (1893). A similar conclusion was arrived
at by Australian courts when interpreting the terminology of ‘market value’: see Leichhardt Council v
Roads and Traffic Authority of NSW (2006) 149 LGERA 439 [28]–[31] (Spigelman CJ); Jacobs, above n 14,
322–3.
24
Kimball Laundry Co v United States, 338 US 1, 5 (Frankfurter J) (1949) (‘Kimball Laundry’).
25
Miller, 317 US 369, 375 (McReynolds J) (1943); United States v Cors, 337 US 325, 332 (Douglas J)
(1949); United States v 564.54 Acres of Land, 441 US 506, 511 (Marshall J) (1979) (‘564.54 Acres of
Land’). However, the ‘special value’ of land is recognised by the common law’s Pastoral Finance
principle in Australia. Major land acquisition statutes incorporate special value into the relevant matters
determining compensation. See generally, Jacobs, above n 14, ch 23. This point will be discussed in
Section 6.4.1.

158
excess of market value to the owner who is disabled. However, a prospective willing
purchaser who does not use wheelchairs would not pay extra for this advantage.26

In addition to subjective value, another element that may not reasonably be held to
affect market value is excluded: that is, the effect of the scheme underlying the taking
on the value of the land.27 This principle emerged because ‘the “market value” of
property condemned can be affected, adversely or favourably, by the imminence of
the very public project that makes the condemnation necessary’.28 Given that the
enhancement or depreciation in the value of the acquired property is not due to
general market demand, the market value should in fairness discount this element.
Also, this rule provides some support for China’s highly criticised practice of
disregarding the ‘expropriation surplus’ in the compensation valuation (as discussed in
Section 3.5.2.2). Based on the conventional process,29 land expropriation does not
happen instantaneously. Government planning, public hearing or consultation before
the decision-making procedure can give the public advance information about the
possible public projects. In consequence, the proposed profitable use of the acquired
land will generate an increase in the value of that land. Since this increased value
exclusively derives from the acquiring authority’s use of the land, granting any share of
the gains to the landholder will be a windfall and therefore unjust for the public.

Aside from the above guidelines, the courts have developed three common techniques
for assessing market value: (1) the comparable sales approach; (2) the income
capitalisation approach; and (3) the reproduction cost approach.30

26
Katrina Wyman, ‘The Measure of Just Compensation’ (2007) 41 UC Davis Law Review 239, 257–8;
Jacobs, above n 14, 494.
27
See, eg, Shoemaker v United States, 147 US 282 (1893) (the Court excluded any increase of value
arising from the Congress-authorised land acquisition for a park). This rule is known as Pointe Gourde
principle in common law. Today, the compulsory acquisition legislation in each Australian jurisdiction
contains an express provision applying this principle to all compensation cases. See Jacobs, above n 14,
ch 30.
28
United States v Reynolds, 397 US 14, 16 (Vinson CJ) (1970).
29
For land acquisition process, see Sections 4.3.3.1 (China), 5.2.2.2 (the United States) and 5.3.2
(Australia).
30
United States v Certain Property, 403 F 2d 800, 802 (Zampano DCJ) (2nd Cir, 1968); United States v
Toronto, Hamilton & Buffalo Navigation Co, 338 US 396, 402–3 (Clark J) (1949). See also Lewis Orgel,

159
The ‘comparable sales’ approach is employed when the parcel is one in an active
commercial market, where actual sales of like lands are common. It refers to the
recent sale of other comparable lands in the area of the land expropriated. The
‘income capitalisation’ approach involves valuing the land by capitalising the actual or
potential rental income. It is suitable for land used for ‘income-producing’ property
such as offices, shopping malls and apartment buildings. The ‘reproduction cost’
approach (known as ‘replacement cost’) entails the determination of the reproduction
cost of the peculiar building on the acquired land, less depreciation, plus the market
value of the land.31

While the Court has never attempted to prescribe a rigid rule requiring the valuation of
just compensation in any particular way, it has preferred that the acquiring authority
or landholder use the comparable sales method to measure the market value of the
acquired property. This is because the Court considered the sales price of comparable
land in the open market to be the best evidence of the market value of the land
expropriated.32 The two other approaches are only employed when comparable sales
are unavailable.33 Besides, given that the assessment of value is a judicial function, the
courts are not obliged to accept evidence of expert valuers on the part of the acquiring
authority or the landholder.34

6.3.1.2 Evaluation of the fair market value standard

Unlike their shifting positions on the definition of public use (as noted in Section 2.2.3),
the courts have been consistent in the interpretation of just compensation as the fair

Valuation Under the Law of Eminent Domain (The Michie Company, 2nd ed, 1953) vol 1, §§ 136–8, vol 2,
§§ 188–9; Julius Sackman et al, Nichols on Eminent Domain (New York: Matthew Bender, 3rd revised
edition, 2002) vol 4, § 12.02[1]. In addition to these three approaches, Australian jurisdictions include
two other methods for assessing the value of the acquired land, which will be discussed in Section 6.4.1.
31
This approach is almost the same as the monetary payment of acquired residential property under
China’s existing law. This issue will be discussed further in Section 6.5.1.
32
564.54 Acres of Land, 441 US 506, 513–4 (Marshall J) (1979). Australian courts have reached the same
conclusion and accepted the comparable sales approach as the pre-eminent method of determining
market value. See Jacobs, above n 14, 361.
33
United States v Commodities Trading Co, 339 US 121, 123 (Black J) (1950).
34
Thomas Merrill, ‘Incomplete Compensation for Takings’ (2002) 11 New York University Environmental
Law Journal 110, 117. Australian courts play a similar role in the valuation process, and are not obliged
to accept expert valuers’ evidence. See, Jacobs, above n 14, 333–8.

160
market value of the acquired land. They do not require full indemnification for losses
caused by land acquisition.35 As Posner J explained in Coniston Corp v Village of
Hoffman Estates:

Compensation in the constitutional sense is … not full compensation, for market value
is … merely the value that the marginal owner attaches to his property. Many owners are
‘intramarginal,’ meaning that because of relocation costs, sentimental attachments, or
the special suitability of the property for their particular (perhaps idiosyncratic) needs,
they value their property at more than its market value (ie, it is not ‘for sale’). The taking
in effect confiscates the additional (call it ‘personal’) value that they obtain from the
property, but this limited confiscation is permitted provided the taking is for a public
use.36

Accordingly, under-compensation is, in fact, consistent with the constitutional demand

of justice where the taking occurs in the pursuit of ‘public use’. The injustice arising
from incomplete compensation can be mitigated in classic public use cases, precisely
because the expropriated landholder might directly or indirectly benefit from the
expropriation project by, for example, getting access to the public infrastructure or
receiving public services.37 For instance, landholders who have lost their parcels of land
during the construction of a highway may use it to get to and from work. In turn, these
associated benefits provide some amount of implicit compensation (known as ‘average
reciprocity of advantage’38) to the expropriated landowner, which counterbalance part
of subjective and consequential losses resulting from land expropriation. It follows that
awarding fair market value of the acquired property, supplemented by implicit

35
564.54 Acres of Land, 441 US 506, 511 (Marshall J) (1979).
36
Coniston Corp v Village of Hoffman Estates, 844 F 2d 461, 464 (7th Cir, 1988).
37
This discussion is based on arguments presented by Richard Epstein in Takings: Private Property and
the Power of Eminent Domain (Harvard University Press, 1985) chs 12, 14 (discussing implicit in-kind
compensation in the takings law). See also, Michelman, above n 5, 1223 (suggesting that ‘compensation
is relaxed when there are visible reciprocities of burden and benefit, or when burdens similar to that for
which compensation is denied are concomitantly imposed on many other people’); Hanoch Dagan,
‘Takings and Distributive Justice’ (1999) 85 Virginia Law Review 741, 768 (contending that compensation
awards based on fair market value are fair if the expropriated owner receives a reciprocity of advantage).
38
The theory of implicit compensation has been a recurrent theme in regulatory acquisition law. It was
first used by Holmes J in Pennsylvania Coal Co v Mahon, 260 US 393, 422 (1922) (‘there must be “an
average reciprocity of advantage” as between the owner of the property restricted and the rest of the
community’).

161
compensation of public use, could be considered ‘just’ to both the public and the
individual.39 As Frankfurter J said:

Most things, however, have a general demand which gives them a value transferable from
one owner to another … this transferable value has an external validity which makes it a
fair measure of public obligation to compensate the loss incurred by an owner as a result
of the taking of his property for public use. In view, however, of the liability of all property
to condemnation for the common good, loss to the owner of nontransferable values
deriving from his unique need for property or idiosyncratic attachment to it … is properly
treated as part of the burden of common citizenship.40

However, the adoption of broad public use test arguably upsets the balance pursued
by the just compensation requirement as it does not require the acquired property to
be used by the public. Implicit compensation discussed above tends to dramatically
decline and be replaced by considerable benefits for private developers where large-
scale urban renewal and blight acquisition projects cause massive dislocation and the
acquired property are transferred to private real estate developers to build housing
and commercial operations, as was the case in Berman.41 The amount of implicit
compensation could even decline to zero in purely private expropriations in
furtherance of higher use of the acquired land, such as ‘replacing any Motel 6 with a
Ritz-Carlton, any home with a shopping mall, or any farm with a factory’.42 Thus, as
Ting Xu has observed, ‘market value compensation is not necessarily guaranteed if
takings of property are for public purposes, and indeed, in the “public interest”’.43

39
Some may argue that the displaced holders still bear disproportionately burdens relative to all the rest
of the public who also receive the implicit benefit but retained their land as well. Over time, however,
imbalances between public goods and individual losses will even out as the displaced holder later
receive implicit benefits from the parallel acquisition projects imposed upon others. See Fennell, above
n 7, 987 (‘If the overall system delivers results that are both efficient and distributively acceptable, then
we might hypothesize that landowners are receiving back from the system enough in-kind benefits to
make up for the burdens that the system imposes on them’).
40
Kimball Laundry, 338 US 1, 5 (1949) (emphasis added).
41
See generally, Wendell Pritchett, ‘The “Public Menace” of Blight: Urban Renewal and the Private Uses
of Eminent Domain’ (2003) 21 Yale Law & Policy Review 1.
42
Kelo, 545 US 469, 503 (O’Connor J, dissenting) (2005).
43
Ting Xu, ‘A law-and-community approach to compensation for takings of property under the European
Convention on Human Rights’ (2019) 39 Legal Studies 398, 399.

162
On the other hand, courts insisted on limiting awards of compensation to fair market
value (before Kelo). One possible reason behind such a policy is the changing role of
courts from vigorously defending property rights to advancing public interests (as
noted in Section 2.2.3.2). Accordingly, they had to maintain an incomplete
compensation measure in order to lower the costs of land acquisition, and thereby
facilitate the government to carry out more land acquisition projects in pursuit of
public policy goals.44 In consequence, while the compensation awards based on fair
market value might be efficient in promoting public goods, the policy failed to prevent
the government from imposing upon particular groups more than their just share of
the burden of common citizens. It thereby was not wholly consonant with the
constitutional demands of justice.

This line of argument can be supported by the rising criticism of the fair market value
standard after the Supreme Court’s controversial decision in Midkiff45 and then in Kelo.
Compared to the very little attention paid to the just compensation requirement when
courts interpreted public use from a narrow view, the virtually unlimited takings power
began to raise concerns over fair market value standards. Today, there is widespread
consensus among leading scholars that the fair market value standard systematically
under-compensates the expropriated property owner due to its failure to account for
the full value, particularly the subjective value, the owner places on that property. 46 It
is assumed that this standard is unfair by forcing some people to make an uneven
sacrifice for public interests and is inefficient as under-compensation may induce
excessive expropriations. 47 Thus, a handful of scholars have requested enhanced

44
For similar views, see Merrill, above n 34, 133–4. Moreover, Merrill has put forward two other
economic rationales for the courts’ insistence on a rule of incomplete compensation: loss spreading and
maintaining efficient incentives, which are not relevant to the subject of this thesis.
45
Hawaii Housing Authority v Midkiff, 467 US 229 (1984).
46
See, eg, Fennell, above n 7, 960–1; Krier and Serkin, above n 7, 865–6; James Geoffrey Durham,
‘Efficient Just Compensation as a Limit on Eminent Domain’ (1985) 69 Minnesota Law Review 1277, 1279;
Richard Epstein, Supreme Neglect: How to Revive Constitutional Protection for Private Property (Oxford
University Press, 2008) 90–2.
47
For a discussion of these two concerns, see Fennell, above n 7, 961.

163
compensation to preserve horizontal equity and incentivise the government
appropriately.48

In fact, the Supreme Court has also expressed concerns about the injustice inherent in
the compensation regime. During oral argument in the Kelo case, three justices in the
majority (who ultimately voted to uphold the proposed economic development takings)
raised questions about the fairness of the measure of just compensation. 49 While the
Court did not change the compensation formula in the Kelo case,50 several state
legislatures, inspired by either scholarly discussions or the above oral argument, have
viewed increasing compensation as one way to deter undesirable takings or to better
protect private property rights. As a result, they have enacted a variety of reform laws
specifically outlining how just compensation should be calculated. In doing so, they are
aiming to ‘restore’ the balance between the public’s need and the claimant’s loss upon
land expropriation for a public purpose.

6.3.2 Post-Kelo Developments: Providing Increased Compensation

Despite the limited constitutional guidance regarding what would be ‘just’

compensation, legislatures have filled in the gap by providing for more than pure
market value in quantifying a just amount.51 However, these provisions were limited in

48
For an overview of property scholars’ proposals for the improvement of compensation awards for
third-party transfers, see John Lovett, ‘Towards Sustainable Community Ownership: A Comparative
Assessment of Scotland’s New Compulsory Community Right to Buy’ in Malcolm Combe, Jayne Glass and
Annie Tindley (eds), Land Reform in Scotland: History, Law and Policy (Edinburgh University Press, 2020)
177, 183–86. It is generally assumed that an appropriate way to address the under-compensation
problem is by adding a fixed-percentage bonus of fair market value. Several states have enacted laws
requiring such enhanced compensation in the post-Kelo reforms. This point will be noted in Section
6.3.2.
49
Oral Argument Transcript, Kelo v City of New London (Supreme Court of the United States, 22
February 2005) 22 (Kennedy J), 48 (Breyer J), 49 (Souter J). But the majority clearly stated that ‘[w]hile
important, these questions are not before us in this litigation’.
50
Kelo, 545 US 469 (2005), 489 n 21. The Supreme Court reaffirmed that these compensation questions,
though important, were not the issue in Kelo, which focused on the issue of whether that city’s exercise
of land acquisition power in furtherance of its economic development plan satisfied the constitutional
‘public use’ requirement.
51
Federal law and state laws and constitutions have required government to pay more than the fair
market value of acquired property since the 1970s, including the payment of attorneys’ fees,
replacement costs and moving expenses to displaced owners, or re-establishment expenses to
dislocated businesses. However, the legal literature focuses almost exclusively on the constitutional

164
availability and sufficiency of the relocation assistance provided to business.52 The Kelo
case further brought to the attention of the government these ‘neglected’
compensation increments, prompting the expansion of legislative guarantees to more
states and the enhancement of compensation standards.53 Specifically, around nine
states reformed or established above-market value compensation regimes in the wake
of Kelo. Four common approaches were adopted by the laws:

(1) requiring enhanced compensation for residential property, typically expressed as a

fixed percentage (25 per cent or 50 per cent) above fair market value;54

(2) requiring just compensation to be measured by the replacement value of the

property, either in kind (ie, a comparable replacement property) or in cash, in some
circumstances;55

requirement of just compensation rather than the amount of compensation that governments are
statutorily obligated to pay expropriated property owners. For a discussion of this oversight and
statutory compensation schemes, see generally, Garnett, above n 7, 121–6, 129–30.
52
Ibid. These additional payments are only available in limited circumstances such as highway and
redevelopment projects, projects receiving state funds, or land acquisitions by any public entity. Besides,
re-establishment payments are inadequate. Specifically, the lag of adjustment has pushed
compensation available to dislocated businesses away from the real loss they have suffered.
53
For instance, the Wyoming statute set up the ceiling of $10 000 in reimbursable expenses for
dislocated businesses. The cap on re-establishment payments was removed until 2007 in response to
the Kelo decision. See Wyo Stat Ann § 16-7-103 (2007).
54
See, eg, Michigan Constitution art X § 2 (‘If private property consisting of an individual’s principal
residence is taken for public use, the amount of compensation made and determined for that taking
shall be not less than 125 per cent of that property’s fair market value, in addition to any other
reimbursement allowed by law’); Mo Rev Stat §§ 523.001, 523.039 (West 2007) (requiring 125 per cent
of fair market value in case of primary residence, and requiring 150 per cent of fair market value for
property owned by the same family for 50 or more years); Ind Code §§ 32-24-4.5-8(1)(A), -8(2))
(LexisNexis Supp 2006) (requiring 150 per cent of fair market value and payment of relocation costs for
residential property).
55
See, eg, Ariz Rev Stat Ann § 12-1133 (West Supp 2007) (requiring that ‘if private property consisting of
an individual’s principal residence is taken, the occupants shall be provided a comparable replacement
dwelling that is decent, safe, and sanitary … At the owner’s election, if monetary compensation is
desired in lieu of a replacement dwelling, the amount of just compensation that is made and
determined for that taking shall not be less than the sum of money that would be necessary to purchase
a comparable replacement dwelling’); Minn Stat § 117.187 (West Supp 2007) (requiring the payment in
an amount that must be sufficient for an owner to purchase a comparable property in the community.
In-kind compensation is not allowed); Ind Code §§ 32-24-4.5-8(1)(A), -8(2)) (LexisNexis Supp 2006)
(requiring either 125 per cent of fair market value for acquired agricultural land or an equally sized
parcel of land).

165
(3) providing additional relocation assistance such as compensating moving expenses
for displaced property owners and ‘re-establishment’ expenses for dislocated
business;56 and

(4) allowing for the recovery of attorneys’ fees and court costs if the final judgement in
a taking proceeding exceeds the government’s last offer.57

These legislative changes, on the whole, would relieve the scholars’ concerns over the
systematic under-compensation by supplementing market value with the payment of
subjective and consequential losses associated with land acquisition. First, while being
excluded from the compensation formula, legislatures now recognised the stress and
discomfort in having to move (as illustrated in the Kelo case)58 and provided for a
bonus payment above fair market value (by using the first approach) to address the
subjective loss felt by displaced homeowners.59 Second, two substantial consequential
losses, namely relocation expenses and attorney fees, are now recoverable in states
(by adopting the third and fourth approaches). In this way, the new legislative
compensation scheme will increase the payable amount of compensation to an
expropriated landowner, thereby ensuring landowners are made whole throughout
the takings process. More importantly, the increased compensation could limit the
abuse of the takings power by presenting a tighter budget constraint and motivating

56
See, eg, MD Code Ann Real Property § 12-202, 205 (LexisNexis Supp 2007) (raising an additional
payment to $45 000 for ‘actual reasonable expenses incurred by the displaced person for evidence of
title, recording fees, and other closing costs incident to the purchase of the replacement dwelling’;
providing up to $60 000 to owners for ‘actual reasonable expenses necessary to re-establish a displaced
farm, non-profit organisation, or small business at its new site’).
57
See, eg, Minn Stat § 117.031 (West Supp 2007) (awarding ‘the owner reasonable attorney fees,
litigation expenses, appraisal fees, other experts fees, and other related costs’ if the final judgement is
more than 40 per cent greater than the last written offer made by the acquiring authority; if the final
judgement is at least 20 per cent but no more than 40 per cent greater, the court ‘may’ award above
fees and costs); Iowa Code § 6B.33 (2008) (requiring the acquiring agency to pay all costs where final
judgement is more than 10 per cent more than the final offer).
58
Heather Vogell, ‘Fort Trumbull Residents Say They Want to Stay Put: Most in Favour of Plans for
Revitalisation, but Not if it Means Moving’, The Day, 6 January 1999.
59
For scholars who endorsed this approach, see, eg, Epstein, above n 46, 174–5, 183–4; John Fee,
‘Eminent Domain and the Sanctity of Home’ (2006) 81 Notre Dame Law Review 783, 803–19. It is worth
noting that most post-Kelo reform laws limit the compensation to residential property, which usually
has the most subjective value to the owner. Additional compensation for subjective losses attached to
an acquired residence is available in most Australian jurisdictions, which will be discussed in Section
6.4.1.

166
governments to make efficient decisions about whether to acquire the land. There is
empirical evidence that increasing the level of compensation will deter the overuse of
the takings power. 60 Accordingly, the improvement of the compensation regime
provides some support to the public use reforms (as noted in Section 5.2.2) that did
not broadly outlaw economic development takings.

Moreover, some legislative models would produce a fair result in certain classes of
cases by introducing the ‘replacement’ method, which determines the amount of
compensation by reference to the replacement value of the acquired property (by
using the second approach). They adopt this method because it is not unusual that
market value falls far short of enabling the owner to secure a replacement property of
similar value.61 This might be the case if displaced homeowners want to stay in the
same area where public development projects increase the property value proximate
to them. Also, such a situation may often arise, as Marshall J observed in United States
v 564.54 Acres of Land, where a family home has been uniquely adapted to the
owner’s use, but is old and deteriorated.62 In these cases, the owner might feel he is
left worse off and seek to stop or redirect government expropriation projects. In
consequence, several reform laws, like China’s existing land acquisition law (as
discussed in Section 4.3.2.1), have guaranteed the homeowner a replacement property
or paid compensation sufficient to allow the owner to purchase equivalent housing.63
This change would not only help alleviate displaced owners’ feeling that they were
unfairly treated but also mitigate a sense of ‘demoralisation’ among citizens in relation
to widespread insecurity about their property rights.

Besides, several states have set up a range of procedural requirements in the pre-
acquisition process. The acquiring authority must provide property owners with a

60
Nicole Stelle Garnett, ‘The Public-Use Question as a Takings Problem’ (2003) 71 The George
Washington Law Review 934, 952 n 112.
61
This is also the reason for the latest New South Wales reforms in favour of enhanced compensation.
But the New South Wales Government has resolved this issue through another approach. This point will
be discussed in Section 6.4.2.
62
564.54 Acres of Land, 441 US 506, 514 (1979).
63
The function of the replacement method approximates the ‘reinstatement’ method in Australian
jurisdictions, which will be discussed in Section 6.4.1.

167
written offer in advance of a land acquisition proceeding, along with any other
information relevant to the determination such as a written appraisal or other
evidence. 64 This requirement will improve the capacity of landowners to fully
understand the compensation offer and valuation of their property. Besides, as all
relevant information is provided, the new process would contribute to genuine and
good-faith negotiations between the landowner and the acquiring authority to reach
an agreement on compensation.

To sum up, in the wake of the Kelo decision, state legislatures seem to have gradually
eschewed the rigid and minimalist constitutional compensation formula. Instead, they
have moved towards a more generous approach by including subjective and
consequential losses among the various matters to be considered in determining the
amount of compensation. Additionally, they have developed new procedural rules to
facilitate genuine engagement between the acquiring authority and the landowner.
These approaches are likely to deliver fairer compensation and a more transparent and
equitable process in land acquisition. Accordingly, the post-Kelo reforms have
contributed to strike a more even balance between individuals’ property rights and
broader public interest. As will be discussed in Section 6.5, China may adopt the United
States approaches to improve the fairness of its existing compensation regime.

6.4 JUST TERMS COMPENSATION IN AUSTRALIA

As mentioned in Section 2.3.2.1, constitutional property protection between the

federal and state spheres is asymmetric in Australia. Section 51(xxxi) of the Australian
Constitution, modelling the just compensation requirement in the United States
Constitution, contains the requirement to pay just terms. However, there is no state or
territory constitutional guarantee of compensation. For example, in Durham Holdings
Pty Ltd v New South Wales (‘Durham’),65 the High Court unanimously affirmed that the
New South Wales Parliament did not lack the power to enact laws for the acquisition

64
See, eg, Ind Code §§ 32-24-1-5 (LexisNexis Supp 2006); Mo Rev Stat §§ 523.253 (West 2007); Or Rev
Stat § 35.246(3) (West, 2005).
65
Durham Holdings Pty Ltd v New South Wales [2001] HCA 7 (15 February 2001) (‘Durham’).

168
of property without payment of compensation on the basis that a limitation equivalent
to s 51(xxxi) was not to be found in the Constitution Act 1902 (NSW).66

Nevertheless, the acquisition with no compensation that arose in Durham is not a

common situation because the Australian society ordinarily attaches importance to
protecting private property rights (as discussed in Section 2.3.1). As the Court clearly
stated in Durham, ‘[n]ormally, in Australia, where property is compulsorily acquired in
accordance with law, the property owner is compensated justly for the property so
acquired’. 67 Besides, the compensation and procedural provisions in the Lands
Acquisition Act 1989 (Cth), the federal legislation governing land acquisition, bear
much resemblance to those in the state and territory acquisition legislation. The
following section gives a brief overview of current Australian compensation regimes.

6.4.1 General Principles of Just Terms Compensation

As noted in Section 2.3.1, there are currently nine principal land acquisition statutes in
Australia in place (including the federal legislation noted above). Although only five of
them incorporate the term ‘just terms’,68 the omission of this term in the other four
statutes (that of Victoria, Queensland, Western Australia and Tasmania) does not
mean the claimant for compensation will be treated unjustly. Instead, the nine
principal statutes share common ground in guaranteeing that the expropriated
landholder will receive fair and reasonable compensation, which is evidenced by
broadly similar compensation principles.

66
The High Court has long confirmed the existence of that legislative power. See, eg, The State of New
South Wales v The Commonwealth (1915) 20 CLR 54, 66, 77, 98, 105; P J Magennis Pty Ltd v The
Commonwealth (1949) 80 CLR 382, 403, 405, 416, 419; Mabo v Queensland (1988) 166 CLR 186, 202.
67
Durham [2001] HCA 7 (15 February 2001) [17] (Kirby J).
68
See Lands Acquisition Act 1989 (Cth) s 93; Land Acquisition Act 1969 (SA) s 3; Lands Acquisition Act
1978 (NT) s 5; Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 3(1); and Land Acquisition
Act 1994 (ACT) s 78.

169
Relevant matters required to be considered in determining the amount of
compensation are: (a) market value; (b) special value; (c) severance loss; and (d)
disturbance loss. Additionally, most jurisdictions offer the payment of a ‘solatium’.69

As noted above, the ‘market value’ principle aligns closely with that under the United
States legislation. Market value is not value to the owner, which is determined
according to the ‘willing, but not anxious’70 sale in the market at the date of the land
acquisition, disregarding any increase or decrease in the property’s value due to the
purpose of that acquisition. The assessment of value is a judicial one. Also, Australian
courts have developed two other methods to value the acquired land where the more
normal formulae (the three approaches for assessing market value)71 may simply not
produce a fair result. One is the ‘land residual technique or hypothetical development’
method, which is apposite when the best use of the acquired land lies in its
development or redevelopment, such as a vacant parcel ready for development.72 The
other is the ‘reinstatement’ method, which entails assessing compensation based on
the reasonable cost of purchasing a similar property to be used for the same purpose.
It is only applied in unique circumstances where the acquired land is devoted to a
particular purpose, and there is no general demand for that purpose, such as a hospital,
a church or a community centre.73

Unlike United States law, special value is an element which attracts compensation in all
nine Australian jurisdictions.74 This category of value originates in Pastoral Finance
Association Ltd v Minister where the Privy Council recognised that the acquired land
had a special advantage, in addition to market value, because it was intended to be the

69
See generally, Jacobs, above n 14, chs 18, 23–5, 29.
70
Spencer, [1907] 5 CLR 418, 424 (Higgins J).
71
The three approaches (the comparable sales approach, the income capitalisation approach, and the
reproduction cost approach) are referred to as the ‘comparative or market data’ approach, the ‘income
investment or economic approach’, and the ‘cost’ method in Australian jurisdictions.
72
See, eg, Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62. See further, Jacobs, above n 14,
ch 21.
73
See, eg, Yates Property Corp Pty Ltd v Boland (1997) 145 ALR 169. See further, Jacobs, above n 14, ch
28.
74
See generally, Jacobs, above n 14, ch 23.

170
location for the owner’s businesses. 75 This value was incidental to the owner’s
particular use of the land, and therefore hypothetical willing purchase would not pay
extra for this advantage. Other illustrations of special value are: where the land had a
particular advantage given the proximity of other land;76 and where expenditure and
effort for planned subdivision of land enhanced its value to the owner.77 However, in a
comprehensive analysis of the Australian land acquisition regime, Douglas Brown has
observed that special value rarely exists in most instances of land acquisition.78

‘Severance loss’ entails assessing the amount of reduction in the market value of the
remaining land caused by partial acquisition of land.79 A closely related form of loss is
‘injurious affection’, which arises where a parcel of land may incur loss of market value
resulting from the acquisition of an adjoining parcel.80 Further, the loss must result
directly from the severance, as illustrated by: the construction of sewerage treatment
works on the acquired land which adversely affected dairy farming on the remainder;81
the presence of sludge pits on the acquired land which depreciated the remainder; 82 or
vibration from heavy vehicles on a road constructed over the acquired land reduced
the value of the building on the remainder.83 In certain circumstances, the owner
would receive no compensation as the loss is set off against the enhancement in the
value of the remainder due to the use of the acquired land.84

75
Pastoral Finance Association Ltd v Minister [1914] AC 1083.
76
Stirling Finances Ltd v Minister of Water Resources (1984) 52 LGRA 289 (a warehouse worked in
conjunction with neighbouring retail department stores).
77
Kennedy Street Pty Ltd v Minister (1962) 8 LGRA 221. For more reported cases about the application of
the special value, see Jacobs, above n 14, 491–3.
78
Douglas Brown, Land Acquisition: An Examination of the Principles of Law Governing the Compulsory
Acquisition or Resumption of Land in Australia (LexisNexis Butterworths, 6th ed, 2009) 129.
79
See generally, Jacobs, above n 14, ch 24.
80
Six Australian jurisdictions do not use the term ‘injurious affection’. Brown has observed that the issue
in this regard is ‘whether the term “severance” is sufficiently broad to cover the ground which would
otherwise traditionally fall under the term injurious affection’. See Brown, above n 78, 172.
81
Howard v Minister (1939) 14 LGR (NSW) 74.
82
Minister of Works v Antonio [1966] SASR 54.
83
Konolow v Minister for Works [1961] WAR 40.
84
Brell v Penrith City Council (1965) 11 LGRA 156. See further, Jacobs, above n 14, 536–7.

171
‘Disturbance loss’ represents the actual financial loss incurred by the expropriated
person as a ‘direct and natural consequence of the acquisition’. 85 Examples of
disturbance losses are:86 removal or relocation expenses;87 costs of the reinstatement
of a business;88 legal and valuation costs;89 or loss of business income during the
period when the displaced owner moves to new premises.90 Accordingly, the award of
disturbance loss aligns with the payment of consequential loss under the United States
post-Kelo reform laws.

Several jurisdictions authorise the payment of ‘solatium’. Although there is no

consistency as to how the term is defined, in general terms, it means intangible and
non-economic disadvantages (ie, the subjective loss) concerning the acquisition of
residential property. 91 In Robertson v Commissioner for Main Roads, Perrignon J
described the term as ‘subjective and imponderable factors such as nuisance,
annoyance, inconvenience and distress’ caused by relocation.92 Jurisdictions that allow
this additional payment have various forms of solatium awards, which can be classified
into three approaches: (1) a lump sum with a fixed amount or a cap (Commonwealth,
Australian Capital Territory and New South Wales);93 (2) up to 10 per cent of market
value (Victoria and West Australia), which is equivalent to the bonus/multiple
approach adopted by the United States post-Kelo laws; and (3) no limit on the level of

85
Roads & Traffic Authority of NSW v McDonald (2010) 79 NSWLR 155, [88] (Tobias AJA). See generally,
Jacobs, above n 14, ch 25.
86
Certain land acquisition statutes provide a list of relevant matters that can be claimed as disturbance
loss. See, eg, Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 55(d), 59.
87
McDonald v Roads & Traffic Authority of NSW [2009] NSWLEC 105 [107]-[112].
88
Director of Buildings and Lands v Shun Fung Iron Works Ltd [1995] 2 AC 111; Hua v Hurstville City
Council [2010] NSWLEC 61.
89
Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109; Marroun v Roads and Maritime
Services [2012] NSWLEC 199.
90
Drew v Commissioner of Highways (1972) 27 LGRA 281. See further, Jacobs, above n 14, 569–612.
91
For a comparative study of solatium in common law systems, see generally, Brendan Edgeworth, ‘Just
Compensation and “Solatium”: Comparative Approaches in Common Law Systems’ (2019) 8(2) European
Property Law Journal 192.
92
Robertson v Commissioner for Main Roads (1987) 63 LGRA 420, 426.
93
Besides the maximum figure, the acquisition statute of New South Wales sets out detailed criteria for
assessing the amount for solatium. See Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s
60(3).

172
this payment (Northern Territory and Tasmania).94 These approaches will be further
discussed in Section 6.5.2.

On balance, Australia’s principal acquisition statutes are broadly similar. While

supplementary provisions concerning other matters, such as the award of a solatium,
may differ slightly, the principles of valuation applied in determining the market value
of the acquired land (the key component of compensation) are common across
jurisdictions. As Brown has observed, ‘[w]hen finally compensated, a dispossessed
landholder would be unlikely to maintain that he or she would have received a
significantly larger award of compensation in a different jurisdiction’.95

Also, the above overview reveals that there are significant parallels between the
Australian compensation regime and the United States regime prior to Kelo,
particularly the market value standard. However, Australian compensation law seems
significantly more generous in light of its long-standing practice of incorporating the
subjective sense of loss and actual economic loss into the compensation formula, as
well as providing for additional payments (in addition to market value) to address the
true costs borne by the expropriated landholder. Besides, it has developed special
methods, considering the cost of a reasonably comparable replacement property, that
deal with unique situations where the market cannot produce a fair result.

One possible reason behind such generous arrangements is to fairly guarantee

fundamental property rights against the breadth of the government’s legislative
activities. As noted in Section 5.3.1, the legislatures, particularly the state and territory
parliaments, have broad powers to enact legislation to acquire private property for
various purposes, even with the sole aim of reselling the acquired land to a private
developer. In this sense, generous compensation is necessary to ensure that the
expropriated landowner is placed in the same position after land acquisition as before.
Therefore, Australian compensation regimes can be seen to strike a reasonable
balance between the public interest and private interests. Despite this, the New South

94
Edgeworth, above n 91, 196–9.
95
Brown, above n 78, 2.

173
Wales Government has made improvements to its compensation regime in the recent
reform to achieve optimal land acquisition outcomes.

6.4.2 Recent Development of the New South Wales Compensation Regime

As noted in Section 5.3.2, the reforms were triggered by public concerns about land
acquisition at the time when the government conducted major infrastructure
programs at an unprecedented pace and scale in Sydney. Besides the procedure issue,
landholders have voiced concerns about the adequacy of compensation in the context
of an extremely tough and competitive real estate market. Accordingly, the New South
Wales Government amended the Land Acquisition (Just Terms Compensation) Act 1991
(NSW) in 2016 with respect to the valuation methods from two aspects.

The first aspect related to the renaming of ‘solatium’ and the increase in its maximum
amount. The term ‘disadvantage resulting from relocation’ replaced the term ‘solatium’
to improve clarity and understanding of what this form of compensation relates to.96
Moreover, the amendment raised the amount of solatium from the modest figure of
$27 235 to a maximum of $75 000, indexed annually by the consumer price index,97 in
light of the length of time since any significant increase and the significant impact land
acquisition can have on residents’ lives. This increase would help to alleviate the
difficulties and disruption experienced by families and individuals as a result of having
to relocate from a principal place of residence.98 Moreover, on a broader level, it
signified that the compensation approach was moving from the traditional one that
focused on financial impact induced by land acquisition to a new one that catered

96
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 60(1).
97
Ibid s 60(2).
98
This legislative change was in line with both the Russell Review and the Housing Acquisition Review,
which expressed the view that an increase in the current amount of compensation was warranted and
did not support calculating solatium based on property value. See NSW Government Response to Review
of the NSW Land Acquisition (Just Terms) Compensation Act 1991 and Housing Acquisition Review (2016)
32<https://www.propertyacquisition.nsw.gov.au/sites/default/files/resources/NSW_Government_Resp
onse_Property%20Acquisition%20Reform.pdf> (‘NSW Government Response’). However, it has been
suggested that assessing the subjective loss by reference to a percentage of the market value of
property is more appropriate than by reference to an absolute figure: Edgeworth, above n 91, 207–9.

174
more to the subjective loss incurred by the landholder and demoralisation experienced
by citizens as a whole.

The second aspect concerned the payment of compensation on a ‘reinstatement’ basis

in limited circumstances.99 the Land Acquisition (Just Terms Compensation) Act 1991
(NSW) introduced a reinstatement provision to allow for the purchase of a comparable
property in cases where there is no general market for unique property types.100 It is
important to note that the reinstatement does not apply to a dwelling house. This is
because the New South Wales Government held that the object of reinstatement
principle was to restore someone to their previously held position. While in New South
Wales, home to a large and diverse residential property market, it was rare that
compensation based on market value would be insufficient to purchase a reasonably
equivalent dwelling.101

Aside from the above, the Government has rolled out a range of administrative
measures to further improve the land acquisition process. Specifically, it supports the
recommendation that the Valuer-General must contact the landowner to discuss the
valuation, share all information relevant to the compensation determination and
provide a preliminary valuation report to the owner before the final valuation and
compensation determination is made. 102 Given that the compensation provisions are
legalistic and difficult to understand, these procedures would not only allow
landowners to ask questions about issues they do not understand but also give them

99
There is no specific provision in relation to reinstatement in the New South Wales and Queensland
acquisition legislation.
100
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 56(3) (providing that ‘If: (a) the land is
used for a particular purpose and there is no general market for land used for that purpose … the
market value of the land is taken, for the purpose of paying compensation, to be the reasonable cost to
the owner of equivalent reinstatement in some other location’).
101
NSW Government Response, above n 98, 41–2. The NSW Government rejected Russell’s
recommendation to apply reinstatement to a dwelling house in terms similar to those of Section 61(2)(b)
of the equivalent Commonwealth legislation. It further explained that the valuation mechanisms in place
in the Commonwealth, Australia Capital Territory and Tasmanian legislation differed from those in the
mainland states because there were potential deficiencies in the relevant residential property markets.
102
Ibid 26–9. The Valuer-General is an independent statutory officer responsible for the determination
of compensation in the compulsory acquisition process. He or she does not become involved in
determining compensation when land is acquired by agreement.

175
the opportunity to provide information and bring to the attention of the Valuer-
General any additional matters they would like considered. Moreover, the final
compensation determination must contain a plain English explanation of how the
amount was determined and how any issues raised by the landowner during the
process have been addressed.103 These improvements will result in active resident
engagement and greater transparency in the valuation process, which would further
ensure that most matters are dealt with through negotiations, rather than via formal,
high-cost mechanisms for dispute resolution.104

To sum up, like the post-Kelo reform in the United States, the latest New South Wales
reforms have better supported those affected landowners. They have recognised the
potential non-financial impact land acquisition could have on individuals by increasing
the amount of the solatium payment and introducing the reinstatement method to
achieve a fairer result. Also, they have afforded significant procedural fairness by
changing the acquisition process to improve engagement with landowners. These
measures, in general, are likely to result in an improved land acquisition process that is
fairer, more transparent and provides generous but fair compensation. In consequence,
the new land acquisition framework is likely to achieve a more even balance between
property rights and public good derived from land acquisition projects. These reform
measures could also suggest some plausible approaches that can be adapted to
China’s land acquisition law.

6.5 LESSONS FOR CHINA’S COMPENSATION LAW AND PRACTICE

This section discusses how China may improve its compensation law based on the
United States and Australian approaches. It focuses on the two remaining issues
discussed in Section 4.3.2.2: that is, the unjust compensation standard and the lack of
payment of solatium. It argues that the Chinese law is mostly consonant with the
experience and practice of the two Western jurisdictions. Nevertheless, there is room

103
Ibid.
104
As noted in Section 5.3.1, in New South Wales over 80 per cent of acquisitions were achieved by
agreement between the acquiring authority and the landowner.

176
for China to improve certain substantive and procedural rules to achieve a better
balance between public and private interests.

6.5.1 Compensation Regime under China’s Existing Land Acquisition Law

As noted above, both the United States and Australian laws seek to produce a fairer
result for landholders through three common approaches: (1) compensating for all
three categories of loss induced by land acquisition; (2) replacing the market value
with replacement value in specified circumstances; and (3) improving engagement
with the landholder and transparency of the valuation process. In general, the Land
Administration Law of the People’s Republic of China (2019 Amendment)105 (2019 LAL)
has adopted most of these approaches.

6.5.1.1 Compensating for all three categories of loss

Except for solatium, China’s land acquisition law allows expropriated landholders to
recover their property loss (including acquired land and aboveground property) and
consequential loss. In terms of property loss, as noted in Section 4.3.2.1, the
competent authorities must apply the ‘comprehensive land section price’ (land section
price) to compensate for the loss of acquired land.106 Although this method has
included all relevant factors, such as the output value of the acquired land, location of
the acquired land, supply and demand in the local land market as well as the level of
local economic development,107 it is not the same as the ‘comparable sales method’
adopted in the United States and Australia because it is based on the original use of
land and. As Chuanhui Wang has observed, this new method ‘omits the consideration
of the future use of land from the calculation of compensation’.108 Nevertheless, given
the breadth of relevant economic and market matters determining compensation, the

105
《中华人民共和国土地管理法（2019 修正）》[Land Administration Law of the People’s Republic
of China (2019 Amendment)] (People’s Republic of China) Standing Committee of the National People’s
Congress, 26 August 2019 (‘2019 LAL’).
106
2019 LAL art 48(3).
107
Ibid.
108
Chuanhui Wang, The Constitutional Protection of Private Property in China: Historical Evolution and
Comparative Research (Cambridge University Press, 2016) 230.

177
new method can be seen as an alternative to the comparable sales method, which
works against the undeveloped market that cannot offer sufficient transaction
information in China.

As for other aboveground property, recall that the payment for destroyed developing
crops on the acquired land involves assessing their output value, which approximates
to the ‘income capitalisation’ approach. The measurement of compensation for rural
houses and aboveground fixtures is based on the ‘replacement cost’ which in turn is
based on the construction and furnishing cost (as noted in Section 3.4.1). It is thereby
similar to the ‘cost method’ applied when determining the market value in the United
States and Australia. 109 Recently, some observers have expressed concerns that
compensation determined by this approach is often unable to restore the original
living conditions for the homeowners because the replacement cost of houses in rural
areas tends to be lower than that in urban areas. Accordingly, they have suggested
replacing the replacement cost approach with the comparable sales approach in
housing acquisitions.110 This approach, however, has two drawbacks. First, it may not
apply in all circumstances as it is based on the premise that the expropriated
homeowners will move to the city. Second, if the owner does move to an urban area,
compensation based on the comparable sales approach may not restore the
homeowner to the same position in the absence of the acquisition. As noted above,
the comparable sales approach involves valuing the acquired property by reference to
the sales of comparable property in the area of the land expropriated, not that in the
urban areas. Thus, an owner from a rural area compensated based on the comparable
sales method would likely not be able to afford a comparable property in an urban
area where house prices are considerably higher. In fact, Liu and Yu’s concern over the
unjust compensation standard for acquired houses has partly been addressed by the
‘replacement value’ approach adopted by the 2019 LAL, which will be discussed in

109
For similar views, see 刘连泰, 余文清 [Liu Liantai and Yu Wenqing], 《公平市场价值在集体土地征
收 补 偿 中 的 适 用 》 [The Application of Fair Market Value in Collective Land Expropriation
Compensation] (2019) 10 浙江社会科学 Zhejiang Social Science 21, 24.
110
Ibid.

178
Section 6.5.1.2. Such concern may be further addressed by awarding additional
compensation for solatium in housing acquisitions, which will be discussed in Section
6.5.2.3.

With regard to compensation for the consequential losses, alongside resettlement

subsidies provided by the previous compensation regime, relocation expenses and
social security subsidies now are recoverable under the 2019 LAL.111 Accordingly, the
Chinese law also awards compensation for specific financial losses caused by land
acquisition, similar to the compensation of certain consequential losses in the United
States and Australia.

6.5.1.2 Replacing the market value with replacement value

The 2019 LAL replaces market value with replacement value in certain circumstances
to achieve just and reasonable compensation. In addition to the long-standing quasi-
cost method noted above, the 2019 LAL includes two alternative measures for paying
the replacement value: that is, at the owner’s election, if in-kind compensation is
desired, the acquiring authority should provide a resettlement house (a replacement
dwelling) or an equally sized residential plot for house building, plus the construction
costs of a new building. 112 These measures will deliver a fairer outcome for
expropriated rural residents given the continually rising property prices. In this sense,
the Chinese law has also adopted the replacement/reinstatement approach, like its
United States and Australian counterparts, to ensure that the expropriated
homeowners are placed in as good a position pecuniarily as if the property had not

111
2019 LAL art 48(2), (4). As noted in Section 4.2.2.1, in addition to these losses stipulated in the LAL,
local regulations provide additional payment for other consequential losses, such as tax costs and
business loss, based on their reform practice since the early 2000s (2004–2018). For example, like NSW
legislation, compensation regulation of Ma’anshan Municipality provides the loss of business income
due to the suspension of production and tax costs in connection with the purchase of a comparable
residential property for relocation purposes (for those displaced homeowners who choose monetary
compensation). See《马鞍山市集体土地征收补偿安置办法》 [Measures of Ma’anshan Municipality
on Compensation and Resettlement in the Expropriation of Collective Land] (People’s Republic of China)
Ma’anshan Municipality Government, 15 March 2019, arts 30, 41 (‘Measures of Ma’anshan
Municipality’).
112
2019 LAL art 48(4).

179
been acquired, or, as termed in article 48(1), to ‘ensure that the current living standard
of expropriated farmers is not lowered’.

6.5.1.3 Improving the compensation process

The 2019 LAL makes a number of changes to the land acquisition process relating to
landholder engagement. Recall that it requires local governments to hold a public
hearing to solicit public opinions and suggestions in formulating local compensation
standards, as well as to address complaints by the majority of affected landholders
about potential inconsistencies of the proposed compensation plan with relevant laws
and regulations. 113 Furthermore, governments must seek to reach a preliminary
compensation agreement with landholders.114 Hence, the land acquisition process
under existing law is akin to approaches adopted by the United States (post-Kelo) and
Australia in fostering engagement in a way that better meets the needs of landholders
throughout the process.

In short, it is reasonable to conclude that China’s existing law generally delivers on the
goal of granting ‘just and reasonable compensation to ensure that the current living
standard of expropriated farmers is not lowered, and their long-term livelihood is
guaranteed’.115 Even so, the remaining issues discussed in Section 4.3.2.2 – unjust
compensation standards and the lack of payment for solatium – are likely to impede
the achievement of a more equitable balance between the public interest and private
property. Drawing on the experience and practice of the United States and Australia,
the following section puts forward three recommendations for China to improve the
compensation regime.

6.5.2 Recommendations for China’s Land Acquisition Law

The recommendations are: (1) allowing an increased compensation standard; (2)

allowing the recovery of legal costs and lawyers’ fees; and (3) awarding solatium to the

113
Ibid art 47(2).
114
Ibid art 47(4).
115
Ibid art 48(1).

180
displaced homeowners. The following sections will indicate how these approaches
might be deployed in China’s land acquisition law and their major benefits.

6.5.2.1 Allowing an increased compensation standard

As noted in Section 4.3.2.2, the injustice associated with the uniform ‘land section
price method’ is that the amount of compensation offered may not cover the property
loss induced by some expropriated landholders whose land has a higher value than
others’ land categorised in the same land section. China’s future legislative reform
could address this issue by allowing an increased compensation standard to be
deployed in exceptional circumstances.

Specifically, the law should set the land section price as the baseline of the
compensation standard in particular cases and allow a ‘top-up’ amount over and above
that price when the acquired land is evidenced to have a higher value than the amount
of compensation offered. This improvement would result in fairer compensation that
reflects the real property loss incurred by the landholders. This recommendation is
supported by Wang, who has observed that ‘[t]he land section price should be
changed to a minimum compensation standard, which may only be adjusted upward. If
collectives or farmers can offer evidence that their actual output is so high that they
should be compensated more than the sum based on the land section price, the
adjustment shall be allowed’.116 However, Wang has not provided any suggestions for
the effectuation of the adjustment of compensation standard.

In order to implement this adjustment, China should reform the valuation process in
favour of expropriated landholders through improving the pre-acquisition negotiation
procedure in light of the United States and Australian approaches. Specifically, like the
Valuer-General in the New South Wales, competent authorities of local governments,
which are in charge of determining compensation for expropriated landholders,117
should be obliged to contact the landholders who are not satisfied with the

116
Wang, above n 108, 244.
117
2019 LAL art 47(4).

181
compensation standard published in the notice of land acquisition. Also, they should
be required to share a full range of information and resolve any reasonable doubt over
the valuation in favour of affected landholders. Additionally, landholders should be
allowed to provide competing expert valuations or provide information relevant to
additional matters they would like to be considered, in order to demonstrate that they
should be compensated more than the amount based on the pre-published land
section price. In response, the authorities should provide a written explanation for the
acceptance or rejection of the competing valuations and how any issues raised by the
landholder have been addressed. If the authorities reject the valuations provided by
the landholder, he or she then can appeal the compensation determination through
the courts.

In general, these procedural approaches would prompt competent authorities to

provide an accurate valuation of land value based on the credible information
provided by landholders, thereby improving the fairness and transparency of the
valuation process. Moreover, by setting up the negotiation procedure as a pre-
condition for the commencement of the appeal process, the reformed valuation
process could dissuade otherwise discontented landholders from challenging the
amount of compensation in court, which may result in delays to the project.

6.5.2.2 Allowing the recovery of legal costs and lawyers’ fees

One further approach that China can adopt to complement the adjustment of
compensation standard is providing compensation for legal costs and lawyers’ fees in
particular circumstances.

As noted in Section 6.2, legal costs and lawyers’ fees fall into the category of
consequential losses. These costs and fees, however, are not recoverable under the
2019 LAL. A possible explanation is that the government, rather than the market,
regulates the charge for legal costs and lawyers’ fees in this field. Under the Measures
on the Administration of Charges for Lawyers’ Services, charges for lawyers’ services

182
are subject to ‘government-set or guided prices’ and ‘market-regulated prices’.118 For
the former, competent price departments of provincial governments, working in
conjunction with the judicial administrative department, are obliged to set up the
benchmark prices and the fluctuation range, after extensively soliciting public opinions
and holding a hearing when necessary. 119 In practice, given the vulnerability of
property owners in land expropriation, provincial governments have categorised
charges for lawyers’ fees in compensation cases as government-guided prices, aiming
to protect expropriated landholders from being excessively or unreasonably
overcharged by their lawyers. In Chongqing Municipality, for example, the hourly rate
of lawyers’ fees ranges from ¥200 to ¥3000 per hour. For case-based charges, a
lawyer’s services are charged based on the value of the property in question within a
prescribed range of rates.120

However, given the very low income of rural residents,121 lawyers’ fees are, relatively
speaking, as costly as those in the United States and Australia. While not proposing the

118
《律师服务收费管理办法》[Measures on the Administration of Charges for Lawyers’ Services]
(People’s Republic of China) National Development and Reform Commission and Ministry of Justice, 13
April 2006, art 4.
119
Ibid arts 6–7.
120
《 关 于 重 庆 市 实 行 政 府 指 导 价 的 律 师 服 务 收 费 标 准 及 有 关 事 项 的 通 知 》 [Notice on the
Government-guided Scope and Standards of Charges for Lawyers’ Services and Related Matters in
Chongqing Municipality] (People’s Republic of China) Chongqing Municipal Bureau of Price and
Chongqing Municipal Bureau of Justice, 24 January 2018, arts 2(1), 3 (if the value of the property in
question is less than ¥ 100 000, lawyers’ services are range from ¥2000 to ¥10 000; If the value of the
property exceeds ¥ 100 000: (1) for the part between ¥100 000 and ¥1 million, lawyers’ fees range from
4 per cent to 5 per cent of that value; (2) for the part between ¥1 million and ¥5 million, lawyers’ fees
range from 3 per cent to 4 per cent of that value; (3) for the part between ¥5 million and ¥10 million,
lawyers’ fees range from 2 per cent to 3 per cent of that value; (4) for the part between ¥10 million and
¥50 million, lawyers’ fees range from 1 per cent to 2 per cent of that value; (5) for the part above ¥50
million, lawyers’ fees range from 0.5 percent to 1 percent of that value). Other provincial-level
governments have formulated similar rates. See, eg, 《关于公布湖南省实行政府指导价的律师服务和
基层法律服务收费范围和标准的通知》[Notice on the Promulgation of the Government-guided
Scopes and Standards of Charges for Lawyers’ Services and Grassroots Legal Services in Hunan Province]
(People’s Republic of China) Hunan Provincial Development and Reform Commission and Justice
Department of Hunan Province, 27 January 2016, art 3(2); 《上海市律师服务收费管理办法》
[Measure of Shanghai Municipality on the Administration of Charges for Lawyers’ Services] (People’s
Republic of China) Shanghai Municipal Development and Reform Commission and Shanghai Municipal
Bureau of Justice, 26 January 2017, appendix 1, art 2.
121
While significantly improved, the per capita disposable income of rural residents remains low. For
example, the median per capita disposable income was ¥14 389 in 2019. See National Bureau of
Statistics, Household’s Income and Consumption Expenditure in 2019 (19 January 2020) <

183
recovery of lawyers’ fees in land acquisition cases, Wang has observed that ‘in
developing countries, such as India and China, poor property or right owners, most of
whom are displaced farmers, may not fully or effectively use procedural opportunities.
One reason … is they lack the necessary financial resources to hire professional
services, including consultation, valuation and attorney services’. 122 Accordingly,
drawing on experiences of the United States and Australia, China should require
compensation for legal costs and lawyers’ fees if the final decision in a land acquisition
case exceeds the amount of compensation offered by acquiring authorities. These
additional payments would supplement the above improvement in the compensation
standard by encouraging local governments to negotiate in good faith with disgruntled
landholders and treat individual landholders as fairly as possible in the pre-acquisition
process.

On the other hand, there should be a threshold value to obviate frivolous litigation
that could delay the project. Drawing on the approaches developed in the United
States, the law could make the recovery of legal costs and lawyers’ fees allowable in
the following circumstance: the compensation awarded at trial is (1) more than 10 per
cent greater than the government’s final offer123 or (2) the dollar amount the lawyer
can obtain for the property owner. Since the land section price is based on average
estimates of land value in the area, the real value of the acquired land might not be
much higher than the land acquisition price. Thus, in most cases, the 10 per cent
baseline might not substantially burden the expropriated landholders. Besides, the
second threshold value will offer flexibility in low-value cases. In short, the two
conditions are likely to ensure that disgruntled landholders might not frivolously
challenge the amount of compensation offered in court unless the expected value of

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%20Income%20and%20Consumption%20Expenditure%20in%202019&text=In%202019%2C%20the%20p
er%20capita,percent%20after%20deducting%20price%20factors.>.
122
Wang, above n 108, 276.
123
Most states in the United States that have enacted statutes awarding reimbursement for attorneys’
fees and court costs require the compensation awarded at trial to be greater than the government final
offer by a margin of 10 per cent to 30 per cent. See Abraham Bell and Gideon Parchomovsky, ‘Taking
Compensation Private’ (2007) 59 Stanford Law Review 871, 890 n 108.

184
the valuation proceeding – that is, the award minus these legal costs and lawyers’ fees
– exceeds the government’s offer. In doing so, this recovery approach would be a
reasonable balance of public and private interests.

6.5.2.3 Awarding solatium to the displaced homeowners

As noted in Section 4.3.2.2, whereas the 2019 LAL specifies more matters to which
regard must be had in determining the amount of compensation, it does not consider
disruption and inconvenience resulting from relocation. However, comparison with the
United States and Australian regimes reveals that land acquisition can be a highly
stressful event for affected homeowners who are being forced out of their home, and
payment of subjective loss suffered resulting from land acquisition can greatly assist
them in achieving fair compensation.

In this context, it is relevant to refer to a very important recent work on the subject of
compensation for compulsory land acquisition, Yun-Chien Chang has proposed adding
ex post bonus compensation to reflect the amount of subjective value. 124 By
empirically examining the compensation awarded under different assessment
methods in both New York City and Taiwan, Chang has acknowledged that ‘[a]warding
fair market value could result in the compensation being roughly right when the
government takes the latter types of properties [non-residential and investment
residential properties]’ as property owners ‘do not attach much subjective value to the
properties’.125 But for homeowners who usually have positive subjective value, he
recommends that ‘sticking with a fair market value standard and adding a bonus has a
better chance of not awarding undercompensation’.126 Chang’s path-breaking analysis
and suggestions have added empirical evidence to support some of the
recommendations on the issue of fair compensation below.

124
Yun-chien Chang, Private Property and Takings Compensation: Theoretical Framework and Empirical
Analysis (Edward Elgar Publishing, 2013).
125
Ibid 168.
126
Ibid 169.

185
Some Chinese scholars have also suggested offering an additional payment of solatium.
For example, Wang has pointed out that ‘although subjective value cannot be
practically calculated, a solatium can be given as compensation to ease the compulsory
nature of expropriation’.127 Moreover, he has recommended that,

For land-loss farmer compensation, a strong suggestion includes borrowing India’s

practice and supplementing the compensation with a solatium. Land is the source of
livelihood for farmers. When farmers lose land, they lose not only property but a familiar
career and their job linked with the land. The percentage of solatium may be determined
based on the transaction cost of shifting to a new job.128

However, his argument contains one serious drawback. It confuses the compensation
for subjective loss and consequential loss. Wang has defined ‘solatium’ as
‘compensation for the emotional distress incurred by involuntary relocation’ or
compensation ‘to cover the portion of losses concerning subjective value’. 129

Meanwhile, he has categorised ‘the transaction costs of changing jobs’ as ‘the

consequential damage or other property losses caused by expropriation’. 130
Accordingly, it is somewhat contradictory to use the solatium awards to compensate
for a type of consequential loss. Besides, as noted in Section 4.2.2, several local
legislatures have reformed local regulations to resolve the employment issue by
requiring governments to provide a substitutable position, free employment training
or a parcel of agricultural land to work on. In light of the above, the future reform
should limit the compensation for subjective loss to housing acquisitions other than
the acquisition of agricultural land, construction land or unused land, which normally
have little or no personal attachment.

127
Wang, above n 108, 233.
128
Ibid 244 (providing ‘three solatium package options for the farmers: (1) “offering of substitutable job
or land + a lower percentage”; (2) a higher solatium percentage without a substitute job or land; or (3) a
medium level solatium percentage and a job or a parcel of land, which can partially substitute for the
loss’).
129
Ibid 193, 233.
130
Ibid 178.

186
More recently, in an analysis of compensation for subjective value in the acquisition of
residential property above state-owned land, Liu has observed that subjective loss
resulting from a housing acquisition should be compensated.131 Even though this type
of housing acquisition is regulated by the Regulation on Expropriation and
Compensation of Houses above State-owned Land (RECHSL)132 (as noted in Section
3.5.1.1), Liu’s analysis presents recent views and findings on the subjective value issue.
Based on the experience of the United States in this field, Liu has observed that ‘the
expropriated people indeed suffer emotional pain’, which ‘should be addressed by the
law … in order to reduce possible resistance to land acquisitions’.133 He has also argued
that since the property loss has been compensated by fair market value, 134 the
inclusion of ‘subsidies and rewards’ schemes in the RECHSL135 in fact indicates that the
legislature has realised the homeowner may suffer a loss of subjective value during the
acquisition process. 136 Thus, Liu has further suggested that local governments could
use the subsidies and rewards schemes as a screen for compensating for part of the
owner’s subjective loss.137

However, his arguments contain two limitations. The first limitation concerns the
integration of compensation for subjective loss into the subsidies and rewards
schemes. Given the broad administrative discretion in the formulation of subsidy and
incentive schemes, local governments have often used the schemes to encourage
expropriated homeowners to enter agreements with acquiring authorities, in order to

131
See generally, 刘连泰 [Liu Liantai], 《征收补偿中的主观价值》 [Subjective Value in Compensation
for Expropriation] (2020) 2 法学家 The Jurist 45.
132
《国有土地上房屋征收与补偿条例》 [Regulation on the Expropriation and Compensation of
Houses above State-owned Land] (People’s Republic of China) State Council, 21 January 2011 (‘RECHSL’).
133
Liu, above n 131, 54.
134
As noted in Section 3.5.2.2, the urban land market is well developed. Thus, the law requires the
acquiring authority to compensate homeowners for the market value of acquired urban houses through
the comparable sales approach (RECHSL, art 19). For a discussion of the evolution of compensation for
acquired urban houses in China, see Wang, above n 108, 202–4.
135
RECHSL art 17(2) (requiring that ‘[t]he people’s government at the city or county level shall formulate
subsidisation and incentive measures to give subsidies and incentives to the expropriated owners’).
136
Liu, above n 131, 55.
137
Ibid.

187
enhance the efficiency of the acquisition and compensation work.138 For example,
Xi’an and Guiyang municipal regulations grant subsidies or rewards to expropriated
owners who reach agreement with acquiring authorities within the period prescribed
in the published acquisition notice, and complete the relocation as agreed. 139 Since the
objective of the payment of subsidies and rewards is different from that of the
solatium, it is irregular to achieve the compensation in respect of subjective loss in this
way. Besides, local government might provide limited or even no compensation for
subjective loss if there is no express requirement in this field.

The second limitation relates to the determination of the amount of subjective loss
resulting from land acquisitions. Liu has pointed out that, in light of the lack of a rigid
standard for subsidies and rewards under the RECHSL, acquiring authorities could
‘consider a variety of factors and communicate and bargain with the expropriated
owners, thereby providing disguised compensation for part of the subjective value
through the subsidies and rewards schemes’.140 This negotiation approach, however,
may not provide a fair result for all expropriated homeowners. Owners who are in a
weak bargaining position – for example, the poor or the politically powerless – are
likely to receive less compensation than the wealthy and politically connected.
Moreover, the expropriated owners often overstate their losses, and thus result in the
delay of projects or a substantial burden on the public purse. Accordingly, the bargain-
based method may not be a fair approach to calculating the solatium payment.

In light of the above, China’s further legislative reform should include a specific
requirement to pay solatium, in order to ensure greater clarity as to the purpose of the

138
刘芳圣, 王玥, 李岩, 世海 [Liu Fangsheng, Wang Yue, Li Yan and Shi Hai], 《国有土地上房屋征收补
偿现状调查—基于全国 43 个城市的调研》 [Investigation on the Present Situation of Compensation
for Housing Expropriation above State-owned Land — based on a Survey of 43 Cities across the Country]
(2017) 10 中国房地产 China Real Estate 60, 68–9.
139
《西安市国有土地上房屋征收与补偿办法（2020 修正）》 [Measures of Xi’an Municipality on
Expropriation and Compensation of Houses above State-owned Land and Compensation (2020
Amendment)] (People’s Republic of China) Xi’an Municipality Government, 27 January 2020, art 40;
《贵阳市国有土地上房屋征收补助和奖励办法》[Measures of Guiyang Municipality on Subsidies and
Incentives for Expropriation of Houses above State-owned Land] (People’s Republic of China) Guiyang
Municipality Government, 23 October 2014, art 2.
140
Liu, above n 131, 55.

188
payment: that is, compensating for stress and inconvenience resulting from the
necessity of landholders to relocate their principle place of residence. Further, the law
should provide a standardised formulaic approach on how solatium payments are
calculated to avoid over-rewarding or under-compensating the expropriated
landholder. Accordingly, drawing on the experience of the United States and Australia
in this field, the thesis recommends a payment up to 10 per cent of the value of
acquired houses depending on a range of relevant factors in specific cases. These
approaches will be discussed separately below.

The 10 per cent cap is appropriate for China from two respects. The first respect
relates to a percentage-referenced payment, which can be the fairest form of
compensation for subjective loss in China.141 The New South Wales reform experience,
on the one hand, reveals that compensation for solatium computed by reference to
fixed dollar amount can quickly become outdated without a timely update. On the
other hand, it indicates that the payment of a percentage value of the residential
property is more likely to reflect the owner’s loss in different localities accurately. In
Sydney, for example, the $75 000 cap on solatium payment is almost the same as the
amount calculated by reference to 10 per cent of the value of the property in
Melbourne (with a 2017 median house price of approximately $725 000). However, if
the 2017 median house value was $1.1 million, the displaced homeowner may feel
that the compensation is unfair.142 Thus, based on Australian practice and experience,
a percentage-referenced payment may be more sustainable in the long term as it
allows the amount of compensation to rise according to the steady increase in real
estate values across China. Furthermore, it could produce a fairer result for Chinese
expropriated farmers as China has a unified land acquisition regime.

141
This argument does not suggest that a percentage-referenced payment is the fairest form of
compensation in all cases. One argument against compensating for subjective loss by paying a fixed
percentage above market value is that it pays more compensation to owners of expensive property, and
thus confers unfair advantages to them. See further, Brian Angelo Lee, ‘Just Undercompensation: The
Idiosyncratic Premium in Eminent Domain’ (2013) 113 Columbia Law Review 593, 645–9 (arguing that
proper compensation is a fixed dollar amount paid to each expropriated property owner). But see,
Edgeworth, above n 91, 209 (arguing that the percentage-referenced payment is fairer as it may more
accurately reflect the owner’s loss and make the solatium award of continuing value over time).
142
NSW Government Response, above n 98, 32.

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The second aspect concerns the 10 per cent figure. The post-Kelo reform model – a 25
per cent bonus, even 50 per cent proportioned to the length of occupancy – is
generous for aggrieved Chinese homeowners but may unduly burden the government
in consideration of its duty to provide a wide range of essential services to its citizens
(as noted in Section 4.4.1). That is to say, the excessive compensation could impede
the accomplishment of public interests derived from land acquisition projects for
essential infrastructure purposes, particularly in light of a new wave of large-scale
infrastructure construction schemes in China, including the construction of traditional
transport infrastructure143 and ‘new infrastructure’, such as 5G networks and data
centres,144 initiated in 2018 and accelerated by the economic disruption due to the
Coronavirus outbreak in early 2020. Further, the 2019 LAL requires governments to
relocate affected homeowners under the principle of ‘improving living conditions’.145
This better-off policy could help alleviate the subjective sense of loss felt by
homeowners. For these reasons, the 10 per cent benchmark adopted by Victorian and
Western Australian legislation might be an appropriate measure for China, which
would avoid ‘substantially burdening the public purse or over-rewarding
landowners’. 146 Moreover, like the Western Australian and Northern Territory
legislation,147 the law should allow the percentage to be increased in exceptional
circumstances where people suffer a great hardship – for example, the acquired house
is an ancestral house owned and preserved for several generations.

143
《交通强国建设纲要》[Outline for Building National Strength in Transport] (People’s Republic of
China) Central Committee of Communist Party of China and State Council, 9 September 2019 (describing
the road map of China’s transport sector by 2050).
144
See, eg, Xinhua, Economic Watch: China speeds up ‘new infrastructure’ investment to combat
economic pressure (5 March 2020) Xinhuanet <http://www.xinhuanet.com/english/2020–
03/05/c_138846271.htm> (reporting that China Unicom, the leading telecom operator, announced in
February that it would work with China Telecom to complete the construction of 250 000 5G base
stations across China by the end of the third quarter of 2020).
145
2019 LAL art 48(4).
146
Edgeworth, above n 91, 208.
147
Land Administration Act 1997 (WA) s 241(9); Lands Acquisition Act 1978 (NT) sch 2, r 9(1).

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Besides, the degree of subjective loss may vary greatly from case to case. Thus, in line
with Australian practice, 148 a range of relevant factors should be considered to
advantageously supplement the non-individualised 10 per cent cap, including: (1) the
length of occupancy;149 (2) the inconvenience likely to be suffered by the person; (3)
health, infirmity and hardship issues; and (4) the manner of resettlement for housing
acquisition chosen by the person. The last factor is relevant to China’s two in-kind
replacement approaches, which are unique as displaced homeowners are usually
resettled in a centralised way of moving to adjacent locations (usually adjacent to the
acquired land) with government-supplied housing or replacement residential plots
consistent with government plans.150 That is to say, their social connections with a
local community remain, and they stay close to family and friends. Accordingly, their
subjective losses may be less than that of those people who choose to receive
monetary compensation and move to a new area. In this way, the compensation
formula would better capture the personal loss incurred by land acquisition, and to
some extent ease concerns over the unfairness inherent in percentage-referenced
compensation.151 Chang’s empirical research also provides some support for this
suggestion by observing that the proportional bonus adopted by many state

148
Land acquisition legislation in some Australian jurisdictions, including New South Wales, Victoria,
Northern Territory and Tasmania, set out detailed criteria for assessing the amount of solatium awards.
See Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 60(3); Land Acquisition and
Compensation Act 1986 (Vic) s 44; Lands Acquisition Act 1978 (NT) sch 2, r 9; Land Acquisition Act 1993
(Tas) s 30(3).
149
The government particularly needs to find out whether the person is residing on the land temporarily
or indefinitely. It is observed that ‘for instance for someone who has only recently moved into an area
and who works a long way off, has no real roots in the vicinity, with friends and family some distance
away, no payment may be necessary’. See Edgeworth, above n 91, 207. For similar views, see Chang,
above n 124, 169–70 (observing that ‘a homeowner who just moved into the house has lower subjective
value than does a homeowner whose family has lived in the house for three generations’)
150
Many pilot areas have developed and trialled these two in-kind compensation methods over several
years before the promulgation of the 2019 LAL. Thus, local regulations have more detailed provisions in
this regard, such as the construction standard and type of the replacement residence. See, eg, 《邵阳市
集体土地征收及房屋拆迁补偿安置办法》 [Measures of Shaoyang Municipality on the Expropriation
of Rural Collective Land and Compensation and Resettlement for Housing Demolition and Relocation]
(People’s Republic of China) Shaoyang Municipality Government, 1 January 2018, ch 3 (‘Measures of
Shaoyang Municipality’);《临湘市集体土地征收与房屋拆迁补偿安置办法》[Measures of Linxiang
Municipality on the Expropriation of Rural Collective Land and Compensation and Resettlement for
Housing Demolition and Relocation] (People’s Republic of China) Linxiang Municipality Government, 6
September 2019, ch 5.
151
See above n 141.

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legislatures in post-Kelo reform laws is probably not the ideal way to avoid
undercompensation.152 He believes ‘a schedule of bonus rate’ that is based on length
of occupancy and other factors ‘works better than a flat-rate bonus’ as this method is
more likely to reflect the amount of subjective value.153

One further consideration that might support such a payment is that some local
acquisition regulations, amended during reforms since the early 2000s, have required
governments to consider certain personal factors when determining the compensation
for housing acquisition and relocation. For example, Changde Municipal regulation
obligates the government to provide an additional 60 square metres of replacement
housing for multi-generation (four or above) families.154 Some local regulations award
additional hardship compensation for people who may not – or cannot – establish
themselves in a suitable residence due to health, infirmity and hardship issues such as
orphans, the elderly, the infirm, widows and widowers and the disabled. 155 Also, some
local rules require the education authority to arrange schooling for affected children
who attend primary or junior high schools and need to transfer to another school due
to housing expropriation.156 Accordingly, based on the existing provisions, it may not
be difficult to introduce the payment of solatium into China’s compensation regimes.
In short, an additional award for intangible disadvantages attributable to forced
relocation would increase the amount of compensation, and thereby reduce the
number of dissatisfied homeowners.

To sum up, it is believed the above recommendations will relieve expropriated

landholders’ concerns over the injustices inherent in the compensation standard and
the amount of compensation offered by acquiring authorities, and thereby allow China

152
See Chang, above n 124, 169.
153
Ibid.
154
《常德市集体土地征收与房屋拆迁补偿安置办法》[Measures of Changde Municipality on the
Expropriation of Rural Collective Land and Compensation and Resettlement for Housing Demolition and
Relocation] (People’s Republic of China) Changde Municipality Government, 1 March 2019, art 24.
155
See, eg, Measures of Ma’anshan Municipality art 40 (requiring an additional payment of RMB 50 000);
Measures of Shaoyang Municipality art 40 (providing a payment of RMB 30 000).
156
Ibid art 41(2).

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to achieve a better balance between protection of vested property rights and the need
to fulfil a public purpose.

6.6 CONCLUSION

This chapter has offered a detailed discussion of the compensation regimes in the
United States and Australia and their common approaches to achieving just
compensation in land acquisition. It has argued that the Chinese 2019 LAL is largely
consonant with its United States and Australian counterparts and in general has
achieved a proper balance between the public interest and private interests, although
there are remaining issues relating to the unjust compensation standard and the lack
of solatium awards. In order to address these issues, the chapter has put forward three
approaches drawing on the experience and practice of the United States and Australia.
The proposed improvements are:

• allowing an increased compensation standard where the acquired land is

evidenced to have a higher value than the amount of compensation calculated;

• allowing the recovery of legal costs and lawyers’ fees if the compensation
awarded at trial is more than 10 per cent greater than the government’s final
offer or the dollar amount that the lawyer can obtain for the expropriated
landholders;

• awarding solatium to the displaced homeowners: the payment would be

capped by 10 per cent of the value of acquired houses, which can be increased
in exceptional circumstances. In assessing the amount of compensation, all
relevant matters should be taken into account, including (1) the length of
occupancy; (2) the inconvenience likely to be suffered by the person; (3) health,
infirmity and hardship issues; and (4) the manner of resettlement for housing
acquisition chosen by the person.

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 CHAPTER 7 CONCLUSION

7.1 INTRODUCTION

From roads and highways that span the continent and hundreds of airports throughout
the country to the largest mileage of high-speed railway in the world, infrastructure
development in China has been phenomenal in the past three decades.1 The massive
infrastructure projects have required comparably enormous acquisition of land, which
inevitably resulted in rising tensions between broader public interest and private
property rights as millions of landholders were displaced. To resolve the tensions, the
Chinese government has made continuous efforts to improve the land acquisition
regulatory regime. However, whether the current regime has achieved an optimal
balance between public and private interests remains controversial. This is the
fundamental question that the thesis has explored.

An instructive way to do this is to examine how other countries address the problem.
Therefore, this thesis has drawn a detailed comparison with the United States and
Australian compulsory acquisition regimes given their much longer history in the
pursuit of balance between public and private interests. This exercise has generated a
number of ideas for designing the most suitable framework for China’s compulsory
acquisition system, which is the basic objective of this thesis.

7.2 THESIS QUESTIONS AND FINDINGS

To answer that fundamental question, the thesis has explored three more specific and
interrelated questions: (1) how Chinese approaches to constitutional property one the
one hand, and statutory compensation regimes on the other, compare with those of
the United States and Australia; (2) whether the United States and Australian current
approaches achieve an appropriate balance; and (3) which aspects, if any, of the
1
See, eg, Infrastructure has brought China forward over the last 70 years (24 September 2019) Global
Times < https://www.globaltimes.cn/content/1165370.shtml>.

194
United States or Australian approaches might be adopted for the improvement of
China’s law in the future.

The thesis has addressed these questions through a detailed and critical analysis of the
evolution, reforms and recent developments of China’s land acquisition regime and
the legal protections for property rights that it provides. It has reviewed the
establishment and development of the United States and Australian regimes in order
for a discussion of the approaches these regimes have adopted to achieve a balance
between public and private interests and the lessons China may learn to improve its
own regime. In particular, the thesis has examined the extensive Kelo-related
constitutional jurisprudence in the United States and the wide-ranging post-Kelo
statutory reforms. Similarly, it has investigated recent developments in Australia with a
focus on the procedural and compensation mechanisms for protecting private
property rights.

The major findings and arguments of the thesis have been that:

1. all the three jurisdictions have adopted, to use Jennifer Nedelsky’s influential
terminology, a ‘limitation-oriented’, as opposed to ‘guarantee-oriented’
approach to constitutional property that leaves private property rights more
open to governments’ regulatory and distributive policies.2 Meanwhile, they
have developed statutory compensation regimes to provide effective
protection for property holders;
2. the United States and Australian current approaches have achieved a
reasonable balance between the promotion of public interest and the
protection of property rights; and
3. some of the approaches of those regimes to control the power of compulsory
acquisition and to provide generous but fair compensation might be adopted
by China for the improvement of its compulsory land acquisition law.

2
See generally, Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism
(University of Chicago Press, 1990). For the discussion of the United States, Australian and Chinese
approaches to constitutional property, see Sections 2.2.3, 2.3.3 and 3.2.3.

195
The following section elaborates these findings and rationales for them.
7.3 FINDINGS AND RATIONALES

7.3.1 Constitutional Protection of Property Rights and Statutory Compensation under

the Three Jurisdictions

While favouring liberal ideas of property, both the United States and Australia have
ultimately adopted a limitation-oriented approach to constitutional property. The
United States courts have developed a limitation-oriented jurisprudence by loosening
the public use restrictions on the takings power, thereby granting the legislature
considerable room to regulate and distributive private property in the public interest
so long as it pays just compensation to former property holders. The Australian courts
also developed a limitation-oriented jurisprudence (at the federal level) but by limiting
the payment of compensation where property rights have been infringed by the
legislation. In consequence, compulsory acquisition regimes in the two jurisdictions in
recent years have become more adaptable to governments’ redistributive policies and
offer property holders more limited protection than the thorough-going liberal
approach (that is, a ‘guarantee-oriented’ approach) would require. By contrast, China
used to provide no constitutional protection to private property rights holders due to
its establishment of a property system that more or less exclusively advances the
public interest. Nevertheless, there has been a growing shift toward more liberal ideas
to property rights after the revival of property rights since the late 1970s. As a result,
China has adopted a limitation-oriented approach to constitutional property rights in
recent years by restricting the state’s expropriation power to public purpose as well as
requiring the payment of compensation to expropriation landholders. In doing so, the
three jurisdictions have shared a similar policy, that is, achieve a balance between the
promotion of public interest and the protection of private property rights.

Meanwhile, they all have developed statutory compensation regimes to provide a

legislative guarantee to property holders. The United States has shifted its focus from
the constitutional requirement of just compensation to compensation legislation that
provides fairer and more generous compensation for aggrieved property holders after

196
the Supreme Court’s controversial decision in Kelo v City of New London3 (‘Kelo’).
Despite the asymmetry of constitutional property protection between the federal and
state spheres in Australia, each of the state and territories as well as the
Commonwealth has enacted land acquisition statutes that share common ground in
guaranteeing that property owners will receive just compensation for compulsory land
acquisition. Given that the Chinese Constitution is not judicially enforceable, China has
also developed detailed statutory provisions to apply the constitutional compensation
requirement in specific cases.

Thus, all the three jurisdictions have adopted a limitation-oriented approach to

constitutional property rights while developing statutory compensation regimes to
provide effective protection to property holders.

7.3.2 The United States and Australian Approaches to Achieve An Appropriate

Balance

The United States compulsory acquisition regime has undergone significant

developments over the last two centuries. It offered strong constitutional protection of
property rights in the 19th century by restricting the use of takings power to a narrow
public interest test that required the acquired land to be used by the public, as well as
awarding fair market value of acquired property to the former owner. These
approaches have arguably achieved a balance between the public interest and private
property rights. Nevertheless, given the changing social needs during the 20th century,
the United States changed its position on private property. Specifically, the courts
broadened the public use test and allowed the government to transfer the acquired
land to private developers so long as the proposed use of property could potentially
create some sort of public benefits. However, the courts insisted on limiting awards of
compensation to fair market value, which disproportionately burdened on the
expropriated landowners due to the dramatical decline of implicit compensation in
non-public use cases. In doing so, the United States imposed unevenly limitations on

3
Kelo v City of New London, 545 US 469 (2005) (‘Kelo’).

197
property holders while strengthening public authority over private property in the
broader public interest. Ultimately, the heightened tension between public and private
interests have led to nationwide statutory reforms in the wake of Kelo. A groundswell
of state enacted legislation to restore the balance. On the one hand, although most
states have not categorically ruled out economic development takings, they have
placed further restrictions, of both a substantive and procedural nature, on the use of
the takings power. On the other hand, they have provided increased and additional
compensation to expropriated property holders as well as required the government to
negotiate with property holders in determining the amount of compensation, thereby
improving the protection of private property rights. In consequence, the United States
current approaches can be seen to achieve an appropriate balance between the public
and private interests.

Given that most instances of compulsory acquisition of property in Australia are

governed by state legislation, this section takes the New South Wales regime as an
example to explain whether Australian current approaches have achieved an even
balance. On the one hand, while the government has broad powers to legislate for the
acquisition of land, even with the sole aim of reselling the acquired land to private
developers, the statute has imposed certain procedural constraints that are effective
in controlling the expropriation power. On the other hand, the legislation offers fair
but generous compensation to expropriated landholders by providing payments for all
types of loss and developing special methods that deal with unique situations where
the market cannot produce a fair result. Therefore, Australian compensation regimes
can also be observed to strike a reasonable balance between the promotion of public
interest and the protection of property rights.

7.3.3 Lessons for China

The central inquiry as to the improvement of China’s law should be whether China’s
compulsory acquisition regime has achieved an equitable balance. It has been found in
this these that Chinese current approaches have achieved a proper balance after years
of reforms and developments.

198
While entrenching the public interest and compensation requirements in the
Constitution and laws, the research observes that China’s previous compulsory land
acquisition regime has several weaknesses, which are reflected in two major aspects:
(1) the unlimited power of compulsory land acquisition; and (2) the unjust
compensation paid to expropriated landholders. These deficiencies have certainly
promoted broader policy objectives in the public interest (ie, economic development),
but at the expense of the protection of property rights.

By including several successfully trialled reform measures, China’s current compulsory

acquisition regime has made significant headways in narrowing down the scope of
permissible land expropriation, as well as improving the compensation rules and
procedures of land acquisition. These developments have demonstrated that China’s
current regime has the potential to properly balancing the public interest and property
rights. However, it is observed that the current regime has not completely addressed
the weaknesses inherent in the previous acquisition regime. The remaining
deficiencies include: (1) the lack of appropriate limitations on tract development
acquisition, and (2) unjust compensation standards and the lack of payment for
solatium. These weaknesses may result from the significance of economic
development in China since the far-reaching 1978 economic reforms. But the
transformation of the economic growth model (from land-based to consumption-
driven) in China over the last decade indicates future opportunities for the
improvement of Chines land acquisition regime.

By bringing the approaches used by the United States and Australian regimes to
control the compulsory acquisition power by way of the comparison, the research has
uncovered the common approach used by them in regulating private-to-private
expropriation. This relates to the policy of allowing the transfer of expropriated land by
the government to private developers for economic development while imposing
certain statutory limits on the use of compulsory acquisition power. This comparison
reveals that the way China deals with tract development acquisition under the current
regime is similar to the regulation of private-to-private expropriation in the United

199
States and Australia, resulting in the achievement of a balance between the public
interest and property rights. As far as China’s judicial system is concerned, a feasible
and better approach in improving China’s law would be to impose more procedural
constraints on the exercise of the acquisition power, thereby reducing the
administrative discretion in the whole process. Drawing on the experience of the
United States and Australia, this research suggests three recommendations to improve
fairness and transparency in the land acquisition process:

1. introducing an acquisition-by-agreement mechanism by setting exhausting the

available rural for-profit construction land as the precondition for the use of
land acquisition power;
2. including two additional pre-acquisition procedures: that is, delivering a land
acquisition guide to potential expropriated landholders and allowing public
hearings concerning the land acquisition plan; and
3. establishing a post-acquisition information disclosure mechanism that requires
acquiring authorities to regularly collect and publish relevant data on the local
government website.

The thesis also compares the approaches adopted by the United States, Australian and
China’s regimes to the measure of compensation for compulsory acquisition. This
comparative exercise has revealed that China’s current compensation regime is mostly
consonant with those of the United States and Australia in three important aspects: (1)
compensating for the property loss and consequential loss induced by land acquisition;
(2) replacing market value of the acquired property with its replacement value in
specified circumstances; and (3) improving engagement with the property holder in
the valuation process. Also, the comparison reveals some plausible approaches that
can be adapted to China’s law to address the remaining issues concerning the unjust
compensation standard and the lack of solatium awards. Accordingly, the research
puts forward three recommendations to deliver a fairer outcome to expropriated
landholders:

200
 1. allowing an increased compensation standard where the acquired land is
evidenced to have a higher value than the amount of compensation offered by
the government;
2. allowing the recovery of legal costs and lawyers’ fees if the compensation
awarded at trial is more than 10 per cent greater than the government’s final
offer or the dollar amount that the lawyer can obtain for the expropriated
landholders; and
3. awarding solatium to the displaced homeowners. The payment is capped by 10
per cent of the value of acquired houses, which can be increased in exceptional
circumstances. In assessing the amount of compensation, all relevant matters
should be taken into account, including (1) the length of occupancy; (2) the
inconvenience likely to be suffered by the person; (3) health, infirmity and
hardship issues; and (4) the manner of resettlement for housing acquisition
chosen by the person.

7.4 OBJECTIVES OF THE THESIS

This thesis has sought to provide an original and comparative approach to

understanding contemporary compulsory land acquisition law in China. A detailed and
systemic comparison between the compulsory acquisition regulatory regimes in the
United States, Australia and China, with a focus on the fundamental balance between
public and private interests, is currently lacking in the literature. The thesis has offered
a critical analysis of the Australian and United States’ approaches to achieve such a
balance, the Chinese approaches in its latest legislative reforms and remaining
deficiencies, as well as the lessons China may learn from its counterparts. Although
Chuanhui Wang, for instance, has undertaken a systematic comparison between the
constitutional protection of private property in China, the United States, Germany and
India, his analysis has not taken into account much more recent developments, that is,
the post-Kelo legislative reforms in the United States.

In addition, the analysis in the thesis has extended beyond a simple comparison of
statutory provisions to discuss the philosophical basis of their ideas of property, the

201
historical and social roots of their compulsory acquisition regimes, the models of
protection of property rights that they provide, and, most importantly, the more
recent reforms and developments of their compulsory acquisition regimes. This wide-
ranging and multi-layered comparison reveals important similarities in their
frameworks and objectives (achieving a balance between the public and private
interests) of the compulsory acquisition law, and in certain approaches they have
developed to achieve that objective.

Also, the significance of this thesis lies in its comprehensive and critical analysis of
China’s current land acquisition regime. This thesis, to the best of my knowledge, is the
first to thoroughly investigate the strengths and weaknesses of most recent
developments of China’s current compulsory acquisition regime. The 2019 legislative
changes have introduced a range of new regimes and extensively modified the land
acquisition-related provisions to address the weaknesses inherent in the previous
regime.

In a more general sense, having observed the remaining issues of China’s current land
acquisition regime, the thesis has discussed and recommended several feasible
approaches to improve China’s land acquisition. It has argued that some specific
approaches adopted in the United States and Australia may be useful for China to
address those issues. More specifically, it has submitted that, based on the recent
experiences of the two Western jurisdictions, improvement of procedural rules in
China’s land acquisition regime would contribute to reducing the considerable
administrative discretion in the land acquisition process, thereby preventing abuse of
the land expropriation power by the government as well as providing an additional
layer of protection to affected landholders. The thesis has also submitted that an
increased compensation standard, the recovery of legal costs and lawyers’ fees as well
as the payment for solatium should be incorporated into China’s compensation system
so as to offer a more reasonable amount of compensation to expropriated landholders.
Using this approach, the government can, on the one hand, enhance the protection of
landholders’ property rights, and, on the other hand, dissuade otherwise disgruntled

202
landholders from contesting the amount offered by the government in court, thereby
avoiding unnecessary delays of infrastructure projects. It is believed that these
improvements will allow China to achieve a better balance between the broader public
interest and private property rights.

Of course, the thesis has not examined the entire range of compulsory acquisitions of
private property rights in China. For instance, it has not discussed the expropriation of
houses above state-owned land or the expropriation of private property for the large
and medium-sized water conservation and power construction projects, which are
prescribed in other regulations. These important issues are outside of the scope of the
thesis and need to be examined carefully in separate, future projects. Nevertheless,
the analysis and recommendations the thesis has offered, particularly in relation to the
systemic issue of how to strike a proper balance between public and private interests,
may well apply to and inform further research in other fields of compulsory land
acquisition law and its place within the broader domains of constitutional law and
property law.

203
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1984)

Edgeworth, Brendan, Butt’s Land Law (Thomson Reuters, 7th ed, 2017)

Edgeworth, Brendan, ‘Just Compensation and “Solatium”: Comparative Approaches in

Common Law Systems’ (2019) 8(2) European Property Law Journal 192

Edgeworth, Brendan, ‘When Does State Action Amount to Expropriation? Recent

Australian Developments’ in Björn Hoops et al (eds), Rethinking Expropriation Law I:
Public Interest in Expropriation (Eleven International Publishing, 2015)

Ely, James, The Guardian of Every Other Right: A Constitutional History of Property
Rights (Oxford University Press, 3rd ed, 2007)

Epstein, Richard, Supreme Neglect: How to Revive Constitutional Protection for Private
Property (Oxford University Press, 2008)

Epstein, Richard, Takings: Private Property and the Power of Eminent Domain (Harvard
University Press, 1985)

Eagle, Steven and Lauren Perotti, ‘Coping with Kelo: A Potpourri of Legislative and
Judicial Responses’ (2008) 42 Real Property, Pronate and Trust Journal 799

Fee, John, ‘Eminent Domain and the Sanctity of Home’ (2006) 81 Notre Dame Law
Review 783

Fennell, Lee Anne, ‘Taking Eminent Domain Apart’ (2004) 2004 Michigan State Law
Review 957

206
Farrand, Max (ed), The Records of the Federal Convention of 1787 (Yale University
Press, revised ed, 1937) vol 1

Garnett, Nicole Stelle, ‘The Neglected Political Economy of Eminent Domain’ (2006)
105 Michigan Law Review 101

Garnett, Nicole Stelle, ‘The Public-Use Question as a Takings Problem’ (2003) 71 The
George Washington Law Review 934

Hofman, Bert, ‘Reflections on 40 years of China’s reforms’ in Ross Garnaut, Ligang Song
and Cai Fang (eds), China’s 40 Years of Reform and Development: 1978–2018 (ANU
Press, 2018)

Hoops, Björn et al (eds), Rethinking Expropriation Law I: Public Interest in Expropriation

(Eleven International Publishing, 2015)

Heller, Michael and James Krier, ‘Deterrence and Distribution in the Law of Takings’
(1999) 112 Harvard Law Review 997

Hoecke, Mark Van (ed), Methodologies of Legal Research: Which Kind of Method for
What Kind of Discipline? (Hart Publishing, 2013)

Hoecke, Mark Van, ‘Methodology of Comparative Legal Research’ (2015) 12 Law and
Method 1

Heilmann, Sebastian (ed), China’s Political System (Rowman & Littlefield, 2016)

Hudson, Zac, ‘Eminent Domain Due Process’ (2010) 119 Yale Law Journal 1280

Jahr, Alfred, Law of Eminent Domain: Valuation and Procedure (Clark Boardman, 1953)

Jacobs, Marcus, Law of Compulsory Land Acquisition (Thomson Reuters, 2nd ed, 2015)

Jones, William ‘Trying to Understand the Current Chinese Legal System’ in Stephen Hsu
(ed), Understanding China's Legal System (New York University Press, 2003)

207
Jinglian, Wu and Ma Guochuan, Whither China?: Restarting the Reform Agenda
(Xiaofeng Hua and Nancy Hearst trans, Oxford University Press, 2016)

Knapp, Gregory, ‘Maintaining Government Accountability: Calls for a “Public Use”

Beyond Eminent Domain’ (2008) 83 Indiana Law Journal 1097

Krier, James and Christopher Serkin, ‘Public Ruses’ (2004) 2004 Michigan State Law
Review 859

Lee, Brian Angelo, ‘Just Undercompensation: The Idiosyncratic Premium in Eminent

Domain’ (2013) 113 Columbia Law Review 593

Liu, Chenglin, ‘Informal Rules, Transaction Costs, and the Failure of the “Takings” Law
in China’ (2005) 29 Hastings International and Comparative Law Review 1

Lewis, John, A Treatise on the Law of Eminent Domain in the United States (Callaghan,
1888)

Locke, John, ‘The Second Treaties of Government’ in Peter Laslett (ed), Locke: Two
Treatises of Government (Cambridge University Press, 1988)

Lovett, John, ‘“Somewhat at Sea”: Public Use and Third Party Transfer Limits in Two US
States’ in Björn Hoops et al (eds), Rethinking Expropriation Law I: Public Interest in
Expropriation (Eleven International Publishing, 2015)

Lovett, John, ‘Towards Sustainable Community Ownership: A Comparative Assessment

of Scotland’s New Compulsory Community Right to Buy’ in Malcolm Combe, Jayne
Glass and Annie Tindley (eds), Land Reform in Scotland: History, Law and Policy
(Edinburgh University Press, 2020)

Ladany, Laszlo, Law and Legality in China: The Testament of a China-Watcher

(University of Hawaii Press, 1992)

Leng, Shao-Chuan, ‘The Role of Law in the People’s Republic of China as Reflecting Mao
Tse-Tung’s Influence’ (1977) 68 Journal of Criminal Law and Criminology 356

208
Liu, Shouying, ‘The Structure of and Changes to China’s Land System’ in Ross Garnaut,
Ligang Song and Cai Fang (eds), China’s 40 Years of Reform and Development: 1978–
2018 (ANU Press, 2018)

Lin, Yan and Tom Ginsburg, ‘Constitutional Interpretation in Lawmaking: China’s

Invisible Constitutional Enforcement Mechanism’ (2015) 63 The American Journal of
Comparative Law 467

Lin, Yifu (Justin) ‘Collectivization and China’s Agricultural Crisis in 1959–1961’ (1990) 98
Journal of Political Economy 1228

Lin, Yifu (Justin) and Zhongkai Shen, ‘Reform and development strategy’ in Ross
Garnaut, Ligang Song and Cai Fang (eds), China’s 40 Years of Reform and Development:
1978–2018 (ANU Press, 2018)

Morriss, Andrew, ‘Symbol or Substance: An Empirical Assessment of State Responses

to Kelo’ (2009) 17 Supreme Court Economic Review 237

Melton, Buckner, ‘Eminent Domain, Public Use, and the Conundrum of Original Intent’
(1996) 36 Natural Resources Journal 59

Michelman, Frank, ‘Property, Utility, and Fairness: Comments on the Ethical

Foundations of “Just Compensation” Law’ (1967) 80 Harvard Law Review 116

Mann, F A, ‘Outlines of a History of Expropriation’ (1959) 75 Law Quarterly Review 188

Madison, James, ‘Property’ (1792) in Philip Kurland and Ralph Lerner (eds), The
Founders’ Constitution (University of Chicago Press, 1987) vol 1

Mahoney, Julia, ‘Kelo’s Legacy: Eminent Domain and the Future of Property Rights’
(2005) 2005 The Supreme Court Review 103

Marx, Karl, Capital (International Publishers, 1959) vol 3

Mihaly, Marc and Turner Smith, ‘Kelo’s Trail: A Survey of State and Federal Legislative
and Judicial Activity Five Years Later’ (2011) 38 Ecology Law Quarterly 703

209
Morris, Robert, ‘China’s Marbury: Qi Yuling v. Chen Xiaoqi – The Once and Future Trial
of Both Education & Constitutionalization’ (2010) 2 Tsinghua China Law Review 273

Merrill, Thomas, ‘Incomplete Compensation for Takings’ (2002) 11 New York University
Environmental Law Journal 110

Merrill, Thomas, ‘The Economics of Public Use’ (1986) 72 Cornell Law Review 61

Naughton, Barry, The Chinese Economy: Transitions and Growth (The MIT Press, 2007)

Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism

(University of Chicago Press, 1990)

Nichols, Philip, The Law of Eminent Domain: A Treatise on the Principles Which Affect
the Taking of Property for the Public Use, Volume II (Albany, NY: Matthew Bender, 2nd
ed, 1917)

Ostler, Duane, ‘The Drafting of the Australian Commonwealth Acquisition Clause’

(2009) 28 University of Tasmania Law Review 211

Orgel, Lewis, Valuation Under the Law of Eminent Domain (The Michie Company, 2nd
ed, 1953) vol 1

Peng, Chun, Rural Land Takings Law in Modern China: Origin and Evolution (Cambridge
University Press, 2018)

Pocock, J G A, The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition (Princeton University Press, first published in 1975, 2016 ed)

Peatman, Maureen, ‘High Court Reinforces Private Owners’ Rights’ (2009) 15 Local
Government Law Journal 80

Radin, Margaret Jane, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957

Peerenboom, Randall, China’s Long March toward Rule of Law (Cambridge University
Press, 2002)

210
Pritchett, Wendell, ‘The “Public Menace” of Blight: Urban Renewal and the Private
Uses of Eminent Domain’ (2003) 21 Yale Law & Policy Review 1

Pritchett, Wendell, ‘A Solution in Search of a Problem: Kelo Reform Over Ten Years’
(2016) 48 Connecticut Law Review 1483

Serkin, Christopher, ‘Local Property Law: Adjusting the Scale of Property Protection’
(2007) 107 Columbia Law Review 883

Sackman, Julius et al, Nichols on Eminent Domain (New York: Matthew Bender, 3rd
revised edition, 2002) vol 4

Somin, Ilya, ‘Overcoming Poletown: County of Wayne v. Hathcock, Economic

Development Takings, and the Future of Public Use’ (2004) 2004 Michigan State Law
Review 1005

Somin, Ilya, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent
Domain (University of Chicago Press, 2015)

Somin, Ilya, ‘Putting Kelo in Perspective’ (2016) 48 Connecticut Law Review 1483

Story, Joseph, Commentaries on the Constitution of the United States (Hilliard, Gray,
and Company; Brown, Shattuck and Company, 1833) vol 3

Schram, Stuart, ‘China after the 13th Congress’ (1988) 114 The China Quarterly 177

Stoebuck, William, ‘A General Theory of Eminent Domain’ (1972) 47 Washington Law

Review 553

Treanor, William, ‘The Origins and Original Significance of the Just Compensation
Clause of the Fifth Amendment’ (1985) 94 Yale Law Journal 694

Van der Walt, AJ, Constitutional Property Clauses: A Comparative Analysis (Juta, 1999)

Van der Walt, AJ, ‘The Constitutional Property Clause: Striking a Balance Between
Guarantee and Limitation’ in Janet McLean (ed), Property and the Constitution (Hart
Publishing, 1999)

211
Wang, Chuanhui, The Constitutional Protection of Private Property in China: Historical
Evolution and Comparative Research (Cambridge University Press, 2016)

Wyman, Katrina, ‘The Measure of Just Compensation’ (2007) 41 UC Davis Law Review
239

Xi, Chao, ‘Transforming Chinese Enterprises: Ideology, Efficiency and Instrumentalism

in the Process of Reform’ in John Gillespie and Pip Nicholson (eds), Asian Socialism and
Legal Change: The Dynamics of Vietnamese and Chinese Reform (Asia Pacific Press,
2005)

Xu, Ting, ‘A law-and-community approach to compensation for takings of property

under the European Convention on Human Rights’ (2019) 39 Legal Studies 398

Xu, Ting, ‘Towards an Evolutionary Theory of Property? A Longitudinal Analysis of

Property Regime Transformation in China’ (2017) 12 Journal of Comparative Law 496

Xu, Ting, The Revival of Private Property and Its Limits in Post-Mao China (Wildy,
Simmonds & Hill Publishing, 2014)

Zhang, Mo, ‘From Public to Private: The Newly Enacted Chinese Property Law and the
Protection of Property Rights in China’ (2008) 5(2) Berkeley Business Law Journal 317

Zhang, Mo, ‘The Socialist Legal System with Chinese Characteristics: China’s Discourse
for the Rule of Law and a Bitter Experience’ (2010) 24 Temple International &
Comparative Law Journal 1

Zhu, Suli, ‘The Party and the Courts’ in Randall Peerenboom (ed), Judicial Independence
in China (Cambridge University Press, 2009)

Zhao, Yanrong, ‘The Way to Understand the Nature and Extent of Judicial
Independence in China’ (2019) 6 Asian Journal of Law and Society 131

1.2 CASES

Australia

212
Andrews v Howell (1941) 65 CLR 255

Brell v Penrith City Council (1965) 11 LGRA 156

Bank of New South Wales v Commonwealth (1948) 76 CLR 1

Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109

Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62

Drew v Commissioner of Highways (1972) 27 LGRA 281

Durham Holdings Pty Ltd v New South Wales [2001] HCA 7

Director of Buildings and Lands v Shun Fung Iron Works Ltd [1995] 2 AC 111

Griffiths v Minister of Lands, Planning and Environment (2008) 235 CLR 23

Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269

Hua v Hurstville City Council [2010] NSWLEC 61

Howard v Minister (1939) 14 LGR (NSW) 74

Konolow v Minister for Works [1961] WAR 40

Kennedy Street Pty Ltd v Minister (1962) 8 LGRA 221

Leichhardt Council v Roads and Traffic Authority of NSW (2006) 149 LGERA 439

Marroun v Roads and Maritime Services [2012] NSWLEC 199

McDonald v Roads & Traffic Authority of NSW [2009] NSWLEC 105

Mabo v Queensland (1988) 166 CLR 186

Minister of Works v Antonio [1966] SASR 54

Mutual Pools & Staff Pty Ltd v Commonwealth (1948) 179 CLR 155

Prentice v Brisbane City Council (1966) Qd R 394

213
Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac’s Pty
Ltd [2008] NSWCA 132

Pastoral Finance Association Ltd v Minister [1914] AC 1083

P J Magennis Pty Ltd v The Commonwealth (1949) 80 CLR 382

Robertson v Commissioner for Main Roads (1987) 63 LGRA 420

R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta
City Council (2009) 237 CLR 603

Roads & Traffic Authority of NSW v McDonald (2010) 79 NSWLR 155

Spencer v Commonwealth [1907] 5 CLR 418

Stirling Finances Ltd v Minister of Water Resources (1984) 52 LGRA 289

Sydney Municipal Council v Campbell (1925) AC 388

The State of New South Wales v The Commonwealth (1915) 20 CLR 54

Wurridjal v Commonwealth [2009] HCA 2

Yates Property Corp Pty Ltd v Boland (1997) 145 ALR 169

United States of America

Bauman v Ross, 167 US 548 (1897).

Beekman v Saratoga & Schenectady Railroad Co, 3 P 45 (NY, 1831)

Berman v Parker, 348 US 26 (1954)

Brown v Legal Foundation of Wash, 538 US 216 (2003)

Bd of County Comm'rs of Muskogee County v Lowery, 136 P 3d 639 (Okla, 2006)

Calder v Bull, 3 US 386 (1798)

Chicago, Burlington & Quincy Railroad Co v City of Chicago, 166 US 226 (1897)

214
Common Cause v State, 455 A 2d 1 (Me, 1983)

Coniston Corp v Village of Hoffman Estates, 844 F 2d 461 (7th Cir, 1988)

County of Wayne v Hathcock, 684 NW 2d 765 (Mich, 2004)

Centene Plaza Redevelopment Corp v Mint Properties, 225 S W 3d 431 (Mo, 2007)

Casino Reinvestment Development Authority v Banin, 727 A 2d 102 (1998)

Georgia v Chattanooga, 264 US 472 (1924)

Goldstein v New York State Urban Development Corp, 921 N E 2d 164 (NY, 2009)

Gallenthin Realty Development, Inc v Borough of Paulsboro, 924 A 2d 447 (NJ, 2007)

Hawaii Housing Authority v Midkiff, 467 US 229 (1984)

In re: Condemnation of 110 Washington St, 788 A 2d 1154 (2001)

Kelo v City of New London, 545 US 469 (2005)

Kelo v City of New London, 843 A 2d 500 (Conn, 2004)

Kaur v New York State Urban Development Corp, 933 N E 2d 721 (NY, 2010)

Kohl v United States, 91 US 367 (1875)

Kimball Laundry Co v United States, 338 US 1 (1949)

McCandless v United States, 298 US 342 (1936)

Missouri ex rel Jackson v Dolan, 398 S W 3d 472 (Mo, 2013)

Monongahela Navigation Co v United States, 148 US 312 (1893)

Middletown Township v Lands of Stone, 939 A 2d 331 (Pa, 2007)

Norwood v Horney, 853 N E 2d 1115 (Ohio, 2006)

Olson v United States, 292 US 246 (1934)

215
Pennsylvania Coal Co v Mahon, 260 US 393 (1922)

Poletown Neighbourhood Council v City of Detroit, 304 NW 2d 455 (Mich, 1981)

Shoemaker v United States, 147 US 282 (1893)

Southwestern Illinois Development Authority v National City Environmental, 768 NE 2d

1 (2002)

Salt Lake City Corp v Evans Dev Group, LLC, 369 P 3d 1236 (Utah, 2016)

United States v Carmack, 329 US 230 (1946)

United States v Cors, 337 US 325 (1949)

United States v Certain Property, 403 F 2d 800 (2nd Cir, 1968)

United States v Commodities Trading Co, 339 US 121 (1950)

United States v Miller, 317 US 369 (1943)

United States v Reynolds, 397 US 14 (1970)

United States v Toronto, Hamilton & Buffalo Navigation Co, 338 US 396 (1949)

United States ex rel. TVA v Welch, 327 US 546 (1946)

United States v 1,291.83 Acres of Land, 411 F 2d 1081 (6th Cir, 1969)

United States v 320.0 Acres of Land, 605 F 2d 762 (5th Cir, 1979)

United States v 46,672.96 Acres of Land, 521 F 2d 13 (10th Cir, 1975)

United States v 50 Acres of Land, 469 US 24 (1984)

United States v 564.54 Acres of Land, 441 US 506 (1979)

Wilkinson v Leland, 27 US 627 (1829)

Wilmington Parking Authority v Land with Improvements, 521 A 2d 227 (Del, 1986)

216
99 Cent Only Store v Lancaster Redevelopment Authority, 237 F Supp 2d 1123 (2001)

1.3 (QUASI-) LEGISLATIVE MATERIALS AND POLICY DOCUMENTS

Australia

Australian Constitution s 51(xxxi)

Acquisition of Land Act 1967 (Qld)

Constitution Act 1902 (NSW)

Education Act 1990 (NSW)

Land Acquisition Act 1969 (SA)

Lands Acquisition Act 1978 (NT)

Lands Acquisition Act 1989 (Cth)

Land Acquisition Act 1993 (Tas)

Land Acquisition Act 1994 (ACT)

Land Administration Act 1997 (WA)

Land Acquisition and Compensation Act 1986 (Vic)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Lands for Public Purposes Acquisition Act 1880 (NSW)

Local Government Act 1993 (NSW)

Public Works Act 1912 (NSW)

Roads Act 1993 (NSW)

Roads and Streets Act 1833 (NSW)

Transport Administration Act 1988 (NSW)

217
United Kingdom

Land Clauses Consolidation Act 1845 (UK)

United States of America

Ala Code (LexisNexis Supp 2006)

Ariz Rev Stat Ann (West Supp 2007)

Alaska Stat (2006)

Cal Health & Safety Code Ann (West 1999).

Cal Health & Safety Code Ann (West Supp 2007)

Del Code Ann tit 29 (Supp 2006)

Fla Stat (West Supp 2007)

Georgia Constitution art IX § 2

Ind Code (LexisNexis Supp 2006)

Iowa Code (2008)

Ky Rev Stat Ann (LexisNexis Supp 2006)

Kan Stat Ann (Supp 2006).

Michigan Constitution art X

Mant Code Ann (2007)

Md Code Ann Real Property (LexisNexis Supp 2007)

Mo Rev Stat (West 2007)

Minn Stat (West Supp 2007)

NH Rev Stat Ann (LexisNexis Supp 2006)

218
Pa Cons Stat Ann (West Supp 2007)

Rev Stat (West, 2005)

SD Codified Laws (Supp 2007)

Texas Code Ann (Supp 2006)

Utah Code Ann (Supp 2007)

United States Constitution amend V

Va Code Ann (Supp 2007)

Wyo Stat Ann (2007)

W Va Code (LexisNexis Supp 2007)

1.4 OTHER

Castle Coalition, 50 State Report Card: Tracking Eminent Domain Reform Legislation
since Kelo (August 2007) <https://ij.org/wp-
content/uploads/2015/03/50_State_Report.pdf>

Customer Service Commissioner, NSW Housing Acquisition Review Summary Report

(14 September 2016) <
https://www.finance.nsw.gov.au/sites/default/files/Customer_Service_Commissioner
_NSW_Housing_Acquisition_Review_Summary_Report.pdf>

China Science Centre of International Eurasian Academy of Sciences et al, The State of
China’s Cities 2014/2015 (March 2014)
<https://unhabitat.org/sites/default/files/download-manager-
files/State%20of%20China%20Cities.pdf>

Infrastructure has brought China forward over the last 70 years (24 September 2019)
Global Times < https://www.globaltimes.cn/content/1165370.shtml>

219
Marx, Karl, ‘The Nationalisation of the Land’ (1872) The International Herald
<https://www.marxists.org/archive/marx/works/1872/04/nationalisation-land.htm>

Marx, Karl and Frederick Engels, Manifesto of the Communist Party (February 1848)
<https://www.marxists.org/archive/marx/works/download/pdf/Manifesto.pdf>

Madison Speech Proposing the Bill of Rights (8 June 1789) American History <
http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-
of-rights-june-8-1789.php>

National Conference of State Legislatures, Partisan composition of State Legislatures

2002–2014 <https://www.ncsl.org/documents/statevote/legiscontrol_2002_2014.pdf>

NSW Government Response to Review of the NSW Land Acquisition (Just Terms)
Compensation Act 1991 and Housing Acquisition Review (2016)
<https://www.propertyacquisition.nsw.gov.au/sites/default/files/resources/NSW_Gov
ernment_Response_Property%20Acquisition%20Reform.pdf>

Oral Argument Transcript, Kelo v City of New London (Supreme Court of the United
States, 22 February 2005)

Ollivier, Gerald, Jitendra Sondhi and Nanyan Zhou, High-Speed Railways in China: A
Look at Construction Costs (China Transport Topics No 9, World Bank, July 2014)
<http://documents.worldbank.org/curated/en/695111468024545450/pdf/892000BRI
0Box3000china0transport09.pdf>

Russell SC, David, Review of the Land Acquisition (Just Terms Compensation) Act 1991
(February 2014)
<https://www.finance.nsw.gov.au/sites/default/files/David_Russell_SC_JTC_Review_R
eport.pdf>

Susan Lawrence and Michael Martin, Understanding China’s Political System (20 March
2013) <https://www.fas.org/sgp/crs/row/R41007.pdf>

220
The Honourable TF Bathurst AC, Separation of Powers: Reality or Desirable Fiction? (11
October 2013) < http://classic.austlii.edu.au/au/journals/NSWJSchol/2013/39.pdf>

Vogell, Heather, ‘Fort Trumbull Residents Say They Want to Stay Put: Most in Favour of
Plans for Revitalisation, but Not if it Means Moving’, The Day, 6 January 1999

World Bank and Development Research Centre of the State Council of the People’s
Republic of China, Urban China: Toward Efficient, Inclusive, and Sustainable
Urbanization (2014) < https://elibrary.worldbank.org/doi/10.1596/978-1-4648-0206-
5_ch4#>

Xinhua, China aims to add 2000 km high-speed railways in 2020 (4 January 2020) <
http://www.xinhuanet.com/english/2020-01/04/c_138677830.htm>

Xinhua, Economic Watch: China speeds up ‘new infrastructure’ investment to combat

economic pressure (5 March 2020) Xinhuanet
<http://www.xinhuanet.com/english/2020–03/05/c_138846271.htm>

2. CHINESE REFERENCES

2.1 ARTICLES/BOOKS/REPORTS

江苏省高级人民法院行政审判庭 [Administrative Trial Division of the High People’s

Court of Jiangsu Province], 《农村集体土地征收行政案件审理疑难问题研究》
[Research on Knotty Problems of Trial of Administrative Cases of Rural Collective Land
Expropriation] (2010) 6 法律适用 Journal of Law Application 10

Crommelin, Michael, 胡玉桃（译）[Hu Yutao trans], 《澳大利亚的土地权益及其征

收与管理》 [Land Rights, Compulsory Land Acquisition and Land Management in
Australia] in 张千帆（主编）[Zhang Qianfan (ed)], 《土地管理制度比较研究》 [A
Comparative Study of Land Reform] (中国民主法制出版社 [China Democracy and
Legal System Publishing House], 2013)

陈永生 [Chen Yongsheng], 《司法经费与司法公正》 [Funding of the Judiciary and

Judicial Fairness] (2009) 3 中外法学 Peking University Law Review 390

221
戴娜敏, 包亮 [Dai Namin, Bao Liang] 《安置补偿改革研究—以内蒙古自治区和林格
尔县为例》 [Research on the Reform of Resettlement and Compensation — Horinger
County of the Inner Mongolia Autonomous Region as the example] (2019) 2 Journal of
Inner Mongolia Radio & TV University 49

高 飞 [Gao Fei], 《 集体 土 地 征 收 中 公 共 利 益 条 款 的 法 理 反 思 与 制 度 回 应 》
[Jurisprudential Review and System Response to Public Interest Clauses in
Expropriation of Collective-owned Land] (2018) 1 甘肃政法学院学报 Journal of Gansu
Political Science and Law Institute 47

高圣平 [Gao Shengping], 《发展经济是土地征收的正当理由吗?—凯洛诉新伦敦市

案》 [Is Developing the Economy a Due Cause for Land Acquisition? — Kelo v City of
New London] (2014) 2 苏州大学学报(法学版) Journal of Soochow University (Law
Edition) 126

衡爱民 [Heng Aiming], 《美国土地征收制度的历史考察》 [Historical Investigation

into the Land Acquisition System of the United States] (2016) 1 法学评论 Law Review
159

胡锦光, 王锴 [Hu Jinguang and Wang Kai], 《论我国宪法中 “公共利益” 的界定》

[The Definition of Public Interest in Chinese Constitution] (2005) 1 中国法学 China
Legal Science 18

江必新 主编[Jiang Bixin] (ed), 《最高人民法院关于审理涉及农村集体土地行政案件

若干问题的规定理解与适用》[Understanding and Application of the Provisions of
the Supreme People’s Court on Several Issues concerning the Trial of Administrative
Cases involving Rural Collectively Owned Land] (北京：中国法制出版社 [Beijing:
China Legal Publishing House], 2013)

刘芳圣, 王玥, 李岩, 世海 [Liu Fangsheng, Wang Yue, Li Yan and Shi Hai], 《国有土地
上房屋征收补偿现状调查—基于全国 43 个城市的调研》 [Investigation on the
Present Situation of Compensation for Housing Expropriation above State-owned Land

222
— based on a Survey of 43 Cities across the Country] (2017) 10 中国房地产 China Real
Estate 60

梁彗星 [Liang Huixing], 《中国物权法草案建议稿：条文、说明、理由与参考立法

例》 [Recommended Draft of Chinese Property Law: Clauses, Explanations, Rationales
and Reference Legislative Models] (社会科学文献出版社 [Social Sciences Academic
Press (China)], 2000)

刘连泰 [Liu Liantai], 《征收补偿中的主观价值》 [Subjective Value in Compensation

for Expropriation] (2020) 2 法学家 The Jurist 45

刘连泰, 余文清 [Liu Liantai and Yu Wenqing], 《公平市场价值在集体土地征收补偿

中的适用》 [The Application of Fair Market Value in Collective Land Expropriation
Compensation] (2019) 10 浙江社会科学 Zhejiang Social Science 21

楼建波等 主编 [Lou Jianbo et al (eds)], 《土地储备及土地一级开发法律制度》

[Legal Framework of Land Reserve and Primary Land Development] (中国法制出版社
[China Legal Publishing House], 2009)

廖加龙 [Liao Jialong], 《关于 “公共利益” 的范围》[On the Scope of Public Interest]
(2006) 7 人大研究 People’s Congress Research 29

吕图, 刘向南, 刘鹏 [Lv Tu, Liu Xiangnan and Liu Peng], 《程序公正与征地补偿: 基于
程 序 性 权 利 保 障 的 影 响 分 析 》 [Procedural Justice and Land Acquisition
Compensation: Based on the Influential Analysis of Procedural Rights Guarantee] (2018)
9 资源科学 Resources Science 1742

刘向民 [Liu Xiangmin] 《中美征收制度重要问题之比较研究》 [A Comparative Study

of the Important Issues in Compulsory Acquisition Regimes in China and the United
States] (2007) 6 中国法学 China Legal Science 3

鹿心社 主编 [Lu Xinshe (ed)], 《研究征地问题探索改革之路》 [Studying the

Problems of Land Acquisition and Exploring the Path of Reform] (中国大地出版社
[China Dadi Press], 2003)

223
林彦， 姚佐莲 [Lin Yan and Yao Zuolian], 《美国土地征收中公共用途的司法判定—
财产权地位降格背景下的思考兼对我国的启示》 [Judicial Determination of Public
Use in US Land Acquisition — Reflection under the Degradation of Property Rights and
Implications for China] (2010) 1 交大法学 SJTU Law Review 211

李志强 [Li Zhiqiang], 《澳大利亚土地征收制度初探》[A Preliminary Study of Land

Expropriation System in Australia] in 姜明安（主编）[Jiang Minan (ed)], 行政法论丛
（第 14 卷）[Administrative Law Review (vol 14)] (法律出版社 [Law Press China],
2011)

缪晨刚，黄志良 [Miu Chengang, Huang Zhiliang], 《珠三角城郊失地农民生存发展

状况调查与对策研究》 [Investigation of Survival and Development Conditions of
Land-losing Peasants in Pearl Delta Suburbs and Countermeasure Research] (2008) 15
安徽农业科学 Journal of Anhui Agricultural Sciences 6556

中华人民共和国国土资源部(编) [Ministry of Land and Resources of the People’s

Republic of China (ed)], 《中国国土资源统计年鉴 2012》 [China Land and Resources
Statistical Yearbook 2012] (地质出版社 [Geological Publishing House], 2012)

中华人民共和国国土资源部(编) [Ministry of Land and Resources of the People’s

Republic of China (ed)], 《中国国土资源统计年鉴 2015》 [China Land and Resources
Statistical Yearbook 2015] (地质出版社 [Geological Publishing House], 2015)

中华人民共和国自然资源部(编) [Ministry of Natural Resources of the People’s

Republic of China (ed)], 《中国国土资源统计年鉴 2018》 [China Land and Resources
Statistical Yearbook 2018] (地质出版社 [Geological Publishing House], 2018)

屈茂辉、周志芳 [Qu Maohui, Zhou Zhifang], 《中国土地征收补偿标准研究—基于

地方立法文本的分析》 [Study on Compensation Standards for Land Expropriation in
China — An Analysis based on Local Legislative Texts] (2009) 3 法学研究 Chinese
Journal of Law 163

224
乔仕彤，毛文峥 [Qiao Shitong, Mao Wenzheng], 《行政征收的司法控制之道：基于
各 高 级 法 院 裁 判 文 书的 分 析 》 [The Way of Judicial Control of Administrative
Acquisitions: An Analysis based on High People’s Courts’ Decisions] (2018) 12 清华法
学 Tsinghua University Law Journal 68

佀连涛, 丁 文 [Si Liantao, Ding Wen] 《土地征收制度改革中农民土地权益保护研究

—基于 9 省 920 个被征地农户样本的分析》 [Study on the Protection of Farmers’
Land Rights and Interests during the Reform of Land Expropriation System — Based on
the Analysis of 920 Samples of Expropriated Farmers in Nine Provinces] (2018) 1 中国
农村研究 China Rural Studies 118

宋志红 [Song Zhihong], 《美国征收补偿的公平市场价值标准及对我国的启示》

[The Fair Market Value Standard in the Compensation of Eminent Domain in the
United States and Implications for China] (2014) 6 法学家 The Jurist 123

唐健 [Tang Jian], 《征地制度改革的回顾与思考》[Review and Discussion on Land

Acquisition Reform] (2011) 25 中国土地科学 China Land Science 3

汪晖, 陈箫 [Wang Hui and Chen Xiao], 《土地征收中的农民抗争、谈判和补偿—基

于大样本调查的实证分析》[Farmers’ Struggle, Negotiation and Compensation for
Land Acquisition — Based on a Nationally Survey Data] (2015) 8 农业经济问题 Issues
in Agricultural Economy 63

王利明 [Wang Liming], 《<物权法>的实施与征收征用的完善》[On Application of

the Property Law and Improvement on Expropriation and Requisition] (2008) 4 法学杂
志 Law Science Magazine 15

王利明 [Wang Liming], 《论征收制度中的公共利益》[On Public Interest in the

Expropriation Regime] (2009) 2 政法论坛 Tribune of Political Science and Law 22

汪庆华 [Wang Qinghua], 《土地征收、公共使用与公平补偿—评 Kelo v City of New

London 一案判决》[Takings, Public Use and Fair Compensation — Comments on Kelo
v City of New London] (2007) 8 北大法律评论 Peking University Law Review 479

225
叶红玲 [Ye Hongling],《征地制度改革冲击波—从七城市试点看 “缩小征地范围” 的
改革前景》[The Shock of Land Expropriation Reform — Assessing the Reform
Prospects of Narrowing Down the Scope of Land Expropriation from Pilot Projects in
Seven Cities] (2014) 4 中国土地 China Land 6

于晓红 [Yu Xiaohong], 《策略性服从：我国法院如何推进行政诉讼》 [Strategic

Deference: How do Chinese Courts Advance Administrative Litigation] (2014) 8(4) 清华
法学 Tsinghua University Law Journal 103

张千帆 [Zhang Qianfan], 《 “公正补偿” 与征收权的宪法限制》 [Just Compensation

and Constitutional Limitations on the Compulsory Acquisition Power] (2005) 2 法学研
究 Chinese Journal of Law 25

张千帆 [Zhang Qianfan], 《 “公共利益” 的困境与出路：美国公用征收条款的宪法

解 释 及 其 对 中 国 的 启 示 》 [The Dilemma and Solution of Public Interest: The
Constitutional Interpretation of the American Takings Clause and its Implications to
China] (2005) 5 中国法学 China Legal Science 36

朱嵘 [Zhu Rong], 《对征地行政案件司法政策的思考》 [Reflections on Judicial

Policies toward Administrative Cases of Land Acquisition] (2010) 9 人民司法 People’s
Judicature 101

左卫民 [Zuo Weimin], 《省级统管地方法院法官任用改革审思》 [Reflections on the

Reform of Centralising the Appointment of Local Judges to the Provincial Level] (2015)
4 法学研究 Chinese Journal of Law 23

2.2 CASES

《谷玉梁、孟巧林诉江苏省盐城市亭湖区人民政府房屋征收补偿决定案》 [Gu
Yuliang, Meng Qiaolin v People’s Government of Tinghu District, Yancheng
Municipality, Jiangsu Province — Case of the Compensation Decision for House
Expropriation]

226
《焦吉顺诉河南省新乡市卫滨区人民政府行政征收管理案》 [Jiao Jishun v People’s
Government of Weibin District, Xinxiang Municipality, Henan Province — Case of
Administration of Administrative Expropriation]

《陆继尧诉江苏省泰兴市人民政府济川街道办事处强制拆除案》[Lu Jiyao v Sub-

district Office of the People’s Government of Taixing Municipality, Jiangsu Province —
Case of Forced Demolition]

《吉林省永吉县龙达物资经销处诉吉林省永吉县人民政府征收补偿案》[Longda
Material Distribution Centre in Yongji County, Jilin Province v People’s Government of
Yongji County, Jilin Province — Case of Compensation for Expropriation]

《孙德兴诉浙江省舟山市普陀区人民政府房屋征收补偿案》[Sun Dexing v People’s

Government of Putuo District, Zhoushan Municipality, Zhejiang Province — Case of
Compensation for the House Expropriation]

《王风俊诉北京市房山区住房和城乡建设委员会拆迁补偿安置行政裁决案》
[Wang Fengjun v Housing and Urban-Rural Development Commission of Fangshan
District, Beijing — Case of the Administrative Decision on Compensation and
Resettlement for Demolition]

《王江超等 3 人诉吉林省长春市九台区住房和城乡建设局紧急避险决定案》
[Wang Jiangchao et al v Housing and Urban-Rural Development Bureau of Jiutai District,
Changchun Municipality, Jilin Province — Case of Decision on Necessity]

《王艳影诉辽宁省沈阳市浑南现代商贸区管理委员会履行补偿职责案》[Wang
Yanying v Administration Commission of Hunnan Modern Commerce and Trade Zone,
Shenyang Municipality, Liaoning Province — Case of Fulfillment the Duty to Pay
Compensation]

2.2 (QUASI-) LEGISLATIVE MATERIALS AND POLICY DOCUMENTS

227
《中华人民共和国行政强制法》[Administrative Compulsion Law of the People’s
Republic of China] (People’s Republic of China) Standing Committee of the National
People’s Congress, 20 June 2011

《中华人民共和国行政诉讼法（2017 修正）》 [Administrative Litigation Law of the

People’s Republic of China (2017 Amendment)] (People’s Republic of China) Standing
Committee of the National People’s Congress, 27 June 2017

《 北 京 市 集 体 土 地 房 屋 拆 迁 管 理 办 法 》 [Administration Measures of Beijing

Municipality on the Demolition of Houses above Collective-owned Land] (People’s
Republic of China) Beijing Municipality Government, 6 June 2003

《自然资源部关于公布第二批已废止或者失效的规范性文件目录的公告》
[Announcement of the Ministry of Natural Resources on Issuing the Catalogue of the
Second Group of Repealed or Invalidated Regulatory Documents] (People’s Republic of
China) Ministry of Natural Resources, 24 March 2020

《中华人民共和国行政复议法（2017 修正）》 [Administrative Reconsideration

Law of the People’s Republic of China (2017 Amendment)] (People’s Republic of China)
Standing Committee of the National People’s Congress, 1 September 2017

《城市用地分类与规划建设用地标》 [Code for Classification of Urban Land Use and

Planning Standards of Development Land] (People’s Republic of China) Ministry of
Housing and Urban-Rural Development, 24 December 2010

《中华人民共和国宪法》 (1954)（失效）[Constitution of the People’s Republic of

China] (Repealed)

《中华人民共和国宪法》 (1975) （失效）[Constitution of the People’s Republic of

China] (Repealed)

《中华人民共和国宪法》 (1978) （失效）[Constitution of the People’s Republic of

China] (Repealed)

228
《中华人民共和国宪法 （2004 修正）》[已被修订] [Constitution of the People’s
Republic of China (2004 Amendment)] (Revised)

《中华人民共和国宪法（2018 修正）》[Constitution of the People’s Republic of

China (2018 Amendment)]

《中共中央关于全面深化改革若干重大问题的决定》 [Decision of the Central

Committee of the Communist Party of China on Major Issues concerning
Comprehensive Deepening Reforms] (People’s Republic of China) Central Committee
of the Communist Party of China, 15 November 2013

《中共中央关于关于完善社会主义市场经济体制若干问题的决定》 [Decision of
the Central Committee of the Communist Party of China on Several Issues concerning
the Improvement of the Socialist Market Economy System] (People’s Republic of China)
Central Committee of the Communist Party of China, 21 October 2003

《中共中央关于推进农村改革发展若干重大问题的决定》 [Decision of the Central

Committee of the Communist Party of China on Several Major Issues concerning
Promoting Rural Reform and Development] (People’s Republic of China) Central
Committee of the Communist Party of China, 12 October 2008

《自然资源部关于第二批废止和修改的部门规章的决定》 [Decision of the Ministry

of Natural Resources on the Second Group of Repealed and Amended Department
Rules] (People’s Republic of China) Ministry of Natural Resources, 20 March 2020

《国务院关于深化改革严格土地管理的决定》[Decision of the State Council on

Deepening Reforms and Intensifying Strict Land Administration] (People’s Republic of
China) State Council, 21 October 2004

《全国人民代表大会常务委员会关于授权国务院在北京市大兴区等三十三个试点
县（市、区）行政区域暂时调整实施有关法律规定的决定》 [Decision of the
Standing Committee of the National People’s Congress on Authorising the State
Council to Provisionally Adjust the Implementation of Relevant Legal Provisions in the
Administrative Areas of 33 Counties (Municipalities and Districts) under the Pilot

229
Program including Daxing District of Beijing Municipality] (People’s Republic of China)
Standing Committee of the National People’s Congress, 27 February 2015

《农村集体土地征收基层政务公开标准指引》[Guidance on Openness Standards of

Rural Collective-owned Land Expropriation Affairs] (People’s Republic of China)
Ministry of Natural Resources, 27 June 2019

《外商投资开发经营成片土地暂行管理办法》（失效）[Interim Measures on the

Administration of the Foreign-invested Development and Management of Tracts of
Land] (Repealed) (People’s Republic of China) State Council, 19 May 1990

《劳动保障部关于做好被征地农民就业培训和社会保障工作指导意见》 [Guiding
Opinions of the Ministry of Labour and Social Security on the Work of Providing
Occupational Training and Social Security to the Expropriated Farmers] (People’s
Republic of China) Ministry of Labour and Social Security, 10 April 2006

《2010 年国土资源重点改革安排》（失效）[Key Reform Arrangements of the

Ministry of Land and Resources in 2010] (Repealed) (People’s Republic of China)
Ministry of Land and Resources, 20 April 2010

《中华人民共和国土地管理法（2004 修正）》[已被修订] [Land Administration

Law of the People’s Republic of China (2004 Amendment)] (Revised) (People’s Republic
of China) Standing Committee of the National People’s Congress, 8 August 2004

《中华人民共和国土地管理法（2019 修正）》[Land Administration Law of the

People’s Republic of China (2019 Amendment)] (People’s Republic of China) Standing
Committee of the National People’s Congress, 26 August 2019

《中华人民共和国立法法（2015 修正）》 [Legislation Law of the People’s Republic

of China (2015 Amendment)] (People’s Republic of China) National People’s Congress,
15 March 2015

《中华人民共和国土地改革法》（失效） [Land Reform Law of the People’s

Republic of China] (Repealed) (People’s Republic of China) State Council, 28 June 1950

230
《征收土地公告办法（2010 修正）》（失效） [Measures for Public Notice of Land
Expropriation (2010 Amendment)] (Repealed) (People’s Republic of China) Ministry of
Land and Resources, 30 November 2010

《 常 德 市 集 体 土 地 征 收 与 房 屋 拆 迁 补 偿 安 置 办 法 》 [Measures of Changde
Municipality on the Expropriation of Rural Collective Land and Compensation and
Resettlement for Housing Demolition and Relocation] (People’s Republic of China)
Changde Municipality Government, 1 March 2019

《贵阳市国有土地上房屋征收补助和奖励办法》[Measures of Guiyang Municipality

on Subsidies and Incentives for Expropriation of Houses above State-owned Land]
(People’s Republic of China) Guiyang Municipality Government, 23 October 2014

《 临 湘 市 集 体 土 地 征 收 与 房 屋 拆 迁 补 偿 安 置 办 法 》 [Measures of Linxiang
Municipality on the Expropriation of Rural Collective Land and Compensation and
Resettlement for Housing Demolition and Relocation] (People’s Republic of China)
Linxiang Municipality Government, 6 September 2019

《马鞍山市土地征收补偿安置办法》（失效）[Measures of Ma’anshan Municipality

on Compensation and Resettlement in Land Expropriation] (Repealed) (People’s
Republic of China) Ma’anshan Municipality Government, 29 February 2008

《马鞍山市集体土地征收补偿安置办法》 [Measures of Ma'anshan Municipality on

Compensation and Resettlement in the Expropriation of Collective Land] (People's
Republic of China) Ma'anshan Municipality Government, 15 March 2019

《上海市律师服务收费管理办法》 [Measure of Shanghai Municipality on the

Administration of Charges for Lawyers’ Services] (People’s Republic of China) Shanghai
Municipal Development and Reform Commission and Shanghai Municipal Bureau of
Justice, 26 January 2017

《 邵 阳 市 集 体 土 地 征 收 及 房 屋 拆 迁 补 偿 安 置 办 法 》 [Measures of Shaoyang
Municipality on the Expropriation of Rural Collective Land and Compensation and

231
Resettlement for Housing Demolition and Relocation] (People’s Republic of China)
Shaoyang Municipality Government, 1 January 2018

《律师服务收费管理办法》[Measures on the Administration of Charges for Lawyers’

Services] (People’s Republic of China) National Development and Reform Commission
and Ministry of Justice, 13 April 2006

《建设用地审查报批管理办法（2016 修正）》[Measures on the Administration of

Examination and Application of Construction Land (2016 Amendment)] (People’s
Republic of China) Ministry of Land and Resources, 29 November 2016

《国家建设征用土地办法》（失效）[Measures on the Requisition of Land for State

Construction] (Repealed) (People’s Republic of China) State Council, 5 December 1953

《国家建设征用土地办法 （1958 修正）》（失效） [Measures on the Requisition

of Land for State Construction (1958 Revision)] (Repealed) (People’s Republic of China)
State Council, 6 January 1958

《西安市国有土地上房屋征收与补偿办法（2020 修正）》 [Measures of Xi’an

Municipality on Expropriation and Compensation of Houses above State-owned Land
and Compensation (2020 Amendment)] (People’s Republic of China) Xi’an Municipality
Government, 27 January 2020

《关于重庆市实行政府指导价的律师服务收费标准及有关事项的通知》[Notice on
the Government-guided Scope and Standards of Charges for Lawyers’ Services and
Related Matters in Chongqing Municipality] (People’s Republic of China) Chongqing
Municipal Bureau of Price and Chongqing Municipal Bureau of Justice, 24 January 2018

《国土资源部关于开展制订征地统一年产值标准和征地区片综合地价工作的通知》
（失效） [Notice of the Ministry of Land and Resources on Formulating Expropriation
Unified Annual Output Standard and Comprehensive Land Section Price] (Repealed)
(People’s Republic of China) Ministry of Land and Resources, 23 July 2005

232
《劳动和社会保障部、国土资源部关于切实做好被征地农民社会保障工作有关问
题的通知》 [Notice of the Ministry of Labour and Social Security and Ministry of Land
and Resources on the Questions Relevant to Guarantee Social Security for
Expropriated Farmers] (People’s Republic of China) Ministry of Labour and Social
Security and Ministry of Land and Resources, 28 April 2007

《关于公布全省征地区片综合地价的通知》 [Notice on the Promulgation of the

Comprehensive Land Section Price in the Whole Province] (People’s Republic of China)
Jiangxi Provincial People’s Government, 28 February 2020

《关于公布湖南省实行政府指导价的律师服务和基层法律服务收费范围和标准的
通知》[Notice on the Promulgation of the Government-guided Scopes and Standards
of Charges for Lawyers’ Services and Grassroots Legal Services in Hunan Province]
(People’s Republic of China) Hunan Provincial Development and Reform Commission
and Justice Department of Hunan Province, 27 January 2016

《交通强国建设纲要》[Outline for Building National Strength in Transport] (People’s

Republic of China) Central Committee of Communist Party of China and State Council,
9 September 2019

《中华人民共和国地方各级人民代表大会和地方各级人民政府组织法（2015 修
正）》 [Organic Law of the Local People’s Congresses and Local People’s Governments
of the People’s Republic of China (2015 Amendment)] (People’s Republic of China)
National People’s Congress, 29 August 2015

《中共中央、国务院关于做好农业和农村工作的意见》[Opinions of the Central

Committee of the Communist Party of China and the State Council on Improving Work
of Agriculture and Countryside] (People’s Republic of China ) Central Committee of the
Communist Party of China and the State Council, 16 January 2003

《中华人民共和国物权法》 [Property Law of the People’s Republic of China]

(People’s Republic of China) National People’s Congress, 16 March 2007

233
《国土资源听证规定》[已被修订] [Provisions on the Hearings of Land and Resources]
(Revised) Ministry of Land and Resources, 30 December 2003

《中华人民共和国农村土地承包法（2018 修正）》 [Rural Land Contracting Law of

the People’s Republic of China (2018 Amendment)] (People’s Republic of China)
National People’s Congress, 29 December 2018

《城市危险房屋管理规定》[Rules on Administration of Dangerous Houses in Urban

Areas] (People’s Republic of China) Ministry of Construction, 20 July 2004

《国务院行政机构设置和编制管理条例》 [Regulation on Administration of the

Establishment and Staffing of the Administrative Agencies of the State Council]
(National People’s Congress) State Council, 3 August 1997

《 国 有 土 地 上 房 屋 征 收 与 补 偿 条 例 》 [Regulation on the Expropriation and

Compensation of Houses above State-owned Land] (People’s Republic of China) State
Council, 21 January 2011

《中华人民共和国土地管理法实施条例（ 2014 修订）》 [Regulation on the

Implementation of the Land Administration Law of the People’s Republic of China
(2014 Amendment)] (People’s Republic of China) State Council, 29 July 2014

《国家建设征用土地条例》（失效）[Regulation on the Requisition of Land for State

Construction] (Repealed) (People’s Republic of China) State Council, 14 May 1982

《最高人民法院关于适用〈中华人民共和国行政复议法〉第三十条第二款有关问
题的答复》 [Reply of the Supreme People’s Court on Relevant Issues concerning the
Application of the Paragraph 2, Article 30 of the Administrative Reconsideration Law of
the People’s Republic of China] (People’s Republic of China) Supreme People’s Court,
Order No 23, 20 September 2005

《最高人民法院关于审理涉及农村集体土地行政案件若干问题的规定》 [Rules of
the Supreme People’s Court on Several Issues concerning the Trial of Administrative

234
Cases involving Rural Collectively Owned Land] (People’s Republic of China) Supreme
People’s Court, Order No 20, 7 August 2011

《中华人民共和国社会保险法（2018 修正）》 [Social Insurance Law of the

People’s Republic of China (2018 Amendment)] (People’s Republic of China) Standing
Committee of the National People’s Congress, 29 December 2018

《中华人民共和国城乡规划法（2019 修正）》 [Urban and Rural Planning Law of

the People’s Republic of China (2019 Amendment)] (People’s Republic of China)
Standing Committee of the National People’s Congress, 23 April 2019

2.4 OTHER

《关于<中华人民共和国土地管理法修正案（草案）>的说明》 [Explanatory Report

on the Draft Amendment to the Land Administration Law] (People’s Republic of China)
Ministry of Land and Resources, 23 August 2004.

《关于<中华人民共和国土地管理法>、<中华人民共和国城市房地产管理法>修正
案(草案)的说明》 [Explanatory Report on the Draft Amendment to the Land
Administration Law and the Urban Real Estate Administration Law] (People’s Republic
of China) Ministry of Natural Resources, 23 December 2018

《关于<中华人民共和国土地管理法(修正案)> (征求意见稿) 的说明》[Explanatory

Report on the Exposure Draft of Amendment to the Land Administration Law]
(People’s Republic of China) Ministry of Land and Resources, 23 May 2017

韩大元 [Han Dayuan], 《私有财产权入宪的意义》 [Significance of the Inclusion of

Private Property Rights in the Constitution]
<http://www.people.com.cn/GB/14576/28320/31049/31055/2288546.html>

《海南省严禁以各种开发名义圈占土地》[Hainan Province Strictly Prohibits Seizing

and Occupying Land in the Name of Various Development] (5 November 2013)
<http://hainan.ifeng.com/news/zaobanche/detail_2013_11/05/1419372_0.shtml>

235
姜明安 [Jiang Mingan], 《界定 “公共利益” 完善法律规范》 [Defining the Meaning of
‘Public Interest’ and Improving laws and Regulations] 法制日报 Legal Daily, 1 July 2004

《税减了费降了，财政收入为何还能增长》 [How Can Revenue Increase when Tax

and Fees were Reduced?] (20 April 2019) <http://www.gov.cn/xinwen/2019–
04/20/content_5384662.htm>

自然资源部 [Ministry of Natural Resources],《农村集体土地征收基层政务公开标准

目录》 [Category of Openness Standards of Rural Collective-owned Land Expropriation
Affairs] (27 June 2017) 中国人民共和国中央人民政府 The State Council of the
People’s Republic of China <http://www.gov.cn/xinwen/2019-
07/19/content_5411720.htm>

National Bureau of Statistics, Household’s Income and Consumption Expenditure in

2019 (19 January 2020) <
http://www.stats.gov.cn/english/PressRelease/202001/t20200119_1723719.html#:~:t
ext=Households'%20Income%20and%20Consumption%20Expenditure%20in%202019
&text=In%202019%2C%20the%20per%20capita,percent%20after%20deducting%20pri
ce%20factors. >

《全国人民代表大会宪法和法律委员会关于《<中华人民共和国土地管理法>、<
中华人民共和国城市房地产管理法>修正案（草案）》审议结果的报告》[Report
of the Constitution and Law Committee of the National People’s Congress on the
Result of Deliberation of the Draft Amendment to the Land Administration Law and
Urban Real Estate Administration Law] (People’s Republic of China) Constitution and
Law Committee of the National People’s Congress, 22 August 2019

《全国人民代表大会宪法和法律委员会关于《<中华人民共和国土地管理法>、<
中华人民共和国城市房地产管理法>修正案（草案）》修改情况的汇报》 [Report
of the Constitution and Law Committee of the National People’s Congress on the
Revision of the Draft Amendment to the Land Administration Law and Urban Real
Estate Administration Law] (People’s Republic of China) Constitution and Law
Committee of the National People’s Congress, 25 June 2019

236
《 政 府 工 作 报 告 》 [Report on the Work of the Government] (22 May 2020)
<http://www.gov.cn/zhuanti/2020lhzfgzbg/index.htm>

历 次 五 年 计 划 [Successive Five-Year Guidance (Plan)] <

http://dangshi.people.com.cn/GB/151935/204121/>

最高人民法院 [Supreme People’s Court], 《人民法院征收拆迁典型案例（第二批）》

[Typical Cases of Expropriation and Demolition from People’s Courts (the Second
Batch)] (15 May 2018) <http://www.court.gov.cn/zixun-xiangqing-95912.html>

《关于农村土地征收、集体经营性建设用地入市、宅基地制度改革试点情况的总
结 报 告 》 [Summary Report on the Trial Reform of Rural Land Acquisition,
Marketisation of Collective-owned For-profit Rural Construction Land and Residential
Land Regimes] (People’s Republic of China) State Council, 23 December 2018

《湖北省征地补偿标准调高 34.37% 平均每亩 4.433 万元》[The Compensation

Standard for Land Acquisition in Hubei Province was enhanced by 34.37 per cent to an
average of ¥44 330 per mu] (29 October 2019) Hubei Provincial People’s Government <
http://www.hubei.gov.cn/zwgk/bmdt/201910/t20191029_1418059.shtml>

《土地管理法草案：成片开发征地须省级以上政府批准》 [The Draft of the Land

Administration Law: Land Acquisition for the Tract Development should be Approved
by Governments above the Provincial Level] (22 August 2019)
<https://news.sina.com.cn/c/2019-08-22/doc-ihytcitn1011620.shtml>

陶希晋 [Tao Xijin],《关于国家建设征用土地办法修正草案的说明》[Explanatory

Report on the Draft Regulation on Measures on the Requisition of Land for State
Construction] 人民日报 People’s Daily, 7 January 1958

王利明 [Wang Liming], 《界定公共利益：物权法不能承受之重》 [Defining Public

Interest: the Unbearable Weight on the Property Law] 法制日报 Legal Daily, 21
October 2006

237
赵蕾 [Zhao Lei], 《土地法律修改将提速, 保障农民权益是重心》 [The Revision of
Land Law is Accelerated and Centred on Protection of Farmer’s Rights and Interests] 南
方周末 Southern Weekend, 16 October 2008

238