Social Sciences in China (Chinese Edition)

No.8, 2014

 

The Concept of Public Property Rights and Its Rationale in Terms of the Rule of Law

(Abstract)

 

Liu Jianwen and Wang Huayu

 

From the beginning of the modern era, the legal system as protector of property in the traditional sense has faced many problems. In this context, it is necessary to establish the concept of public property rights. Public property rights are the rights by which the government, by virtue of its public nature, acquires, uses/profits from and disposes of private property. It includes non-consideration payments, such as taxing, penalizing and nationalizing private property, and consideration payments, such as requisitioning land and real estate, charging fees and issuing government bonds, as well as power to control these assets. Public property rights are a form of public power that should be subject to control. They took shape on the basis of financial power, which itself emerged from administrative power, but lay greater emphasis on the legitimacy of the acquisition of public property and distributive justice. In terms of regulatory principles, the control of public property rights means that the acquisition, use/profit and disposal of public property should strictly follow statutory principles and should protect the overall interests of tax-payers. In terms of institutional measures, the construction of public property rights should be advanced in accordance with the principles of explicit legal provision, due process, and convenience of litigation, with due regard for the people’s livelihood from the standpoint of the public interest. Public property law based on the idea of public property legitimizes the process whereby private property becomes public and provides the operational rules for this process. It is a core category of modern financial and tax law and provides the fundamental norms for the rule of law in national financial governance.