Property Rights Protection System and Lawfully Protecting Property Rights

 2018-07-01  123

  • Level of Authority Group Provisions
  • Date issued11-04-2016
  • Effective Date11-04-2016
  • Status Effective
  • Issuing Authority Central Committee of the Communist Party of China State Council

Opinions of the CPC Central Committee and the State Council on Improving the Property Rights Protection System and Lawfully Protecting Property Rights[(end)]
(November 4, 2016)
The property rights system is the foundation of the socialist market economy and protecting property rights is the inevitable requirement of adherence to the basic socialist economic system. Whoever has permanent property is firmly confident. The effective guarantee and realization of the property rights of economic entities are the foundation of the sustainable and sound development of economy and society. Since the reform and opening up, by vigorously advancing the reform of the property rights system, China has basically established a modern property rights system featuring clear ownership, defined rights and duties, strict protection and smooth circulation, and a legal framework of property rights protection, whole society‘s awareness of property rights protection has been constantly raised, and protection is increasingly intensified. Nevertheless, it shall be seen that there are still some weak parts and problems in China's protection of property rights: As the relation between owners and agents of state-owned property rights is inadequately clear, there are problems causing loss of state-owned assets such as control by insiders and related transactions; there frequently occur phenomena such as using public power to violate private property rights, and illegal seizure, arrest and freezing of property of private enterprises; and the intellectual property rights are ineffectively protected and vulnerable to frequent and many infringements. In order to solve those problems, the improvement of the property rights protection system must be accelerated to lawfully and effectively protect the property rights of economic organizations of all ownerships and citizens, raise the people's sense of property and wealth security, boost social confidence, develop positive expectations, improve impetus for the entrepreneurship and innovation by various economic entities, protect social fairness and justice, and maintain sustainable and sound development of economy and society and the permanent peace and safety of the country. The following opinions on improving the property rights protection system and protecting property rights in accordance with the law are hereby offered.
I. General requirements
For the protection of property rights, the fundamental policy is to comprehensively advance the rule of law. We shall comprehensively implement the spirit of the 18th National Congress of the Communist Party of China (CPC) and the Third, Fourth, Fifth, Sixth Plenary Sessions of the 18th CPC Central Committee, study and carry out in depth the spirit of a series of important speeches delivered by the General Secretary Xi Jinping, follow the decisions and arrangements of the CPC Central Committee and the State Council, closely center ourselves on the overall arrangements for and advancement of the overall layout for "economic, political, cultural, social, and ecological progress" and the concerted advancement of the Four-Pronged Comprehensive Strategy, firmly develop and implement new development concepts, advance in priority the supply-side structural reform, further improve the modern property rights system, advance the legislation of protection of property rights, and embody the concept of rule of law in all aspects and parts such as legislation, law enforcement, justice and law observation with regard to protection of property rights. The following principles shall be adhered to:
-- Adhering to equal protection. The property rights protection system with fairness as the core principle shall be improved, public economy shall be unswervingly solidified and developed, the development of non-public economy shall be encouraged, supported and guided unswervingly, and the property rights of public economy shall not be infringed, neither shall those of non-public economy.
-- Adhering to comprehensive protection. The protection of property rights not only includes the protection of real rights, debts and equities, but also the protection of intellectual property rights and other various intangible property rights.
-- Adhering to lawful protection. The socialist market economy legal system shall be constantly improved and the implementation of the law shall be enhanced so as to ensure that there are laws to observe and the law must be observed.
-- Adhering to joint participation. Government credibility and public participation shall be combined, a lawful, responsible and honest government shall be developed, citizens‘ concept of property rights protection and awareness of contract shall be improved or raised, and social supervision shall be enhanced.
-- Adhering to seeking both temporary and permanent solutions With eyes on the future and focus on the present, the outstanding problems existing in the aspect of property rights protection shall be solved without delay, the precision of property rights protection shall be improved, the establishment of a permanent property rights protection mechanism shall be accelerated, and the vigor and creativity of various economic entities shall be sparked.
II. Strengthening the protection of property rights of economies of various ownerships
The reform of state-owned enterprises and the state-owned asset oversight and management system shall be deepened, the relations between owners and agents of state-owned property rights shall be further defined, the realization of equity diversity of state-owned enterprises and modernization of corporate governance shall be promoted, internal supervision system and internal control mechanism involving the aspects of finance, purchase, marketing, improvement, etc. shall be improved, the regulated operations of the board of directors and supervision over the management shall be enhanced, the mode of the trading in state-owned assets shall be improved, and the procedures for the registration, transfer, liquidation, exit, etc. and transactions of state-owned assets shall be strictly regulated, so as to ensure and promote the protection of state-owned property rights by systems, prevent insiders from arbitrarily dominating state-owned assets, and effectively avert the loss of state-owned assets. A property rights system of natural resource assets featuring clear ownership, defined rights and duties, and effective oversight shall be established and improved, and a system of paid use of natural resources shall be improved, to gradually realize that various market participants equally use land and other natural resources according to the market rules and at market prices. The rural collective property rights determination and protection system shall be improved, a collective assets and capital verification, registration, custody, use and disposition system and a financial management supervision system shall be established and improved by category, the circulation and transaction of rural property rights shall be regulated, and it shall be effectively prevented that few people inside collective economic organizations encroach on or illegally dispose collective assets and that outside assets embezzle or illegally control collective assets. Equality of rights, opportunities and rules shall be adhered to, various unreasonable rules for non-public economy shall be scrapped, all invisible barriers shall be eliminated, and it shall be ensured that economies of various ownerships equally use factors of production in accordance with the law, openly, fairly and impartially participate in market competition, are indiscriminatingly protected by the law and jointly fulfill social responsibility.
III. Improving the legal system indiscriminatingly protecting property rights
The compilation of the civil code shall be advanced more quickly, the legal system relating to real rights, contract and property rights shall be improved, laws, regulations and provisions in contravention of fairness shall be reviewed, and equal protection shall be established as a basic principle of regulating property relations. The market participant legal system with organization forms of enterprises and the modes of capital contributors undertaking liability as priorities shall be improved, the market participant laws and administrative regulations developed according to the different types of ownerships shall be researched, reviewed and scrapped in an overall manner, and special reviews of departmental rules and regulatory documents shall be conducted, so as to equally protect various market participants. Non-public property shall be better protected by the criminal law.
IV. Properly handling property rights cases formed through history
It shall be adhered to that mistakes must be corrected whenever discovered, a group of property rights disputes and petition cases attracting strong social attention shall be identified and corrected without delay, and a group of property right infringement cases shall be analyzed. Property rights disputes and petition cases involving major asset disposition and cases of violations of the law and petitions by private enterprises and investors shall be identified in accordance with the law, and in the case that the cases are indeed misjudged for unclear facts, insufficient evidence and erroneous application of law, collection shall be made in accordance with the law and compensation shall be made to the parties. The lifelong case-handling quality responsibility system and misjudged case retroactive accountability system shall be improved to effectively prevent misjudged cases from the root. The principles such as non-retroactivity of law, nulla poena sine lege, and following the former provisions and imposing lighter punishment in the application of new and former laws shall be strictly observed, and the irregularities in the process of operations by various enterprises, especially private enterprises since the reform and opening up shall be treated objectively from the prospective of development and properly handled in accordance with the law.
V. Strictly regulating the legal procedures for disposing property involved in cases
The rules for the disposition of the property of enterprises or individuals suspected of violation of the law shall be further detailed, and it shall be prudentially decided in accordance with the law whether to adopt relevant compulsory measures. If it is indeed necessary to adopt such measures as seizure, arrest and freezing, such measures shall be taken in strict accordance with statutory procedures, and save where it is necessary to order the shutdown of enterprises in accordance with the law, necessary circulating funds and running accounts may, if allowed by conditions, be reserved for enterprises to minimize the negative impact on the normal production and operations of enterprises. In the case of imposition of seizure, arrest and freezing measures or disposition of property involved in cases, individual property and enterprise property shall be strictly distinguished in accordance with the law. If a shareholder, enterprise operator or manager, etc. violates the law as a natural person, when his individual property is disposed, no enterprise property shall be involved at will; and if an enterprise violates the law, when the enterprise property is disposed, the lawful individual property of a shareholder, or enterprise operator or manager shall not be involved at will. Illegal proceeds and lawful property shall be strictly distinguished, so shall be the individual property of the person involved in the case and the property of family members, and in the disposition of illegal proceeds, no lawful property shall be involved. The custody, identification, valuation, auction and sale system of property involved in cases shall be improved to ensure openness, impartiality, regulation and efficiency, and fully respect and lawfully protect the lawful rights and interests of parties and related parties such as the close relatives thereof, shareholders and creditors.
VI. Prudentially mastering judicial policies on the handling of property rights and economic disputes
Full consideration shall be given to the characteristics of non-public economy, the economic disputes and economic crimes, lawful enterprise funding and illegal fund-raising, and economic disputes involved in the participation of private enterprises in the merger and restructuring of state-owned enterprises and malicious encroachment on state-owned assets shall be strictly distinguished, the incrimination standards for illegal economic conduct shall be accurately mastered, and the nature of economic disputes and economic crimes shall be accurately determined, so as to prevent criminal law enforcement from intervening in economic disputes and avert selective choice of the law. In the case of unclear legal boundary and ambiguous incrimination and discrimination, the judiciaries shall strictly follow the principle of nulla poena sine lege, no punishment in doubtful cases and prohibition of presumption of guilt, and avert the handling of economic disputes as crimes. Party and government officials shall be strictly prohibited from intervening in judicial activities, meddling judicial disputes or interfering the handling of specific cases. The economic conduct of private enterprises in manufacturing, operating and funding activities shall not be treated as violations of the law or crimes unless otherwise expressly prohibited in the laws and administrative regulations. When a private enterprise investor involved in crimes serves his sentence, his exercise of civil rights such as property rights shall be guaranteed.
VII. Improving the mechanism for the government to maintain credibility and honor commitments
The building of government by law and credible government shall be vigorously advanced, and the relevant departments of the local governments at all levels shall strictly fulfill policy promises made in accordance with the law to society and administrative counterparts, conscientiously perform various contracts concluded with investors in activities such as investment promotion and public private partnership, shall not breach any contract for government transition, change in leadership, etc., and, if infringing lawful rights and interests for breach of any contract, undertake legal and economic consequences. In the case that it is necessary to change a government promise or contract arising from state interests or public interests, or by other statutory reasons, such change shall take place in strict accordance with the statutory powers and procedures, and enterprises and investors shall be indemnified against the damage to the property so inflicted. In respect of damage to the property rights of enterprises and citizens and other circumstances caused by government breach of contracts, the compensation, complaint and remedy mechanism shall be further improved and the complaint and remedy channels shall be kept unimpeded. Government contract performance and commitment honoring services shall be incorporated into the government performance evaluation system, records of government dishonesty shall be kept, a government dishonesty accountability system and responsibility retracing mechanism shall be established and improved, and severer punishment for government dishonest conduct shall be imposed.
VIII. Improving property expropriation and requisition system
The land, housing and other property expropriation and requisition system shall be improved, the scope of public interests to which expropriation and requisition are applicable shall be reasonably defined, no public interests shall be expanded, the statutory powers of and procedures for expropriation and requisition shall be detailed and regulated. The principle of timely and reasonable compensation shall be followed, the state compensation system shall be improved, the scope, form and standards of compensation shall be further specified, and any person subject to expropriation and requisition shall be fairly and reasonably indemnified.
IX. Better protecting the intellectual property rights
More punishment for intellectual property infringements shall be imposed, the upper limit of statutory compensation for intellectual property right infringements shall be raised, punitive compensation system of infringements upon intellectual property rights such as patents and copyrights shall be explored and established, punitive compensation for malicious infringements with serious circumstances shall be implemented, and an infringer shall undertake the reasonable expenses of the right holder for the prevention of infringements, so as to increase the cost of intellectual property right infringement. A working mechanism to collect the information on the sources of counterfeited products shall be established, intentional infringement upon intellectual property rights shall be incorporated into the credit records of enterprises and individuals, and the disclosure of the information on the cases of administrative penalties for infringement upon intellectual property rights shall be further advanced. The intellectual property right trial working mechanism shall be improved, play shall be vigorously given to the role of intellectual property right courts, the integration of trials of civil, criminal and administrative cases relating to intellectual property rights into one trial shall be advanced, the connection between law enforcement of intellectual property rights and criminal justice shall be enhanced, and more judicial protection of intellectual property rights shall be provided. The mechanism for the law enforcement of intellectual property involving foreign matters shall be improved, the international cooperation in investigation of crimes shall be strengthened, and the investigation and handling of foreign-related intellectual property right crime cases shall be strengthened. Unfair competition shall be strictly cracked down upon and the protection of brands and goodwill shall be strengthened. The protection and use of intellectual property rights shall be integrated, the development of mechanisms and platforms shall be enhanced, and the transfer and conversion of intellectual property rights shall be accelerated.
X. Improving all systems of increasing the property income of urban and rural residents
The legal arrangements for the extension of the right to use of land such as residential construction land upon expiry shall be researched and the development of whole society‘s positive and stable expectation of permanent protection of citizens' property shall be promoted. In the reform of the mixed ownership of state-owned enterprises, enterprises of mixed ownership with good conditions shall be supported in implementing employee stock ownership plans in adherence to the relevant provisions, shares of the same class enjoying the same rights and shares of the same class enjoying the same interests shall be adhered to, it shall be averted that principal shareholders infringe upon the rights and interests of small and medium-sized shareholders by virtue of advantageous positions, and an incentive compatibility mechanism of employee interests, enterprise interests and state interests shall be established. The financial reform shall be deepened, financial innovation shall be promoted, the development of more financial products supporting the development of the real economy and enabling the people to share profits from value added shall be encouraged, and the channels for the people to make investment shall be increased. The reform of the rural land system shall be deepened, the red line that the nature of public-owned land remains unchanged, the red line of cultivated land remain not breached, the ability to produce grains remain stable, and the interests of farmers suffering no damage shall be adhere to, based on local conditions, the usufructuary right to the contracted land, homestead land and collective commercial construction land shall be implemented, more property rights shall be granted to farmers, and the profit of farmers from property shall be increased.
XI. Creating a good environment where whole society attaches importance to and support the property rights protection
The policies, laws and regulations of the party and state on equally protecting the property rights of economies of various ownerships shall be vigorously publicized to develop the concepts of equal protection, comprehensive protection and lawful protection among all the people, and create a fair, impartial, transparent and stable legal environment. Guidance to public opinions shall be strengthened in the aspects of adhering to taking economic construction as the central task, advocating prosperity through hard labor, protecting property rights, and promoting entrepreneurship, etc., and a group of good practices, experiences and cases of lawful and effective protection of property rights shall be summarized and publicized, so as to create a good social atmosphere of property rights protection. The legal support system and the judicial relief system shall be improved to ensure that the people have access to timely and effective legal help in the case of infringements upon property rights. Effective play shall be given to the role of industrial and commercial federations, industry associations and chambers of commerce in protecting the property rights of non-public economy and private enterprises, safeguarding the lawful rights and interests of enterprises, etc., and a rights protection and assistance mechanism of small and medium-sized enterprises involved in disputes over property rights shall be established. Better play shall be given to the positive role of mediation and arbitration, and a diversified resolution mechanism of disputes over property rights shall be improved.
All regions and all departments shall fully recognize the importance and urgency to improve the property rights protection system and lawful property rights protection, unify thought, reach consensus and join forces, and effectively ensure the implementation of the work. All regions shall establish a property rights protection coordination working mechanism headed by party committees and jointly participated in by the people's congresses and judiciaries, and strengthen the organization, leadership and coverall coordination of property rights protection. All the relevant departments and entities shall, according to the requirement of these Opinions, make specific implementation plans without delay, launch fundamental, landmark and key work, strengthen coordination and cooperation, and ensure effective implementation of all measures and the achievement of practical effects.