The facts of the case are as follows; A Kazakh herder had discovered a meteorite on the land on which he raised his sheep and cattle, after finding it he left it for more than twenty years without doing anything to it. In 2011 the local officers took away the meteorite stating that natural resources belong to the state and the herder and his son decided to sue. There are several issues to address in this case, through his case the history of property law in China, including the right attached to the owner of the land will also analyze basically who owns the resources found on the land. Some important questions will be highlighted; does a meteorite fall under a natural resource considering that it does not come from Earth? Would the herder have the ownership? Would the state have ownership? And if the state has ownership will the herder and his son have to be compensated? As a judge what would your ruling be?
One of the main issues the land ownership in China, who owns the land in China. Traditionally, China was a socialist or communist society. A communist society follows the ideology of a classless and stateless society based on common ownership, here the state plans and controls the economy with a power-holding authority that claims to make progress towards a higher order. So the majority of China's property was under state-owned enterprises with private enterprises not allowed as it naturally went against Communism. Communism was prominent till 1975 when all land and means of production were nationalized. The people of China were put in different production units where they worked and lived, owning the land collectively, with of course the rural people owning more things than the urban people. In 1978the communist system fell and the Chinese government contracted farming to the peasants and created land-use rights in 1992 the ownership of private enterprises was allowed. The best attempt at providing a corporate set of property laws in China was the Property Rights Law of the People's Republic of China.
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So who owns the land in China? Property in China was classified into three: state property, collective property, and individual property, although it was criticized for its impracticability, land ownership is still classified this way. Article 71 of the civil code defines ownership as an owner's right by law to possess, benefit from, and dispose of its property. There are certain rights attached to ownership. The Constitution of the People’s Republic of China, Article 13 protects the citizen's rights over their private property. The Property Rights Law of the People’s Republic of China of 2007, Article 39 provides to the owner the right to possess, utilize, dispose, and obtain profits from its real or movable property. Article 66 states that legitimate properties are protected by law and so cannot be occupied and damaged by any institute or individual. Here real property could refer to land. Ownership of land largely depends on the state in question as each has varying laws. Socialist countries in this case china tend to practice more state ownership of land, while Democratic states like the United state tends to practice private ownership. China’s land reforms made two main achievements which are the establishment of Land use rights (LUR) in urban areas and the establishment of land Management and contract rights (LMCRs). Presently or as in 2014, provided for the separation of three rights: land ownership rights, land contract rights, and management rights. China mostly retains state-owned if one can only acquire the land's use for some time, it is known as LUR it can be given by local authorities and PRC body corporations.70 years is the maximum term for urban land use rights for residential purposes. Granted LUR can be likened to long leasehold as in other jurisdictions like the UK, in this period of lease a person could use the land for the purpose it was leased for. A development made to China’s land ownership was in May 2017, Premier Li Keqiang implied in his announcement that private ownership was reinstated. The Chinese code articles provide for 8 categories that give rights to the owner, one of them is the right for an individual to lodge complaints and charges against a state organ or official and to demand compensation for the infringement. But note that Legislation also states that the rights are given by the state and so can be taken away by the state.
Another main issue is whether a meteorite amounts to natural resources in Chinese law. The People’s Republic of China Constitution states that natural resources belong to the state and the land with the resources is Non-transferable. It also states that all mineral resources, water, forest, mountain, grassland, unclaimed land, beaches, and other natural resources are owned by the state except they are owned by collectors by law. Article 9 gives the provision regarding resources. The state can allow the exploitation of its resources providing it is subject to a fee.
Natural resources are materials occurring in nature that can be exploited for economic gain. Examples of natural resources include water, air oil, natural gas, iron, and coal. China's natural resources law lists the natural resources in China, including; land, mineral resources, water, Forestry, grasslands, fishery, and wildlife. The Natural Resources Law of China was/is made up of 4 four regulations as of 1990; Regulations about ownership and rights to use of natural resources, Regulations about protection and regeneration of natural resources, Regulations about exploitation and utilization of natural resources Regulations about legal liability. In urban areas, wildlife, land, and mineral resources belong mostly to the state while in rural areas; Grassland, water, and land are owned collectively or by the state. So far meteorites have not been mentioned separately in this legislation. So we have to consider if meteorites could fall under a mineral resource. Mineral resources are substances formed naturally in rocks and in the earth that a country can use to increase its wealth, a perfect example is a natural resource is coal. If we follow this definition strictly a meteorite can be classified as a mineral resource. A meteorite is a rock that falls to earth from outer space and contains minerals like sulfur, oxygen, nickel, and iron.
The outcome of each case is relative to the state in question. In Argentina, meteorites are the provincials’ property. In Switzerland and Denmark, meteorites belong to the state and they are required to submit it to s museum but are offered compensation not higher than their value while in India it belongs to the state, The Geological Survey of India and they aren’t offered any compensation in return. In the US and Canada, the meteorites belong to the land owner and they have the discretion to sell them if they want. In Japan according to the civil code, the finder of the meteorite has ownership. But the problem presented here is a blank in Chinese law. None of it explicitly States what happens to a meteorite.
. So who owns the meteorite agreement for the state? The claimant claims that ‘the meteorite wasn’t made on land, or even on the earth' and that as ‘it’s from outer space, so it should belong to the person who first discovered it'. As said earlier in the essay different states have different ways of interpreting this some accept this view some do not. (And China is not one of them that *does apparently)
I think an important fact of the case is the ownership of the land on which the meteorite in question was found, whether it belongs to the farmer, state, or is a collectively owned land will go a long way in determining the outcome of this case. There are two different directions this case can take, if the farmer had true ownership of the land and not simply possession he could be entitled to the rock but considering that it falls under state property he may be entitled to compensation. The other option is if he does not have ownership of the land *bearing in mind that complete ownership consists of possession of land and title deeds, he would have no entitlement to the meteorite and may not even be entitled to compensation .... Of course this case will be difficult to rule properly because of the blank in Chinese law regarding ownership of a meteorite, a material that is *also controversial as to if it falls under Natural resources and it’s* lack of precedents to refer to
Despite the proposed ruling, certain things have to be understood such as the fact that China's property law is not as developed. But there are two ways to look at this. The ruling could be such that it would conform to the level of the chain's property law, but the ruling could also serve as a reference for future cases and it could be a catalyst for further development of property law in China.
Bibliography
- Introduction to Chinese Property Law. Jonas Alson
- The evolution of Chinese property Law: stick by stick. In Chang, YC; Shen, w and wang, WY (Edo), Private Law in China and Taiwan: Legal and Economic Analysis, p. 182-211, Cambridge, UK. Cambridge University press
- An outline of China's Natural Resources Law. Gu Xueting. University of Colorado Boulder, Natural Resources Center.
- China: Real Property Law. The library of congress. By Laney Zhang. Updated July 2015
- Property Right Law of the People’s Republic of China of 2007.
- People’s Republic of China Constitutional Civil Code articles.
- The Constitution of the People’s Republic of China.
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