Land Disputes, Rights Assertion, and Social Unrest in China: A Case from Sichuan


LAND DISPUTES, RIGHTS ASSERTION,
AND SOCIAL UNREST IN CHINA:

A CASE FROM SICHUAN

EVA PILS*

I. INTRODUCTION .......................................................................... 235

II. PROPERTY AND COMPENSATION ISSUES IN
REQUISITIONING, DEMOLITION, AND RELOCATION..239

A . PEASANT D ISPOSSESSION ............................................................ 239
B. REQUISITIONING AND DEMOLITION DECISIONS ........................... 245
C. No RIGHTS TO ASSERT? THE FRAGILE CONDITION OF

COLLECTIVE OWNERSHIP AND OF RURAL RIGHTS OF USE ........... 254

Il. RESPONSES: LEGAL ACTION, PETITIONING, PUBLIC
MEDIA ATTENTION, AND PUBLIC UNREST ...................... 259

A. PETITIONING AND ADMINISTRATIVE RECONSIDERATION
A PPLICATION S ............................................................................ 259

B. GOING TO COURT AND PETITIONING IN BEIJING .......................... 266
C. PUBLIC MEDIA ATTENTION AND PUBLIC UNREST ....................... 273

IV. CONCLUSION .............................................................................. 283

I. INTRODUCTION

With social unrest intensifying in China, there is a growing sense
that the legal reforms of the past two decades have failed to provide
adequate channels for resolving conflicts of interest and viewpoint
between government and citizens-especially those citizens who have
been disadvantaged by economic development, and who believe that their
legal rights have been violated in this process. As early as the autumn of

* Visiting Scholar/Visiting Assistant Professor, Cornell Law School, 2006. Many thanks to Jerome

Cohen and Frank Upham for their support and advice while I wrote this paper, and to Frank Upham
for discussing it with me at various stages. For their comments on drafts I am also grateful to
William Alford, Guangshen Gao, Xin He, Stephen Guest, Joan Liu, Joseph Weiler, and Cao Yue, as
well as to the participants of an NYU School of Law Global Fellows Forum, the participants of the
New Scholarship in Chinese Law conference in honor of Stanley Lubman at Columbia Law School,
and the participants of an academic discussion meeting at the Royal Netherlands Embassy, Beijing.
I am also very grateful to Chinese friends who have discussed the Zigong case with me but should
remain anonymous.



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2003, Yu Meisun, a former official who had participated in the drafting of
China's 1989 Administrative Litigation Law, wrote:

The Party and Government have been investing a great
amount of human and material resources into the legal
system since 1979, in order to protect the social order
and resolve various conflicts in society. But this system
has not only failed to serve the function it was supposed
to serve, it has even been counterproductive,
exacerbating conflicts.'

The assessment that legal reform has made things worse by "exacerbating
conflicts" in China is understandable in its context. Yu's writings about
petitioning and administrative litigation cases convey a certain sense of
hopelessness: people waste their lives seeking justice from state
authorities, whose written or unwritten rules of operation sometimes seem
designed to compound citizens' grievances rather than to help redress
them. Especially in cases of land requisitioning, the citizens' own
livelihoods as well as those of their children may be lost. Yet the case
that led Yu to make this assessment is also indicative of a positive aspect
of the legal reform process. The case cited by Yu can be seen as part of a
broader trend of cases where the promise of a government limited by
rights is being taken seriously, and rights are being asserted toward the
government at different levels. Injustices are now met with resistance by
people who invoke the law to challenge those claiming to act with legal
authority.

As also in other places, rights assertion against government in
rural China is not always grounded in a proper understanding of what
legal rights one has. Furthermore, it sometimes takes illegal forms. Still,
once rights have been asserted, they shape the way the underlying
disputes should be resolved. Once people insist on the protection of their
rights in the resolution of a dispute, the measure of success cannot be the
mere quieting of the dispute, even when a successful adjudication
mechanism is not available. Sometimes the only success within reach of
Chinese citizens is the public assertion of their legal rights outside
litigation, through mechanisms characterized as "informal" or "outside
the formal legal system." Xinfang ('f-iW, petitioning or, literally, letters

' h T, k -I-± i 4ki - K '4m-- ATN g(Z_-: A ,V P MVI A) A iA ) [Yu
Meisun, The Plight of Landless Peasants Trying to Defend Their Rights Against Officials (No. 1:
CCTV Begins to Address the Case of the Peasants Being Framed)] (Dec. 1, 2003), at
http://www.blogchina.com/new/display/17927.html [hereinafter CCTV Begins to Address the Case
of Peasants Being Framed].

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 237

and visits) plays an important role as an informal dispute resolution
mechanism and is closely intertwined with court adjudication. What is
often publicly asserted in "litigation xinfang," for instance, is the
fundamental right to fair court procedures. But as recent cases have
shown, xinfang, especially "collective" or "group" xinfang, can also
disintegrate into legally prohibited demonstrations and rioting.2

The case mentioned by Yu offers an excellent opportunity to study
a process of rights assertion in the broad sense indicated above from the
bottom-up perspective of aggrieved citizens. It concerns a land dispute
involving several thousand peasants living in areas adjacent to the city
Zigong, situated in the Sichuan Province, whose lands and houses were
taken from them for the purpose of "property development." Despite
many attempts to get an application for litigation accepted by a court,
there was not a single court hearing or decision addressing the substantive
complaints discussed in this paper.3 Partly because of this failure of the
courts and partly due to disregard by state authorities for already
incoherent legal rules, the peasants in the Zigong case were left without
effective protection for any individual rights of use or collective rights of
ownership in the rural land they had been working and living on, despite
language in the Constitution, Land Administration Law, and Principles of
Civil Law providing for "collective ownership" or "collective ownership
by village peasants,"4 as differentiated from state ownership or ownership

2 For an extensive discussion of this subject, see Carl F. Minzner, Xinfang: An Alternative to the

Formal, Chinese Legal System, STAN. J. INT'L L. (forthcoming 2006), with particular attention to
the section on "Social Mobilization." See also kM, VK L* ± Ji i IDh1 'A * " [Liu
Weiwei, "Selective Incentives" in Peasants' Collective Petitioning], available at http://www.
chinayj.net/StubArticle.asp?issue=050310&total=90 (last visited Jan. 26, 2006); Sara Davis,
China's Angry Petitioners, THE ASIAN WALL STREET J., Aug. 26, 2005, available at
http://www.howardwfrench.com/archives/2005/08/26/chinas-angry-petitioners/. On the particular
issue of petitioning in court, see TAR & 7, IM h P, A I.ThJ U [Ding Xiuzhi &
Zhang Zhiwei, Our View on Perfecting the Letters and Complaints System in Courts] (Mar. 31,
2004), at http://www.chinacourt.org/public/detail.php?id=109647.
3 Available material refers to one court hearing the case of an individual peasant family objecting on
procedural grounds to a demolition order regarding their house. According to oral sources, there
were an unspecified number of further disputes regarding individual households. However, in none
of them did the complaining peasant (family) win,and several were not accepted for litigation. The
He family complained that the wrong authority had acted in their case. According to the available
material, the family discovered, at the Da'an District Level People's Court hearing on November 14,
2003, that the'- opponent, a government authority, had hired their own lawyer's boss and colleagues
to represent it. As a consequence, their own lawyer did not dare show up to represent them. See
AiV,, 9-±tt l V K f 8 9M R * 1l AT Q it(Z V9:L i7) [Yu Meisun, The
Plight of Landless Peasants Trying to Defend Their Rights Against Officials (No. 4: Going to
Beijing to Petition Lost Rights)] (Dec. 4, 2003), at http://www.blogchina.com/new/display/
18212.html.
4 E+*) l i ai) i j [General Principles of Civil Law] art. 74 (promulgated by the Nat'l
People's Cong., Apr. 12, 1986, effective Jan. 1, 1987) (P.R.C.), available at http://www.dffy.com/



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by the people as a whole,5 and despite rights of use which some of them
had been granted individually. 6 Their long experience of deprivation and
denial of access to administrative litigation galvanized some of the
peasants to assert rights which they felt the courts ought to protect.

The case of the peasants of Zigong is not much different from
many other cases occurring in China at present; but it happened to attract
the attention of legal scholars and journalists, who published material
about it on the internet.7 One such scholar, namely Yu Meisun, and one

faguixiazai/msf/200311/20031110212803.htm (last visited Feb. 23, 2006) [hereinafter Principles of

Civil Law], uses the formulation of " ,,. Article 8
of the 1988 Land Administration Law, in effect at the time of the first requisitioning decision
discussed in this paper, read, "VN. f* ± f0{ :t1&&TA-Tf1V fM i: ,E9

" See [Land Administration Law]
(revised and promulgated by the Standing Comm. of the Nat'l People's Cong., Dec. 29, 1988,
effective Dec. 29, 1988) (P.R.C.) [hereinafter 1988 Land Administration Law]. Less clearly, the
P.R.C. Constitution provided in Article 10 that rural land was owned by "collectives" without
stating whether the collectives in question were collectives of "village peasants" or other kinds of
collectives. See AM [CONST.] art. 10 (1982) (P.R.C.).
5 Even in the 1982 version, the Constitution differentiates between "ownership by the whole people"
and "collective ownership by the working masses" (Article 6) and says that urban land is "owned by
the state" (Article 10). See 33 [CONST.] art. 6, art. 10 (1982) (P.R.C.). Article 3 of the now
expired Implementation Regulation for the Land Administration Law clarified by stating that urban
land was owned by "the whole people, namely, the state r K ) -

! 1 - . [Implementation Regulation for the Land Administration Law] art. 3
(promulgated by the Standing Comm., Jan. 4, 1991, effective Feb. 1, 1991, expired as of Dec. 31,
1998) (P.R.C) [hereinafter 1991 Implementation Regulation].

6 Rights of use would be enjoyed in accordance with chengbao (7Y ', land contracting

arrangements) by individual rural households rather than persons (V, yihu). The current Law on
Rural Land Contracting, in this respect, reflecting previous practice, refers to "rural households"

belonging to the collective economic organisation owning and/or contracting out the land ("*
tM, 14 4 5W' M I,'). See - [Law on Rural
Land Contracting] art. 15 (promulgated by the Standing Comm. of the Nat'l People's Cong., Aug.

29, 2002, effective Mar. 1, 2003) 09/2002 -- aJR [STANDING COMM.
NAT'L PEOPLE'S CONG. GAZ.] 347 (P.R.C.) [hereinafter Law on Rural Land Contracting].
7Available material on this case includes the following texts: N Y"4.20 f1f. 9ftM KVV'rW

. k ) ± f'J 9F [Anonymous, Open Letter to All Members of Society on the "20 April

Incident of Oppression of Landless Peasants in Zigong"] (May 30, 2005) (on file with the author)
[hereinafter Open Letter to All Members of Society]; l)Ill; - [Sichuan

Peasants Meet with Severe Beatings and Detention When Appealing Against Injustice], wi R
[PEACEHALL NEWS] (May 5, 2005), available at http://www.peacehall.com/news/gb/china/2005/05/
200505050117.shtml [hereinafter Sichuan Peasants Meet with Severe Beatings]; VML, -jfl T'_im

_ L ; [Cheng Jie, Land Requisitioning Must Not Violate Citizens' Property Rights]
(2003), at http://www.chinareview.com/everyday/everyday-97.htm; Human Rights in China,
Peasant Advocates Hospitalized in Clash with Officials (May 3, 2005), at http://www.hrichina.org/
public/contents/press?revision%5fid=22211&item%5fid=22210 [hereinafter Peasant Advocates];
Human Rights in China, Sichuan Peasants Accuse Official in Land Grab (June 17, 2004), at
http://www.hrichina.org/public/contents/9705 [hereinafter Sichuan Peasants Accuse Official]; 'JiE

h, AA 1 , , a iW ri [Liu Zhengyou, I Am Telling the General Secretary and Prime
Minister the Truth] (Nov. 2003) (on file with author); - 1

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 239

representative of the Zigong peasants, Liu Zhengyou, figure prominently
in the discussion of the case that follows. This account of the process of
land seizures, with a particular view to the fate of one village and its
inhabitants, and of the villagers' responses, is largely based on material
produced by complaining citizens and by authors who sympathized with
them.

II. PROPERTY AND COMPENSATION ISSUES IN

REQUISITIONING, DEMOLITION, AND RELOCATION

A. Peasant Dispossession

In 1993 Liu Zhengyou, a man in his forties who had run a small
business and was regarded as quite wealthy and well-educated among his
fellow villagers, was living in a house he had built himself in the village
(at. cun) of Baiguo. Baiguo belonged to the Hongqi "township" or xiang

), a group of villages situated on the outskirts and under the
administration of Zigong, a city of around 500,000 inhabitants. The
peasants8 in this village grew different crops, and their average annual per
capita income of about Y2000-made in addition to the food they could
grow for themselves-was considered to be quite good.9

[State Council Legal Affairs Bureau, State Council Legal Affairs Bureau 's Response Regarding the
Request for Instruction, Addressed to the Construction Ministry, on the Question Whether a
Response Regarding Demolition and Relocation Regulations and Policies is a Concrete
Administrative Act] (Aug. 27, 2002), available at http://www.lawl10.com/law/guowuyuan/
2157.htm; ?jIA, ]. ±I:0Vih [Su Qi, Investigation Into the Three Peasant Problems:

Part on Land Issues], T- ]J [Business Half-Hour (CCTV television broadcast, June 12,
2003), transcript available at http://lqare.luqiao.gov.cn/news-show.asp?type=c&id-4445&name =

%C5%A9%D2%B5%BF%EC%Dl%B6; IJ$:F , " _" f t [Sun Yafei, The Ill Effects
of the "New Land Enclosure Movement"], M 9 [S. WEEKEND] (July 15, 2004), available at
http://www.nanfangdaily.com.cn/znm/20040715/xw/tb/200407150002.asp; CCTV Begins to Address
the Case of Peasants Being Framed, supra note 1; gkg , ijt**1_ IVIA J )_Z3 Pg f)I

tPIt V tkia<i)iJ [Zhang Yaojie, Who Pays the Price for Industrialization in China - A
Study on the Disastrous Situation of Landless Sichuan Peasants] (June 13, 2004), available at
http://www.dajun.com.cn/shidinm.htm [hereinafter Industrialization in China]; ,,,, H )1 Iik

A R fVIt E A 1 I ) *A [Zhang Yaojie, Sichuan Landless Peasants' Representative
Specially Interrogated by Police] (Aug. 28, 2004), available at http://www.asiademo.org/gb/
news/2004/08/20040828.htm#artl2 [hereinafter Sichuan Landless Peasants].
8 This word is used deliberately for nongmin (V& K) most liteially translated as "rural people," in
preference to the literal translation and to "farmers," because it is often used as a class term in
Chinese. Many nongmin in China have nothing to do with farming, yet continue to be referred to as
"peasants" even when their residence registration status has been changed to "urban." Consider
also the expression nongmingong (V K E), or "peasant workers," referring to urban migrant
workers from the countryside. While it can have a negative connotation, the term nongmin can also
be used with a special appeal to sympathy and respect.
9 Su, supra note 7.



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By 1992, just when the economic reform process had received a
new boost from Deng Xiaoping's famous Southern Tour, officials of the
Zigong City government and its Communist Party organization had asked
the provincial government of Sichuan for permission to set up a "Zigong
High-Tech and New Technology Industrial Development Zone."
However, according to their own testimony, not one of the villagers was
aware of this.' 0 The size of the envisaged development zone was ten
square kilometers. Permission was given at the end of May 1992. Then,
in 1993, a "Committee for the Administration of the Zigong High-Tech
and New Technology Industrial Development Zone" (the "Zigong High-
Tech Zone Committee") was established by Order No. 11 (1993) of the
Zigong City government.

Thirteen years later, most of the residents of Baiguo village's
second group (911, zu), 11 to which Liu Zhengyou belonged, were no longer
living on their land. Many of these residents were dependent upon what
they viewed as insufficient compensation payments for subsistence,
leaving them impoverished and angry. Liu Zhengyou was mostly living
underground in the capital, Beijing, trying to promote the cause of the
villagers by petitioning central government and Party offices. There were
no newly settled industries, nor any new factories--only many new flats
selling at high prices.

This was partly a consequence of legal reforms in the area of land
law. The new 2004 Land Administration Law 12 stated that the "socialist
ownership system" recognized only "collective" ownership and state
ownership. State ownership affected urban land and natural resources.
This development left collective ownership as the only remaining mode
of ownership in rural land, whether for agricultural or other uses,
including the housing of rural residents. The resulting duality of
ownership regimes, although superficially seeming to give the rural
population something better than their urban counterparts, was actually an
important precondition for discrimination regarding land rights, even if
such discrimination was benevolent in intention.

The introduction of collective ownership and individual
household land use rights allowed peasants, to some degree, to farm for
themselves and to sell their own produce. Land use rights according to

10 Some villagers' committee heads must have known, according to the allegations described at

infra page 251.
11 Physically, such groups resemble independent, smaller villages within the administrative cun (,),
and can be called "natural villages."
12 4k4). L~ttAflM , M R [Law on Land Administration] (art. 8 promulgated by the Standing
Comm. of the Nat'l People's Cong., Aug. 29, 1998, effective Jan. 1, 1999, as revised through Aug.
28, 2004) (P.R.C.), available at http://www.cin.gov.cn/law/other/2000111612-00.htm (last visited
Mar. 8, 2006) [hereinafter 2004 Land Administration Law].

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 241

the rules on land contracting or chengbao (*' ), limited to fifteen (or
later thirty) years in duration, were largely effective at the village level.
They served to define one's rights toward the collective and toward other
villagers.' 3 Yet when the government decided to requisition land from
rural collectives, the duality of ownership rights meant that such use
rights, too, could be easily lost. Importantly, under the post-reform
system, it is not possible for the owners of land to alienate the land
through sale. In other words, peasants cannot on principle terminate or
exit their position as members of the rural collectives, which are
designated as owners of rural land, by getting the collective to sell land,
and transfer ownership, of its own accord. In one sense, this protects
peasants against the loss of land through purely private transactions. But
at the same time, they are not protected against transfers of the land to
state ownership by administrative decision and against the subsequent
granting or selling of urban land use rights (limited in time) by the
government to private property developers. The participation of the
collective to negotiate agreements on compensation standards, and
usually to sign a "requisitioning agreement," is required in such
administrative processes; but the significance of this requirement is
limited, inasmuch as the administrative decision to requisition is made
unilaterally, and as general compensation standards are set by laws and
regulations. 14

To understand the implications of these legal provisions for
individual peasants, it is necessary to consider some problems of
terminology and legal interpretation in the context of collective and
individual rights pertaining to land. As mentioned in the introduction,
Chinese law contained, and now still contains, various provisions on
collective ownership of rural land and on the management (W31i, guanli)
of collectively owned land by political or economic bodies including the

13 National legislation now clarifies that chengbao (z*_t) arrangements can also exist with regards

to state-owned land in Article 2 of the 2002 Land Contracting Law. See Law on Rural Land
Contracting, supra note 6, at art. 2. Note that according to Article 12, in the case of collectively
owned land, the party contracting out (Ya2_,fabao) does not necessarily have to be the owner. See
id. at art. 12.
14 The 1988 Land Administration Law in effect at the time of the Zigong requisitioning decision
says in Article 31 that people's governments approving the requisitioning "may" consult with towns,
townships, or villages about the various kinds of compensation. See 1988 Land Administration Law,
supra note 4, at art. 3 1. Article 18 of the 1991 Implementation Regulation, especially in paragraphs
2 and 3, prescribes a procedure which suggests that compensation standards and resettlement plans
should be "negotiated and decided" ( shangding) with the units whose land is requisitioned
before the local government is asked for approval. See 1991 Implementation Regulation, supra note
5, at art. 18. But there is no provision on what should happen in the case that no agreement can be
reached, and the overall context suggests that government approval for a plan submitted,
importantly, by the land administration bureau (not jointly by the parties involved in the negotiation)
to the local government is the only strictly required step.



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villagers' committees and economic collectives. So far as there is any
further characterization of the collectives owning rural land, reference is
made to collective land ownership by "village peasants" or "villagers" (t-

, cun nongmin). 5

The idea of collective ownership requires us to think of the
collective as distinct and different from any individuals belonging to it.
The Chinese expression jiti (t#)1k) invokes the image of a necessarily
abstract body (4l, ti) which has been aggregated (tji) from a number of
(more concrete) entities. It seems that the legal function of this
abstraction in the present context is to allow for differentiation from a) the
state and b) the individual as conceivable alternative owners of land.
Chinese law does not allow for individual land ownership and, indeed, the
most important way in which the word "individual" (t", geren) figures
in various legal provisions on land ownership is in the context of
prohibitions of interference by "any individual or organization" with
collective or state ownership of land. The socialist underpinnings of both
state ownership and collective ownership are emphasized, for instance, in
Article 6 of the Constitution, which characterizes both as a form of
"socialist public ownership, [which] supersedes the system of exploitation
of man by man [and] applies the principle of 'from each according to his
ability, to each according to his work."",16

Since the economic reforms triggering the new land law regime
described here, Chinese law has recognized and protected certain
individual rights of use pertaining to land, as well as other private
individual ownership rights, and it seems no longer inconsistent with any
wider purpose of Chinese property law to see individuals as indirectly
protected (albeit not directly entitled) by rules on collective land
ownership. Again, so far as land in a rural context is concerned,
references, for instance, in the context of rural contracting for rights of
use in land appear to avoid the word for "individual," yet they do refer to
people, and thus indirectly to individuals. The important point here is
probably that individuals do not matter so much in the context of rural
land distribution, because practical exigencies and perhaps also tradition 17

make households the relevant economic entities. Reference to individual
persons belonging to such households is implied when perceived to be
necessary, as for instance when people are to be counted one by one when

15 The Chinese language does not differentiate by the use of grammatical flexions or the like
between the singular and plural, and the expression ft V [ (cun nongmin) has no strong
connotation of a plurality of individuals or of individual personhood.
16 3tg [CONST.] art. 6 (1982) (P.R.C.) (as amended Mar. 14, 2004).
17 It has been argued that in the Confucian tradition, for instance, the idea of person is more
"relational" than in traditions that produced the idea of individual rights.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 243

land use rights are distributed by a collective to individual households
according to the land contracting or chengbao (-kt) mechanism. This is
implicit in the injunction to give "women equal rights with men"
contained in Article 15 of the 2002 Land Contracting Law.

Of course, the provisions on the distribution of mere rights of use
do not by themselves clarify the identity, organization, and internal
procedures for decision-making of the collectives that are supposed to be
rural land-owners. Such collectives are political as well as economic
organizations and therefore require some rules of operation. The
administrative village is supposed to be a civil or societal organization of
self-rule, exercised through elected villagers' committees, which have an
elected committee head. 18 But existing legal rules on how such
collectives should be run are often not observed in practice. The reality
tends to be different from the ideal of self-rule, and villagers' committees
tend to be dominated by government and Party authorities.' 9

It could be suspected that, in effect, given the structural weakness
of land-owning collectives and given their subjection to the control of
local government and Party officials, collective ownership was nothing
more than ownership by some branch of government or the Party, even
though the legislative texts mentioned above, as well as the requisitioning
procedure, clearly suggest a differentiation between state and collective
land ownership. In that case, "collective ownership by village peasants"
would be a mere empty phrase. But this understanding seems to miss the
point of disagreement in disputes over rights between citizens and the
state, and ultimately reduces law to expressions of state power. Peasants
of Zigong in the case discussed herein used the law "on the books" to
challenge the state which, they claimed, had acted illegally; so we should
not take the concerned state authorities' assertions that their actions were
legal as conclusive interpretations of what is actually legal. But
attributing ownership of rural land to local government, despite written

18 This system was introduced nationwide by the 9" M Ku *4 K_ _M M [Organic

Law of the Villagers' Committees (Trial Version)] (promulgated by the Standing Comm. of the
Nat'l People's Cong., Nov. 24, 1987, effective June 1, 1988) (P.R.C.), now replaced by the 4' M Ak
ltI ]$,4 :_ H [Organic Law of the Villagers' Committees] (promulgated by the

Standing Comm. of the Nat'l People's Cong., Nov. 4, 1998, effective Nov. 4, 1998) 11/1998 ! I
- - [STANDING COMM. NAT'L PEOPLE'S CONG. GAZ.] 507 (P.R.C.)

[hereinafter Organic Law of the Villagers' Committees]. Like villagers' committee members,
villagers' groups' leaders are elected in accordance with Article 15 of the 1987 law and Article 10
of the currently valid Organic Law of the Villagers' Committees.
19 On problems with the implementation of the Organic Law of the Villagers' Committees and
related corruption issues, see Jamie P. Horsley, A Legal Perspective on the Development of
Electoral Democracy in China: The Case of Village Elections, in UNDERSTANDING CHINA'S LEGAL
SYSTEM: ESSAYS IN HONOR OF JEROME A. COHEN 295 (C. Stephen Hsu ed., 2003) and THOMAS P.
BERNSTEIN & LO XIAOBO, TAXATION WITHOUT REPRESENTATION IN RURAL CHINA 206 (2003).



COLUMBIA JOURNAL OF ASIAN LA W

legal guarantees attributing it to collectives of peasants, would be
equivalent to conceding the important authority to interpret the law on
ownership to local governments-an interpretation which is ultimately
inappropriate.

To reiterate, a transfer of land rights away from the collective
owner (for example, the village) and members of the collective who
might have individual use rights in the land to other citizens or entities-
for instance, in the context of urban development-could occur only
through a series of state decisions: the rules for the "requisitioning of
collectively owned land." Ownership of the land fell to the state as a
consequence of "requisitioning." A bureau under the Ministry for the
Administration of State-Owned Land and Natural Resources took charge
of "requisitioned" land. Under the law, rights of use regarding such land
could then be sold (or "transferred" for a fee) by the government. These
rights had a time limitation of forty, fifty, or seventy years, depending
upon the type of land use. Once land had been turned from rural into
state-owned urban land, that land could acquire a significant market value.
However, since only urban land use rights with a time limitation and not
full ownership could be traded, state requisitioning was the only way for
this value to be realized. Peasants were effectively excluded from this
newly opened urban market. 20 This created, even if unintentionally, a
basic inequality at the legislative level. In Deng Xiaoping's words, the
motto was "to let a few people become rich first." While it remained
"rural" land, land had no market value as land for purposes of urban
development (although land use rights in agricultural land were
commercialized to a certain degree). However, once it became "urban,"
the peasants no longer had any claims to it. The possibility of de-
collectivization and transfer of land ownership to the state, in
combination with transfers of land use rights regarding state-owned land,
provided a legal framework for land seizures.

20 Except, theoretically, in cases where they had sufficient money to buy back into it.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 245

B. Requisitioning and Demolition Decisions

The general approval granted by the Sichuan provincial
government in May 1992 did not yet amount to a requisitioning decision.
Decisions to requisition specific plots of land were made by the
aforementioned "Zigong High-Tech Zone Committee," established by
Order No. 11 (1993) of the Zigong City government. This committee,
under the presidency of Shi Jun, who later became vice mayor of Zigong,
established offices to handle the various tasks that it had been assigned.21

Between 1992 and 1998, the Zigong High-Tech Zone Committee
requisitioned over 15,000 mu (M)22 of farmland in the townships Hongqi
and Fenghuang. 23 Land use rights for a large proportion of the
requisitioned land were then given to property development companies,
sometimes after waiting for a considerable time period until prices had
gone up. According to a 2004 report on the Zigong case published by
Human Rights in China, the gains from land developers' transactions with
government were estimated to be at least Y5 billion, but unofficial oral
sources put the likely gains at only Y1 billion.24

Different authorities were responsible for making decisions to
demolish houses in which peasants lived and to arrange for their
relocation and/or compensation (as part of the so-called "demolition and
relocation procedure"). However, there was a high degree of personal
interconnectedness between the Zigong High-Tech Administration
Committee and those authorities. In August 1993, the city government
made a general decision that houses on the land to be requisitioned would
be demolished and that the people living in them would be relocated.
This decision was announced by Document No. 75 (1993), and set off a
number of further, more concrete decisions regarding the taking of
particular plots of land and the demolition of specific houses.26

The process of taking the peasants' land and houses was legally
questionable in three respects. First, while the "requisitioning" of land

2 1 Namely, to requisition land from the peasants living and working within the Zone, to distribute or

grant (OiE, zhuanrang) rights of use, and to "manage" (f, guanli) the Zone.
22 One mu equals 666.7 square meters.
23 Sun, supra note 7.
24 Sichuan Peasants Accuse Official, supra note 7. The sum of Y1 billion was mentioned in a

confidential interview.
25 Not under the authority of the Ministry for the Administration of State-Owned Land, but under

the authority of the Construction Ministry.
26 These were usually issued by a bureau under the authority of the Construction Department of
Sichuan Province, and not directly by the Zigong High-Tech Zone Committee. Regarding the term
"requisitioning," it was frequently used in regard to particular plots of land within the larger area
initially designated for requisition in 1992. Journalist Su Qi remarks of Baiguo village's second
group that its land "was requisitioned a couple of times." Su, supra note 7.



COLUMBIA JOURNAL OF ASIAN LA W

was subject to the general legal requirement that it must be in the "public
interest" according to Article 2 of the Land Administration Law (as of
1988 and as of 2004),27 the construction of great numbers of private
residential premises was a questionable goal in this context. Of course,
"public interest" allows for a wide range of interpretations and has been
interpreted differently across different Western jurisdictions. 28 It
therefore seems important to put the idea of "public interest" in its
historical context. Judging by the more detailed provisions of the Land
Administration Law as of 1988, the lawful purpose of requisitioning
collectively owned land was either "state construction" for the purpose of
cultural, economic, or national defense construction projects or to initiate
public works (Articles 21-36), or "town (township) and village
construction" to set up township-managed enterprises that could
immediately benefit local people (Articles 37-42).29 In hindsight, in the
case of Zigong, it is not clear whether the construction of residential
housing in the context of urbanization through residential property
development carried out by private outside developers fell under any of
these categories. However, at the time that requisitioning decisions were
first made, the declared purpose was the construction of a high-tech
industrial zone. The use of designations such as "High-Technology
Park," or "Industrial Zone" for residential property development areas
indicates a perceived need to justify requisitioning by the promise of
creating new industrial jobs for local people. 30 However, such promises
were often unfulfilled. In the Zigong case, this kind of public interest
justification also played a role, as the designation of "Zigong City High-
Tech and New Technology Industrial Development Zone" demonstrates.

According to an economist from the area, Zigong was a typical
example of a place in which the only way for local government to
generate income was by selling off land. Cheap land and cheap labor
might attract investment, and this would advance the personal careers of

27 The current Article 2 explicitly mentions that compensation shall be paid for requisitioned land.

2004 Land Administration Law, supra note 12, at art. 2.
28 A particularly striking example is the doctrine of "eminent domain" in the United States. For an

interesting Chinese perspective on the recent U.S. Supreme Court's decision regarding eminent
domain, emphasizing restrictions placed on government and citizens' enforceable right to
reasonable damages in the event of land takings, see Wt, M aftv
i_? [Lin Da, How Does the US. Handle Land Takings, Demolition and Relocation?], M)M$I 4
[S. METROPOLITAN DAILY] (June 27, 2005), available at http://www.nanfangdaily.com.cn/
southnews/spqy/200506270022.asp.
29 In today's Land Administration Law, the use of land for construction is dealt with under one
90eneral chapter heading, in Articles 43 - 65. 2004 Land Administration Law, supra note 12.

This is also the logic underlying the differentiation according to various construction purposes in
the 1991 Implementation Regulation for the Land Administration Law. See 1991 Implementation
Regulation, supra note 5, at Chapter 4.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 247

responsible officials, whose promotion depended on the evaluation of
their performance in achieving economic development. 31 Su Qi, an
investigative China Central Television ("CCTV") journalist said that
certain peasants he interviewed were promised a factory to work in but, in
the end, what was built were only blocks of flats for solely commercial
purposes. Su Qi interviewed the former occupants of the land on which
the high-rise blocks have been built, and these flats are far too expensive
for them to rent or buy.

When they had lost their land, many of the peasants of
Hongqi township put their hopes in the industrial
factory to be built in the Zigong High-Tech Industrial
Development Zone, expecting that they would be able
to work there and earn money. But instead commercial
blocks of flats were built. What kind of Zigong High-
Tech Industrial Development Zone "development" is
this?32

The same CCTV journalist also mentioned that one plot of land was
originally to be used for a college, according to the rezoning plan. In a
slightly condescending fashion, the journalist seems bemused by the
peasants' willingness to abandon their land for a college building, while
they are opposed to the residential buildings actually built on what was
their land:

One of the peasants told the reporter: "Requisitioning
the land to build an engineering college-to put it
modestly, that is done for our children and
grandchildren; more grandly speaking it is done so the
fatherland can raise more talent, isn't it? We should
make a sacrifice, yes; but what we have got now really
doesn't meet [any of these implicit expectations]".

We have no idea why these good peasants expressed
support for the building of a college.33

31 Gao Guangshen, A Case Study on Land Requisitioning in Zigong, Sichuan Province, China. The

Story of Peasants Deprived of Their Land in My Hometown (Microsoft Powerpoint presentation,
Summer 2005, on file with author).
32 Su, supra note 7.
33 Id.



COLUMBIA JOURNAL OF ASIAN LA W

The second reason to doubt the legality of the requisitioning and
relocation process is that, according to many substantiated allegations, the
procedures intended to protect individual peasants affected by
requisitioning were not respected. There was a requirement for
negotiation to settle issues of compensation and for the negotiated
agreements to be approved by township or city level government.3 4 This
negotiation requirement was, in and of itself, problematic. The peasants
did not really have anything with which to negotiate; they had no secure
land rights with respect to outside parties to trade for compensation.

At any rate, according to many substantiated allegations, these
procedures, however imperfect, were not ultimately followed. It was
alleged that agreements were in some cases faked, and that in most cases
the peasants did not know what was going to happen to them at all until it
was too late. By their own accounts, provided to CCTV journalist Su Qi,
the villagers were not consulted before such agreements were
concluded, 35 but simply told later that they would have to give up their
land. In the case of the second production group of Baiguo village, where
Liu Zhengyou lived, various agreements viewed by the journalist revealed
mistakes: in one of these form agreements, he says, not even the
"agreeing" parties' names had been filled in.36

In another instance, Su Qi tried to find out if and when
government approval had been given for the requisitioning of land
collectively owned by a group in the village of Dayan.37 Approval of
such an agreement was needed according to the then effective

34 Effectively, the Zigong High-Tech Zone Committee ended up approving many "agreements"
itself.
35The then-valid 1988 version of the Land Administration Law does not provide a detailed provision
on the procedure for determining compensation and obtaining agreement from collectives whose
land is requsitioned. See 1988 Land Administration Law, supra note 4. But the State Council's
1991 Implementation Regulation does so in Article 18. In subsection (b) it requires that "land
administrations of people's governments above the county level shall examine and check on the
application for use of construction land, mark the area for such use and organize the construction
unit, the land-owning unit and other related units in negotiations in accordance with law on plans of
compensation for the acquired land and settlement which shall be sent to the people's governments
above the county level for endorsement." See 1991 Implementation Regulation, supra note 5, at art.
18(b). Subsection (c) requires that "the applicant for use of construction land, upon approval by
people's governments above the county level within the legally endorsed authority, shall be issued
documents of approval for use of construction land by people's governments above the county level
in the locality where the land is acquired, and the land administrations shall allocate construction
land once for all or in installations in line with the speed of construction." See id. at art. 18(c).
Article 48 of the current Land Administration Law reads: "After the plan for land compensation
and resettlement fees is finalized, the appropriate local people's governments shall make an
announcement and hear the opinions of the rural collective economic organizations and peasants
whose land has been expropriated." See 2004 Land Administration Law, supra note 12, at art. 48.
This process is also referred to as consultation.
36 Su, supra note 7.
37

1d.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 249

Implementation Regulation for the Land Administration Law; it depended
on the size of the plot to be requisitioned and what level of government,
starting from the county level, was authorized to grant approval.38 But
neither repeated remonstrations by villagers to various officials nor a
laborious search by Su Qi could bring to light any documents on official
approval decisions taken at the time that the requisitioning process began
to affect the villagers. According to Su Qi, the earliest document that
could be found in the archives of one of the concerned offices dated from
1996. This document, Sichuan Province government Document No. 347
(1996), approved the requisitioning of land of the second group of Dayan
village. However, the provincial approval document revealed an
important mistake in the requisitioning process, saying that "[i]t was
wrong for Zigong City High-Tech Development Zone Administration
Committee to begin using the land at a time when they had not yet
applied for approval. It should conscientiously receive education and
strengthen its legal-mindedness." 39 This exhortation seemed more
concerned with the correctness of the administrative process than with the
effects of mistakes on citizens.4 ° One gets a clear sense from Su Qi's
report that the villagers suspect the former village group head of collusion
with the township government.41

Third, the requisitioning process seemed legally questionable
because the compensation standards applied in this case appeared
inadequate, and because compensation actually paid to the collectives or
to individual peasants apparently fell short of even these standards. It has
already been pointed out that there is a fundamental difficulty in
determining what the compensation for rural land should be. How should
one value the land that is lost to the peasants in a situation in which they
have no right to sell it to developers and when only future
commercialization will ascribe a market value to it? Indeed, in contrast to
legislative texts governing urban land,42 legal rules on compensation for

38 See 1991 Implementation Regulation, supra note 5, art. 18(c).
39 Su, supra note 7.
40 Interestingly, there is a 1992 response by the NPC Standing Committee legal affairs working
group stating that illegal requisitioning approvals have no effect and that those responsible should
be given administrative punishment. It does not, however, say anything about requisitioning
decisions that have not been approved at all. See - [NPC
Standing Committee Legal Affairs Working Group Response No. 116] (July 9, 1992).
41 Su, supra note 7.
42 Compare if J-W'J [Urban Housing Demolition and Relocation
Management Regulation] art. 24 (promulgated by the State Council, June 13, 2001, effective Dec. 1,
2001) (P.R.C.), available at http://www.dffy.com/faguixiazai/xzf/200407/20040701201401.htn
(last visited Feb. 24, 2006) ("The amount of monetary compensation shall be determined according
to the location, use, building area, and other factors [related to] the demolition subject's housing as
well as an evaluation of the market price.").



COLUMBIA JOURNAL OF ASIAN LAW

rural land requisitioning contained in Articles 27-30 of the Land
Administration Law (as of 1988) and Article 18 of the then effective 1991
State Council Implementation Regulation for the Land Administration
Law required compensation that related to the annual agricultural output
of a certain plot of land and various additional factors, rather than to the
land's prospective market value. It is interesting to note that the
maximum compensation in this context-up to fifteen years' annual
output-corresponded to the duration of a land use right. In Article 27,
the Land Administration Law also provided that certain individual
investments should be compensated for as "compensation for fixtures on
the land" (I4d14 , fuzhuowu) and "compensation for young [or green,
that is not matured] crops (H M, qingmiao)." According to Article 30,
this latter kind of compensation could be paid out individually, whereas
compensation for land was to be used by the "units" (-*R, danwei)
whose land was requisitioned to develop production and create
employment opportunities and/or as living subsidies to its members.
Article 31 of the Land Administration Law provides that compensation
owed to the collective shall be "negotiated and handled" by local
government if all the land of a particular collective is requisitioned. The
implication is that, in such a case, the collective has ceased to exist.

Considering that the villagers' collectives affected by these
provisions are collective owners of the land in question, and so far as
one's status as a member of a particular village and group was not
normally subject to changes, one could argue that the collectives'
members at one point had a legitimate expectation to be able to live off
the land for life, rather than just for a few years. It is this expectation
which is captured in the colloquial expression minggenzi (- & R T,
lifeblood) when referring to the importance of land to peasants in China:
it is viewed as the basis of their life and, it is often implied, of that of later
generations, on an implicit and obviously generalized assumption that the
peasants in question are farmers. Alternatively, one could argue that the
peasants should be compensated according to "fair market value." The
latter would perhaps make the most sense if peasants had access to a
market in land. But as already pointed out,4 3 there was (and still is) no
market mechanism to which peasants have access in the context of
"urbanization" of land previously designated as "rural."

According to peasant representatives in the present case,
compensation payments for the loss of land and for individual
investments made before requisitioning, as required by the provisions of
the Land Administration Law and the Implementation Regulation for the

43 See discussion, supra pages 240-41.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 251

Land Administration Law, were either never made or were withheld from
the collectives and individual peasant households to whom they were
owed by the local government; or, so far as it was legal for the
government at the township level to "handle" such money because the
collective in question had ceased to exist,44 the money was not used for
the purpose prescribed by law. The Zigong High-Tech Zone Committee,
a few months after having been set up in 1993, established an "Office for
Demolition and Relocation from Requisitioned Land." This office did
not only manage, organize, and carry out demolition and relocation but,
fatefully for the peasants, it also set its own standards and guidelines for
compensation and re-settlement of peasant households.45 Liu Zhengyou
says that the Zigong High-Tech Zone Committee failed to hold any
meetings with villagers to seek their approval. Non-authorized
"agreements," he alleges, were signed only by the villagers' committee
heads, and were in some cases backdated. The villagers' committee
heads, he further insinuates, were also bribed.46 From the material
available to the author, it is not clear what payments were made to whom,
and not even the allegations made by Liu Zhengyou allow for any clarity
on who withheld what amount of money at what level of government.
Yet according to these allegations, the principal payment of compensation
was made to township level government, and did not subsequently reach
the peasants or peasant collectives. The stated reason for the
"withholding" of compensation money was that it was in the peasants'
long-term interest to use the money to set up a factory where they could
work after losing their land. To quote Liu Zhengyou:

As for the compensation for requisitioning land and
compensation for the loss of collective property of the
peasants, these were withheld according to a land policy
of the City government; and even the piteous sum of
compensation money which the peasants were supposed
to get, was allotted in a lump sum to the township
government for unified administration. The reason they
gave for this was that "funds owned collectively by the
villagers cannot simply be distributed and consumed

44 See discussion on implications of Article 31 of the Land Administration Law, supra page 250.
45 It issued its own documents on compensation for demolition and relocation, to which Liu
Zhengyou refers as "the red-letterhead documents ( If, hongtou wenjian) no. 20 and no. 27
(1993)," issued by the Zigong High-Tech Zone Administration Committee. See Liu, supra note 7.
46 "The officials of the Zigong High-Tech Zone Administration Committee arranged for pleasure
trips for cadres at the levels of township, village, and group; they gave money and presents to these
cadres." Id.



COLUMBIA JOURNAL OF ASIAN LA W

separately by each recipient, so that nothing remains; 47

there must be long-term considerations for the peasants,
and we will set up an enterprise for them [to work in]."
Ten years have passed since then but no enterprise has
yet been set up and it is unclear where the several tens
of millions of yuan which the peasants ought to have
received have gone.48

According to Liu Zhengyou, what happened instead was that people who
lost their land were assigned to existing enterprises that did not really
have the capacity to employ them. Liu Zhengyou further explains:

The Zigong High-Tech Zone Administration
Committee requisitioned land [in the first phase] from
1993 to 1997. The provisions they made for the
peasants during that time were as follows: The City
Government was to employ all the people between
eighteen and forty years old and they were to get the
city household registration. 49 Those honest and naive
peasants, when they heard that they would become
factory workers, and even be given an urban household
registration, they were delighted! For as peasants, of
course, they had been suffering discrimination. More
than 2000 peasants made landless were dealt with in
this manner by the City government. They were
assigned to various enterprises belonging to the districts
and street committees, in addition to privately run
enterprises and enterprises run by collectives. But the
gains made by these enterprises were already poor, and
when the City government forced dozens of further

'7 7t :zie [Bu nengfenguang chiguang]. This has some legal basis in Article 31 of the 1988
Land Administration Law. It stipulates that certain types of compensation for green crops and
fixtures on the collectively owned land should be paid to the individuals whose fixtures and crops
were lost, but that the remainder must not be distributed individually (fA3 , sifen). In the Zigong
case, a differentiation between compensation for individual and collective losses was apparently
never made.
48 Liu, supra note 7. Further grievances concerned the question of where the peasants turned out of
their houses would live. The "provisional housing" arranged for the peasants upon eviction was
deficient and often badly insulated, unsanitary, dilapidated, and not accessible by proper alleyways.
Three people allegedly died by falling into unsecured latrines or ditches at night. Years passed and
the peasants could not move out. See Su, supra note 7.
49 This is in accordance with Article 31 of the 1988 Land Administration Law, according to which a
household registration change to "urban" may occur when all the land of a collective has been
taken. 1988 Land Administration Law, supra note 4, at art. 31.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 253

workers upon them, they could bear their costs even
less and soon had to close down. At most, these poor
landless peasants worked in those enterprises for one
year; some even only worked for two months [before
they were dismissed].50

According to available information, an effective, or at least partially
implemented compensation scheme involving actual payments to the
peasants was not worked out by the Zigong High-Tech Zone
Administration Committee for Baiguo village until 1997, about four years
after the Committee had been set up. The standards it set seemed to have
been determined by an assessment of the peasants' needs rather than the
agricultural value of their land. It was alleged that the monthly
subsistence money to be paid out to some of the peasants according to
this scheme fell short not only of what would have been required
according to the Land Administration Law, but even of the sum paid as
social welfare to Zigong citizens.

According to the compensation scheme decided by the Zigong
High-Tech Zone Administration Committee, allegedly in accordance with
the requirements of the [then] Land Administration Law, the
compensation was to consist of two parts: 1) a one-time payment to
subsidize new housing, called "resettlement compensation," in the
amount of approximately Y8000 per person for people between eighteen
and forty years old, and 2) a monthly subsistence allowance of Y54 (later
adjusted to Y90) per month for persons aged forty or older, and the same
amount for minors until they were sixteen or, if they were studying, had
graduated from high school.

It has been calculated that according to these standards the
peasants, who in 1997 had an average annual per capita income of
US$213.00, should have received either a lump sum payment of
US$967.40 or a monthly payment of US$6.53 per person in compensation,
whereas the market price of the requisitioned land was US$73,373 per
acre. Before requisitioning, one household had on average one acre of
land allotted to it. The average price of a commercial flat in Zigong
would have been US$8000, beyond the reach of most of those evicted.5'

It was not made clear whether this type of legal compensation was
meant to represent compensation for the loss of land or for the loss of

50 Liu, supra note 7.

51 Gao, supra note 3 1. The author explains how the gains from property development could have

been siphoned off by officials and property developers acting in collusion.



COLUMBIA JOURNAL OF ASIAN LA W

housing. 52 There was apparently no explicit mention of "land
compensation" which, according to Liu Zhengyou's allegations, had
already been received and diverted by officials. A further complaint of
the peasants, in addition to the problems just mentioned, was that
compensation for the loss of houses, when finally paid out, applied a
standard for rural rather than urban housing demolition. As a result of
these various flaws in the compensation process, many peasants were
allegedly left destitute. To quote Liu Zhengyou again:

Not a few among them had to live on scavenging waste
for recyclable items, cleaning shoes, pulling rickshaws,
and working as unskilled laborers .... After repeated
manifestations of resistance, the local government
decided in 2002 to raise the subsistence aid paid out to
peasants to Y84.60, and to raise it by Y5 every second
year from then on. But that means that it would still
take twenty one years for the subsistence support to
catch up with the [current] minimum social welfare
payment for Zigong city and town dwellers.

C. No Rights to Assert? The Fragile Condition of Collective
Ownership and of Rural Rights of Use

As noted above, later legal arguments put forth in an effort to
obtain a judicial (or reconsideration) procedure retreated into areas that
were comparatively "safe" to contest, such as the standard for a particular
kind of compensation. Arguments put forth by or on behalf of the
peasants rarely addressed the subject of ownership and rarely suggested
that the peasants actually perceived themselves as owners, or that they
identified with the abstract collective owner, of the requisitioned land.
This, of course, should not lead one to conclude that dispossession and
the loss of collective ownership did not matter to the peasants, or indeed
that they might not have thought of the land in question as "belonging" to
them in some politically, economically, and legally relevant way. For
historical reasons, challenges to the control of land were especially

52 Technically speaking, it appears that houses such as that of Liu Zhengyou, built by individual
peasants upon collectively owned land designated as land for housing (5-4-0, zhayidi) would, in
the terminology of the Land Administration Law, have to be characterized as fixtures on the land
(Vt' VJ,fuzhuowu).
" I , 9--_it ,V M WVK 4 .RM(Z +:AM* e A U) [Yu Meisun,
The Plight of Landless Peasants Trying to Defend Their Rights Against Officials (No. 10: A
Complaint to National Leaders)] (Dec. 16, 2003), at http://www.blogchina.com/new/display/
17927.html [hereinafter A Complaint to National Leaders].

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 255

sensitive politically, and therefore could not be fully raised by the
peasants. As noted below, in one recorded instance when the possibility
of characterizing the issue as an ownership dispute was suggested it was
immediately suppressed. 4

So what about the peasants' rights? The present case involved all
three forms of ownership in things (moveable and immoveable) now
recognized by the Chinese Constitution 55 but, most importantly, of course,
it involved land, or "immoveable property (things)" in Chinese
terminology. Regarding land, as already mentioned, Chinese law only
recognizes state and collective ownership, although it does recognize
individual (household) rights of use. Commercially speaking, the
transformation of land from collectively-owned to state-owned was a
technically necessary step to make it an object of trade in private urban
land use rights.56 Article 6 of the Constitution states that "[t]he basis of
the socialist economic system of the People's Republic of China is
socialist public ownership of the means of production, namely, ownership
by the whole people 57 and collective ownership by the working people,"

54 See Industrialization in China, supra note 7 (including what looks like a transcript of a meeting
held in March 2004).
55 While Article 6 of the 1982 Constitution, recognizing collective and state ownership, refers to
"ownership systems" and "ownership of the means of production," Article 13 of the Constitution as
revised in 2004 recognizes private ownership in chan (IT) by referring to siyouchan ( AjP); in
the present context, chan is best translated as "things" (in German, which in this respect is closer to
the Chinese, the appropriate translation would be Sachen). See 3&i [CONST.] art. 6 (1982)
(P.R.C.); see also 3M [CONST.] art. 13 (1982) (P.R.C.) (as amended Mar. 14, 2004).

While the General Principles of Civil Law clarify in Article 71 that a citizen's personal (that is,
individual) property can include housing ( fangwu), it appears that the effect of requisitioning
land will eventually be to destroy such property rights along with rights of use regarding the land
originally granted by the land-owning collective, according to the principle that the right of use in
land on which buildings have been erected are inseparable from rights in the buildings (colloquially,

W )5; i tit, di sui fang zou, fang sui di zou). Principles of Civil Law, supra note 4. But
there seems to be no clear legal provision saying so and it is not clear when such individual rights
would vanish (except that they will vanish when the actual buildings are destroyed). Personal
housing is referred to as housing owned by natural persons (1 AM, ITOOMM, ziranren suoyou de
fangwu) in the literature. For instance, in K [CIVIL LAW] 232 (AM(r [Wei Zhenying ed.],
2000). At page 235 in this book, it is pointed out that the registration of individual housing rights
(WY' -WYRiE,fangwu chanquan dengii) in the countryside lags behind registration in urban areas
in China. In conversation, it was mentioned to the author that this was also a problem in the Zigong
case.

According to Liu Zhengyou's own account of the destruction of his home, his immoveable
personal property was also taken away or destroyed in the present case. See description, infra page
265-66.
56 Land use rights limited in time may be characterized as private; by contrast, collective ownership
cannot be characterized as a form of private ownership. For a discussion of current property law
reform see VV tY. " ffi 1 fA 7L' ,:[ 9 [Property Law Must Give Prominence to Remedies for
Infringement of Private Property Rights], M]I;tT4IM. [S. METROPOLITAN NEWS] (July 5, 2005),
available at http://www.nanfangdaily.com.cn/southnews/spqy/200507050005.asp.
57 On this concept see the discussion and sources, supra note 5.



COLUMBIA JOURNAL OF ASIAN LAW

and that "[t]he system of socialist public ownership supersedes the system
of exploitation of man by man; it applies the principle of 'from each
according to his ability, to each according to his work."' The
Constitution provides that "land in the rural and suburban areas is owned
by collectives except for those portions which belong to the state in
accordance with the law." 58 Further legislation protects collective
ownership as an institution.

But these abstract guarantees alone do not translate into concrete
rights for the land-owning collectives of villagers, or into protection for
individual peasants and peasant households. Several factors combined in
the present case to weaken the peasant collectives' concrete rights of
collective ownership over their land. The discussion of the requisitioning
process described above showed that certain rules of the Land
Administration Law and the Implementation Regulation Regarding the
Land Administration Law were simply disregarded in the Zigong case.
The absence of a real discourse on the legality of dispossession in the
present case already indicates that the institution of peasants' collective
ownership in land is fragile. The collectively-owned land was too easily
requisitioned, and hardly anyone discussed the first and most substantive
issue in the expropriation context: namely, the question of whether
collective ownership and private land use rights had to give way to public
interest. Importantly from an economic perspective, there was no option
to sell and get a share of the commercial gains made from rural land.59

While, to a limited extent, rural rights of use might be the object of
commercial transactions (a recent Land Administration Law reform has
clarified this), such rural rights of use as might, for instance, be created by
a contract (4z_, chengbao), could not be sold to "urban" developers.
Further, these rural use rights also effectively vanished as a consequence
of land requisitioning transforming the land into state-owned land.

58 Article 10 of the 2004 Constitution reads: "Land in the cities is owned by the state. Land in the
rural and suburban areas is owned by collectives except for those portions which belong to the state
in accordance with the law; house sites and privately farmed plots of cropland and hilly land are
also owned by collectives. The state may, for the public interest, expropriate or take over land for
public use, and pay compensation in accordance with the law. No organization or individual may
appropriate, buy, sell or otherwise engage in the transfer of land by unlawful means. The rights to
the use of land may be transferred according to law. All organizations and individuals using land
must ensure its rational use." 3M [CONST.] art. 10 (1982) (P.R.C.) (as amended Mar. 14, 2004).
59 Interestingly, it is not really evident that the peasants were demanding a share in such gains,
although they certainly felt bitter about individual corrupt officials getting rich. Their complaints,
too, concentrate very much on mere subsistence. But this should not lead us to think that they did
not consider the land as theirs; only that they may have been thinking of it as theirs in much less
commercial terms than we might superficially expect. In this context, traditional notions of the
wrongness of alienating land from the family, and of the way land was connected with a family,
rather than one individual owner, may have played a role.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 257

It is a reflection of the fact that only land use rights are considered
as truly belonging to the peasants, that compensation owed to them is to
be calculated according to lost income from original agricultural land use
for a limited time period, rather than according to a standard reflecting the
expectation of continued land use for at least the lifetime of the adult
presently involved in agricultural use of the land, and typically falls
widely short of commercial or speculative gains made in the land
"urbanization" process. On this interpretation, the loss of collective
ownership as such does not enter into the calculation of compensation
owed to the collective. This is another aspect of the apparent fragility of
the institution of collective land ownership abstractly protected in the
Constitution. Of course, it is by no means obvious as a policy matter that
gains completely out of proportion to the value of the land before
requisitioning should go to the landowning collectives and benefit their
members only, rather than a larger community of citizens. On the other
hand it is difficult not to see some duplicity in the current structure of
land law, holding out an abstract promise of "collective ownership by
village peasants," but not allowing this collective economic right as such
to translate into concrete economic value.

The fragile condition of "collective ownership" makes it more
difficult to determine when the taking of rural land is illegal according to
property law rules by blurring the line between legally and illegally
requisitioning collectively-owned land. 60 Just like other forms of
ownership, collective ownership relates to a particular form of political
organization, the proper functioning of which is required for the
collective to act as real owner. The collective in question in the present
case is the Chinese village (at the cun (*I,) or zu (Il) level). From the
internal perspective of a villager and member of the collective owning the
requisitioned land in Baiguo, therefore, a principal cause of the erosion of
property rights in the present case must have been the failure of village
self-government at the level of villagers' committee heads, and the
impotence of village "groups" as the entities to whom collective rights of
ownership in land had been allotted. Village government ought to have
worked as a self-governance mechanism through villagers' committees
and committee heads accountable to all villagers. Although it clearly
failed to work, it is worth noting that this mechanism did not fail because

60 If available accounts are correct, the processes described above were certainly illegal in some
other respects, including the corruption affecting "agreements" on requisitioning and compensation
or the even more egregious rights violations described in the following sections of this essay. Even
if property rights were unclear in this case, this did not make other rights-such as that of access to
courts, the right to be involved in compensation negotiations, or the more basic right to be treated as
equal citizens--disappear.



COLUMBIA JOURNAL OF ASIAN LA W

of "grassroots" conditions within the village. Rather, the potentially
functional mechanism of village self-government was undermined. As
alleged in detail in some cases in Zigong, 61 one problem was that
villagers' committee heads were not the chosen leaders, but had been
appointed by higher-level government figures or the Party. The resulting
lack of accountability meant that committee heads had no real incentives
to be open to the villagers or act in their interests. Even though it appears
that proper village elections would improve this situation, we can also
draw a cautionary lesson from the fact that collusion with and corruption
by higher-level party and government officials appears to have been a big
problem, and that approved decisions made by higher level government
could in certain crucial ways replace agreements entered into with the
affected villagers. Even if village elections worked better, it seems that
opportunities for corruption affecting village communities "from above"
would remain.

Due partly to the way in which collective ownership is connected
to village self-governance and partly to the dimensions of the loss
experienced by peasants whose land is requisitioned, the implications of
collective land ownership may become clearer when it is lost than while it
still exists. In some cases, they may amount to a loss of status or identity;
or they may lead to a new sense of belonging to a group of people who
have been wronged. As mentioned, in accordance with the Constitution,
there is no privately owned rural (agricultural) land in China. Thus
farmers who lose their land cannot buy themselves new farmland. So far
as they see themselves as representing one generation in a long line of
future generations, this loss is even greater. In an interview in 2004, Liu
Zhengyou is quoted as saying that, unlike tax burden issues, "[t]he land
issue is not a problem of just one generation; it affects all of a family's
future generations, and therefore the entire family, the young as well as
the old, are all required to participate [in rights protection activities]., 62 It
should be noted that in some regions, rental markets in limited land use
rights under household responsibility contracts are emerging, 63 but of

61 Corruption at the level of individual village heads "negotiating" compensation into their own

pockets is frequently a problem. Su, supra note 7, describes such a process regarding the village

Dayan, also part of the Zigong case, and a village group head named Wu Yingxin [RThVL], who
did not hand over the group's accounts and thereby exposed himself to suspicion of embezzling
money or accepting bribes.
62  

, _VI j f ,k ±.ikt[ , [Zhao Ling, Major Change Regarding

the Focus of Peasant Rights Defense Activities: From Tax Burden Conflicts to Land Rights

Protection], M) jb * [S. WEEKEND] (Sept. 2, 2004), available at http://www.southcn.com/news/
china/china05/sannong/snpol/200409020413.htm.
63 See Qian Forrest Zhang et al., Development of Land Rental Markets in Rural Zhejiang: Growth
of Off-Farm Jobs and Institution-Building, THE CHINA Q., Dec. 2004, at 1050. It is not entirely
clear from this discussion whether rentals usually occur within a community of collective owners or

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 259

course these markets are only open to those who can afford to buy.
Unless they acquire, as some of the Zigong "peasants" did,64 an urban
household registration as part of their compensation package (welfare
plan), the landless peasants are often forced to join that part of China's
large "floating population" of city-bound migrants, who cannot gain legal
recognition as "urban residents," and suffer further discrimination as a
consequence.

The role of Liu Zhengyou and other so-called "peasant
,,,,65representatives" or "rights protection representatives, 65 indicates that the

people thought to live at the "grassroots" level of society were quite ready
to be represented by leaders of their own choosing. Indeed, many
peasants rallied around such representatives with regards to compensation,
which was the one legal question that still seemed open to discussion
once the peasants had been forced to abandon their land. Their attempt to
protect their rights to fair and legal compensation described below could
therefore also be considered as effectively maintaining a community of
former collective owners, 66 now a community of "landless peasants." 67

III. RESPONSES: LEGAL ACTION, PETITIONING, PUBLIC
MEDIA ATTENTION, AND PUBLIC UNREST

A. Petitioning and Administrative Reconsideration
Applications.

Liu Zhengyou, the resident of Baiguo village, was twice affected
by requisitioning, demolition, and relocation. 68 When a second
requisitioning decision was made regarding his newly built house in 1995,
Liu Zhengyou was unwilling to accept the offer of compensation money,

also with people outside that community, but there is some mention, especially in the richer eastern
provinces, of organized "outside agribusinesses" acquiring land use rights and employing paid
workers. The authors point out that land use rights will often be rented out by families whose
bodily able members have migrated to cities to work. The authors argue persuasively that collective
ownership, where it works as intended, can protect against entirely demand-driven land rights
markets.
64 It is not clear from available material how many people were transferred to urban residential
status or ought to have been transferred as a consequence of being accommodated in urban districts.
65 V K 1<= (nongmin daibiao), -t (weiquan daibiao).
66 That is, in the same area. This is not to indicate that all of them were members of the same

collective.
67 9 0-V (shidi nongmin).
68 He lived in a house near a road that was broadened in 1995. When part of the land on which his

home stood was requisitioned for this purpose, he decided to take compensation offered by the
Zigong city government and then demolish and build another house in a different plot. Not long
after this, requisitioning for the Zigong High-Tech Zone began in Baiguo village. See
Industrialization in China, supra note 7.



COL UMBIA JOURNAL OF ASIAN LA W

based on the already-mentioned Document No. 75 (1993). He thought
Document No. 75 (1993) was illegal, as did several other peasants in
similar positions.

According to Liu Zhengyou's argument , the main reason why
Document No. 75 (1993) was illegal was that it applied incorrect
compensation standards. The Committee had set its own standard for
compensation and cited the 1986 Land Administration Law in support of
the substantive standard for compensation chosen, which was for
"superior peasant [housing or land]." The Zigong High-Tech Zone
Administration Committee claimed that the basis for Document No. 75
(1993) was the Article 27, Section 2 of the 1988 Land Administration
Law and a complementary provincial regulation partially delegating the
power to set standards to cities.69 But in 1997, by the time an agreement
on compensation for the loss of their houses was reached, all the land
affected by "demolition and relocation" decisions had already been
designated as urban for several years, and the peasants argued that,
therefore, compensation standards according to the Urban Housing
Demolition and Relocation Regulations should apply. The applicable
compensation standard was important because the standard for peasants
did not clearly relate to the value of property taken away, whereas the
urban standard did. It was alleged that if the urban standard had been
used, compensation would have been five times higher than that available
under the rural standard.70 Because they thought the standard determined
for them by the Zigong City Government and Committee had no legal
basis, the peasants of Baiguo village, led by Liu Zhengyou and a few
others, decided to take action.

Liu and his fellow aggrieved citizens had two methods by which to
vent their discontent. There are two main forms of addressing specific
complaints toward government in China, and although both have different
histories, in reality they tend to blend into each other. The one more
recently introduced is administrative reconsideration, a procedure
designed for internal administrative review of decisions, which can then
lead to administrative litigation in court. The more traditional one is the
aforementioned petitioning, or "letters and visits" ( -i, xinfang) process.
Article 41 of the Chinese Constitution guarantees citizens the "right to
criticize and make suggestions regarding any state organ or functionary,"
and to "make to relevant state organs complaints or charges against, or
exposures of, any state organ or functionary for violation of the law or

69 For a full quotation of this document, see id.
70 Gao, supra note 3 1.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 261

dereliction of duty. '7 1 There are a number of both State Council and local
regulations concerning letters and visits, 72 and most state authorities in
China, including courts, have an "office for answering letters and
receiving visitors." Besides opening an avenue for responses to
government injustice, the institutionalization of complaints to the
government also institutes a kind of supervision over officials. Moreover,
it represents a channel through which government at all levels can receive
information on citizens' grievances. 73 "Litigation petitioning" ('gfihffB ,
xinfang susong) is made possible by the peculiar openness of the Chinese
judicial process. Judges experience interference from within their court
(e.g., by the court president or the adjudication committee), and courts
experience external "supervision" by people's congresses 74 in addition to
interference by Party committees. 75  Last-instance decisions (that is,
decisions after which no further appeal (±W, shangsu) is allowed) are
often open to further revision in re-trial (Nj W, zaishen) procedures.76

These conditions of adjudication in China naturally lead litigants and
complainants to "go where the power is," and seek support from all those
institutions influencing or even controlling the courts.

Liu and his friends, turning to the Zigong High-Tech Zone
Administration Committee and to the Zigong City government, petitioned
and applied for administrative reconsideration. In response, the

7' The first paragraph of Article 41 of the 2004 Constitution reads: "Citizens of the People's
Republic of China have the right to criticize and make suggestions regarding any state organ or
functionary. Citizens have the right to make to relevant state organs complaints or charges against,
or exposures of, any state organ or functionary for violation of the law or dereliction of duty; but
fabrication or distortion of facts for purposes of libel or false incrimination is prohibited." See E i
[CONST.] art. 41 (1982) (P.R.C.) (as amended Mar. 14, 2004).
72 See {Mt&*Wl [Letters and Visits Regulation] (promulgated by the State Council, Oct. 28, 1995)
(P.R.C.), available at http://www.gzgov.gov.cn/pages/zfjg/pages/szf__lygwyxftl.htm (last visited
Feb. 24, 2006) [hereinafter Letters and Visits Regulation 1995]. This regulation has since been
replaced by new regulation effective May 2005. See fi&ij* [Letters and Visits Regulation]
(promulgated by the State Council, Jan. 10, 2005, effective May 1, 2005) (P.R.C.), available at
http://www.chinacourt.org/flwk/showl.php?file-id=99030 (last visited Feb. 24, 2006) [hereinafter
Letters and Visits Regulation 2005].
73 For a thorough discussion of the xinfang (1ji&) system, including its historical origins and its
function as a governance tool, see Minzner, supra note 2.
74 See, e.g., RANDALL PEERENBOOM, CHINA'S LONG MARCH TOWARD RULE OF LAW 309 (2002).75 See STANLEY B. LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO 263 (1999).
The Political and Legal Committees may demand specific decisions in cases of particular
significance [ ;4-T, zhongda anjian].
76 According to Article 63 of the Administrative Litigation Law, for instance, a new court procedure
can be instituted simply when "the law or regulations have been violated" and "a re-trial is
considered to be required" by the president of the court that made the original decision and, upon
referral, its adjudication committee, or by a higher court. See r2 i A V ALf1Q Im I 0 iff ik M
[Administrative Litigation Law] art. 63 (promulgated by the Nat'l People's Cong., Apr. 4, 1989,
effective Oct. 1, 1990) (P.R.C.), available at http://www.molss.gov.cn/correlate/xzssF.htm (last
visited Feb. 22, 2006) [hereinafter Administrative Litigation Law].



COLUMBIA JOURNAL OF ASIAN LAW

Committee initially argued that the new buildings were built on what used
to be collectively owned land. All later decisions in regard to them were
a mere "continuation" of the requisitioning process initiated in 1993.

However, this response seems flawed. In a discussion of the
Zigong case, law professor Cheng Jie points out that, had the committee
or city government compensated the peasants for land requisitioning in a
timely manner, as required by law, then land requisitioning compensation
would have been arranged long before the demolition of houses began.
The land in question was part of the city's urban, industrial development
zone. Some of the land had already been cleared of old buildings and the
new buildings on it were designated as urban housing; only its former
occupants (and members of the collective owner) themselves were still
frequently being referred to as "peasants" or "rural people. 77 Also, there
was a procedure for changing the registration status of houses from
"rural" to "urban" in these kinds of cases, but it had not been followed.78

According to this argument, it appears that former villagers of Baiguo
were paid "rural" compensation, not because of the nature of the houses
demolished, but because those who lived in them were still regarded as
"peasants." To quote from Liu Zhengyou's November 2003 petition:

In November 1999, on the petitioners' reception day of
the Mayor, when the peasant representatives reported
the problems of the landless peasants to Executive Vice
Mayor Shi Jun... the Vice Mayor said that "the policy
of giving compensation to peasants in accordance with
the demolition [compensation standard] for peasants
and of compensating urban residents according to the
urban standard has been approved at the provincial
level. Document No. 75 (1993) was collectively
discussed at a meeting at the office of the Mayor. You
say it is an illegal document; but we as the government
at City-level have the authority to issue [normative]
documents." . . . Mayor Luo Linshu said: "Peasants
just can't get the same 'demolition and relocation'
treatment as city residents. That's a policy decision.
No mayor can change anything about it. All this
petitioning in all places only gives the government a

77 Although they had occasionally been referered to as "urban residents" in official documents.

78 "It is evident that the requisitioning entity at least recognized that they had either failed to give

compensation for requisitioning when they set out to requisition land and thereby caused losses to
those whose land was requisitioned or failed to compensate in accordance with the law and legal
regulations at the time that they took urban land." See Cheng, supra note 7.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 263

bad reputation! And in the end it is anyway [always]
local government that decides. 79

Perhaps because it saw a problem with its own argument, the
Zigong City Housing Administration Bureau sought instruction from the
provincial-level Sichuan Construction Department. In November 1999, it
showed Liu Zhengyou a response from that authority on the legality of
Document No. 75 (1993). This response was Document No. 0125 (1999)
of the Construction Department of Sichuan, 80 which stated that the
provincial bureau of construction had no authority to decide upon the
legality of Document No. 75 (1993) since this was an instance of an
"abstract" administrative act. To use a more colloquial phrase, it was a
"red letterhead" document (WkiZ't1, hongtou wenjian), issued from a
government authority using a red letterhead.

This claim constitutes the central procedural difficulty of the case,
and is a kind of claim often made by courts and administrative
reconsideration authorities. Given the ubiquity of "red-letterhead"
documents in Chinese law and administration, it has significance far
beyond this one case. According to Article 12, Section 2 of the
Administrative Litigation Law, the courts may not accept litigation
applications directed at administrative decisions or orders "of generally
binding force." 8 1  In practice, this rule and related rules are widely
understood to prohibit courts from declaring "abstract administrative
acts" illegal or invalid even in the context of judicial review of concrete
administrative decisions. 82 At most, it is supposed that courts may ignore
illegal "abstract administrative acts" when conducting such review. 83 In

79 See Liu, supra note 7, at 4.
80 According to Liu's November 2003 petition, a department within the provincial construction

committee that should not have been in charge of the peasants' petition must have produced this
document. This allegation is not repeated or confirmed by any of the other people writing on this
case. See id. at 3.
8' Administrative Litigation Law, supra note 76, at art. 12, § 2.
8 2 

See I4iV -J54infi~k [ADMINISTRATIVE LAW AND ADMINISTRATIVE LITIGATION LAW] 173

(e: HA 2 [Jiang Ming'an ed.], 2002). Note that this practice means a much more serious
restriction of the scope ofjudicial review than, for example, the doctrine of ripeness in U.S. law.
83 The authority to invalidate administrative rules and regulations is supposed to rest with the
Standing Committee of the National People's Congress. See eP * Ik f W AM 9 [Legislation
Law] art. 90 (promulgated by the Standing Comm. of the Nat'l People's Cong., Mar. 15, 2000,
effective July 1, 2000) 03/2000 , [STANDING COMM. NAT'L
PEOPLE'S CONG. GAZ.] 112 (P.R.C), available at http://www.cnlawservice.com/chinese/
law&regulation/flcx/a003.htm (last visited Feb. 22, 2006). For the procedure for filing new
legislation, see also id. at art. 88. This authority concerns rules and regulations within the meaning
of the Legislation Law; there is no national law providing a formal review mechanism for other
"abstract administrative acts," although agencies under the Supervision Ministry may intervene in
such cases.



COLUMBIA JOURNAL OF ASIAN LAW

the present case, however, the court chose not to accept applications for
litigation at all, on the grounds that it could not decide on "abstract
administrative acts."

But was this argument correct? According to a Supreme People's
Court judicial interpretation of the relevant articles of the Administrative
Litigation Law, abstract administrative acts are "all documents of a
normative character which are issued or publicized addressing an
indefinite number of persons and which can be applied multiply."84 It is
doubtful whether Document No. 75 (1993), as a decision setting the
standard for compensation to be given to residents of a particular area,
was an abstract administrative act, especially when considering that this
standard could be executed in a fashion similar to a specific
administrative decision, so that once all the peasants had been removed
and compensated, it no longer applied to anyone.

Beyond this, the claim that abstract administrative acts cannot be
challenged legally at all in China is also doubtful. It can be argued that
such documents purporting to have binding force can be challenged, at
least in an administrative reconsideration procedure or, in the context of
administrative litigation, perhaps in a court procedure. In accordance
with Article 7 of the Administrative Reconsideration Law, which governs
review within the administration at the request of citizens, "when a citizen,
a legal person or other organization at the time of applying for
administrative reconsideration of a specific act considers that a norm of
one of the kinds listed below, on which the administrative act relies, is
illegal, he can also apply for an examination of said regulations with the
administrative reconsideration authority," and "norms made by local
governments above county level" are on this list.85 This argument might
be further supported by the fact that the Constitution protects collective
property in several of its provisions, and that it also binds Chinese courts
and individual judges serving on these courts.86 More generally, judges

84 See }dIkMK, 4iif Tl 1 - [Supreme People's Court, Judicial
Interpretation No. 8] art. 3 (2000).

8' See +-k K R Yi VPiL, [Administrative Reconsideration Law] art. 7, § 2 (promulgated
by the Standing Comm. of the Nat'l People's Cong., Apr. 29, 1999, effective Oct. 1, 1999) 05/1999
-IA, Kftkt -Z4 96 [g 225 (P.R.C), available at http://www.molss.gov.cn/
correlate/xzfyF.htm (last visited Feb. 23, 2006) [hereinafter Administrative Reconsideration Law].
If the requirement for abstract administrative act review can be brought up within a court procedure,
this marks an even greater breakthrough. Article 53 of the Administrative Litigation Law could be
read as taking the competence of actually examining the legality of abstract administrative acts back
out of the hands of courts again by requiring the submission of provisions considered inconsistent
with other administrative rules or regulations to the State Council for decision. See Administrative
Litigation Law, supra note 76, at art. 53.
86 The judge's duty according to Article 7 of the Judges' Law, is "strictly to respect the Constitution
and the law," and "to take facts as the basis, and laws as the criterion when trying cases, to handle

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 265

can be expected to apply law coherently, and this suggests that they must
also be allowed to make judgements about the status and validity of rules
and decisions produced at different administrative levels. Although it
may have been put forth, this argument had no effect in practice.

It appears that after the City administration had obtained support
from the provincial Construction Department in the form of the
November 1999 response, pressure was put on Liu Zhengyou to sign an
agreement regarding the demolition of his house and compensation for it,
but that he refused to comply. The Committee then applied to a Zigong
court for the legal enforcement of its order, according to Liu Zhengyou. 87

"Enforcement," when it occurred, served two combined functions: the
execution of the order just mentioned, but also what can best be
characterised as a punitive function. Liu Zhengyou was singled out for
having made trouble by having challenged the City government and the
Zigong High-Tech Zone Administration Committee. This is his account:

On January 13, 2000, the Da'an District People's Court,
in accordance with Administrative Decision (xingzheng
caijue) No. 8 (1999), made by the Zigong High-Tech
Zone Committee, carried out enforcement. The
government officials assembled [personnel from] the
Zigong City Intermediate Level People's Court,88 Zijing
District Level People's Court, Zigong City Police,
Huidong subsidiary police office, each branch police
office, the High-Tech Administrative Committee, the
Zigong Daily Newspaper, the Zigong Television Station,
etc. They mobilized a few dozen police and other cars.
They used police batons, handcuffs, firearms cartridges,
explosives, etc. to carry out coercive enforcement of the
demolition order against Liu Zhengyou, the petitioning
representative, upon his three-storey house. There was
no one at home at Liu Zhengyou's. They broke through
the outer security door and looted the inside of his
home, taking all personal property away (until today
these things have not been traced). Since Liberation,
this was the first time that explosives had been used to

cases impartially, and not to bend law for personal gain." See +P J1,fJ[M&V" [Judges'
Law] art. 7 (promulgated by the Standing Comm. of the Nat'l People's Cong., Feb. 28, 1995,
effective July 1, 1995, as amended through June 30, 2001) 07/2001 [

V [STANDING COMM. NAT'L PEOPLE'S CONG. GAZ.] 388 (P.R.C).
87 Liu, supra note 7.
88 Courts in China have their own enforcement officers,fajing 0M.



COLUMBIA JOURNAL OF ASIAN LA W

blow up a private home in Zigong and it caused great
outrage among the locals. The surrounding crowd of
landless peasants witnessing this example being set
amounted to about 2000. They cried at the top of their
voices and full of rage: Shi Jun is a bandit! Robbing
people in broad daylight! Shi Jun is a Guomindang
bandit! 89 The peasants bought a large number of
firecrackers and set them off to express their outrage.90

The above account continues to detail arrests and further demolitions.
Liu says that all "petitioning representatives" were thrown out of their
houses without being given temporary places to live.

B. Going to Court and Petitioning in Beijing

Liu Zhengyou decided to go to court. He and others tried to get
their application for litigation accepted by the Zigong City Intermediate
Level People's Court. We have no conclusive information on whether
they ever alleged police misconduct in this context, but it seems unlikely,
given the abundant participation of court police in the incident described
above and in other related incidents. The Zigong City Intermediate Level
People's Court refused to accept their application do so, and also refused
to allow an appeal against this decision. The reason stated by the court
was essentially the one already used by administrative authorities to reject
reconsideration applications: namely, that the court would not consider a
legal challenge to an "abstract" administrative act. It was apparently not
considered whether the complaints brought by individual villagers
affected by requisitioning should be regarded as specific applications of
this "abstract administrative act," and therefore as challengeable in court.

Liu then tried to make a stronger impression on the court by
bringing a collective lawsuit. In November 2000, Liu and 1300 peasants
tried to file a case for adjudication with the Zigong City Intermediate
Court. In December, a year after Liu's house and other property had been
destroyed, the Court again refused to accept the case. It might have
seemed as though the matter was now "settled" and the peasants had
finally lost, but they still had the aforementioned "letters and visits"

89 Shi Jun was the Vice Mayor and President of the Zigong High-Tech Zone Administration

Committee.
90 Liu, supra note 7. Liu states that several households were affected and that the peasants who
were forcefully evicted received no compensation at all. He also relates a conversation with Shi
Jun, the Vice Mayor.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 267

option. 91 Liu Zhengyou continued to plead with various government
agencies in Zigong City and at the Sichuan Province level. In summer
2001, the Letters and Visits Office of Zigong City issued a "final"-and
negative-reply. 92 Concluding that his only chance was to alert the
central government to what was occurring in his city, Liu traveled to
Beijing to lodge petitions. Some time later, certain scholars in Beijing
began to take an interest in his case; among them was Yu Meisun. 93

Together with several friends, he became involved in this case and began
to keep a diary recording its progress. This diary was later posted online.

Petitioning, or xinfang, in Beijing has long been an issue of
particular political and social concern. 94 The petitioning process is long,
difficult, and rarely successful. 95 For example, regulations in force when
Liu Zhengyou arrived in Beijing in 2001 allowed for the administrative
detention of petitioners considered unreasonable and not amenable to
"criticism and education." Furthermore, oral reports suggest that the
detention and relocation of petitioners continues, even after the new and
less explicit regulation came into force in May 2005. 96 Recent
occurrences of public protest, especially in Beijing, show there is a point
when the letters and complaints mechanism collapses.97

Nevertheless, on December 14, 2001, Liu and others managed to
gain an interview at the Supreme People's Court. There they were

91 Especially in the context of cases not yet filed there is a wide understanding that one can continue

to attempt to file a case by addressing higher ranking courts or other state or Party authorities. This
seems consistent with a "generous" practice regarding the availability of re-trials.
92 Industrialization in China, supra note 7.
93 In 1994 Yu was arrested on charges of leaking state secrets to a journalist, according to Human
Rights in China, The Diary of a Peasant Advocate, CHINA RTS. F., No. 3, 2004, at 61-67. "In a
closed trial," he was sentenced to three years imprisonment. He has since been working as a lawyer
and researcher in Beijing. See id.
94 All of the ministries, the Supreme People's Court, the Central Secretariat of the CCP, the State

Council, and the NPC have Letters and Calls Offices in Beijing. Many petitioners live in poor

conditions in an area in the south of Beijing called the "petitioning village" ( IBf,, shangfangcun),
which is situated relatively close to most of the "letters and visits" offices of central state authorities,
such as the Supreme People's Court. For a description of the petitioning village see Pierre Haski,
Bureau des Pleurs et des Coups 6t Pkkin [The Beiing Office for Tears and Blows], LIBERATION,
Mar. 5, 2005, at http://www.liberation.fr/page.php?Article=280198.
95 A November 2004 report summarizes responses to questionnaires distributed to 632 petitioners.
Among these, 401 said that they had previously tried to solve their problem through court litigation,
and in 42.9% of these 401 cases the court refused to file their case, whereas in 54.9% of these cases
the petitioners claimed more generally that the court was not "handling matters in accordance with
law" and that this was why they had been unsuccessful. According to the questionnaires, moreover,

90.5% stated that they had come to Beijing "to let the center know of this," and 88.5% that they

were there "to exercise pressure on the local government." L).& & , Mji, [ N- r I'i

AG- IR [Zhao Ling & Su Yongtong, First National Report on Letters and Calls Given Attention

at High Levels], M ) J.9 * [S. WEEKEND] (Nov. 4, 2004), available at http://www.nanfang
daily.com.cn/southnews/zmzg/200411041014.asp.
96 See Letters and Visits Regulation 1995, supra note 72, at art. 22.
97 Zhao & Su, supra note 95.



COLUMBIA JOURNAL OF ASIAN LA W

given-apparently not by the letters and calls office, but by the case filing
division-an unnumbered "official letter" ( Wi, gonghan) addressed to
the Sichuan Provincial Higher Level People's Court:

Liu Zhengyou and others came to our court today to
lodge a petition [_± ih , shangfang] in a matter of
conflict concerning "demolition and relocation"
resettlement. In accordance with the regulation of our
court regarding the responsibility for handling matters
at the appropriate court level, we hereby introduce Liu
Zhengyou to you and ask you to receive him and take
care of him conscientiously, and to handle the matter in
accordance with law. 98

Yu Meisun writes that the peasants "joyfully" took this letter back to
Sichuan Province's Higher Level People's Court. They were certain that
their application for litigation would now be accepted, and that they
would be able to access a public court procedure addressing the
compensation issue. However, in Sichuan, Yu Meisun continues, they
were disappointed by a judge of the Higher Level People's Court of
Sichuan Province: "'So you're actually counting on the law and the
Supreme People's Court, are you! Let me tell you, as long as there's no
approval from the leadership, that letter isn't even good as paper to wipe
your asses.' He did not grant their request [to accept the case for
adjudication]." 99 The "leadership" to whom the judge referred was
obviously not the Supreme People's Court, but one of the external local
authorities, mentioned earlier, which influence Chinese courts.

Liu and his friends were not going to accept this decision
rejecting their case for litigation. They considered whether there were
any other government actions that they could attempt to challenge. There
was the 1999 decision-Document No. 0125 (1999) of the Construction
Department of Sichuan, saying that Document No. 75 (1993) by Zigong
City had been legal. To challenge this administrative decision made at
the provincial level looked like a good move because it could be done in
Beijing, far away, it seemed, from the influence of corrupt local officials.
The authority directly above the Sichuan Construction Department was
the National Ministry of Construction. In January 2002, Liu Zhengyou

98 ", VI 14 [+ A(Z=:,W(R_.--: F)[yu Meisun, The Plight

of Landless Peasants Trying to Defend Their Rights Against Officials (No. 2: CCTV is Satisfied)]
(Apr. 8, 2004), at http://www.blogchina.com/new/display/18014.html [hereinafter CCTV is
Satisfied].
99 Id.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 269

and 1300 other peasants submitted an application for administrative
reconsideration to the Ministry, requesting that Document No. 0125
(1999) be declared illegal.

After three months had passed without an answer,'00 on May 14,
2002, Liu Zhengyou, accompanied by local friends, visited Beijing City's
First Intermediate Level People's Court to ask Judge Li to accept their
case for litigation. They requested the court to "order the Ministry of
Construction to fulfill its legal obligation to produce a response to the
peasants' application for administrative reconsideration." '1 0 1 They had an
inconclusive discussion with Judge Li, lasting for over an hour, about
whether he could file their complaint. Ten days later, Liu Zhengyou had
another discussion with Judge Li, who now told Liu that he could not
accept their application for administrative litigation without previously
"clearing" this with the Construction Ministry. But, he explained, he had
already contacted the Legal Regulations Department Head of the Ministry,
Wang Rongmei, and had arranged for Wang to receive Liu at the Ministry.
Liu was aware, and pointed out to Li, that mediation must not be
practiced in administrative litigation (according to Article 50 of the
Administrative Litigation Law, which reflects the fact that mediation in
administrative contexts may be easily flawed by a power imbalance
between a complaining citizen and the state authority complained against).
The judge therefore ought not to have suggested an informal negotiation
with Liu's opponent, especially while, at the same time, refusing to file
the case as a court case. Although he knew this, Liu felt that he had no
choice.

Three days later, persuaded by Judge Li, Liu visited Wang
Rongmei at the Construction Ministry. Wang declared that the problem
could only be solved if they withdrew their application for administrative
litigation against the Construction Ministry. However, Liu told him that
since they had not even succeeded yet in getting this application for
litigation accepted, or in getting their litigation properly filed, there would
be no way of "withdrawing" it. He distrusted Wang's suggestion to
pursue some kind of settlement.' 02

Subsequently, the embarrassed Ministry of Construction allegedly
persuaded the Beijing Intermediate Level People's Court to change the

100 According to the Administrative Reconsideration Law, the reconsideration authority has five

days to reject the application or transfer it to another authority on procedural grounds (Article 17); if
no sucl- procedural rejection or transfer occurs, the application must be dealt with within sixty days
(Article 31). It should be noted that neither the peasants nor the Ministry appear to have addressed
the issue of a time limitation affecting the peasants' right to apply for reconsideration (Article 5).
See Administrative Reconsideration Law, supra note 85.
101 See CCTV is Satisfied, supra note 98, at 25.
02 id.



COLUMBIA JOURNAL OF ASIAN LA W

date of the application for administrative litigation that Liu had made in
mid-May to the beginning of June-that is, to a date after Liu had
actually seen Wang Rongmei at the Construction Ministry. According to
Yu's allegations, this illegal falsification of the real date of the application
then allowed the Ministry to make an "earlier" decision to accept the
application for administrative reconsideration. The court then declared
that "after investigation we found that the application for administrative
reconsideration has already been accepted for handling by the
Construction Ministry, on June 13, 2003," so that there was no cause of
action and the application for administrative litigation was rejected. 10 3

After that, finally, the Construction Ministry produced a decision
on the application for reconsideration. Declining to review the response
made by the Sichuan Construction Department to Zigong City, it stated
that it had sought an instruction from the State Council on this matter.
Yet judging from a document made available by a Chinese legal aid
website, it appears that the State Council had merely repeated the
Construction Ministry's own words by saying that Document No. 0125
(1999) could not be challenged because it was not a specific
administrative act. 104 If the document reproduced on the website is
accurate, this letter is a fine example of bureaucratic evasion. To quote:

On the problem of determining the nature of the
document by the Sichuan Provincial Construction
Committee, namely the Committee's Document No.
0125 (1999) entitled Regarding a Request for
Instruction Made by the Zigong High-Tech
Administration Zone on How to Implement the
Regulations and Policies, you take the following view:
"The said response is a response regarding the

103 Liu tried to file a case with the Beijing court because he had not received any notification of the

case having been accepted for handling by the Construction Ministry, but did not succeed. See A
Complaint to National Leaders, supra note 53.

iR [State Council Reply Regarding a Request for Instruction Submitted to the
Ministry of Construction On Whether a Response Regarding a Demolition and Relocation Policy
Regulation Is a Concrete Administrative Act] (Aug. 27, 2002), available at
http://www.lawl10.com/law/guowuyuan/2157.htm. There is no further evidence to confirm or
disprove that this text accurately renders the text of an original letter sent to the Construction
Ministry, or that such a letter was ever sent. The content of this letter is nonetheless consistent with
the development of the case as described in other sources. Note that the full document as available
online speaks of "Liu Zhenglong" in apparently referring to Liu Zhengyou. The legal aid website
'lawl 10.com' is restricted to providing legal information and states at http://www.lawl IO.com/law/
that, as of October 18, 2005, 11,058 normative documents in the area of building law and
construction law from different localities are provided on this website. It emphasizes that it cannot
guarantee the accuracy of documents it reproduces.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 271

application of the Land Administration Law and the
Regulations on Urban Demolition and Relocation. It is
in no way a unilateral administrative act addressing an
administrative subject or subjects, regarding a particular
set of circumstances, and determining the rights and
duties of such administrative subject or subjects;
therefore it is not a concrete administrative act." We do
not disagree with this. 10 5

Between September 2002 and January 2003, Liu and his friends went
through the process of trying to get cases accepted by Beijing courts to
appeal this most recent administrative reconsideration decision. However,
both their initial complaint and their appeal were rejected.

Looking back at the process of petitioning and applying for
administrative reconsideration and litigation briefly described above, one
cannot deny that the legal system in action in this case displayed a
genuine and elaborate concern for the correctness of administrative
decisions. There is a willingness, at least, to ensure that decisions can be
corrected "from the top," and to encourage lower-order administrative
authorities to seek instructions "from the bottom." There are the
mechanisms of administrative reconsideration and litigation which are, at
least formally, opening up new avenues for seeking redress. There is also
the shangfang (iL ) system, allowing, in theory, for fairly flexible
responses to injustices suffered by citizens. One does not have to assume
that all this "seeking for instruction" was merely prudential, and there is
evidence that some officials in the courts and administration did show
concern and tried to help the situation (such as the Supreme People's
Court official who gave the Zigong peasants a letter to take back to
Sichuan, and the person in the Sichuan Construction Department
informing Liu that Document No. 0125 (1999) might have been "forged").

Nonetheless, all three types of procedures have also failed in the
present case, and in doing so have revealed systemic problems: The
"seeking for instruction" procedure resulted in a mere repetition of a
lower authority's words in the situation discussed above. Petitioning also
produced a reply in the form of a document that could not be challenged,
and also appears to have had no effect. Moreover, the Supreme People's
Court's instruction to a provincial court was simply not heeded. This
case thus, on the one hand, indicates that the ongoing land seizures do not
happen entirely outside the law. There is even extreme formalism and
authoritarianism, both of which require an assumption of commands

105 See id.



COLUMBIA JOURNAL OF ASIAN LAW

obeyed and sets of rules requiring adherence. Yet, on the other hand,
formalism and authoritarianism are undercut by official disregard for
legal requirements on a striking number of occasions, and there are also
contradictory rules and commands issued by different elements in the
bureaucracy.

Even more disturbing, when asked to compare the consistency of
various abstract administrative acts, both administrative authorities and
courts of law failed to do so. This failure is either because courts are not
permitted to do so as institutions or because individuals working in these
institutions do not dare to make such judgments. The courts in this case
did not become active as real courts, and instead refused to accept cases.
This failure was ostensibly because the standard for compensation that the
peasants were challenging was not "concrete" enough to come within the
scope of their powers to adjudicate. In a sense, the only time the courts
became "effective" in this case was when they enforced the
administrative decision against Liu Zhengyou to carry out demolition by
supplying court police.

This not only thwarted the aim of rights protection, but it also
resulted in a senseless volley of the case between different courts and
administrative authorities, and the jockeying of elaborately contrived
facts, as though procedural correctness mattered only in form and could
be disregarded in substance. Furthermore, it seems that there was little
substantive legal argument at an official level, not to mention public
argument resulting in publicly available records. Yet as the Sichuan
provincial court judge's comment on the Supreme People's Court's
documents illustrated, the real reason for not accepting the case was not
the reason cited; it was merely that the court or individual judges sitting
on the case would not act independently. Chinese courts are, in many
respects, including financially, dependent on other state and Party
authorities at the same administrative level, and were under considerable
pressure to conform with their indications of approval or disapproval. To
quote He Weifang:

Even though higher levels call on us not to practice
local protectionism, 10 6 1 must say, how could a basic-
level court president, or even a provincial-level court
president, not practice local protectionism? The

'06 In Chinese, difang baohu zhuyi (*1),MPI).. This is an unfortunate term, inasmuch as it
elevates the concern motivating judges to be obedient to local government into something one does
out of a sense of rightness. Of course, He Weifang's argues that it is right. See 'LIUJ , A"8M*

J' ,tX-M [He Weifang, Eight Great Difficulties With Judicial Reform] (Dec. 21, 2001), at
http://www.civillaw.com.cn/weizhang/default.asp?id=9353.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 273

clothing, feeding, housing, transport, and social security
of a few hundred people [working] in a court all weigh
on the court president's shoulders; if the leadership,
including the leadership in the administration, the Party,
and the People's Congress, thinks that a judgment
favorable to the interests of a local party should be
made, then in my eyes it is [not only] very difficult to
go against that, [but] indeed he also shouldn't go
against it. Because the current system provides that
your welfare, your economic existence is in the hands
of another.'

0 7

It is difficult to imagine any able judge not caring about whether the basis
of their decision is legal. 108 It is also difficult to imagine how
adjudication can thrive in China on the continued assumption that the
legality of normative documents cannot be reviewed in court or court-like
procedures, even when one deliberately refrains from discussing the
further question of whether the Constitution allows judges the power to
declare illegal regulations invalid in the absence of a functioning
alternative mechanism for constitutional review or the review of abstract
administrative acts. 109 This practice can only be characterized as a
current failure of the adjudication system. " 0

C. Public Media Attention and Public Unrest

On June 12, 2003, the aforementioned CCTV program was broadcast."'
On that day, according to Yu Meisun's diary, he was called by Liu
Zhengyou from Zigong, who told him that their case would be on a
popular program about the economy. He was delighted, and records that
he "had been worrying about this case so long and now finally there

107 See id.
108 This makes it understandable that judges resort to the "Abstract Act Doctrine" even when faced
with challenges to concrete administrative acts based merely on illegal abstract administrative acts.
109 In jurisdictions, such as Germany, which use distinctions similar to concrete/abstract
administrative acts, the distinction serves a different function. It may influence standing, but does
not suspend the general principle that all state action is subject to review for its legality and
constitutionality.
110 For impressive statistics on illustrating the difficulties with filing administrative litigation cases
and the pressure on withdrawing litigation, and a persuasive reading relating these statistics to a lack
of court independence, see Veron Ying-Mei Hung, China 's WTO Commitment on Independent
Judicial Review: Impact on Legal and Political Reform, 52 AM. J. COMP. L. 77 (2004).
111 Su, supra note 7.



COLUMBIA JOURNAL OF ASIAN LA W

seemed to be a little hope .... ,,112 On June 13, 2003, the Mayor, Shi Jun,
called a meeting with media representatives, at which he declared that the
matter "had been blown out of proportion" and that there was "nothing
that could not be sorted out."113

A week later, on June 21, another letter arrived from the Sichuan
government, informing some peasants that their latest application for
administrative reconsideration had not been received for handling. Three
days later, Yu Meisun received another phone call from Liu Zhengyou.
Four hundred peasants, he said, had gone to the Zigong City government
building "to get problems solved." They were severely beaten by about
100 armored police and more arrests were made.' 14 Other peasants active
in the protests, including Liu Zhengyou, were put under police
surveillance. Liu Zhengyou escaped the surveillance on June 28. He
traveled back to Beijing to attempt to promote his cause. 1 5 Because he
feared that he might be detained and sent back if he checked into a hotel
or pension by showing his national ID card, he stayed with friends and
did not comply with the legal requirement of obtaining a "temporary
residence certificate."

In Beijing, the concerned-often anguished-Yu Meisun
continued to write, recording what information he received on the
developments in Zigong and discussing the case with friends and
colleagues. 116 He recorded public protests and violent clashes 117 in
several more places in the Hongqi and Fenghuang townships during the
next two months." 8 At some point during the summer months, he posted
his writings online. Also, he tells us that copies of that text and papers
reached the peasants, and some of those who read them decided that their

112 CCTV Begins to Address the Case of Peasants Being Framed, supra note 1. The transcript of

this program by journalist Su Qi has been used to explain the problems with compensation noted
above.
113 Id.
14 According to Yu Meisun, the married couple Chen Shoulin and Liu Dezhi were detained. When
Liu Dezhi was released shortly afterwards, it turned out that they had been taken into the police
station only "for the purpose of finding out details about their litigation/reconsideration application
against the city government and other government authorities." Id.

"~Id.
116 Sometime in July, for instance, he receives a copy and provides a summary of, a document
entitled n 0i-9Hff 7PT 1 ]4 3 9 M A K 1? [Can the Relevant Higher Local Authorities
Requisition Peasants 'Land by Force?]. See CCTV is Satisfied, supra note 98.
117 Including in some instances roadblocks by the peasants and efforts to obstruct construction work
begun on the sites of demolished buildings. See CCTV Begins to Address the Case of Peasants
Being Framed, supra note 1.
118 Yu Meisun records that 200 to 300 police beat up and chased away Baiguo village peasants from
the land which "they tried to protect against illegal possession." Three women, including one Zhou
Yufang and one Zhou Shuqin, were heavily injured. They were taken to the hospital where they
received treatment initially at the expense of the city government. After a week, however, the
government refused to continue to pay, and as a consequence they had to leave prematurely. Id.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 275

best strategy was to paste copies upon the walls of the City Party
Committee, the City Government, the People's Congress, the police
station, the People's Procuratorate, the People's Court, and on walls in
various other public places. They realized that attempting to speak to
local officials or submitting reports to officials was futile.

At this point, some central government officials in Beijing turned
their attention to this case. In August, an investigation team composed of
officials and cadres from five different ministries and commissions was
set up to conduct investigations in thirty one different locales in the area.
However, from his peasant friends, Yu heard of only one sighting of a car
carrying the officials from Beijing. They told him that none of the
officials had ever contacted them to hear their views on the matter." 9

The public media, which continues to be strictly controlled, 20

became cautious. Yu Meisun writes that he tried several times to submit
his newly written texts to the CCTV program Business Half-Hour ( i9
-1 /1 H4, Jingi Banxiaoshi), which had originally broadcast the story on

the Zigong case. But after two failed attempts, he phoned them and was
told that they "had not seen" these letters. Giving up hope that CCTV
would take the matter up again, he decided to send the texts to the Zigong
peasants by fax.

For a short period in the first half of September, it seemed that the
peasants were gaining the upper hand in the violent conflict taking place
between them and the police, other officials, and workers trying to carry
out construction projects. This is when Yu Meisun starts describing the
conflicts as "warfare." There are also reports of meetings among officials,
and even between officials and peasants. Yu writes:

As the present text was widely circulated in the Zigong
Development Zone it further stimulated the rights
assertiveness of the peasants. From the beginning of
September, construction work was completely halted by
the peasants in every place; the police were no longer
beating up or arresting people, and surveillance toward
the peasants was also loosened; moreover, dialogue
began between citizens [people] and officials; the
situation seemed to be taking a turn for the better.

119 CCTV is Satisfied, supra note 98.
120 See Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System,

105 COLUM. L. REv. 1 (2005).



COLUMBIA JOURNAL OF ASIAN LA W

In the first ten days of September, the peasants felt very
happy when they saw the newly edited first three texts
[of mine]. They made over a hundred photocopies and
distributed them to each village, each [village] group,
so that every family and every household became
familiar with them. They submitted copies to the City
Party Committee, to the [City] People's Congress, to
the [City] government, the police and Procuratorate and
courts, etc.; then they made more copies and pasted
them onto the walls in streets and lanes. Officials
immediately had them removed again and announced
that if any more were posted there would be new
detentions. The third text was also posted on the
Zigong government website by a supportive internet
user. (The first of the texts was already placed on this
website in July but taken off it not long afterward.) 21

Perhaps the fact that the police began trying to take back administrative
notices on administrative punishment-especially detention notices-
served on peasants in the past indicated that they were becoming nervous.
Yu, who had taken notes of the content of such detention or
administrative punishment notices previously, first recorded such efforts
on August 15. It appears that the police were not initially very successful
in getting any such papers back. 122 From September onward, therefore,
they tried to buy them back, offering a "competitive" price of Y500 per
document in the case of detention notices. This seems to illustrate, again,
that the peasants initially had had nothing to negotiate with so far as
compensation for their land and houses was concerned. Only the threat of
discipline or punishment suddenly made bargaining with the peasants
worthwhile. The irony of this was not lost on Yu Meisun:

Especially regarding the "detention notices," the
competitive buying price they offered was Y500 [apiece]
but even so they were rejected. The peasant [with
whom I spoke] said: "this is criminal evidence of
[unlawfully] detaining people; even for Y5000, we
won't sell!" It looked as though when the Zigong

121- I± fM' i 4)[Yu Meisun, The

Plight of Landless Peasants Trying to Defend Their Rights Against Officials (No. 3: Officials and
Citizens Begin Dialogue)] (Dec. 3, 2003), at http://www.blogchina.com/new/display/18104.html
[hereinafter Officials and Citizens Begin Dialogue].
122 CCTV is Satisfied, supra note 98.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 277

police had read a chapter in this text (now text number
two) entitled Deep Thoughts Upon Holding Twenty-
Five People's Detention Notices in My Hand, they
couldn't sit still anymore; they must have become so
nervous that they started collecting back all kinds of
police notices and didn't mind how they were doing this.
One could call them stupid, but then how much more
stupid was the response they got; really so stupid one
could neither cry nor laugh. With ¥500 one can buy
500 pounds of rice, that's not a little! I persuaded my
peasant brothers to go and sell off the "detention
notices" as quickly as they could as this way they
would at least be able to put some food on the table.
This was just a kind of state compensation. If already
used detention notices could still be sold for a high
price and count toward compensation for the peasants,
all the better! And who, indeed, could have expected
any real progress to be made in Zigong, this mysterious
and ancient place whose earth has turned out a fair
number of dinosaurs.123

Then, the peasants once again began to lose ground. The peasants claim
that a reporter dispatched by CCTV on September 17 to report on
progress being made was not allowed to talk to them at all, unlike the first
time, when CCTV had broadcast interviews with a few peasants rendered
destitute. After that, there were new violent clashes and new detentions,
following the pattern already described above.

On September 22 Yu Meisun received a faxed letter.124 This
letter, from Huang Fangying, is quoted in full below, as it gives insight
into this peasant woman's attitudes and expectations. It is not, as we can
see, an argument in support of a specific legal right. It is rather a plea not
to make life impossible for her:

After we lost our land my husband Ye Xinghua (forty
years old) and I just barely scratched a living by selling
fruit from a stall. From that day when I was detained,

123 Officials and Citizens Begin Dialogue, supra note 121. Later, Zhang Yaojie's transcript of a

meeting between peasants and officials on March 31, 2004 records peasant Yu Guoqi from Baiguo
village's seventh group as crying out: "I was beaten, and the police arrested me and put me in
[administrative] detention, and then they even wanted to buy my detention notice back for Y500.
But I didn't give it to them; I've kept it, as a souvenir!" See Industrialization in China, supra note
7.
124 This is also recorded in Industrialization in China, supra note 7.



COLUMBIA JOURNAL OF ASIAN LA W

he had always been very depressed and dejected. The
township head of Hongqi, Chen Wenxian, had violently
entered our home one night, at midnight, bringing
twelve other people with him, and threatening that he
would not allow us to make petitions. We were under
surveillance from morning to late. When my husband
went out to go to fruit-selling he was always followed
by an officer from the Huidong [City district] police
office, both ways, and that was all because I had once
gone to the city government building and asked for our
problems to be solved. Having been exposed to all
kinds of threats and abuses, his mind was severely
affected, and in addition to that came the further
pressure of not having anything to live on, and on July
21 he hanged himself in his home and died.

After [my husband] had been forced to suicide, 125

the head of Fankui Street Committee, Dai Liping, told
me that I must not tell anyone about the cause of his
death, and the street committee paid me Y612 for the
funeral. All the certificates of the cremation and
receipts and other evidence of his death were all taken
away by the street committee. My own life and that of
my fifteen-year-old daughter are extremely hard now.

Why is it so difficult for us to protect our right to
live?126 1 cry to Heaven, give me justice; give me my
right to live back. Punish those corrupt persons who
harm ordinary people. Make the Party's Three
Represents 27 and [the principle of] "Establishing the
Party for the Good of the Public, Running Government
for the Good of the People"'128 come true for ordinary
people; make society stable and people's lives happy. 129

125 The expression used is bei bisi (9A__, "to be forced to die").
126 Shengcun de quanli (14M<, JK); an alternative translation would be "ability to live" or "bare
livelihood." Perhaps by mistake or due to confusion, she uses a word that sounds the same as
"right" (Rj, quanli), but is written in such a way that it means "power" (triiJ, quanli).
127 The principle, put forth by former President Jiang Zemin in 2000, that the Communist Party
represents advanced productive forces, advanced culture, and "the fundamental interests of the
overwhelming majority of the people of China." See What is Three Represents Theory?, at
http://www.china.org.cn/english/zhuanti/3represents/68735.htm (last visited Mar. 16, 2006).
128 A phrase used by President Hu Jintao (i*) in his July 1, 2003 speech. See Hu Delivers an
Important Speech, XINHUA NEWS AGENCY (July 1, 2003), available at http://www.china.org.cn/
english/2003/Jul/68635.htm.
129 Huang Fangying (A-5 ) dated this letter faxed to Yu Meisun September 22, 2003, signed it,
and put her fingerprint on it. She also attached a "decision to impose administrative punishment"

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 279

Little else was recorded in Yu Meisun's text after that, except for further
attempts by Zigong peasants to travel to Beijing. Thus, on October 31,
Deng Yongchang and four others from Fenghuang managed to escape the
surveillance and travel to Beijing, while six people from Hongqi were
apprehended by police in Chengdu, the provincial capital, and sent back.
The successful group lodged petitions with the State Council, the
Ministry of Land and Resources, the Ministry of Construction, and the
Party Central Commission for Discipline and Inspection, and finally
attempted to complain to Wen Jiabao's office. But when they reached the
Zhongnanhai area of Beijing, they were arrested and detained for three
days. Then, the township head of Fenghuang, Li Bing, was notified to
come to Beijing and have them escorted back. 130 Subsequently, the
surveillance of peasants who might try to leave Zigong and petition was
stepped up considerably in the entire Zigong area at various
administrative levels.' 31 Meanwhile, in November 2003, Liu, who was
living underground in Beijing, lodged a petition with the letters and visits
offices of Premier Wen Jiabao and President Hu Jintao, in his own name
and that of 1300 peasants.

Other academics and journalists published a pieces on the Zigong
case in the summer of 2004. The sociologist Zhang Yaojie provided what
reads like a verbatim transcript of a meeting between several officials and
over 160 peasants on March 31, 2004, detailing the names of attending
officials-without any comment on whether this is a transcript, whether it
is accurate, or how he obtained the text. His own accompanying text
clearly sympathizes with the peasants:

Although not a single situation had been sorted out, the
host of the dialogue, Yi Yong, now began making some
concluding remarks. "Today we have called this
meeting following Liu Zhengyou's suggestions made
last Friday; I arranged with him to meet up today and to
let everybody talk about their problems. Concerning
Liu Zhengyou's problem everybody could hear him
present his views, and Comrade Wang Dengfu gave an

dated June 24, 2003, relating to her detention, as fully quoted in Industrialization in China, supra
note 7.
130 Letters and Visits Regulation 1995, supra note 72. In Article 22, the 1995 regulation explicitly

provided for a mechanism for escorting unruly petitioners back (1& -, shourong and 13)i,
3iansong). See id. at art. 22.
1 CCTV Begins to Address the Case of Peasants Being Framed, supra note 1.



COLUMBIA JOURNAL OF ASIAN LAW

explanation on that; 132 [which shows that] Liu
Zhengyou's matter is controversial. This is the first
thing I wanted to say. The second is, other comrades
and other members of the masses have taken the
opportunity to bring up their own problems and express
their feelings. Some problems draw different responses
depending on [the person's] background and standpoint.
The standpoint of the government, including the Zigong
High-Tech Development Zone as an authorized branch
of government, is that we have a responsibility to
handle every problem brought up by the masses; we
want to solve every problem. If there has been a
mistake it must be corrected, small mistakes demand a
small correction and big mistakes demand a big
correction. Even if no mistake has been made we still
want to do everything in the interest of the masses.
Both the city government and the Administration
Committee have their day for receiving [complainants]
on Friday. I suggest that if anyone still has something
they would like to say they can come on a Friday for
further exchanges."

Yi Yong's bureaucratic jargon was interrupted by the
peasant woman Lin Youfen. "Hang on, President Yi, I
want to ask Wang Dengfu a question. That plot of land
of ours, of the fourth group of Kuihua village; is it true
that it is going to be auctioned this afternoon? I would
like to hear Wang Dengfu give an answer."

Wang Dengfu said: "That's that plot right next to the
City Government building. The City Government's
Real Property Exchange published a notice on March 1
about it; but I'm not sure if they were going to hold the
auction today, because I am not in charge of this. It's
the state-owned land administration bureau's business."
Lin Youfen said: "We villagers wish to attend the
auction." And Liu Zhengyou chipped in: "Because
there is a dispute about that land." When Wang Dengfu
heard this, his tone became threatening. He said:

132 Wang's complaint that Liu chose the plot of land later affected by a second demolition order is
irrelevant if Liu did not then know about the future demolition order.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 281

"There are some businesses that one shouldn't mind too
much. If you are not supposed to mind, you shouldn't.
The dialogue is concluded."133

In June 2004, another petition, signed by at least 3661 people and
submitted to various central authorities, was translated by the non-
governmental organization, Human Rights in China, and published in one
of its newsletters. There is a marked change in the thrust of this petition:
from an assertion of claims to protection to an accusation of corrupt
individuals. 134 No information is available on whether this petition had
any effect. It appears, at any rate, that Liu Zhengyou remained in Beijing
for several more months, living in the Xiangshan area, until he, too, was
finally arrested and escorted back to Zigong in August 2004. 135

According to the report by Zhang Yaojie, he had already been warned by
residents of Zigong of a decision made by "local leadership" to have him
arrested.

In Zigong, a new acting mayor came into office in April 2005, Shi
Jun having left Zigong to take up another official position. Also at that
time, on April 20, 2005, Liu is reported to have staged a sit-in involving
around 100 peasants, attempting to petition local government and/or the
local people's congress yet again. According to reports, he and a few of
his fellow "peasant representatives" were beaten up and injured by local
police, and taken to the police station for questioning. 136 A more detailed
account-an unsigned open letter by "landless peasants" from Zigong-
indicates that a much larger gathering was originally planned. 137

However, the Zigong police and employees of the Zigong Development
Zone, street committees, township government, and villagers' and
residents' committees were dispatched to individual peasant families who
might participate, to prevent them from leaving their houses and to
"persuade" them not to go. According to this account, these people
distributed copies of the Sichuan Public Security Bureau's and the
Sichuan Government Letters and Calls Office's joint Communication on

133 Industrialization in China, supra note 7.

134 Sichuan Peasants Accuse Official, supra note 7. The content of the accusation corresponds to

Article 395 of the Chinese Criminal Code of the crime, limited to state functionaries, of having a
large amount of property whose origin he cannot explain. See + *k.K 4, [ R 'i [Criminal
Law] art. 395 (promulgated by the Nat'l People's Cong., Mar. 14, 1997, effective Oct. 1, 1997)
(P.R.C.), available at http://www.jincao.com/fa/law02.01.htm (last visited Feb. 25, 2006).
135 Sichuan Landless Peasants, supra note 7.
136 See Peasant Advocates, supra note 3; see also Sichuan Peasants Meet with Severe Beatings,
supra note 7.
13 Open Letter to All Members of Society, supra note 7.



COLUMBIA JOURNAL OF ASIAN LAW

Preserving Petitioning Order [ -T * P f4 4 h # LT , A ], 138 dated
March 10, 2005. Among other things, the Communication orders the
police to "deal in accordance with law" regarding the display of scrolls
and slogans in front of government offices and public squares, the
distribution of leaflets; the shouting of slogans, gathering to make trouble,
and illegally causing hold-ups. Of course, it should be noted that the
Chinese Law on Assemblies, Processions and Demonstrations, which
protects the right to hold demonstrations but does not allow spontaneous
demonstrations, requires prior application for permission to hold a
procession or demonstration. 139

According to the open letter, 140 only about 100 people were
finally able to participate in the gathering on April 20, but the letter
claims that there were many sympathetic onlookers amongst Zigong city
residents. A facsimile copy of a subpoena order issued on this occasion' 4'
says that Liu was questioned on suspicion of "illegally demonstrating," in
accordance with Article 54 of the Procedural Provisions for the Handling
of Administrative Cases by Public Security Organs ( .t Jd -ij
,4,- J_ j). 142 It is also reported that Liu Zhengyou was forced to
sign a "guarantee letter" that he would not attempt to engage in any
further petitioning during the time of the "Two Congresses," which is
traditionally a time for making petitions since it is easier to catch the
attention of People's Congress members and there is a lot of political
reporting. The open letter concludes:

When members of the landless peasant masses, during
the time of the Zigong City People's Congress' and
Consultative Political Committee's plenary sessions,
told Congress and Committee members of the people's

138 On file with author and published without identifying the issuing authorities at the website of the

Sichuan Food and Drug Administration Office [ [R )lI " 1 "o R T 1 Ri , at
http://www.scda.gov.cn/webporta[/portal.po?UID=DWV 1_WOUID_URLI 61895&TOC=COLUM
N_161895&OBJ=161892 (last visited Feb. 25, 2006).
139 i A , [Law on Assemblies, Processions, and Demonstrations] art. 7
(promulgated by the Standing Comm. of the Nat'l People's Cong., Oct. 31, 1989, effective Oct. 31,
1989) (P.R.C.), available at http://www.jincao.com/fa/law01.19.htm (last visited Mar. 20, 2006).
140 Open Letter to All Members of Society, supra note 7.
141 On file with author.
142 According to this regulation, those to be questioned on suspicion of violating administrative

provisions, which may lead to administrative punishments, may be requested by subpoena to appear
for questioning in places designated by the police, with approval by their responsible superior
authority. z 3 xI, ' - l K 1  iT i 4 [Public Security Bureau Procedural
Provisions for the Handling of Administrative Cases by Public Security Organs] art. 54 (2003)
(P.R.C.), available at http://news.xinhuanet.com/zhengfu/2003-09/08/content_1069530.htm (last
visited Feb. 25, 2006).

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 283

situation, the people's anger and the people's wrongs,
what crime did they commit? We were deprived of
articles on the Zigong land requisitioning corruption
case, which had appeared in the Party organ and other
publications, of petitioning material and of the right to
express ourselves in accordance with law, yet we had
not obstructed traffic or attacked government. Nor had
we damaged any public facilities, and even less harmed
other citizens' personal freedom; yet the police labeled
us with the crimes of illegally demonstrating and
disrupting the public order, and other such crimes. Are
these not corrupt officials seizing the tools of the state
to oppress those who oppose corruption? These small
people do not know; we seek instruction from all
members of society. 143

This occurred just a few days before the new State Council's Regulation
on Letters and Visits came into effect. 144 According to these new rules,
when petitioners with the same complaint wish to appear in person at
government offices, they must do so through not more than five
representatives. 145 This has not stopped collective petitioning and other
"mass incidents" from occurring in China, and it is unclear whether
petitioning in the narrower sense now allowed by this regulation will
decrease.146 Liu Zhengyou himself has not been stopped from continuing
his efforts, to "seek justice" (,- __' taohui gongdao), as he would
characterize them. 147

IV. CONCLUSION

After more than a decade of conflict, and after the requisitioned
land of Baiguo has long become part of a new urbanized area, it has
become more difficult to see what, precisely, a just outcome might be in
the present case. Incoherent or unclear legal rules that were also ignored

143 Open Letter to All Members of Society, supra note 7.
144 See Letters and Visits Regulation 2005, supra note 72.
145 See id. at art. 18.
146 For a recent report on petitioning, which to some extent discusses the effects of the 2005 legal

reform, see Human Rights Watch, "We Could Disappear At Any Time": Retaliation and Abuses
Against Chinese Petitioners (Dec. 2005), available at http://hrw.org/reports/2005/chinal205/.
"Mass incident" cases appear to have increased again (from 74,000 in 2004 to 87,000) in 2005
according to a Ministry of Public Security estimate; but it is unclear how these cases were
distributed over the year. See also Edward Cody, In Face of Rural Unrest, China Rolls Out Reforms,
WASH. POST, Jan. 28, 2006, at AO1.
147 The Chinese expression suggests something that has been lost and has to be won back.



COLUMBIA JOURNAL OFASIANLAW

in practice have made it hard to expect any justice from the legal system
as it is, not least because no state authority seems to have both the power
and the will to enforce some rules that should protect the Baiguo villagers.
And even if the rules most favorable to the peasants' interests were
enforced, there would still be some doubt about the fairness of a legal
system establishing classifications of land and residential status that led to
such great gains and losses on different sides of the divide in the context
of urbanization.

Even if, perhaps, we can work out, as an intellectual exercise,
what a just political order should be like even when we are in a state of
complete anarchy, seeking justice might lose its point when there is no
chance of enforceability. In such a situation, it might not be rational to
act in a just way, even though one might see how good it would be for
oneself if everyone, including oneself, could be brought to act in
accordance with these requirements. Perhaps responsibility for injustice
cannot be sensibly attributed to anyone in the absence of a powerful
sovereign, in a situation where various state authorities contradict and
counteract each other, as in the present case, and where the state appears
fragmented and weak. In that case, it might be better to forget about
justice and concentrate on expedient solutions. 148

However, in cases where there is government, but its periphery is
not responsive to laws and lawful commands issuing from its center, it
seems that injustice can arise precisely because no one, including the
central government, acts as a sovereign, yet many different agents,
wielding special power, perform the functions of the state. In such a
situation the state's actions seem perfidious, absurd, and wrong-in a
word, Kafkaesque, in the sense captured by Franz Kafka's Before the
Law.149 In this work, the law has stopped making sense and has become
threatening and deceitful. One is promised the protection of the law, one
is invited to consult the law and to invoke it, to complain, to file lawsuits,
to report corruption-but then when one tries to do so, the officials who
are supposed to guard the law will not permit these actions. The law is

148 In a different but related context, Thomas Nagel suggests that sovereignty is an enabling

condition of justice. In The Problem of Global Justice, discussing arguments from Hobbes and
Rawls, he characterizes sovereignty as an enabling condition of justice, which he describes, without
tying it to institutions, as "a property of the relations among human beings." He concludes that "the
path from anarchy to justice must go through injustice;" suggesting that sovereignty is a
precondition of injustice as well as justice. In cases like the one discussed here it does become
more difficult to attribute wrongs inflicted on citizens to "government" rather than to individual
officials; to apply a full concept of agency. See Thomas Nagel, The Problem of Global Justice, 33
PHIL. & PUB. AFF. 113 (2005).
149 Franz Kafka, Vor dem Gesetz [Before the Law], in VOM JUNGSTEN TAG. EIN ALMANACH
NEUER DICHTUNG [ON DOOMSDAY. AN ALMANAC OF NEW POETRY] (1914).

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 285

somewhere, but citizens have no access to it; and this only compounds
previous injustice.

In the Zigong case, law had many Kafkaesque traits. There was
law in Zigong, and the peasants kept appealing to the central government
and Party authorities, citing laws and legal doctrines in a way suggesting
that they wanted the restoration of a public order which, they trusted, the
central government also wanted to maintain or restore. But the
petitioning and litigation mechanisms failed, and because the peasants
could not win against officials who disregarded the law, shielded one
another, and made use of the chaotic state of an evolving Chinese legal
system, that system, including the Administrative Litigation Law and the
rules on compensation for land and houses, apparently left them in an
ultimately worse position. The law gave them expectations but did not
fulfill those expectations. The law made them expose themselves to
reprisals and persecution because they complained, and triggered violent,
"warfare-like" confrontation. By triggering failures to act, lies, and
deception on the part of some officials, it perhaps worsened the ongoing
corruption, thereby undermining the conditions of stable political rule.
To quote Yu Meisun again:

Some people "only fear that there will not be disorder
in the world [because they profit from disorder]; a dyke
of a thousand miles can be destroyed by ant-holes
undermining it." When I read, looking for parallels, in
the history of the Party's early peasant revolution
movement, or in the Stories from the Water Margin,
this case before us strikes me as very much deserving
our serious consideration. 150

Despite this "undermining" effect of flawed legal reform and rampant
corruption, the peasants insisted, for a remarkably long time, on the
protection of their right to be treated fairly through the court system and
other mechanisms of redress provided according to law. They acted out a
tension characteristic of rights assertion in a weak legal system: it is an
assertion of adherence to the law, but also an assertion of opposition and
resistance toward those in power who are perceived as disrespecting it,
and to some of the laws, rules, and regulations which they have laid down.

15o CCTV is Satisfied, supra note 98. This is the immediate continuation of the text quoted in the

introduction. Stories from the Water Margin, (A*i4*, Shuihuzhuan) is the name of a serial novel
from the late Northern Song Dynasty, whose author is Shi Nai'an (AlfP ). Its heroes-108
people, whose stories are told individually-suffer various wrongs at the hands of local potentates
and leave their homes to become bandits.



COLUMBIA JOURNAL OF ASIAN LA W

This conclusion, though it is limited to one case, sheds some doubt on the
claims advanced by some Western writers on Chinese law who believe
that Chinese people do not have a concept of rights "prior to being
granted,"'51 or who believe that the proper understanding of "Chinese"
rights is "instrumental."'

152

Even if a discussion of what property rights the peasants had
remains, to some extent, inconclusive, 153 the implicitly or explicitly
asserted right to be treated as equal citizens with access to the protection
of the law, and the "right to live"-the right not to be deprived by one's
own government of one's basis of subsistence without adequate
compensation-cannot be easily refuted. So far as available material
allows us to understand, it never was refuted by any substantive argument
in the present case over the course of more than a decade. Of course,
when they refer to "the right to live," peasants are using their rulers' own
language.154 The cries of "thieves" and "Guomindang bandits," coming
from peasants trying to protect "their" land by squatting on it, accentuates
the claim to be on the right side of the conflict-not only on the side of
the law, but also on that of the centralist communist party state which,
perhaps, is still perceived as having good intentions and as willing to
protect people's rights in accordance with the proclamations of recent
years. It is noteworthy that those at the forefront of petitioning and
litigation activities often grow more skeptical of the legal and political
system as a whole. In one of their latest compositions-not a "petition"
but an "open letter"--petitioners address themselves to "the leadership of
the Party and government at every level, the experts and scholars in

151 See, e.g., David Hall & Roger Ames, A Pragmatist Understanding of Confucian Democracy, in

CONFUCIANISM FOR THE MODERN WORLD 124, 152 (Daniel Bell & Ham Chae-bong eds., 2003)

("Contemporary China remains, even under 'communism,' a ritually constituted society, without
even a rhetorical appeal to the belief in objective principles often associated with liberal reflections
upon the issue of human rights. The very idea of some regimen of human rights possessed prior to
their being granted by the particular society to which one belongs, has never been an assumption of
Chinese rulers or peoples.").
152 Randall Peerenboom has variously used the terms "utilitarian," "pragmatic," or "instrumental" to
characterise conceptions of rights appropriate to contemporary China. See, e.g., PEERENBOOM,
supra note 74.
15 As has been argued at some length above, the right most obviously at issue in the present case,
the right of collective ownership of land, appeared empty given the way it was institutionally
disregarded throughout the process narrated here, and individual rural land use rights were tied to
the already fragile institution of collective ownership.
114 See, e.g., [M* 9 ),, 2003 [State Council's Public Relations Office,

2003 WHITE BOOK ON HUMAN RIGHTS IN CHINA] Chapter 1 (Mar. 2004), at

http://news.xinhuanet.com/newscenter/2004-03/30/content_1391353.htm. "Right to live" translates

as 1VtR*J (shengcun quanli) and Huang Fangying, in her letter discussed above, used the

expression I#VJiY.JJ (shengcun de quanli). See Industrialization in China, supra note 7.

[19:1



2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 287

economics and law, the media, and the entire nation."'' 55  With the
growing international media interest in social unrest in China, moreover,
people have been jumping at any chance to circulate their stories abroad,
even if it is often unclear what good international news coverage may do
them. 156 In a situation such as the one considered here, the significance of
having rights lies in the way they justify a range of responses to perceived
government injustice, though of course not every kind of response. 57  It
is worth noting that any public reaction to such measures, however small,
may strengthen a sense of solidarity among people whose own interests
are not immediately affected by a particular grievance.158

Yu Meisun, and even more so Liu Zhengyou, were not outsiders
but involved participants in the Zigong case. With the exception of some
statements allegedly made by government officials at the meeting in
March 2004 and a few official documents, officials' viewpoints have not
been made available. This situation reflects a general difficulty affecting
the discussion of rights in a situation where rights are not institutionally
protected. The availability of a forum for public disagreement and
decision, often in the face of continued open disagreement between the
parties, is important for rights protection to work. The fact that there was
no such forum for the citizens of Zigong, or that any available forum was
extremely flawed-that they could only protest, and only protest under
considerable risks, but not litigate-made it difficult for them to assert
everything they might have asserted in less oppressive conditions. From
the above narrative account, it seems that the peasants were desperate to
litigate in court. Had they been successful, it would have both forced and
allowed these government authorities to defend themselves. If such a
defense had become available, it would have been easier to understand
what the peasants disagreement with the government was about, and this

155 In Chinese, ", : , , ,k " (Cunjing de
geji dang zheng lingdao, jingii, fali zhuanjia, xuezhe, xinwenjie he quanguo renmin). See Open
Letter to All Members of Society, supra note 7.
156 International attention is also asserted in the slogans used during the April 20, 2005 gathering in
Zigong, according to id. One such slogan goes, "The major land requisitioning corruption case of
Zigong is getting national and international attention, but who is being held responsible (M I '['A
a ) 'it ) , A A ful 4)!"
157 In better-ordered societies, this is an aspect of rights rarely considered; but much of the original
appeal of the idea of individual rights in the Age of Enlightenment arose in situations similar to the
one this essay discusses.
158 The Zigong case most recently became the topic of yet another effort to appeal for protection,
this time made not by residents of Zigong but instead by residents of Sichuan's provincial capital
Chengdu, according to an online report. If accurate, this report indicates a significant new force,
since it would mean that there are efforts to stimulate solidarity among city residents and
"peasants." See F 4 9 itt K&fn nu -  

- [Chengdu Citizens Appeal in Support
of Zigong Peasants Who Have Lost Their Land], iiR [PEACEHALL NEWS] (Oct. 30, 2005), at
http://www.peacehall.com/news/gb/china/2005/l0/200510302314.shtml.



COLUMBIA JOURNAL OF ASIAN LA W

response would have sharpened the question of what rights they were
asserting. Viewed in this fashion, the fact that they were denied these
procedures changed the character of the injustice they suffered without
obliterating it.

In recent years, according to government statistics, there have
been many thousands of land dispute cases. Indeed, a recent paper on the
danger of "Latin Americanization" of China mentions a Ministry of Land
and Resources report, citing more than 168,000 cases of "illegal land
seizure" in the first eleven months of 2003, "twice as many as in the
entire previous year."' 59 It is a safe assumption that some of these cases
have, or had, similar features to the one studied here, and Chinese
researchers have asserted that the problem of land disputes (land seizures)
now constitutes the main cause of peasant grievances leading to
complaints, and sometimes to unrest. In an article about Liu Zhengyou
and the Zigong case in its wider context, Zhao Ling describes the results
of research done at the Chinese Academy of Social Sciences. He says
that land seizures have overtaken the "tax burden" problem as a cause of
grievance, and suggests that this scenario has somewhat changed the
language of complaints against government:

The language of rights protection is changing, too.
Regarding the reduction of burdens through taxes and
fees, because there were clear central policies to support
these causes, slogans would often be "implement the
center's policies/the requirements of the center's
documents; reduce the peasant burden." Since the land
issues are a matter of survival for the peasants, their
language has become more direct. For instance, [they
say:] "How shall we live without land!' 160

There are indications of a certain general decline of respect toward the
Party and government even at central levels. Indeed, if wronged citizens,
such as peasants made landless, have no serious expectation of redress for

159 See George Gilboy & Eric Heginbotham, The Latin Americanization of China?, 103 CURRENT
HIST. 256, 258 (2004), which provides further estimates on the number of people and the amount of
land affected. They observe that 6.7 million hectares of farmland were lost between 1996 and 2003,
compared to 1.9 million between 1986 and 1995, according to the State Statistics Bureau. Further,
"according to the 2004 Green Book of China's Rural Economy, for every mu (approximately 0.07
hectares) of land that is transferred to nonagricultural use, about 1 to 1.5 farmers lose their land.
According to official statistics, some 34 million farmers have either lost their land entirely since
1987 or own less than 0.3 mu . See id. This last figure seems to be inconsistent with those
cited earlier.
160 Zhao, supra note 62. The author also notes that, increasingly, landless peasants get help "from
society"; for example, from lawyers, to draw up petitions, etc.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 289

their wrongs, why should they respect claims to legal authority made by
the Party and government? If no reason can be found, we may have to
conclude that such "peasant" citizens are not, or are no longer, part of a
Chinese society striving toward rule of law-toward a justified form of
government upholding justice through its institutions. For the moment, as
this essay has endeavored to show, most protest takes the form of
appealing to the existing order even when people resist local potentates.
But this may change as increasing numbers of peasants come to courts
and government offices to seek the protection of the law, but find no one
willing or able to help them.

Better legal protection might be provided to peasants in the
context of the ongoing reform of property law. This approach would
require the creation of a more equal status of rural and urban citizens, and
the strengthening of peasants' negotiating position. While such reform
remains a possibility, it should be noted that in March 2005, Premier Wen
Jiabao made a commitment that "Chinese farmers' rights to manage and
use their land" will not change in the long run, or "ever change."'16'

Unless the institution of collective ownership is rendered more functional,
this means that peasants will remain at risk of being suddenly
expropriated without sufficient justification.

The draft for the new property (real rights) law, whose recent
publication triggered thousands of comments from the public, 162 contains
some interesting new stipulations which might improve the situation of
collective peasant owners of rural land facing land requisitioning. For
instance, Article 11 of the draft specifies matters that must be decided by
the general assembly of peasants belonging to one collective. Among
these is "the method of using and distributing compensation for land and
similar payments. '163 Article 62 deals with representatives of collectives
consisting of the entire community of villagers, or of economic
organizations or smaller groups within one village, and Article 64
provides that if decisions taken by the collective "infringe legal rights and
interests of a member of the collective, that member may apply to a
people's court for annulment of this decision. If a decision by the

161 See Premier Wen Meets the Press, XINHUA NEWS (Mar. 14, 2005), at http://www.chinadaily.

com.cn/english/doc/2005-03/14/content_424729.htm. Wen also stated on this occasion that the
rights of collective landowners "have been continuously extended."
162 See, e.g., 31€£_?, ti6 51'ZtJ-rt)KNA X,6515*, [Li Hongiun, Draft Property Law

Attracts 6515 Suggestions from the Masses in Various Places] (July 27, 2005), at
http://news.xinhuanet.com/legal/2005-07/27/content_3273909.htm.
163 r*K4jf1ttq i,(* ) [Property Law (Draft)] (posted July 10, 2005) (P.R.C.), at

http://www.npc.gov.cn/zgrdw/common/zw.jsp?label=WXZLK&id=339451 &pdmc=zxbd
[hereinafter Property Law (Draft)].



COLUMBIA JOURNAL OF ASIAN LAW

villagers' assembly infringes rights and interests of a member that
member can apply to a people's court for annulment of this decision. '' 64

In other respects, however, the draft does not contain changes that
might eliminate the basic discrimination between rural and urban land
owners of land rights (immoveable property rights). For instance, Article
45 says that "owners of immovable and movable property enjoy, in
accordance with the laws and regulations, the rights to possess, use,
enjoy the fruits of, and alienate their property."'165 While the institution
of different kinds of ownership for different kinds of land, as classified by
state authorities, remains, Article 45 leaves only theoretical room for the
argument that rural collectives could sell their collectively owned land.
Moreover, Article 162 of the draft contains a prohibition on the purchase
of residential rural land ( E * Pt, zhaijidi) by urban residents. 166

Commentators have observed the discriminatory effect of this article.' 67

Several articles of the draft contain references to "public interest"
as a precondition for requisitioning land use rights (9m, zhengyong) or

expropriation (affecting one's position as owner (zhengshou, bi[4 )),16 8

without explicitly defining "public interest." Further provisions concern
compensation: Article 48 provides that there must be compensation for
requisitioning and expropriation in accordance with state law, and that in
the absence of special provisions, compensation must be "reasonable.' 69

This provision does not add much substance to currently valid law,
although formulas such as "public interest" and of "reasonable
compensation" can be useful when a robust legal and judicial practice can
supply principles for the consistent and correct application of what they
require.

It is important to understand to what extent property rights depend
on the political conditions in which they are enjoyed. The present

" Id. at art. 64.
165 Id. at art. 45 (emphasis added).
166 Id. at art. 162. This could be understood as a provision protecting peasants against being

"bought out" by urban citizens but, crucially, there is no exit option for peasants from their
respective rural community, even when they physically leave (e.g. as migrant workers).
167 fit'A, 5) aVW :V RE)TI, [Tong Dahuan, Showing Concern for the Draft

Property Law: We Must Not Discriminate Against Peasants' Property Rights], XINHUA NET (July
21, 2005), at http://news.xinhuanet.com/legalU2005-07/ 2 /content 3247475.htm.
168 This means that collectively owned rural land would henceforth be "expropriated" as opposed to
"requisitioned."
169 See also Property Law (Draft), supra note 163, which prohibits illegal seizures of property

"under the name of demolition and relocation, expropriation, etc." Regarding criticism of this

phrase, see Li, supra note 162. See also r , " -- f" [Zhang

Qianfan, A Constitutional Interpretation of "Public Interest" and of "Reasonable Compensation '],
-A A [S. WEEKEND] (Aug. 11, 2005), at

http://www.nanfangdaily.com.cnlsouthnews/zmzg/200508110830.asp.

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2005] LAND DISPUTES, RIGHTS ASSERTION, AND SOCIAL UNREST 291

discussion emphasized that the collective ownership rights of political
micro-communities such as villages or village groups should not be
thought of as independent of "surrounding" conditions of political rule. If
surrounding political processes all work properly, collective ownership
might function as well as private individual ownership of rural land, and
current land disputes seem to be a consequence not so much of the
existence of collective rural land ownership, but of its fragility and the
fact that this form of ownership is not respected by the state, laws, and
officials. Control over land use was of great importance to the
Communist Party in its ascent to power, and it was linked to political
control over people and exercised, for instance, through the control of
migration and occupation. In both these areas, the state has lost or
relinquished much of the control it formerly exercised, as an obvious
consequence of those market reforms which triggered the creation of the
Zigong High-Tech and New Technology Industrial Development Zone in
the early 1990s. But it has not provided adequate means of exiting or
entering land ownership relations through commercial transactions across
the rural/urban divide.

Interestingly, in an interview conducted in July 2005, Professor
Jiang Ping remarked that the draft originally contained a provision which
would have allowed for the interpretation that outside the administrative
jurisdiction of cities, collectively owned (rural) land could be sold by
rural collectives, and that peasants might themselves develop property
and sell land use rights on the property market. However, according to
the draft as it was publicized, peasants would remain excluded from the
market in land for construction in the context of urbanization, and are still
threatened by expropriation. Jiang Ping concludes that the worst problem
with the current draft is its continued differentiation between rural and
urban property rights. 170 Peasants are being deprived of their land, denied
fair compensation, and denied access to the courts, while at the same time
the protection of private property rights in other areas has improved. One
gets a sense that peasants are denied the status of agents in the newly
created legal system. 171 They are driven into illegality when trying to
protect themselves from expropriation, as well as when seeking

170 , [Chen Min, Jiang Ping: The Main Problem

Is the Differentiation Between Urban and Rural Property Rights], Pg)]X [S. WEEKEND] (July
21, 2005), at http://www.nanfangdaily.com.cn/zm/20050721/xw/sd/200507210031 .asp.
171 In their lengthy Investigation Into China's Peasantry Chen Guidi and Chun Tao argue that
discrimination against peasants has become pervasive and present some accounts of individual cases
of misrule. They summarize an interview with Lu Xueyi ( president of the Chinese Society
for Sociology (41 m I), who mentions the household registration and social welfare
systems as important further aspects of a gradual "loss of balance." See 14li & 6f, 4' ]
i)] * [CHEN GUIDI & CHUN TAO, INVESTIGATION INTO CHINA'S PEASANTRY] 176-87 (2004).



COLUMBIA JOURNAL OF ASIAN LA W

alternative livelihoods by becoming "peasant workers" ({ L I,
nongmingong) without residence registration in cities.

Regarding rural land disputes, effective legal reform is therefore
impossible if it remains limited to substantive property law. True reform
would at least address the problem of "abstract administrative acts" and
make them amenable to judicial scrutiny. At the level of legal application,
failure to apply the law correctly and bad legislation became hard to
distinguish, as the administration and structures under it (the "Zigong
High-Tech Zone Administration Committee") effectively legislated for
themselves. The problem was one of central power failing to control
local powers and, most obviously, one of courts failing to adjudicate
independently. Even if abstract administrative acts could be challenged
in courts, courts might find other ways of evading adjudication in cases of
politically sensitive legal challenges to local government. On the other
hand, while courts are failing, the xinfang mechanism will continue to be
used. As part of the Chinese legal system, and reflecting the weakness of
the Chinese courts, xinfang activities indicate with precision where the
real power lies, and where consequent protection is sought by landless
peasants and other aggrieved citizens, even as they seek admission to the
process of court litigation. The institution of xinfang allows for rights
assertion, but only independent and effective courts can protect rights
such as land rights now asserted by peasants. While such courts are not
available, many more landless peasants will continue to feel they have no
choice but to seek justice in xinfang offices and in the streets.

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