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PART II: GENERAL PROVISIONS
Chapter IV General StipulationsArticle 39
The owner shall have the right to possess, utilize, dispose off and obtain profits from its real or movable property in accordance with the laws.
The owner shall have the right to establish usufructuary and security right in property rights with regard to its real or movable property. The obligee of the usufructuary and security right shall not do harm to the rights and interests of the owner while exercising their own rights.
No institute or individual shall be allowed to obtain the ownership of real or movable properties that are exclusively owned by the State in accordance with the laws.
For the purpose of public interest, the collectively-owned land, houses and other real property owned by institutes or individuals may be expropriated in line with the procedure and within the authority provided by laws.
For expropriation of collectively-owned land, such fees shall be paid as compensations for the land expropriated, subsidies for resettlement, compensations for the fixtures and the young crops on land, and the premiums for social security of the farmers whose land is expropriated shall be allocated in full, in order to guarantee their normal lives and safeguard their lawful rights and interests.
Where houses and other real properties of institutes and individuals are expropriated, compensations for demolition and resettlement shall be paid according to law in order to maintain the legal rights and interests of the expropriated; where individual residential house is expropriated, the residential conditions of the expropriated shall be guaranteed.
No institution or individual shall withhold, misappropriate, embezzle or privately divide the compensation for expropriation.
The State adopts special protection with regard to the agriculture land, strictly limiting the transfer of agriculture land to construction land so as to control the total quantity of the construction land. No expropriation of the collectively-owned land in violation of the authority and procedure prescribed by laws shall be allowed.
For the purpose of emergency handling or disaster relief, real or movable properties of institutions or individuals may be expropriated in line with the procedure and within the authority provided by laws. After such use or expropriation, the real or movable properties shall be returned to the owner. Compensation shall be made if the real or movable properties of institutions or individuals were damaged or lost after being expropriated.
Chapter V State Ownership, Collective Ownership and Private OwnershipArticle 45
With regard to the properties belong to the State according to law, they are owned by the State, that is, by the whole people.
The State of Council shall, on behalf of the State, exercise the ownership with respect to the State properties; if there are provisions otherwise provided, they shall be observed.
The mineral resources, waters, sea areas are owned by the State.
The urban lands are owned by the State. Such rural land and the land on the outskirt of the city as belonging to the State according to law shall be owned by the State.
All natural resources such as forests, mountains, grassland, unclaimed land and beaches are owned by the State, with the exception of the resources that are collectively-owned in accordance with the law.
Such wild animals and plants as belong to the State according to law shall be owned by the State.
The radio spectrum resource shall be owned by the State.
Such cultural relics as belong to the State according to law shall be owned by the State.
The national defence resource shall be owned by the State.
Public facilities like railways, roads, electric power, communications and gas pipes that belong to the State in accordance with the law shall be owned by the State.
The State organs shall have the right to possess, use and to dispose of the real or movable properties controlled directly by them in accordance with law and relevant regulations stipulated by the State Council.
The institutions held by the State shall have the right to possess, use and obtain benefits from and dispose of the real or movable properties directly controlled by them according to law and relevant regulations stipulated by the State Council.
Enterprises that are funded by the State, shall be the responsibility of the State Council, the local people’s governments, separately, and shall also enjoy the rights and interests of a capital contributor pursuant to laws and administrative regulations.
The properties owned by the State shall be protected by law and shall not be occupied, privately divided, withheld, damaged by any institution and individual.
The institution and its staff in charge of management and supervision of the State-own properties shall, in conformity with the laws, reinforce the administration, supervision of the State-owned properties, fostering the value saving and adding of the State properties and preventing them from being damnified.
Where losses are brought to the State-own properties as a result of malpractice and misusing of authority, the parties concerned shall bear relevant legal liabilities according to law. Where damnification is brought to the State-owned properties as a result of transfer at lower price, private partition, discretionary surety in breach of the regulations on administration of the State-own properties during the course of system reform, merger and division, connected transaction of the enterprises, the party concerned shall, pursuant to law, bear the relevant legal responsibilities.
The collectively owned real and movable properties shall include:
(i) Lands, forests, mountains, grasslands, unclaimed land and beaches owned collectively according to law;
(ii) Buildings, production devices, cultivate land and water power facilities owned collectively;
(iii) Facilities with regard to education, science, culture, health and gymnasium collectively owned;
(iv) Other real and movable properties owned collectively.
The real and movable properties which are collectively-owned by the urban collective shall be collectively owned by members of such collective.
Things stated below shall be decided collectively by the members of the respective collective in accordance with relevant legal procedure:
(i) The land contract scheme and subcontracting of the lands to institutions or individuals outside of this collective;
(ii) The adjustment of the contracted lands among contractor of the right to land contractual management; (iii) The utilization and distribution ways in respect of such fees as land compensations;
(iv) Such matters as changes of ownership of the enterprises whose capital is contributed by the collective;
(v) Other matters required by law.
The exercise of the ownership of the collectively-owned lands, forests, mountains, grasslands, unclaimed land, beaches shall be in accordance with provisions as follows:
(i) As to those owned collectively by peasants of a village, the village’s collective economic organization or villagers’ committee shall, on behalf of the collective, exercise the ownership;
(ii) As to those owned collectively by two or more peasants of a village, the collective economic organizations or groups of villagers shall, on behalf of the collective, exercise the ownership;
(iii) As to those owned collectively by peasants of the townships (town), the collective economic organizations of the townships (town) shall, on behalf of the collective, exercise the ownership.
With regard to the real and movable properties collectively-owned by the urban collective, this collective shall, according to laws and administrative regulations, enjoy the right to possess, utilize, dispose of and obtain benefit from such properties.
The collective economic organization or villagers’ committee or village group shall, in light of the laws, administrative regulations, articles of association and rules of the village, make public to the collective members the status of the collectively owned properties.
The collectively-owned properties shall be protected by law and shall not be occupied, privately divided, withheld, damaged by any institution and individual.
Where the decisions made by the collective economic organizations, villagers’ committee or other principals infringe upon the legal rights and interests of members of the collective, the infringed members may claim revocation of such decisions with the people’s court.
An individual shall enjoy ownership with respect to such real and movable properties as legitimate income, houses, living goods, production tools and raw materials.
The legal savings, investment and returns of individuals shall be protected by law.
The State shall protect the right of inheritance and other legal rights and interests of individual.
The legitimate properties of individuals shall be protected by law and shall not be occupied and damaged by any institution and individual.
The State, collective and individual may, according to law, make contributions to establish limited liability company, joint stock limited company or other enterprises. Where the real or movable properties of the State, collective and individual are made investment into the enterprise, the capital contributor shall, according to agreement or in proportion to its capital contribution, enjoy the right and fulfill the relevant obligation with regard to the lucre of the asset, major decision and designation of managerial staff of the business.
The enterprise as a legal person shall have the right to possess, utilize, obtain benefit from and dispose of its real and movable properties in accordance with laws, administrative regulations and articles of association.
Legal person other than enterprise as a legal person shall have the right to its real and movable properties according to the provisions of relevant laws, administrative regulations and articles of association.
The real and movable properties legally owned by social communities shall be protected by law.
Chapter VI Building Distinction Ownership of the Owner
The owner shall enjoy the ownership in respect of such exclusive parts within the apartment building as the apartments for residential or commercial purposes, and the co-ownership and common management right with regard to jointly-owned parts other than the exclusive parts.
The owner shall enjoy the right to possess, utilize, obtain profits from and dispose of the exclusive parts of the apartment building, provided that the exercise of its rights neither endangers the security of the apartment building, nor do harm to the legitimate rights and interests of other owners.
The owner shall enjoy the rights and take on the obligation with respect to the jointly-owned parts other than the exclusive parts of the apartment building and may not flee from its obligation upon waiver of its rights.
Where the owner transfers its apartments of residential or commercial purpose within the apartment building, the co-ownership and the right of common management enjoyed by the owner with regard to the jointly-owned parts of the building shall be deemed to be transferred accordingly.
The roads within the zoning of the apartment buildings shall be co-owned by the owners, with the exceptions of those belonging to urban public roads. The green fields within the zoning of the apartment buildings shall be co-owned by the owners, with the exceptions of those belonging to urban public green fields or individuals. Other public sites, facilities and rooms for realty service purpose shall be jointly owned by the owners.
The parking lots and garages within the zoning of the apartment buildings shall firstly meet the demands of the owners. The ownership of the parking lots and garages within the zoning of the apartment buildings shall be decided via such means as selling, donation or leasing by the party concerned.
The parking lots occupying the co-owned roads of the owners or located at other sites shall be jointly owned by the owners.
The owner my establish the owners’ meeting and elect the owners’ committee.
The local people’s governments shall provide instructions and assistance with regard to the establishment of the owners’ meeting or the election of the owners’ committee.
The owners shall, in accordance with law, decide matters as Stated below:
(i) The constitution and modification of the rules of the procedure for the owners’ meeting;
(ii) The constitution and modification of the management regulations with regard to the apartment buildings and their accessory facilities;
(iii) Election and changing of the member of the owners’ committee;
(iv) Employment and dismissal of the realty service organizations or other managerial personnel;
(v) Raising and utilization of the funds pertaining to the maintenance of the buildings and their accessory facilities;
(vi) Repairing, reconstructing, rebuilding the buildings and their accessory facilities;
(vii) Other major and important events with regard to the co-ownership and right of common management.
The decision with regard to matters provided in item 5 and item 6 of the foregoing paragraph shall be made with the consent from owners whose exclusive parts account for over two-thirds of the gross area of the apartment buildings and whose number accounts for over two-thirds of the total number of the owners. The decisions made with regard to other matters of the foregoing paragraph shall be made with the consent from owners whose exclusive parts accounts for over half of the gross area of the apartment buildings and whose number accounts for over half of the total number of the owners.
The owner may not, in violation of the laws, regulations and management rules, change the residential apartment into apartment for commercial purpose. The owner must, in addition to observing laws, regulations and the management rules, obtain consent from the owners in interest before turning the apartment into apartment for commercial purpose.
The decision made by the owners’ meeting or committee shall be binding upon the owners.
Where the decision made by the owners’ meeting or committee infringes upon the legitimate rights and interests of the owner, the infringed owner may apply for cancellation with the people’s court.
The maintenance funds for the apartment building and its accessory facilities shall be co-owned by all owners and be used for the maintenance of such community spaces as elevators and water tanks. Status quo with regard to raising and use of the maintenance funds shall be made public.
The fee apportionment and profits distribution of the apartment building and its accessory facilities shall be in accordance with relevant provisions (if any), or shall be determined in proportion to the exclusive parts possessed by the owners if there is not any or expressly-Stated provisions.
The owners may, at their own discretion, either manage the building and its accessory facilities by themselves or realty-services company or other managerial personnel entrusted by the owners.
The owners shall have the right to make changes with regard to the realty management company or other managerial personnel employed by the construction entity.
The realty management company or other managerial personnel shall, in accordance with the entrustment of the owners, manage the apartment building and its accessory facilities within the zoning of the apartment buildings and accept the supervision from the owners.
The owners shall abide by laws, regulations and the management provisions stipulated by the owners’ meeting.
The owners’ meeting and committee shall have the right to request the parties concerned to stop infringement, get rid of the effect, remove impediment and make compensations with regard to such actions that impairing the legal rights and interests of others as willful throwing away of the garbage, possession of the passageways, release of sources of air pollution, making noises, raising animals in breach of regulations, construction in violation of rules and refusal to pay the realty management fee. The owner may, in accordance with laws, bring a lawsuit with the people’s court in respect of such actions as infringing its own legitimate rights and interests.
Chapter VII Neighborhood RelationshipArticle 84
In the spirit of providing convenience for production, life of the people, enhancing unity and mutual assistance, and being fair and reasonable, neighboring users of the real property shall maintain proper neighborhood relationship.
The handling of neighborhood relationship shall be in accordance with relevant provisions stipulated by laws and regulations (if any) or the local practice if there is no such provision stipulated by laws and regulations.
The obligee of the real property shall provide necessary convenience to its neighboring user with regard to water supply and drainage.
The natural running water shall be reasonably distributed among the neighboring users of the real property and shall be drained in accordance with the natural running direction.
The obligee of the real property shall offer necessary convenience for its neighboring user who has to use the obligee’s land for passage.
In the event that the obligee of the real property has to use the neighboring lands or buildings for construction or repairing the buildings and installation of wire lines, electric cables, pipe lines, heating and gas pipes, the obligee of such lands or buildings shall provide necessary convenience.
The construction of buildings shall abide by relevant provisions stipulated by the State with regard to the construction planning and shall not affect the ventilation, sightseeing and lighting of the neighboring buildings.
The obligee of the real property may not, in violation of laws of the State, release gas polluters, water polluters, solid waste and discharging such harmful objects as noises, lights, magnetic wave radiation.
The obligee of the real property may not endanger the security of the neighboring real property while digging the land, constructing the buildings, laying the pipes and lines and installing the equipments; the obligee of the neighboring real property shall have the right to request the obligee of the real property under construction to provide relevant guarantee.
The obligee of the real property shall, while making use of the neighboring real property usage of water supply, drainage, traffic and installation of pipes and lines, make every effort not to do harm to the obligee’s neighbors, and shall make appropriate compensations in case of any damages arising therefrom.
Chapter VIII Joint ownershipArticle 93
The real or movable property may be owned jointly by two or more institutions or individuals. There are two kinds of joint ownership, namely co-ownership by proportion and common ownership.
Each of the co-owners by shares shall enjoy the ownership in respect of the joint real or movable property in proportion to its share.
Each of the common owners shall enjoy the ownership in respect of the joint real or movable property.
The co-owners shall carry out management with regard to the real or movable property in accordance with relevant agreement; each of the co-owners shall enjoy the rights and assume the obligations respecting the management of the joint property.
Unless otherwise agreed by the co-owners, the disposal of and major and big repairing with regard to the co-owned real or movable property shall be conducted with the consent from the co-owners by shares whose shares account for two-thirds of the total shares or from the entire co-owners.
The management fee and other charges for the joint property shall be in accordance with relevant agreement (if any); if there is no any or expressly-Stated agreement thereof, the co-owners by shares shall bear the relevant responsibility in proportion to his shares while the common owners shall jointly bear the relevant responsibility.
Where the co-owners reach an agreement that no partition in respect of the joint real or movable property shall be conducted in order to maintain the co-ownership relations, such agreement shall be observed; however, if the co-owners desire to divide the joint property for important reasons, the co-owners may make such a claim. If there is no such or express agreement respecting the partition, the co-owners by shares may at any time require the partition; the common owners may require partition in the event that the foundation for joint ownership perishes or there are important reasons for such partition. Where the partition results in damages to other co-owners, relevant remedies shall be made.
The co-owners shall determine the methods for partition through consultation. Where, if no agreement can be reached, the real or movable property may be divided and, what’s more, will not be devaluated due to the partition, the practicality shall be divided; where the joint property is difficult to be divided or may be devaluated due to the partition, partition can be carried out with regard to the payment obtained as a result of the auction, sale of the joint property or make relevant reimbursement of the estimated price respecting the joint property.
As for any flawed real or movable property gained by any co-owner from the division, the other co-owners shall share losses arising therefrom.
Each co-owner by shares shall have the right to transfer the joint real property he owned or his own shares of the real property. When he offers to sell his share, the other co-owners shall have a right of pre-emption if all other conditions are equal.
For public purposes, the co-owners shall, enjoy the joint creditor’s right and bear the joint liability with regard to creditor’s rights and debts occurring from the joint real or movable property, unless otherwise provided by law or there is a third party who is aware that the co-owners shall not bear the joint creditor’s rights or joint debts. In internal, except as otherwise agreed upon by the co-owners, each of the co-owners by shares shall enjoy the creditor’s rights and bear the relevant debt in proportion to his shares and each of the common co-owners shall jointly enjoy the creditor’s rights and bear the relevant debts. The co-owner by shares who repays debts over its due shall be entitled to a recourse to other co-owners.
In case that there is no agreement, express or implied, on whether it is ownership by shares or common ownership with respect to the joint real or movable property among the co-owners, the co-owners shall be deemed as co-owners by shares, with the exception that there exists a family relations among the co-owners.
The shares enjoyed by the co-owners by shares with regard to the joint real or movable property shall, if there is no or express agreement hereon, be decided in proportion to the capital contribution of the co-owners, if no such proportion of capital contribution may be specified, shall be construed as equal.
Where usufructuary or security property right is jointly owned by two or more institutions or individuals, the provisions of this Chapter shall apply.
Chapter IX Special Regulations pertaining to Attainment of the OwnershipArticle 106
Where the real or movable property is transferred to a transferee by a person without the power to do so, the rightful owner shall have the right to recover such property. Unless otherwise provided by law, the transferee shall obtain the ownership respecting such real or movable property in any of the following events:
(i) The Transferee accepts the transfer in a bona fide;
(ii) Such property is transferred with a reasonable price;
(iii) The transferred property has been registered in accordance with the laws requiring such registration, and those not required to be registered has been delivered to the transferee.
Where the transferee has obtained the ownership in respect of the real or movable property in accordance with the preceding paragraph, the original holder of the right shall enjoy the right to claim damages to the non-holder of the right to dispose of the property.
Where the parties concerned have obtained the other property rights in good faith, the above two paragraphs shall apply.
The rightful owner or such other obligee shall have the right to claim and recover properties so stolen, robbed or lost. Where such movable property has been transferred or possessed by others through transfer, such obligee as the holder or the owner of the lost property shall have the right to claim damages against the non-holder of the right to dispose of such property. Where, if such obligee as the holder or the owner of the lost property claim the property within two (2) years from the date on which he knows or should know the loss of such movable property, the transferee has purchased such property through auction or from an operator with the operation qualification, such obligee as the holder shall pay the transferee the amount the latter one has paid for repossession of the same. Where there are regulations stipulated otherwise by law, such regulations shall be observed.
The original rights in the movable property shall lapse upon the attainment of such movable property by the bona fide assignee, except that the bona fide assignee know or should know such rights.
The lost property shall be returned to the obligee once being picked up. The person who picks up the lost property shall notify the obligee of such lost the property to take it back or submit it to the public security department.
Where the departments concerned receiving the lost property shall, if knowing the obligee or person who lost the property, notify them to take the property back in a timely manner; if not, the person who collected the lost property, shall issue a Lost Property notice in a timely manner.
The lost property shall be appropriately kept by the person picking up the property before being submitted to the departments concerned or by departments concerned before being taken back. Where damages or lapse occur to the lost property as a result of deliberate or serious negligence, the parties concerned shall bear relevant civil liabilities.
When taking back the lost property, the obligee shall pay such necessary fees as safekeeping fee regarding the lost property to the person picking up such property or departments concerned.
The obligee shall pay the person picking up the property such reward as it has offered while looking for the property.
Where the person picking up the lost property misappropriates such property, the person shall neither have the right to claim such necessary fees as safekeeping fee and reward nor to require the obligee to perform such obligations as the obligee has promised to do.
The lost property shall, if not claimed within six months as of the date of issuance of the Lost Property notice, be owned by the State.
Where items are picked up from drift, buried or the hidden are discovered, relevant regulations with regard to picking up of the lost property shall apply. Where there are provisions stipulated otherwise in the Law of the People’s Republic of China on the Protection of Cultural Relics, such provisions shall be observed.
Where the principal property is transferred, the affiliated ones shall be transferred accordingly, except as otherwise provided among parties concerned.
The natural benefits shall be obtained by the title holder of such properties; where there are both the title holder and owner of the usufructuary right to the natural benefits, the property shall be owned by the owner of the usufructuary right, where there are agreements separately made by parties concerned, such agreements shall be observed.
The legal interests shall be obtained in accordance with relevant agreement between parties concerned (if any); if there is no such or express agreement, the transaction practice shall apply.