Civil Code of Einsenland – Property (British English)
Reference translation into British English. The Chinese source is available here. This translation preserves its numbering and legal status; it is not a jointly authenticated text of equal legal authority. See source and translation notes. The source is draft material with unresolved institutional references and other defects; translating it does not adopt or correct those provisions.
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Section 150 [Definition of a right in rem]
A right in rem is the right of its holder, in accordance with law, to exercise direct and exclusive control over a specific thing, and includes ownership, usufructuary rights and security rights in rem.
Section 151 [Objects of rights in rem]
In this Code, things include immovables and movables. Where a law provides that a right may be the object of a right in rem, that provision applies.
Section 152 [Statutory basis of rights in rem]
The types and content of rights in rem are prescribed by law.
Section 153 [Publicity of rights in rem]
The creation, alteration, transfer and extinction of rights in rem in immovables must be registered in accordance with law. The creation and transfer of rights in rem in movables require delivery in accordance with law.
Section 154 [Effect of rights in rem]
The publicity of a right in rem carries public reliance. A person acquiring a right in reliance on that publicity is not affected by a discrepancy between the publicised position and the actual right, unless that person knew or ought to have known of the discrepancy.
Section 155 [Equal protection of rights in rem]
The rights in rem of the State, collectives, private persons and other right holders are equally protected by law and must not be infringed by any organisation or individual.
Section 156 [Contractual effect of a change in rights in rem]
Unless otherwise provided by law or agreed by the parties, a contract between parties concerning the creation, alteration, transfer or extinction of a right in rem in an immovable takes effect upon its formation. Failure to register the right in rem does not affect the validity of the contract.
Section 157 [Protection of rights in rem]
Where a right in rem is infringed, the right holder may resolve the matter through settlement, mediation, arbitration, litigation or other means.
Section 158 [Claims arising from rights in rem]
Where the ownership or content of a right in rem is disputed, an interested person may seek confirmation of the right.
Where a person possesses an immovable or movable without entitlement, the right holder may demand the return of the original thing.
Where a right in rem is obstructed or may be obstructed, the right holder may demand removal of the obstruction or elimination of the danger.
Where an immovable or movable is damaged, the right holder may, in accordance with law, demand repair, remaking, replacement or restoration to its original condition.
Where infringement of a right in rem causes loss to its holder, the holder may claim damages in accordance with law and may also require other civil liability to be borne in accordance with law.
Section 159 [Concurrent remedies for the protection of rights in rem]
The remedies for protecting rights in rem provided in this Chapter may be applied separately or together, according to the circumstances of the infringement.
Subchapter 1 — Registration of Immovables
Section 160 [Registration of rights in rem in immovables]
The creation, alteration, transfer or extinction of a right in rem in an immovable takes effect upon lawful registration. Without registration it has no effect, unless otherwise provided by law.
Ownership of natural resources belonging to the State by law need not be registered.
Section 161 [Unified registration system]
The State operates a unified registration system for immovables.
Registration of an immovable is undertaken by the registration authority for the place where it is situated.
Section 162 [Effect of the register]
Where registration is required by law, the creation, alteration, transfer or extinction of a right in rem in an immovable takes effect when entered in the immovables register.
Section 163 [Certificate of title to an immovable]
A certificate of title to an immovable is evidence of the holder's right in rem in that immovable. Its particulars must correspond to those in the immovables register. In the event of a discrepancy, the register prevails unless evidence establishes that it is erroneous.
Section 164 [Application for registration]
An applicant for registration must, according to the matter to be registered, provide proof of title and necessary materials concerning the boundaries, area and other particulars of the immovable.
Section 165 [Duties of the registration authority]
The registration authority must:
(1) verify the proof of title and other necessary materials provided by the applicant;
(2) question the applicant about the matters to be registered;
(3) register the relevant particulars truthfully and promptly; and
(4) perform other duties prescribed by laws and administrative regulations.
Where further proof is needed concerning the immovable for which registration is sought, the authority may require supplementary materials and, where necessary, carry out an inspection on site.
Section 166 [Prohibited acts by the registration authority]
The registration authority must not:
(1) require an appraisal of the immovable;
(2) undertake repeated registration under the guise of annual inspection or otherwise; or
(3) act beyond the scope of its registration duties.
Section 167 [Registration fees]
Registration fees for immovables are charged per application, and must not be calculated by reference to the area, volume or value of the immovable.
Section 168 [Priority notice]
Where parties enter into an agreement for the sale of a building or another agreement concerning a right in rem in an immovable, they may, as agreed, apply to the registration authority for a priority notice to secure future realisation of the right. After such a notice has been entered, a disposition of the immovable without the consent of its beneficiary has no effect in rem.
A priority notice lapses if the claim is extinguished or no application for registration is made within ninety days after registration of the immovable becomes possible.
Section 169 [Rectification and registration of an objection]
A right holder or interested person who considers an entry in the immovables register erroneous may apply for rectification. The registration authority must rectify the entry if the registered holder agrees in writing or evidence establishes that the registration is erroneous.
If the registered holder does not agree to rectification, the interested person may apply for registration of an objection. An objection entered by the authority lapses if the applicant does not bring proceedings within fifteen days after its registration. Where an unjustified objection causes loss to the right holder, the holder may claim damages from the applicant.
Section 170 [Liability for erroneous registration]
Where erroneous registration causes loss to another person, the registration authority is liable in damages. After paying compensation, the authority may recover from the person responsible for the error.
Section 171 [Access to registration information]
Right holders and interested persons may apply to inspect and copy registration materials relating to immovables, and the registration authority must provide access.
Subchapter 2 — Delivery of Movables
Section 172 [Delivery for rights in rem in movables]
The creation or transfer of a right in rem in a movable takes effect upon delivery, unless otherwise provided by law.
Section 173 [Delivery to an existing possessor]
Where, before the creation or transfer of a right in rem in a movable, the right holder already possesses the movable, the right in rem takes effect when the civil juristic act takes effect.
Section 174 [Delivery by assignment of a claim for return]
Where, before the creation or transfer of a right in rem in a movable, a third party possesses it, the person obliged to deliver may substitute for delivery an assignment of the right to demand its return from the third party.
Section 175 [Constitutum possessorium]
Where, on the transfer of a right in rem in a movable, the parties agree that the transferor is to retain possession, the right in rem takes effect when that agreement takes effect.
Section 176 [Registration of rights in ships and other special movables]
The creation, alteration, transfer or extinction of a right in rem in a ship, aircraft, motor vehicle or other such movable cannot be asserted against a third party acting in good faith unless registered.
Section 177 [Entitlement to fruits]
Natural fruits belong to the owner. Where there is both an owner and a holder of a usufructuary right, they belong to the holder of that right. An agreement to the contrary prevails.
Civil fruits are acquired as agreed by the parties; in the absence of a clear agreement, they are acquired according to the usage of the transaction.
Subchapter 3 — Other Provisions
Section 178 [Changes in rights in rem otherwise than by juristic act]
Where a legal instrument of a People's Court or arbitral institution, an expropriation decision of a People's Government, or a similar measure creates, alters, transfers or extinguishes a right in rem, the change takes effect when that instrument, decision or measure takes effect.
Section 179 [Acquisition by succession or testamentary gift]
A right in rem acquired by succession takes effect when succession opens.
Section 180 [Changes in rights in rem by factual acts]
A right in rem created or extinguished by a factual act, such as the lawful construction or demolition of a building, takes effect when that act is completed.
Section 181 [Registration following the creation of a right in rem]
Where a person holds a right in rem in an immovable under Sections 178 to 180 of this Code and registration is legally required for its disposition, a disposition without registration has no effect in rem.
Section 182 [Content of ownership]
An owner has, in accordance with law, the rights to possess, use, derive benefits from and dispose of the owner's immovable or movable.
Section 183 [Restrictions on the exercise of ownership]
In exercising ownership, an owner must not harm other persons or the public interest.
Section 184 [Objects of State ownership]
Property designated by law as State-owned belongs to the State, that is, to the whole people.
The State Council exercises ownership of State-owned property on behalf of the State, unless otherwise provided by law.
Section 185 [State-owned natural resources]
Mineral resources, waters and sea areas belong to the State.
Section 186 [State-owned land]
Urban land belongs to the State. Rural and suburban land designated by law as State-owned also belongs to the State.
Section 187 [State-owned natural resources]
Forests, mountains, grasslands, wastelands, tidal flats and other natural resources belong to the State, except where the law provides that they are collectively owned.
Section 188 [State-owned wildlife resources]
Wild animal resources belong to the State.
Ownership of wild plant resources is determined under the relevant laws.
Section 189 [State-owned radio spectrum]
Radio spectrum resources belong to the State.
Section 190 [State-owned cultural relics]
Cultural relics designated by law as State-owned belong to the State.
Section 191 [Defence assets]
Defence assets belong to the State.
Railways, roads, electricity facilities, telecommunications facilities, oil and gas pipelines and other infrastructure designated by law as State-owned belong to the State.
Section 192 [Protection of State-owned assets]
State-owned property is protected by law. No organisation or individual may misappropriate, seize, privately distribute, intercept or damage it.
Section 193 [Management of State-owned assets]
Authorities and their staff responsible for managing and supervising State-owned property must strengthen its management and supervision in accordance with law, preserve and increase its value, and prevent its loss. Those who cause loss through abuse of powers or neglect of duties must bear legal liability in accordance with law.
Those who, in breach of the rules governing State-owned property, cause loss through undervalued transfers, collusive private distributions, unauthorised guarantees or other means during corporate restructuring, mergers, divisions, related-party transactions or similar operations must bear legal liability in accordance with law.
Section 194 [Objects of collective ownership]
Immovables and movables collectively owned by farmers belong collectively to the members of that collective.
Collective property includes:
(1) land, forests, mountains, grasslands, wastelands and tidal flats designated by law as collectively owned;
(2) collectively owned buildings, production facilities, and agricultural water-conservancy facilities;
(3) collectively owned educational, scientific, cultural, health, sports and similar facilities; and
(4) other collectively owned immovables and movables.
Section 195 [Exercise of rural collective ownership]
Ownership of collectively owned land, forests, mountains, grasslands, wastelands and tidal flats is exercised as follows:
(1) for property belonging to a village farmers' collective, the village collective economic organisation or villagers' committee represents the collective in accordance with law;
(2) for property belonging separately to two or more farmers' collectives within a village, the respective collective economic organisation or villagers' group represents its collective in accordance with law; and
(3) for property belonging to a township farmers' collective, the township collective economic organisation represents the collective.
Section 196 [Decisions on major matters concerning collective property]
The following matters must be decided by members of the collective under the statutory procedure:
(1) land contracting schemes and the contracting-out of land to organisations or individuals outside the collective;
(2) adjustments to contracted land between individual holders of rights to contracted management of land;
(3) arrangements for using and distributing land compensation and other payments;
(4) changes in the ownership of enterprises funded by the collective; and
(5) other matters prescribed by law.
Section 197 [Protection of collective property]
Where a decision of a rural collective economic organisation, villagers' committee or its responsible person infringes a member's lawful rights and interests, the affected member may ask a People's Court to revoke it.
Section 198 [Objects of private ownership]
Private persons own their lawful income, houses, household goods, production tools, raw materials and other immovables and movables.
Section 199 [Protection of lawful private property]
Lawful private property is protected by law. No organisation or individual may misappropriate, seize or damage it.
Section 200 [Rights of investors in enterprises]
Investors in a profit-making legal person have, in accordance with law, rights to returns on assets, participation in major decisions, selection of managers and other rights.
Section 201 [Protection of savings, investments and returns]
The State protects private savings. It protects private investments and returns obtained from them.
Section 202 [Protection of the property of social organisations]
The property of lawfully established social organisations and other legal persons and unincorporated organisations is protected by law.
Section 203 [Ownership of units in buildings]
A unit owner owns the exclusive parts of a building, such as residential or business premises, and has rights of co-ownership and joint management over the common parts outside those exclusive parts.
Section 204 [Rights and duties concerning exclusive parts]
A unit owner has the rights to possess, use, derive benefits from and dispose of the owner's exclusive part of a building. The exercise of those rights must not endanger the safety of the building or prejudice other owners' lawful rights and interests.
Section 205 [Rights and duties concerning common parts]
A unit owner has rights and bears obligations concerning the common parts outside the exclusive parts, and may not avoid those obligations by renouncing the rights.
When an owner transfers residential or business premises in the building, the associated rights of co-ownership and joint management over the common parts pass with them.
Section 206 [Ownership of parking spaces and garages]
Ownership of parking spaces and garages planned for parking vehicles within a building development is determined by agreement through sale, gift, letting or other arrangements.
Parking spaces occupying roads or other areas jointly owned by the owners belong to the owners jointly.
Section 207 [Common parts within a building development]
Roads within a building development belong jointly to the owners, except urban public roads. Green areas belong jointly to the owners, except urban public green areas or areas expressly designated as privately owned. Other public areas, communal facilities and property management premises within the development belong jointly to the owners.
Section 208 [Income from common parts]
Income generated by a developer, property management undertaking or other manager through use of the owners' common parts belongs jointly to the owners after deduction of reasonable costs.
Section 209 [Conversion of residential premises to business use]
An owner must not convert residential premises to business premises in breach of laws, regulations or the management rules. In addition to complying with those provisions, an owner making such a conversion must obtain the unanimous consent of the owners whose interests are affected.
Section 210 [Basic obligations towards neighbouring owners]
Owners must comply with laws, regulations and the management rules.
The owners' assembly and owners' committee may, under those provisions, require a person who harms another's lawful rights and interests by indiscriminate disposal of waste, discharge of pollutants or noise, keeping animals in breach of rules, unauthorised building works, obstruction of passageways, refusal to pay property management charges or similar conduct to cease the infringement, remove the obstruction, eliminate the danger, restore the original condition and compensate for loss.
Where an owner or another person refuses to perform the relevant obligations, an interested party may report or complain to the competent administrative department, which must deal with the matter in accordance with law.
Section 211 [Owners' assembly and owners' committee]
Owners may establish an owners' assembly and elect an owners' committee. The specific conditions and procedures for their establishment are governed by laws and regulations.
The relevant local People's Government departments and residents' committees must provide guidance and assistance with establishing the assembly and electing the committee.
Section 212 [Joint decisions by owners and voting]
The following matters are decided jointly by the owners:
(1) adopting and amending the rules of procedure of the owners' assembly;
(2) adopting and amending the management rules;
(3) electing the owners' committee or replacing its members;
(4) appointing or dismissing a property management undertaking or other manager;
(5) using the maintenance fund for the building and its ancillary facilities;
(6) raising money for that maintenance fund;
(7) altering or rebuilding the building and its ancillary facilities;
(8) changing the use of common parts or using them for business activities; and
(9) other major matters concerning co-ownership and joint management rights.
A vote on a joint decision requires participation by owners representing at least two thirds of the area of exclusive parts and at least two thirds of the number of owners. A decision on items (6) to (8) requires approval by participating owners representing at least three quarters of the participating exclusive-part area and at least three quarters of participating owners. Other decisions under the preceding paragraph require approval by participating owners representing more than half of the participating exclusive-part area and more than half of participating owners.
Section 213 [An owner's right to seek revocation]
Decisions of the owners' assembly or owners' committee are legally binding on owners.
Where such a decision infringes an owner's lawful rights and interests, the affected owner may ask a People's Court to revoke it.
Section 214 [Appointment of a property management undertaking or other manager]
Owners may manage the building and its ancillary facilities themselves or entrust their management to a property management undertaking or another manager.
Owners may, in accordance with law, replace a property management undertaking or other manager appointed by the developer.
Section 215 [Owners' right to information]
Owners who jointly decide under the statutory procedure to dismiss a property management undertaking or other manager may terminate the property management contract. A dismissal under Section 212(1)(4) of this Code requires sixty days' prior written notice to the undertaking or manager, unless the contract provides otherwise.
Where termination under this Section causes loss to the undertaking or manager, the owners must compensate for it unless the cause is not attributable to them.
Section 216 [Ownership and use of maintenance funds]
The maintenance fund for a building and its ancillary facilities belongs jointly to the owners. By their joint decision it may be used to maintain, renew or improve lifts, roofs, external walls, accessibility facilities and other common parts. The raising and use of maintenance funds must be published regularly.
Where urgent maintenance is required, the owners' assembly or committee may apply in accordance with law to use the maintenance fund.
Section 217 [Duties of the developer]
The developer, property management undertaking and other managers must comply with laws and regulations and safeguard owners' lawful rights and interests.
Section 218 [Principles governing neighbouring properties]
Holders of rights in neighbouring immovables must regulate their relations properly according to the principles of facilitating production, convenience in daily life, solidarity and mutual assistance, fairness and reasonableness.
Section 219 [Water use and drainage]
A holder of rights in an immovable must provide necessary facilities for neighbouring right holders' use and drainage of water.
Use of natural flowing water must be reasonably apportioned between neighbouring right holders. Its discharge must respect its natural direction of flow.
Section 220 [Access]
A holder of rights in an immovable must provide necessary facilities where a neighbouring right holder must use the land for passage or a similar purpose.
Section 221 [Use of a neighbouring immovable]
Where a holder of rights in an immovable must use neighbouring land or buildings for construction, repair or the laying of electric wires, cables, water, heating or gas pipes or similar works, the neighbouring right holder must provide necessary facilities.
Section 222 [Ventilation, light and sunlight]
Buildings must not be constructed in breach of the relevant national construction standards or so as to obstruct ventilation, light or sunlight to neighbouring buildings.
Section 223 [Intangible interference]
A holder of rights in an immovable must not, in breach of national provisions, discard solid waste or discharge air, water or soil pollutants, noise, optical radiation, electromagnetic radiation or other harmful substances.
Section 224 [Danger to immovables]
Excavation, construction, installation of pipes or equipment and similar works by a holder of rights in an immovable must not endanger the safety of neighbouring immovables.
Section 225 [Restrictions on use of neighbouring immovables]
A holder of rights in an immovable must not use the immovable on that person's land in a manner manifestly contrary to good morals.
Section 226 [Compensation for damage to neighbouring properties]
A holder of rights who uses a neighbouring immovable for water supply, drainage, passage, laying pipes or similar purposes must, so far as possible, avoid causing loss to its right holder.
Section 227 [Co-ownership and its forms]
Two or more organisations or individuals may co-own an immovable or movable. Co-ownership comprises ownership in defined shares and joint ownership.
Section 228 [Ownership in defined shares]
An owner in defined shares owns the co-owned immovable or movable in accordance with that owner's share.
Section 229 [Joint ownership]
Joint owners jointly own the co-owned immovable or movable.
Section 230 [Presumption where the form of co-ownership is unclear]
Where the co-owners have not agreed, or have not clearly agreed, whether an immovable or movable is owned in defined shares or jointly, ownership in defined shares is presumed unless the co-owners have a family relationship or a similar relationship.
Section 231 [Determination of shares]
Where the shares of owners in defined shares are not agreed or are unclear, they are determined by contributions. If contributions cannot be determined, the shares are deemed equal.
Section 232 [Management of co-owned property]
Co-owners manage the immovable or movable as agreed. In the absence of a clear agreement, every co-owner has a right and duty to manage it.
Section 233 [Management expenses and other burdens]
Expenses of managing co-owned property and other burdens are borne as agreed. In the absence of a clear agreement, owners in defined shares bear them according to their shares, and joint owners bear them jointly.
Section 234 [Major alterations and dispositions]
A disposition of a co-owned immovable or movable, major repairs, or a change in its nature or use requires the consent of owners holding at least two thirds of the shares, or of all joint owners, unless the co-owners have agreed otherwise.
Section 235 [Disposition of a share]
An owner in defined shares may transfer that owner's share in a co-owned immovable or movable. The other co-owners have a right of pre-emption on equal terms.
Section 236 [Exercise of pre-emption]
A co-owner transferring a share must promptly notify the other co-owners of the terms. They must exercise their right of pre-emption within a reasonable period.
If two or more other co-owners seek to exercise that right, they must agree their respective proportions of purchase. Failing agreement, they exercise it in proportion to their respective shares at the time of transfer.
Section 237 [Partition]
Where co-owners agree not to partition an immovable or movable in order to maintain the co-ownership, that agreement applies; a co-owner with substantial reasons for partition may nevertheless request it. In the absence of a clear agreement, an owner in defined shares may request partition at any time; a joint owner may request it when the basis of joint ownership ceases to exist or there are substantial reasons. Loss caused to other co-owners by partition must be compensated.
Section 238 [Method of partition]
Co-owners may agree the method of partition. Failing agreement, property that can be divided without loss of value must be partitioned in kind. If division is difficult or would reduce its value, the assessed monetary value or the proceeds of auction or sale must be divided.
Where an immovable or movable allocated to a co-owner on partition is defective, the other co-owners must share the loss.
Section 239 [Claims and debts]
In external relations, co-owners are joint and several creditors and debtors in respect of claims and debts arising from co-owned property, unless otherwise provided by law or the third party knows that no such joint and several relationship exists. Internally, unless otherwise agreed, owners in defined shares share claims and debts according to their shares, while joint owners share them jointly. An owner in defined shares who pays more than that owner's share of a debt may recover the excess from the other co-owners.
Section 240 [Pre-emption over co-owned property]
Where a co-owner sells a share to an outsider, the other co-owners have a right of pre-emption on equal terms. However, where the claim of a beneficiary of a registered priority notice has fallen due, a registered mortgagee has priority in purchasing over the other co-owners.
Section 241 [Quasi-co-ownership]
The relevant provisions of this Chapter apply, with the necessary adaptations, where two or more organisations or individuals jointly hold a usufructuary right or security right in rem.
Section 242 [Acquisition in good faith]
Where a person without authority to dispose transfers an immovable or movable to a transferee, the owner may recover it. Unless otherwise provided by law, however, the transferee acquires ownership if:
(1) the transferee acted in good faith on acquisition;
(2) the transfer was made at a reasonable price; and
(3) the immovable or movable has been registered where registration is legally required, or otherwise has been delivered to the transferee.
Where the transferee acquires ownership under the preceding paragraph, the former owner may claim damages from the unauthorised transferor.
The preceding two paragraphs apply, with the necessary adaptations, to the acquisition in good faith of other rights in rem.
Section 243 [Exceptions to acquisition in good faith]
Where acquisition in good faith involves lost property, the relevant provisions of this Chapter apply.
Acquisition in good faith does not apply to stolen property.
Section 244 [Occupation of ownerless movables]
A person who takes possession of an ownerless movable with the intention of owning it acquires ownership, unless this contravenes law or the public interest.
Section 245 [Finding and reporting lost property]
A finder must return lost property to its right holder. The finder must promptly notify the right holder to collect it or deliver it to the public security authorities or other relevant department.
Section 246 [Safekeeping of lost property]
The finder, before delivering lost property to the relevant department, and the department, before its collection, must keep it properly. They bear civil liability for damage or loss caused intentionally or by gross negligence.
Section 247 [Reimbursement of expenses concerning lost property]
On collecting lost property, the right holder must reimburse the finder or relevant department for necessary expenses of safekeeping and similar matters.
Where the right holder offered a reward for finding it, the holder must fulfil that undertaking on collection.
A finder who misappropriates lost property has no right to reimbursement of safekeeping or similar expenses or to performance of the reward undertaking.
Section 248 [Ownership of unclaimed lost property]
Lost property unclaimed within one year after publication of a notice inviting claims belongs to the State.
Section 249 [Drifting, buried and concealed property]
The provisions on finding lost property apply, with the necessary adaptations, to drifting property that is found and buried or concealed property that is discovered. Any contrary provision of law prevails.
Section 250 [Accession]
Ownership of a thing resulting from processing, attachment or mixing is determined as agreed. In the absence of a clear agreement, it is determined by law. Where the law is silent, it is determined according to the principles of making full use of the thing and protecting parties without fault. Where one party's fault or the determination of ownership causes loss to another party, damages or compensation must be paid.
Section 251 [Definition of usufructuary rights]
The holder of a usufructuary right has, in accordance with law, rights to possess, use and derive benefits from an immovable or movable owned by another person.
Section 252 [Usufructuary rights over State-owned resources]
Organisations and individuals may, in accordance with law, possess, use and derive benefits from natural resources owned by the State, owned by the State and used by collectives, or designated by law as collectively owned.
Section 253 [Rights of a usufructuary right holder]
In exercising rights, the holder must comply with legal provisions on the protection, rational development and use of resources and protection of the ecological environment. The owner must not interfere with the exercise of those rights.
Section 254 [Rights to use natural resources]
Where expropriation or requisition of an immovable or movable extinguishes or affects the exercise of a usufructuary right, its holder is entitled to corresponding compensation under Sections 287 and 288 of this Code.
Section 255 [Prospecting, mining, water abstraction and similar rights]
Lawfully acquired rights to prospect, mine, abstract water, or use waters and tidal flats for aquaculture or fishing are protected by law.
Section 256 [Definition]
The holder of a right to contracted management of land has, in accordance with law, rights to possess, use and derive benefits from the contracted arable land, woodland, grassland or other land, and may undertake crop cultivation, forestry, animal husbandry and other agricultural production.
Section 257 [Creation]
A right to contracted management of land is created when the contract for that right takes effect.
The registration authority must issue certificates of rights to contracted management of land, forest rights certificates or other certificates to holders, and enter them in a register to confirm the rights.
Section 258 [Contract terms]
The contract term is thirty years for arable land, thirty to fifty years for grassland and thirty to seventy years for woodland.
On expiry of the term specified above, the holder continues to contract the land in accordance with the laws governing rural land contracting.
Section 259 [Rights of the holder]
The holder may exchange or transfer the right in accordance with law. Contracted land must not be used for non-agricultural construction without lawful approval.
Section 260 [Transfer of land management rights]
The holder of a right to contracted management of land may independently decide to transfer the land management right to another person by letting, contribution as equity or other lawful means.
Section 261 [Term of transfer]
A land management right transferred for five years or more is created when the transfer contract takes effect. The parties may apply for registration; without registration the right cannot be asserted against a third party acting in good faith.
Section 262 [Rights of a land management right holder]
The holder may possess rural land for the agreed term, conduct agricultural production and management independently, and obtain returns.
Section 263 [Further transfer of land]
Where rural land is contracted through tender, auction, public negotiation or other such means and a certificate of title is obtained following lawful registration, the land management right may be transferred by letting, contribution as equity, mortgage or other lawful means.
Section 264 [Adjustment of land]
The contracting-out party must not adjust contracted land during the contract term.
Where special circumstances, such as serious damage to contracted land from a natural disaster, require an appropriate adjustment to contracted arable land or grassland, the laws governing rural land contracting apply.
Section 265 [Prohibition on recovery and unlawful expropriation by the contracting-out party]
The contracting-out party must not recover contracted land during the contract term, unless otherwise provided by law.
The contracting-out party must not adjust contracted land during the contract term.
Section 266 [Extinction]
Where contracted land is expropriated, the holder of the right to contracted management is entitled to corresponding compensation under Section 287 of this Code.
Section 267 [Acquisition through other forms of contracting]
Other forms of contracting rural land are governed by the relevant laws and administrative regulations.
Section 268 [Definition]
The holder of a right to use land for construction has, in accordance with law, rights to possess, use and derive benefits from State-owned land, and may use it to construct buildings, structures and ancillary facilities.
Section 269 [Creation in separate strata]
Rights to use land for construction may be created separately at, above or below ground level.
Section 270 [Methods of creation]
A right to use land for construction may be created by grant, allocation or other means.
Land for industrial, commercial, tourism, entertainment, commodity housing and other business uses, and land sought by two or more prospective users, must be granted through public competitive bidding, such as tender or auction.
Creation of such rights by allocation is strictly restricted.
Section 271 [Registration]
A right to use land for construction is created upon registration.
The registration authority must issue the holder a certificate of title.
Section 272 [Duration]
A right to use land for residential construction renews automatically on expiry. Payment, reduction or exemption of renewal fees is governed by laws and administrative regulations.
Renewal of a right to use land for non-residential construction is governed by law. Ownership of buildings and other immovables on the land is determined as agreed; in the absence of a clear agreement, laws and administrative regulations apply.
Section 273 [Rights and obligations of the holder]
The holder must use the land rationally and must not change its use. A necessary change of use requires lawful approval by the competent administrative department.
Section 274 [Transfer]
The holder may transfer, exchange, contribute as capital, give or mortgage the right, unless otherwise provided by law.
Section 275 [Contracts for transfer]
Parties transferring, exchanging, contributing as capital, giving or mortgaging a right to use land for construction must conclude the appropriate contract in writing. They may agree the term of use, but it must not exceed the remaining term of the right.
Section 276 [Registration of transfers]
Where a right to use land for construction is transferred, exchanged, contributed as capital or given, an application to alter the registration must be made.
Section 277 [Joint disposition of land use rights and buildings]
Where a right to use land for construction is transferred, exchanged, contributed as capital or given, the buildings, structures and ancillary facilities attached to that land are disposed of with it.
Section 278 [Joint disposition of buildings and land use rights]
Where buildings, structures or ancillary facilities are transferred, exchanged, contributed as capital or given, the right to use the land occupied by them is disposed of with them.
Section 279 [Early recovery and compensation]
Where required in the public interest, a right to use land for construction may be recovered early under the powers and procedures prescribed by law. Compensation for buildings and other immovables on the land must be paid under Section 287 of this Code, and the corresponding grant premium must be refunded.
Section 280 [Market entry of collectively owned business construction land]
Use of collectively owned land as construction land is governed by the laws on land administration.
Section 281 [Definition]
A holder of a homestead use right has, in accordance with law, rights to possess and use collectively owned land and may lawfully use it to construct a dwelling and ancillary facilities.
Section 282 [Acquisition, exercise and transfer]
Acquisition, exercise and transfer of homestead use rights are governed by land administration laws and relevant national provisions.
Section 283 [Loss of a homestead]
Where a homestead is destroyed by a natural disaster or other cause, its use right is extinguished. Villagers who lose their homesteads must be allocated new ones in accordance with law.
Section 284 [Compensation for expropriation of a registered homestead]
Where a registered homestead use right is transferred or extinguished, registration of the alteration or cancellation must be completed promptly.
Section 285 [Definition]
A holder of a right of residence has, as agreed in the contract, a usufructuary right to possess and use another person's dwelling to meet residential living needs.
Section 286 [Creation]
The parties must conclude a contract creating a right of residence in writing.
The contract generally includes:
(1) the parties' personal or organisational names and domiciles;
(2) the location of the dwelling;
(3) conditions and requirements for residence;
(4) the duration of the right; and
(5) the method of dispute resolution.
Section 287 [Registration]
An application to register a right of residence must be made to the registration authority. The right is created upon registration.
Section 288 [Transfer, succession and letting]
A right of residence cannot be transferred or inherited. The dwelling subject to it must not be let, unless otherwise agreed by the parties.
Section 289 [Extinction]
A right of residence is extinguished on expiry of its term or the holder's death. Its registration must then be cancelled promptly.
Section 290 [Creation by will]
The relevant provisions of this Chapter apply, with the necessary adaptations, to a right of residence created by will.
Section 291 [Definition]
The holder of an easement may use another person's immovable, as agreed by contract, to enhance the benefit of the holder's own immovable.
The other person's immovable is the servient land and the holder's own immovable is the dominant land.
Section 292 [Easement contract]
The parties must conclude an easement contract in writing.
It generally includes:
(1) the parties' personal or organisational names and domiciles;
(2) the locations of the servient and dominant land;
(3) the purpose and manner of use;
(4) the duration of the easement;
(5) charges and the method of payment; and
(6) the method of dispute resolution.
Section 293 [Creation and registration]
An easement is created when its contract takes effect. A party wishing to register it may apply to the registration authority. Without registration, it cannot be asserted against a third party acting in good faith.
Section 294 [Duration of an easement]
The holder of rights in the servient land must permit its use by the easement holder as agreed and must not obstruct the exercise of the easement.
Section 295 [Duties of the easement holder]
The easement holder must use the servient land for the agreed purpose and in the agreed manner, minimising restrictions on the servient right holder's rights in rem.
Section 296 [Duration]
The parties agree the duration of an easement, but it must not exceed the remaining term of the right to contracted management of land, right to use land for construction or other usufructuary right.
Section 297 [Transfer with contracted management or construction land use rights]
Where a landowner benefits from or is burdened by an easement, a holder of a subsequently created right to contracted management of land, homestead use right or other usufructuary right continues to benefit from or be burdened by the existing easement.
Section 298 [Effect of separate transfer of easements and usufructuary rights]
Where a right to contracted management of land, right to use land for construction, homestead use right or other usufructuary right already exists over land, the owner must not create an easement without that holder's consent.
Section 299 [Partial transfer of dominant land]
Where dominant land or a right to contracted management of land, construction land use right or similar right over it is transferred in part and the part transferred involves the easement, the transferee also benefits from it.
Section 300 [Partial transfer of servient land]
Where servient land or a right to contracted management of land, construction land use right or similar right over it is transferred in part and the part transferred involves the easement, the easement binds the transferee.
Section 301 [Termination]
The servient right holder may terminate the easement contract, extinguishing the easement, where:
(1) the easement holder abuses the right in breach of law or contract; or
(2) where use is for payment, the charges remain unpaid after two demands within a reasonable period following expiry of the agreed payment period.
Section 302 [Extinction]
Where a registered easement is altered, transferred or extinguished, registration of the alteration or cancellation must be completed promptly.
Section 303 [Definition]
Where the debtor fails to pay a debt when due or an agreed event for enforcement occurs, the holder of a security right in rem has a right, in accordance with law, to priority satisfaction from the secured property, unless otherwise provided by law.
Section 304 [Types]
Security rights in rem comprise mortgages, pledges and rights of retention.
Section 305 [Accessory nature of security agreements]
A security right in rem requires a security agreement under this Code and other laws. Such agreements include mortgage, pledge and other agreements performing a security function. The security agreement is accessory to the principal agreement governing the claim and debt. It is invalid if the principal agreement is invalid, unless otherwise provided by law.
After a security agreement is held invalid, the debtor, security provider and creditor must each bear the corresponding civil liability according to their respective fault.
Section 306 [Counter-security]
A debtor or third party may provide security for performance of a debt. A third party providing security to the creditor for the debtor may require counter-security from the debtor. Counter-security is governed by this Code and other laws.
Section 307 [Scope of security]
The security covers the principal claim, interest, contractual penalties, damages, and expenses of preserving the secured property and enforcing the security right. Any contrary agreement prevails.
Section 308 [Substitution of proceeds]
Where secured property is damaged, destroyed or expropriated during the security period, the holder may obtain priority satisfaction from insurance, damages, compensation or other proceeds. If the secured claim is not yet due, those sums may also be deposited with a depositary authority.
Section 309 [Indivisibility]
Until the secured claim has been paid in full, the holder may exercise the security right over all of the secured property.
Section 310 [Concurrent real and personal security]
Where a claim has both real and personal security and the debtor fails to pay when due or an agreed enforcement event occurs, the creditor must realise the claim as agreed. In the absence of a clear agreement, where the debtor supplied the real security, the creditor must first enforce against that property. Where a third party supplied real security, the creditor may enforce it or require the guarantor to perform the guarantee. A third party who performs a security obligation may recover from the debtor.
Section 311 [Property that may not be secured]
A security right in rem must not be created over property that laws or administrative regulations prohibit from being mortgaged or pledged.
Section 312 [Extinction]
A security right in rem is extinguished where:
(1) the principal claim is extinguished;
(2) the security right is realised;
(3) the creditor renounces it; or
(4) another circumstance prescribed by law for its extinction occurs.
Subchapter 1 — Ordinary Mortgages
Section 313 [Definition]
Where a debtor or third party mortgages property to a creditor without transferring possession as security for performance of a debt, the creditor has a right to priority satisfaction from it if the debtor fails to pay when due or an agreed enforcement event occurs.
The debtor or third party is the mortgagor, the creditor is the mortgagee, and the property supplied is the mortgaged property.
Section 314 [Mortgageable property]
A debtor or third party may mortgage the following property over which that person has power of disposition:
(1) buildings and other fixtures on land;
(2) rights to use land for construction;
(3) rights to use sea areas;
(4) production equipment, raw materials, semi-finished goods and products;
(5) buildings, ships and aircraft under construction;
(6) means of transport; and
(7) other property not prohibited from mortgage by laws or administrative regulations.
The mortgagor may mortgage the listed property together.
Section 315 [Property that must not be mortgaged]
The following must not be mortgaged:
(1) land ownership;
(2) rights to use collectively owned land, such as homesteads, private plots and private hills, except as permitted by law;
(3) educational, medical, health and other public-interest facilities of non-profit legal persons established for public-interest purposes, such as schools, kindergartens and medical institutions;
(4) property whose ownership or right of use is unclear or disputed;
(5) property lawfully sealed, seized or placed under supervision; and
(6) other property prohibited from mortgage by laws or administrative regulations.
Section 316 [Mortgage agreement]
The parties must conclude a mortgage agreement in writing.
It generally includes:
(1) the type and amount of the secured claim;
(2) the period for the debtor's performance;
(3) the name, quantity and other particulars of the mortgaged property; and
(4) the scope of security.
Section 317 [Creation]
A mortgage over property specified in Section 314(1)(1) to (3), or a building under construction specified in item (5), must be registered. The mortgage is created upon registration.
A mortgage over movables is created when the mortgage agreement takes effect; without registration it cannot be asserted against a third party acting in good faith.
Section 318 [Unity of buildings and land]
A mortgage over a building includes the right to use the construction land occupied by it. A mortgage over a right to use land for construction includes the buildings on that land.
If the mortgagor fails to mortgage them together, the omitted property is deemed to be mortgaged with the other property.
Section 319 [Restrictions on mortgages of township and village enterprise land]
A township or village enterprise's right to use land for construction must not be mortgaged separately. A mortgage over its factory or another building includes the right to use the construction land occupied by it.
Section 320 [Floating mortgage]
Enterprises, individual industrial and commercial households, and agricultural producers and operators may mortgage their existing and future production equipment, raw materials, semi-finished goods and products. If the debtor fails to pay when due or an agreed enforcement event occurs, the creditor has priority satisfaction from the movables existing when the mortgaged property is determined.
Section 321 [Rights of the mortgagor]
During the mortgage, the mortgagor may transfer the mortgaged property, subject to any contrary agreement. A transfer does not affect the mortgage.
The mortgagor must promptly notify the mortgagee of a transfer. A mortgagee who can prove that it may prejudice the mortgage may require the mortgagor to use the proceeds to repay the debt early or deposit them with a depositary authority. Any excess over the claim belongs to the mortgagor; any shortfall remains payable by the debtor.
Section 322 [Mortgage and tenancy]
Where mortgaged property was let and possession transferred before creation of the mortgage, the existing tenancy is unaffected.
A tenancy created after the mortgage cannot be asserted against a registered mortgage.
Section 323 [Preservation of mortgaged property]
Where the mortgagor's conduct is liable to reduce the property's value, the mortgagee may require it to cease. If value is reduced, the mortgagee may require restoration or security corresponding to the reduction. If neither is provided, the mortgagee may require early repayment by the debtor.
Section 324 [Methods of enforcement]
If the debtor fails to pay when due or an agreed enforcement event occurs, the mortgagee may agree with the mortgagor to take the property at an assessed value or obtain priority satisfaction from auction or sale proceeds. Other creditors may ask a People's Court to revoke an agreement prejudicing their interests.
Failing agreement on enforcement, the mortgagee may ask a People's Court to auction or sell the property.
Assessment or sale must have regard to market prices.
Section 325 [Priority]
Where the same property is mortgaged to two or more creditors, auction or sale proceeds are applied as follows:
(1) registered mortgages rank in order of registration;
(2) registered mortgages take priority over unregistered mortgages; and
(3) unregistered mortgages are satisfied in proportion to their claims.
The preceding paragraph applies, with the necessary adaptations, to other registrable security rights in rem.
Section 326 [Limitation]
The mortgagee must exercise the mortgage during the limitation period for the principal claim. Otherwise, a People's Court will not protect it.
Subchapter 2 — Maximum-amount Mortgages
Section 327 [Definition]
Where a debtor or third party provides property to secure claims arising successively over a specified period, and the debtor fails to pay when due or an agreed enforcement event occurs, the mortgagee has priority satisfaction from that property up to the maximum secured amount.
Claims existing before creation of the maximum-amount mortgage may, with the parties' agreement, be included within its secured claims.
Section 328 [Assignment of secured claims]
Before the claims secured by a maximum-amount mortgage are determined, assignment of some claims does not permit transfer of the mortgage, unless otherwise agreed.
Section 329 [Determination of secured claims]
The mortgagee's claims are determined where:
(1) the agreed determination period expires;
(2) no clear determination period is agreed and, after two years from creation of the mortgage, the mortgagee or mortgagor requests determination;
(3) no new claims can arise;
(4) the mortgagee knows or ought to know that the property has been sealed or seized;
(5) the debtor or mortgagor is declared bankrupt or dissolved; or
(6) another statutory circumstance for determination occurs.
Section 330 [Applicable rules]
In addition to this Subchapter, the relevant provisions of Subchapter 1 of this Chapter apply to maximum-amount mortgages.
Subchapter 1 — Pledges of Movables
Section 331 [Definition]
Where a debtor or third party delivers a movable to a creditor as a pledge securing performance of a debt, the creditor has priority satisfaction from it if the debtor fails to pay when due or an agreed enforcement event occurs.
The debtor or third party is the pledgor, the creditor is the pledgee, and the delivered movable is the pledged property.
Section 332 [Pledge agreement]
The parties must conclude a pledge agreement in writing.
It generally includes:
(1) the type and amount of the secured claim;
(2) the period for performance by the debtor;
(3) the name, quantity, quality and condition of the pledged property;
(4) the scope of security; and
(5) the time and manner of delivery.
Section 333 [Creation]
A pledge is created upon delivery of the pledged property by the pledgor.
Section 334 [Property that may not be pledged]
Movables whose transfer is prohibited by laws or administrative regulations must not be pledged.
Section 335 [Duties of the pledgor]
On delivery, the pledgor must inform the pledgee of defects in title and physical defects in the pledged property.
Section 336 [Duties of the pledgee]
A pledgee who, during the pledge and without the pledgor's consent, uses or disposes of the pledged property and thereby causes loss must pay damages.
Section 337 [Safekeeping]
The pledgee must keep the property properly and is liable in damages for damage or loss caused by improper safekeeping.
Where the pledgee's conduct may damage or destroy the property, the pledgor may require its deposit with a depositary authority or request early repayment and return of the property.
Section 338 [Collection of fruits]
The pledgee may collect the fruits of the pledged property unless the contract provides otherwise.
The fruits must first be applied to the expenses of collection.
Section 339 [Repledging]
A pledgee who repledges the property without the pledgor's consent during the pledge and thereby causes damage or loss is liable in damages to the pledgor.
Section 340 [Renunciation of a pledge]
The pledgor may require the pledgee to exercise the pledge promptly after the debt falls due. If the pledgee does not do so, the pledgor may ask a People's Court to auction or sell the property.
A pledgee whose delay, after such a request, causes loss to the pledgor must compensate for it.
Section 341 [Return and enforcement]
Where the debtor performs or the pledgor pays the secured claim early, the pledgee must return the pledged property.
If the debtor fails to pay when due or an agreed enforcement event occurs, the pledgee may agree with the pledgor to take the property at an assessed value or obtain priority satisfaction from auction or sale proceeds.
Assessment or sale must have regard to market prices.
Section 342 [Retention of pledged property by the pledgee]
The pledgor and pledgee may agree to create a maximum-amount pledge.
In addition to the relevant provisions of this Subchapter, Subchapter 2 of Chapter 16 of this Book applies with the necessary adaptations.
Subchapter 2 — Pledges of Rights
Section 343 [Rights that may be pledged]
A debtor or third party may pledge the following rights over which that person has power of disposition:
(1) bills of exchange, promissory notes and cheques;
(2) bonds and certificates of deposit;
(3) warehouse receipts and bills of lading;
(4) transferable fund units and equity interests;
(5) transferable proprietary rights in intellectual property, such as exclusive rights to registered trade marks, patents and copyright;
(6) existing and future receivables; and
(7) other proprietary rights that laws and administrative regulations permit to be pledged.
Section 344 [Pledges of instruments, bonds and similar rights]
A pledge of a bill of exchange, promissory note, cheque, bond, certificate of deposit, warehouse receipt or bill of lading is created when the document of title is delivered to the pledgee. If there is no such document, it is created upon registration. Any contrary provision of law prevails.
Section 345 [Pledges of fund units and equity interests]
A pledge of fund units or equity interests is created upon registration.
They must not be transferred after being pledged, unless the pledgor and pledgee agree. The pledgor must apply transfer proceeds to early repayment or deposit them with a depositary authority.
Section 346 [Pledges of proprietary intellectual property rights]
A pledge of proprietary rights in registered trade marks, patents, copyright or other intellectual property is created upon registration.
After the pledge, the pledgor must not transfer the rights or license their use without the pledgee's agreement. Proceeds of an agreed transfer or licence must be applied to early repayment or deposited with a depositary authority.
Section 347 [Pledges of receivables]
A pledge of existing or future receivables is created upon registration.
Pledged receivables must not be assigned unless the pledgor and pledgee agree. Assignment proceeds must be applied to early repayment or deposited with a depositary authority.
Section 348 [Applicable rules]
In addition to this Subchapter, the relevant provisions of Subchapter 1 of this Chapter apply to pledges of rights.
Section 349 [Definition]
Where a debtor fails to pay when due, a creditor may retain a movable of the debtor already lawfully in the creditor's possession and has priority satisfaction from it.
The creditor is the holder of the right of retention and the movable is the retained property.
Section 350 [Relationship between the property and claim]
The retained movable and the claim must arise from the same legal relationship, except in retention between enterprises.
Section 351 [Property that may not be retained]
A movable must not be retained where retention is prohibited by law or agreement.
Section 352 [Duties of the retaining creditor]
The creditor must keep the retained property properly and is liable in damages for damage or loss caused by improper safekeeping.
Section 353 [Collection of fruits]
The retaining creditor may collect the fruits of the retained property.
They must first be applied to the expenses of collection.
Section 354 [Enforcement]
If the debtor fails to perform after the due date, the creditor may agree with the debtor to take the retained property at an assessed value or obtain priority satisfaction from auction or sale proceeds.
Assessment or sale must have regard to market prices.
Section 355 [Grace period for enforcement]
The retaining creditor and debtor must agree a period for performance after retention. In the absence of a clear agreement, the creditor must allow at least sixty days, except for fresh, perishable or other movables difficult to preserve. If the debtor does not perform within that period, the creditor may deal with the property under Section 354 of this Code.
Section 356 [Priority over mortgages and pledges]
Where a movable already subject to a mortgage or pledge is subsequently retained, the retaining creditor has priority satisfaction.
Section 357 [Extinction]
A right of retention is extinguished if the creditor loses possession of the retained property or accepts other security provided by the debtor.
Section 358 [Definition]
Possession means factual custody and control of a movable or immovable.
Section 359 [Presumption of entitlement]
The rights exercised by a possessor over the possessed property are presumed to constitute entitled possession.
Section 360 [Entitled possession]
Where possession arises from a contract or similar relationship, use, benefits, liability for breach and other matters concerning the immovable or movable are governed by the contract. In the absence of a clear agreement, the relevant legal provisions apply.
Section 361 [Possession without entitlement]
Where a person without entitlement causes damage to the possessed property, the possessor may require that person to compensate for the loss.
Section 362 [Duty of a possessor without entitlement to return property]
Where a possessor holds an immovable or movable, the right holder may demand its return together with its fruits, but must reimburse a good-faith possessor's necessary expenses of maintaining it.
Section 363 [Liability of a bad-faith possessor]
Where the possessed property is damaged or destroyed and its right holder claims compensation, the possessor must return insurance, damages, compensation or other proceeds obtained as a result. If these do not adequately cover the loss, a bad-faith possessor must also pay damages.
Section 364 [Claims for protection of possession]
A possessor's claim for return of the original thing is extinguished if not exercised within one year after dispossession.
Section 365 [Remedies of the possessor]
A possessor dispossessed of an immovable or movable may demand its return. The possessor may demand removal of interference with possession or elimination of danger and, where dispossession or interference causes loss, may claim damages in accordance with law.
Section 366 [Expropriation]
Where required in the public interest, collectively owned land and buildings or other immovables of organisations and individuals may be expropriated under the powers and procedures prescribed by law.
Section 367 [Compensation for expropriation]
Expropriation of collectively owned land requires timely payment in full, in accordance with law, of land compensation, resettlement allowances, compensation for rural villagers' dwellings, other fixtures and standing crops, and arrangements for the social security costs of farmers whose land is expropriated, safeguarding their livelihoods and lawful rights and interests.
Expropriation of buildings and other immovables of organisations or individuals requires lawful compensation protecting the affected person's lawful rights and interests. Where a private dwelling is expropriated, the person's housing conditions must also be secured.
No organisation or individual may embezzle, misappropriate, privately distribute, intercept or delay payment of expropriation compensation or similar payments.
Section 368 [Requisition]
In emergencies such as rescue and disaster relief or epidemic prevention and control, immovables or movables of organisations and individuals may be requisitioned under the powers and procedures prescribed by law. They must be returned after use. Compensation must be paid for requisition of property and for damage or destruction after requisition.