Legal Protection of Land Boundary in Hong Kong and mainland China

24

2011-01-01

2012-12-31

120000

Legal Protection of Land Boundary in Hong Kong and mainland China

Evidence Law, Land Administration, Land Boundary, Survey Law

Law

201011159195

Seed Fund for PI Research – Basic Research

2010

Completed

Certainty of land boundary is central to sustainable development in China. The pressing need is for a comprehensive critical review of the discipline of land administration law in Hong Kong and the mainland. The problem is that in both societies there is a mismatch between the land survey records maintained by the government and the grant plans used in property transactions and the absence of any legal provision on land boundary determination. There is a grave absence of legal expertise in land administration to cope with the evidentiary issues raised in boundary disputes and the policy considerations involved in regulating land boundary. In contrast, Macao enacted the Cadastral Act (Government Decree No. 3/94/M) in January 1994, which provides secured boundaries of all parcels of land in the territory. The initial stage of the research is to do a comprehensive trawl of the textbooks, journals and other publications in academic and professional circles in Hong Kong and the mainland; to examine possible legislative efforts in the determination of land boundary, such as the Land Survey Ordinance (Cap 473), Land Titles Ordinance (Cap 585), Land Administration Law of the People’s Republic of China (adopted and effective 28 August 2004), Surveying and Mapping Law of the People’s Republic of China (adopted 29 August 2002, effective 1 December 2002), Regulations on Land Survey (adopted and effective 7 February 2008), Measures for Urban Area Cadastral Investigation (adopted and effective 22 June 1993) and Rules of Land Registration (adopted 28 December 1995, effective 1 February 1996); to analyze the published records of the government’s land survey, registered plans and boundary disputes that Hong Kong and the mainland have. Conclusions will be drawn from these investigations as to the extent of the current legal and regulatory frameworks of land boundary protection. The next objective of the research is to identify the causes of the apparent impediment to shaping cadastral law in Hong Kong and the mainland. The aim is to test various hypotheses as explanations. These include, among other things, general deficiencies in rectifying land boundary records, for example, lack of resources; conflict of interests among the government, lawyers and surveyors; hostility from property developers and other key interest groups; absence of critical public interest in the role of the government in boundary affairs. The final objective of the research is to explore the possibilities of strengthening land boundary protection in Hong Kong and the mainland from two broad sources. The first is to draw upon the experience in Macao that implemented cadastral law within China. Contextual variations will be distinguished, but the comparison calls for awareness of the policy considerations for law making and formulation of legal futures. Secondly, the question is to consolidate and expand on intellectual resources within Hong Kong and the mainland which could reconfigure the legislature’s views of land boundary protection. What is the nature of the role of lawyers, surveyors, property developers, key interest groups and the public in the two places? How could secured land boundaries support sustainable development in both societies?