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Article: Legal Doctrine and Judicial Review of Eminent Domain in China

TitleLegal Doctrine and Judicial Review of Eminent Domain in China
Authors
KeywordsEminent Domain
Due Process
Chinese Courts
Principal-Agent Problem
Judicial Politics of Legal Doctrine
Issue Date2020
PublisherCambridge University Press. The Journal's web site is located at https://www.cambridge.org/core/journals/law-and-social-inquiry
Citation
Law and Social Inquiry, 2020, Forthcoming How to Cite?
AbstractWhich of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.
Persistent Identifierhttp://hdl.handle.net/10722/294368
ISSN
2019 Impact Factor: 0.929
2015 SCImago Journal Rankings: 0.570
SSRN

 

DC FieldValueLanguage
dc.contributor.authorMao, W-
dc.contributor.authorQiao, S-
dc.date.accessioned2020-12-01T09:02:10Z-
dc.date.available2020-12-01T09:02:10Z-
dc.date.issued2020-
dc.identifier.citationLaw and Social Inquiry, 2020, Forthcoming-
dc.identifier.issn0897-6546-
dc.identifier.urihttp://hdl.handle.net/10722/294368-
dc.description.abstractWhich of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.-
dc.languageeng-
dc.publisherCambridge University Press. The Journal's web site is located at https://www.cambridge.org/core/journals/law-and-social-inquiry-
dc.relation.ispartofLaw and Social Inquiry-
dc.rightsThis article has been accepted for publication in a revised form in Law and Social Inquiry https://www.cambridge.org/core/journals/law-and-social-inquiry.-
dc.subjectEminent Domain-
dc.subjectDue Process-
dc.subjectChinese Courts-
dc.subjectPrincipal-Agent Problem-
dc.subjectJudicial Politics of Legal Doctrine-
dc.titleLegal Doctrine and Judicial Review of Eminent Domain in China-
dc.typeArticle-
dc.identifier.emailQiao, S: justqiao@hku.hk-
dc.identifier.authorityQiao, S=rp01949-
dc.description.naturepostprint-
dc.identifier.hkuros700003904-
dc.publisher.placeUnited Kingdom-
dc.identifier.ssrn3679448-
dc.identifier.hkulrp2020/050-

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