It will take effect next May.
But while experts are pleased that the new law will help to clarify women’s rights as well as making it easier for them to access legal help, they have voiced concerns that it still contains some ambiguity that could lead to manipulation by rural authorities.
Under the 1984 Household Responsibility System, land is registered in the name of the household head, usually the man, excluding women from owning or inheriting land.
When a woman “marries out” to another village, she takes her hukou – her household registration – with her, losing her portion of the land registered to her family, while also being excluded from future allocations in her home village. But, having missed the land allocation at her husband’s village, she risks not being recognised as a new member of the collective.
Despite the existing law explicitly stating that women’s rights to land are equal to those of men and cannot be infringed upon by marriage or divorce, male-dominated village assemblies, often run along traditional lines and operated as autonomous entities in China’s political system, frequently exclude “married-out”, divorced or remarried women and their children from the collective.
It is hoped the new law will plug the legal loophole, with multiple provisions aimed at protecting the rights of women in rural collectives, according to experts.
In particular, Article 12 of the new law removes a slew of conditions that previously had to be met when evaluating membership. These included considerations such as historical context, practical realities, procedural fairness and public recognition.
“The original standards are unclear and unfair to women, with too many conditions,” said Lin Lixia from Qianqian Law Firm in Beijing, which specialises in advocacy for women’s rights.
“For example, ‘respecting history’ means it’s unnecessary to solve the issue as it has always been done this way. ‘Gaining public recognition’ requires majority agreement, which is difficult to achieve. How can it be possible when there’s a conflict between the interests of the minority [‘married-out’ women and their children] and the majority [male members]?” Lin said.
Article 12 also specifies the circumstances under which newly married individuals and newborns should obtain membership in a rural collective economic organisation, ensuring that women who move to their husband’s hometown after marriage can obtain legal membership, and also providing legal protection for children. Previously, babies born to “married out” women were often excluded from collectives.
And without these rights, women and their children cannot build houses in their own names. Or if their family’s land is taken for development projects, they often do not get their fair share of the compensation, according to Lin.
To give better protection, the new law has also introduced procedural safeguards, said Peter Chan, an associate law professor at Hong Kong’s City University.
It is this ability for prosecutors’ offices to file public interest lawsuits to protect women’s rights that will make it easier for women to access the legal system without having to take individual legal action. Previously, women had to launch litigation, arbitration or seek administrative mediation on their own.
But, despite such breakthroughs, there were still loopholes in the law that needed to be addressed, experts noted.
Some articles remain unclear and open to interpretation, which require further clarification through judicial interpretations, according to Huina Xiao, an assistant professor from the department of law and business at Hong Kong Shue Yan University.
“As the new law still leaves the decision-making power in the hands of the collective economic organisation, the risk of manipulation of the confirmation process by the CEO remains,” she said.
We have seen many cases where villagers … prefer to prioritise collective interests over individual rights. Even when the court makes a decision [favouring women], it is often not enforced
Lin agreed, arguing that the current system where village assemblies were the primary authority for determining membership was flawed.
“We have seen many cases where villagers are not familiar with the law and prefer to prioritise collective interests over individual rights,” she said. “Even when the court makes a decision [favouring women], it is often not enforced, as some local judges also prioritise social stability over the rule of law.”
She urged that the Supreme Court should issue judicial interpretations on the definition of membership, and called upon local governments and courts to strictly enforce the new law.
It also did not define the specific proportion of shares or the amount of money each member would receive, he said, leaving the question to village assemblies – which varied wildly across regions.
“Some village heads maintain an authoritarian image, infringing on the villagers’ land rights and lacking [legal] awareness,” he said.
“The law can only provide a framework for stating how rights will be protected and maintained, but concrete measures require practical organisational forms to be developed. This is part of the institutional reform process.”
