I. AN OVERVIEW OF THE RESEARCH

1The research presented here is on rural women’s entitlement to land and related properties. The target and goals of this research are: (1) to understand the real situation, to identify the major problems, and to discover the prevalence of and the reasons for these problems; (2) to understand how relevant laws and policies are implemented, and how effective they are at resolving the problems; (3) to understand rural women’s needs for land and related property; and (4) to study how an effective system and legal framework can be established in order to protect rural women’s entitlements by collecting, soliciting and submitting policy recommendations. To better understand the situation in some parts of China, the Task Team conducted targeted investigations and surveys.

2Hebei Province and Zhejiang Province were chosen for this research. Questionnaires and panel discussions were organized. Through this research, we aim to find out how the People’s Republic of China’s (PRC) Law on Rural Land Contracting 1and other laws, regulations and policies are carried out; how rural women’s right and entitlement to land are realized; what the infringements of the laws are and the reasons behind them; how village committees handle relevant conflicts; what the government’s attitude is toward this issue; and other connected issues.

II. PROBLEMS AND THEIR MANIFESTATIONS RELATING TO RURAL WOMEN’S RIGHT AND ENTITLEMENT TO LAND

1. Infringements of Rural Women’s Right and Entitlement to Land Increase Year by Year

3Infringements of rural women’s right and entitlement to land have surfaced and evolved with the development of the local economy. During the reform establishing the household contract responsibility system in the countryside, and the reform to prolong the period of a land contract in 1998, infringements upon women’s right to contract land and to use housing sites were typical. In recent years, there has been rampant expropriation of rural lands. Compensation for expropriated land has become a major source of revenue for rural collectives and an important part of income for local peasants. In this process, women were frequently deprived of their share of the compensation or given a smaller cut. In addition, some villages banned women from equal enjoyment of related property entitlements (derivatives of land entitlements such as land compensation fees, dividends on land shares, etc.) as well as related benefits. In some places, women were denied equal treatment during rural economic restructuring. In distributing lands or other quantified shares or year-end dividends, women are often given a smaller cut. Thus, their entitlements to land-related compensation are infringed upon. Our survey shows that in some villages, inequality between men and women is very obvious. For instance, women who married someone from a different village but kept their hukou (residence permit) unchanged are deprived of or banned from a full share of the compensation. Their children are only entitled to half their share.

2. More Women Fall Victim to Infringements

4During the first round of land contract reform, the victims were primarily women who married outside of the village and their children; these women were discriminated against. In some places, single women’s right to contract land was also restricted. Namely, they were entitled to no land or a lesser share of the land. During the second round of reform, the contracted tenure was prolonged. Many problems emerged concerning rural women’s marital status. Namely, if a woman is married, either out of or into the village, or becomes divorced or widowed, her entitlement to land becomes vulnerable to local restrictions. Our survey shows that victims in the countryside have expanded to include not only women who are married out of the village, but also women who moved into the village after marriage, women who are married to urban citizens, divorced and widowed women, women whose hukou is still registered in their maiden home, children of those women, and uxorilocal sons-in-law. Women who married out of or married into the village, as well as divorced and widowed women are especially vulnerable. Our survey revealed that in both Zhejiang and Hebei provinces, village codes of conduct contain unequal requirements. For instance, some villages require that before marrying into the village, a woman would have to sign an agreement with the village committee to relinquish her entitlement to distributed land shares and related benefits.

3. More Forms of Infringement

5In recent years, infringements of women’s entitlement have taken the following forms:

A. Rural collectives take back a woman’s land when she moves out of the village after marriage

6In China, rural land is distributed among registered households in the village. State policy on rural land is summarized as “(contracted tenure for land) remains valid for 30 years, with no major changes but small adjustments.” Enforcement of this policy, however, varies in different parts of China. In our investigation, we found that rural women would usually re-register their hukou in their husbands village when they get married. In this process, it is easy for them to lose their original land. The local rural community would usually be taking back the women’s contracted land at their maiden home. Since rural households instead of individuals contract land, and there is no clear delineation of individuals’ rights within the family, the rights due to women are not well protected. Even with a 30-year tenure, if a woman gets married and leaves her maiden home, she effectively loses her right to use the contracted land and to enjoy its proceeds. She has to transfer these rights to her parents or brothers without compensation.

7Rural women are likely to lose their land entitlements in their maiden village once they get married and move into their husband’s village. On the other hand, it is hard for them to receive new land in their husband’s village. Most Chinese villages do not keep enough reserve land for potential newcomers to contract. After re-registering their hukou in their husband’s village, these women could only wait for a re-allocation of land by the local community. If the village does not re-allocate land for contracting, these women and their children could never have the chance to get their share of land.

B. Rural collectives take back land from divorced and widowed rural women

8In rural China, once married, a woman moves in with her husband’s family. Our survey shows that when a couple gets divorced, the village of the divorced husband would often take back the wife’s share of the land and force the wife to give up her hukou and return to her village. This is done regardless of whether the divorced wife could regain her share of land in her maiden village or whether she gets a share of land from her next husband’s village if she remarries. Some divorced women find that after returning to their maiden villages, the village accepts only their hukou and gives land to them but not to the children they support. In panel discussions we found that in both provinces there are villages that adopt the policy of one moves out before another moves in-, that is, if the divorced wife chooses to stay in her former husband’s village, when her former husband remarries, all of her entitlements would be transferred to her former husband’s new wife.

C. There is a lack of protection for the rights of men who move in with their wife’s family after marriage

9In many rural villages, local codes and rules discriminate against men who move in with their wife’s family. For instance, some codes say that uxorilocal sons-in-law are entitled to either less contracted land or none at all. Some villages require that in households with only daughters, no more than one live-in son-in-law be entitled to village land. In other villages, if a household has both sons and daughters, it cannot take in uxorilocal sons-in-law. If it does, the son-in-law has no entitlement to local land.

D. Rural women’s land rights and entitlements are infringed upon in the process of transferring rural land rights

10With economic development, more and more rural surplus labourers leave villages for cities. Consequently, land-contracting rights began to change hands. In this process, the land entitlements of rural women who leave their village to work in the cities are often violated. Such violations often take two forms: a) when agriculture tax needs to be paid, the women’s land is either counted as waste land or directly taken back by the village and given to others to till; b) if these women get married in cities, they are regarded as city dwellers, and the village then takes back the women’s land and they are deprived of all their entitlements as members of the village.

E. Villages arbitrarily remove the hukou of some rural women who marry urban citizens

11During our investigation, we found that some villages arbitrarily require that if a woman marries an urban citizen, her hukou must be removed. Once the hukou is removed, the village deprives her of her land entitlements.

4. Lack of Effective Remedies

12The reasons behind land disputes are multiple and complex. To solve the problems and conflicts related to this issue, land authority, local governments, village committees and courts all need to be involved. Lack of cooperation from any player would lead to the shifting of responsibility and deadlock. Grievances of this kind are not easily redressed by the courts; therefore, women have to repeatedly present their claims to government authorities and courts. For instance, compensation is often not paid immediately in the distribution of land. The court’s verdict, if there is one, is only valid for one installment. Thus, even for one claim, women with these problems will have to file many court actions. Judges often find cases of this kind hard to deal with; some judges even shun such cases. Coordination among competent authorities is poor. Local offices of the Communist Party and local governments are not willing to interfere.

III. AN ANALYSIS OF THE REASONS BEHIND THIS PROBLEM

1. REASONS RELATED TO CHINA’S REALITY

13A. Firstly, land is scarce in China. There is increasing tension between the expanding population and the shrinking land-related resources. Such tension is especially obvious in the periphery of cities where more and more land is expropriated and population concentration is high. In recent years, rapid urban expansion has created demand for land in peripheral rural areas. This has sharpened the tensions amongst people over land.

14Secondly, thanks to high unemployment in cities, inadequate social security coverage in the countryside and other factors, land has become the main source of support for peasants. The fight for land and related entitlements becomes ever more fierce. Peasants are divided into different interest groups. In the struggle for economic gain, when the interests of one group have to be sacrificed, women are usually singled out, especially divorced and widowed women.

15B. Land is immovable, but women traditionally move from their maiden home to live with their husband’s family after marriage. Certain problems stem from the immovability of land and the mobility of women. Because land cannot be moved, most women can only keep nominal rights over their land located in their home villages. Currently, rural households contract land. There are no clear rules on the land rights of individual family members. Women, single or married, often cannot claim their land rights as individuals and, as a result, risk losing control over their land.

16C. The hukou system and its effect. Rural women’s hukou situation is quite complicated. There are women who are married to urban citizens but could not get re-registered for an urban hukou; their hukou is still in their home village. In prosperous villages, women often do not want to marry men from other villages. Even if they do marry outside of the village, these women often do not want to change their hukou. There are also women whose hukou is separated from their residence because of divorce, remarriage or widowhood. This is especially true for women who marry urban citizens but could not change their hukou into an urban one. These women suffer from inequality not only between the sexes but also between cities and the countryside.

2. Current Laws and Policies are Inadequate

A. Loopholes in the current legal framework

17Under the PRC Constitution, women enjoy equal rights to men in political, economical, cultural, social and family spheres. In China, a framework of laws that include the Constitution, the Law on the Protection of Women’s Rights and Interests,2 and supporting regulations has been put in place. The legal system upholds equality between men and women, stresses the protection of women’s rights and interests, and contains provisions that are in the best interests of women. In terms of the legal constitution, China is quite sophisticated in the protection of women’s rights and interests. However, some legal provisions are not practical in reality and cannot be enforced properly. As for violations of women’s rights, sanctions are weak and remedies hard to access. The linkage among relevant laws is poor. Some legal provisions are general, abstract and hard to enforce. Last but not least, some provisions are not designed from the perspective of gender equality.

18For instance, currently there is no clear legal definition for membership in rural economic collectives. A major part of rural collectives is made up of women. How to define their membership and how to protect their related interests, especially with changes brought about by marriage, are still legal challenges. Despite improvements in laws and policies to protect peasants’ land entitlements over recent years, the crucial issue of the definition for membership has not been addressed.

19Article 24 of the Supreme Peoples Court (SPC) Interpretation3 provides that compensation for land shall be distributed among persons qualified as members of the rural economic collective, when the land expropriation compensation and settlement plan is set. However, it does not define the qualification for membership or for distribution. In reality, villagers directly or through rural collectives, and following different rules, distribute and redistribute the proceeds of land. So much so that within a village, among different production teams or at different periods, there are different ways and criteria for distribution. This situation leads to inequity and disputes. It also explains why there are a great deal of disputes between rural women or newcomers and rural economic collectives.

B. Poor Linkage Between Laws

20Firstly, differences among laws provide loopholes that can be taken advantage of. The PRC Constitution grants women equal economic and political rights. The revised Law on the Protection of Women’s Rights and Interests stipulates clearly equality between men and women. The Marriage Law gives men and women equal access to family property. The Law on Rural Land Contracting contains specific provisions on women’s entitlement to land and related property. Nevertheless, the Organic Law of Village Committees4 stipulates that village committees are elected by all villagers to represent them, and are self-administered. Villagers’ meetings can be called as long as at least half of the villagers who are above 18-years-old are in attendance, or with representation from 2/3 of village households.5 Decisions from the meeting are adopted by a majority. However, some village committees have abused these provisions in order to infringe on women’s rights. In enforcing the Organic Law of Village Committees, many rural officials at the grassroots level misunderstand the intention and role of this law. Some of the problems include:

• Many rural officials believe that since the Standing Committee of the National People’s Congress adopted this law, it should be the most authoritative law in governing the administration of village affairs in the countryside.
• This law is on how to organize self-administrative entities in the countryside. Once constructed, an administrative system would remain stable. Since issues in the countryside are complex, the principle of 2/3 quorum should be maintained.
• Many village committees only emphasize provisions that are conducive to their work, and downplay restrictive provisions.

21Due to these factors, many decisions detrimental to women’s interests are often made or agreed upon by village committees. Numerous victimized women choose to report their grievances to local governments, but often to little avail.

22Secondly, there is a lack of supervision and monitoring of village rules, codes or decisions that contravene laws. The Organization Law of Villagers’ Committees stipulates that codes of self-administration, rules or decisions made by villagers shall not contravene the Constitution, other laws and national policies, nor shall they infringe on the personal, democratic and property rights of members of the village. However, the Organization Law does not designate an entity to review the compliance of village codes, rules and decisions, or to supervise villages. The Organization Law also does not provide for sanctions on violations, or remedies for victims. Because of the lack of such provisions, it is hard to correct violations by village committees.

C. Gender equality is not considered when some laws and policies are made

23Legislation is a process in which opinions from all sides should be expressed and heard, in particular those from minority groups. All affected parties should be represented in the process of legislation. If men make up the majority of legislators or if legislators are not aware of gender equality, women’s interests and needs cannot be properly reflected in the laws and male values would dominate legislation. For instance, under the rural household contract responsibility system, the contracting unit is the household. Even though heads of the household allocate land, each member’s rights are not clarified, let alone are clear property relationships among members of the family. An individual’s property entitlements and rights concerning land remain ambiguous. Land contracts often bear the husband’s name only, which means that the law does not recognize the wife’s land entitlements. Thus, when an individual’s interests are infringed upon, it is hard to find support for a claim. During divorce, contracted land is often not regarded as the common property of the couple.

24This phenomenon produces a ripple effect. At the grassroots level, women are often excluded from important discussions or development of village codes or rules. Frequently, women’s voices are too low to be heard or to influence the decision-making process. As a result, these women’s claims to land are often marginalized.

3. Inadequate Publicity of Laws

25Equality between men and women is a basic national policy. It is also clearly stipulated in the Constitution, the Law on the Protection of Women’s Rights and Interests, the Marriage Law,6 the Law on Rural Land Contracting. The central and sub-national governments have issued decrees and policies to support the protection of rural women’s land entitlements. Since 1985, China has been organizing national five year campaigns to popularize legal knowledge. So far, five campaigns have been organized successively, and many people have been educated about these laws. However, due to various reasons, efforts to popularize laws do not produce great results at the grassroots level, especially in remote areas of the countryside. In addition, after the government staff trained in these campaigns retires, the training of new staff at the grassroots level is not organized in a timely way. Without proper training, new staff is not very conscious of protecting women’s entitlements. This in turn affects efforts to popularize laws. In some parts of China, there is limited knowledge of the laws relating to women’s rights.

26Through our investigation, we found that some local government officials are not very conscious of relevant laws or how to comply with them. In handling complaints concerning rural women’s land entitlements, some officials over-emphasized respect for villagers’ self-administration and the importance of village codes. In formulating local policies, some officials gave too much consideration to villagers’ self-administration, which misled villagers and gave rise to conflicts in certain cases. After receiving complaints from women, some town/township officials would try to avoid these cases by urging the women to file their complaints with local courts, saying that the township government could not issue compulsory decisions on these disputes. Some local governments institute policies that require consent from 2/3 of the members of the rural collectives general meeting in order for rural women, who marry into city households but maintain a village hukou, and their children, to have a share in village land. In addition, some women are not aware of relevant laws and do not know how to use these laws to protect themselves. Many women do not make a claim on the right to contract land or waive the right in a divorce, which makes it hard to claim the right later on.

4. Lack of Effective Remedies

A. Administrative inaction

27Some town/township governments do not exercise effective guidance on villagers’ self-administration. Currently, town/township governments can guide, rather than directly lead, the work of village committees. Thus, they cannot use direct administrative orders to interfere in the internal affairs of villages. When facing land disputes, local governments usually do not want to offend the majority of villagers. Furthermore, they are passive in reaching out and educating villagers. When there is an individual complaint, the government would try to whitewash the problem; if the situation deteriorates into a group problem, the government would not know how to handle it.

B. Lack ofEffective Judicial Remedies

28Filing a case of a rural woman’s land dispute remains an outstanding problem. With the Law on Rural Land Contracting and its interpretation going into effect, and the Law on the Protection of Women’s Rights and Interests revised, rural women now have legal protection for their entitlements. However, there are still numerous impediments. In disputes involving rural women’s land rights and rural economic collectives, it is still hard for victims to get effective legal remedy. There are still places where courts refuse to accept such cases. Since 2005, many grassroots level courts have ceased to take cases involving rural land and compensation disputes. The following reasons may explain the courts’ action:

i) Ambiguity with litigation parties

29Some argue that since village committees are not administrative organs, it is not suitable for courts to hear the cases as administrative disputes. On the other hand, village committees do exercise administrative functions, which means that these cases cannot be heard as civil disputes either. Some judges propose that these complaints should first be handled by local governments under central government policies and then be heard as administrative cases. However, due to apathy and resistance from local governments, it is difficult to channel such cases into the judicial system through administrative procedures.

ii) Legal provisions that land compensation should not be divided and distributed

30The Supreme People’s Court’s Judicial Interpretation provides that, in principle, courts should not accept disputes concerning land compensation distribution. In reality, even if this kind of dispute is accepted, the case would usually take a long time because of the difficulty in collecting evidence, and the court is concerned about resistance from local villagers. Nonetheless, there are judges conscious of gender equality who could ignore pressure and rule objectively. However, winning a case is far from a complete victory; enforcing the verdict is another hurdle. Fortunately, local courts in Jinhua, Shaoxing, Lishui and Taizhou in Zhejiang province have made experimental efforts in this regard. They bundled together cases in which women achieved a favourable ruling, and made concerted efforts in enforcement. For instance, a county court in Xingchang enforced 63 cases in a campaign. Shima village in Liuxia town, Hangzhou city, used mediation in handling compensation and house-site disputes involving 31 rural women.

31The Legal Interpretation on the Application of Laws in Handling Cases of Rural Land Contract Disputes by the SPC went into effect in September 2005.7 Items 2 and 3 of Article 1 provide that if members of rural economic entities file a civil action in court for their unfulfilled land contracting right, they shall be informed by the court that they should first file their complaints with competent administrative authorities; if members of rural economic entities file a civil action in court for disputes concerning land compensation distribution, the court can refuse to accept the case. At present, enforcement of these provisions varies in different courts. An action may be accepted by one court but refused by another, or the same court would handle similar cases differently at different times.

C. Lack of non-litigation channels to solve conflicts

32Arbitration agencies and procedures that can handle disputes involving the right to land use are not widely established in China, and their roles are quite limited. The possibility of using mediation is still under discussion. Legal liability procedures for violations of farmers’ land rights should be further improved.

D. The current response is passive and not preventative

33Some regions are not forward-looking in carrying out national policies. For instance, they fail to consider the impact of population mobility caused by marriage and do not put in place counter-measures. That is why these kinds of disputes are so hard to resolve. Many villages do not put aside reserve land when allocating or reallocating land. Some villages distribute land compensation and land shares once and for all. Therefore, it is quite hard to call for re-collection and redistribution. Some rural economic entities do not even put aside reserve funds for their future development, let alone money to compensate women whose rights are violated. If land or compensation is already divided up among village households, even if the claims of women are supported by courts, it is very hard to enforce. Pushing for enforcement often means meeting strong local resistance.

E. Women are often a disadvantaged group in village organizations

34Women are underrepresented in village decision-making organs. They are not active in the self-administration of villages. Heads of village women’s committees are often not members of the highest decision-making organs in the village. Even if they are, they are not in key positions and do not have a strong voice. In some villages, all decision-makers are men. For this reason, when decisions against women’s interests are made, there is little opposition. Even if women have different opinions, they are not able to initiate a review procedure in the village, or would meet strong opposition from the majority of villagers who could benefit from the decision.

5. Legacy of Traditional Concepts and Customs

35In China, it is a long-established custom for women to move into the family of their husbands after marriage, particularly in the countryside. Daughters are treated like boarders, and women can only hope to get property and succession rights through their husband’s household. Women are always seen as dependent, on father or brothers before marriage and on their husband after marriage. They cannot get land as independent individuals.

36Against this cultural background, many regions adopted a policy of “not to increase the share of land of a household when the family has a new member; nor to reduce its share when it loses one.” Women are disproportionately affected by these policies. In regions where land is scarce, in order to get a larger share of land, villagers often do not accept women who married into the village or divorced women as one their own. In economically prosperous villages, particularly suburban ones, villagers or village committees would often adopt decisions to the detriment of these women in distributing land and proceeds. This stems from the fear that women who are married to someone outside the village would not want to change their hukou, or would even want to move their husband’s hukou into the village.

IV. POLICY RECOMMENDATIONS AND SUGGESTIONS

37Conflicts and disputes concerning women’s land entitlements reflect the disparity between men and women in terms of resource division, social status, and access to development. They reveal that there is still discrimination against women, a legacy from the feudal past. Even some law enforcement officers and government officials have misunderstandings like “village codes can surpass laws.” This type of thinking shows problems in the legal framework. To remove discrimination, to protect the life of women and their children, and to facilitate the resolution of current problems, we make the following suggestions:

1. The Standing Committee of the National People’s Congress should improve legislation

38From our investigation, we find that the current Law on Rural Land Contracting is rather general and hard to enforce. To facilitate enforcement of the law, we suggest that the Standing Committee of The National Peoples Congress put more effort into improving supporting legislation and in giving substance to provisions on rural women’s land entitlements.

A. Clarify membership of rural economic entities

39Membership of rural economic entities is an important right for citizens. Under the Law on Legislation, this right should be defined and regulated by laws instead of administrative regulations, local bylaws, government decrees or judicial interpretations. Therefore, we hope that the National People’s Congress can clarify this issue through legislation, and in so doing provide institutional protection to women in land related conflicts.

B. During marriage between two rural households, land contracting right should be adjusted according to changed status of family members and their hukou

40Firstly, there should be clear legal provisions on: the entitlements of rural women (including women who marry outside of the village) to land contracting; on their participation in bidding, contracting and managing non-economic activities of the rural collective that they belonged to before marriage; on partaking in the distribution of shares and dividends; and on the allocation of economic profits, welfare benefits and house sites.

41Secondly, there should be clear legal principles governing the hukou status, the right to choose domicile, and other rights of rural women (including uxorilocal sons-inlaw) after marriage or with any change to their marital status. Men who move in with their wife’s family or women who move into their husband’s household after marriage should receive land from local economic entities. If they do not change their hukou accordingly, they should be persuaded to do so. If a woman, after marriage, remains in her original home with her husband and does not change her hukou, she should be allowed to keep her contracted land. If her children are registered in the village, they should be given equal treatment to other villagers. As for divorced or widowed women and their children, if their hukou is not moved to another place, they should be allowed to keep their contracted land. If a divorced or widowed woman returns to her maiden village or gets remarried, her hukou should be changed accordingly, and she should be given the same land entitlements as others in the recipient village. As for households with only daughters, if their husbands move in with the family after marriage, these sons-in-law should be given the same land contracting rights as other villagers.

C. Individual rights should be protected separately from the rights of families

42It should be added into the Property Law that for a married rural woman, both names of the couple shall appear on the written land contract. The wife and the husband shall hold separate copies of the contract that sets out the equal rights and obligations of both parties. The Property Law should clearly state that transferring or leasing of the land is only valid when both copies of the contract and both signatures of husband and wife are produced. This is to safeguard the rights of women to possess, use, benefit from and transfer their contracted lands. This will also protect rural women from the danger of losing their rights and interests on land without their knowledge, especially for women who are divorced, widowed or who have separated from their husbands.

D. The law should also provide for clear-cut regulations on the usage and distribution of compensation for land expropriation and corresponding mechanisms in case of disputes

43These are necessary provisions that can fill in the loopholes of current legislations. They will also prevent further violations of women’s legitimate rights and interests via abusive usage of compensation for land expropriation.

E. Property contracts on rural lands should be normalized

44Normalizing all land contracts is very important for stabilizing the rural land contracting system and for better defining the rights and obligations of parties involved. It is also important for maintaining the stable development of the countryside. Local People’s Congresses at different levels should make predictive policies to tackle problems that arise in the processes of land expropriation, transfer of contracting rights, and urbanization reforms. Implementation of the basic State policy of “gender equality” should be guaranteed to normalize and to guide the behaviors of collective economic organizations. In counties and villages where land contracts are performed properly, and where there are successful experiences of protecting rural women’s rights to land against violators, these experiences should be noted down and disseminated. For example, Hebei Province, the Chang Li County of Qinghuadao and Yan Shan County of Changzhou are carrying out pilot projects involving the publishing of relevant policies that have witnessed good results in protecting women’s entitlements to land. For instance, Chang Li County issued documents containing relevant land rights and interests of rural women on three occasions, in 1994, 2000 and 2004. These documents contain detailed safeguard measures relating to women’s land contracting rights, which have provided strong policy support to local women. Currently eight cities and counties (city districts) in Hebei Province, including Tang Shan, Langfang and Changli have published fourteen local policy documents. Altogether, 220 cases concerning women’s right to land have been dealt with.

2. Adoption of Local Legislation to Protect Women’s Rights should be Accelerated

45State legislation on land management and contracting still contains many deficiencies in terms of protecting the land rights and interests of rural women. To ensure the integrity of the legal system, local legislations and supplements are necessary to enhance and particularize state legislation within the local context. Some districts and cities of Hebei Province are doing very well in this respect. A typical example is the case of Chang Li County Supplementary Regulations on Land Contracting and Opinions on Implementing Rural Land Contracting Law and Strengthening Administration of Rural Land Contracting were issued based on a field investigation of selected villages. The county secretary of the Party Committee, the County Party Committee, as well as the county government carried out this investigation for one month. In addition, the various departments of the region, headed and coordinated by local authorities, reached a consensus on the Announcement on Protecting Contracting Rights to Land of Divorced Rural Women. These are all are guidelines for promptly and effectively resolving disputes concerning rural women’s right to land, and for safeguarding these rights against improper influences from other local factors.

3. Dissemination of the State Policy of Gender Equality and Relevant Laws and Regulations should be Strengthened

46Stipulations on the protection of women’s rights and interests can be located in many laws and policies promulgated and issued by the State. These include the Constitution, the Marriage Law, the Law on Protection of Women’s Rights and Interests, the Law on Rural Land Contracting and the Law on Protection of Minors.8 However, people are not familiar with these regulations and polices in many places. Therefore, more effort should be made to spread the State policy of gender equality and related laws to the general public, and especially to the various levels of leading cadres. Government branches, the judiciary, and village cadres at the grassroots level should be targeted in order to increase awareness of the responsibility for protecting rural women’s right to land among law enforcers. This will enable law enforcers to know and understand the law, and to behave as models in using and abiding by the law. It is also necessary to raise the legal consciousness among the general rural public about the protection of women’s rights and interests, and especially among women themselves. This will equip women with the knowledge and capacity to protect their own rights and interests.

4. Local Governments’ Responsibilities in Protecting Women’s Right to Land should he Reinforced

47Real cases have shown that in places where disputes about women’s right to land were properly settled, it was always the local governments, as enforcers of the State land contracting system, who were playing the leading roles. Successful past experiences reveal the following:

48First of all, an arbitration mechanism for land contracting disputes should be set up and perfected. Arbitration, as opposed to judicial remedies, has unique advantages. These advantages are evident where the woman in question has difficulty bringing an action in court, and where she wishes to solve the issue in a simple, fast and convenient way. Hence, arbitration can be a very effective means for solving land contracting issues in rural areas. Agricultural administrations at all levels should strengthen their petition reception desks, as well as their investigation and punitive mechanisms. They should also create arbitration committees dedicated to land contracting, and develop a whole institution of arbitration rules and procedures. These measures are to ensure that all land disputes can be handled appropriately, including those disputes concerning rural women, and to address all disputes at the local and grassroots level.

49Secondly, administration of land contracting should be intensified and illegal village regulations or conventions should be invalidated. By way of making and implementing policy measures, government departments can intensify their control and supervision over the process of land contracting and the distribution of interests. This is to avoid the infringements of women’s rights and interests related to their entitlements to land. At the same time, local codes of conduct, such as village self-rule charters, village regulations, folk conventions and rules of allocating interest in rural collective economic organizations, should be scrutinized. Laws and regulations that contradict the protection of women’s rights and interests should be deleted or abandoned. Local regulations should be amended or even overhauled in accordance with State standards for the protection of women; local authorities should be urged to do this and their compliance verified. There should be certain penalties to correct misdeeds and to punish those who are guilty of violations.

50Thirdly, channels for women to seek help should be expanded, and more remedies should be provided. Mediation should be expanded to play a role equivalent to its full potential. With their patience and experience in persuading others, the people’s mediation committees would be ideal for resolving conflicts and misunderstandings. A variety of punitive measures should be taken against persons liable for infringements. Legal punishments as well as administrative disciplines should be adopted to prevent encroachments by the government.

5. Judicial Remedies to Women Victims should be Provided

51A society with a fast growing legal system will not allow silence by law and law enforcers regarding the land rights issues. Courts, as the major law enforcer in society, should provide transparent and unimpeded proceedings to rural women against those who violate their right to land. No excuses by the judiciary for shunning their responsibility for providing remedies are acceptable. Now that the government is shifting from serving a judicial function, it seems that rural women will have to turn to the law for relief. Our suggestions for how to define and expand the role of courts in the protection of rural women’s entitlement to the land include: first, courts should accept land cases filed by rural women as long as the conditions prescribed by the law are satisfied; secondly, while deciding these cases, courts should hear the cases as required by law, and apply the law appropriately; thirdly, the scales of legal judgments should sometimes be slightly tilted in favour of the underprivileged; fourthly, judgments should all be based on the idea of respecting individual rights and sustaining reasonable claims by women; finally, more research and field surveys should be carried out in order to further explore judicial remedies for violations of women’s rights to land and property. Precedents should be established for courts to rely on in future cases.

6. The People’s Congresses over the Implementation of Laws and Regulations should Intensify Supervision

52Once a legal framework has been established, it is the implementation of these laws that really matters. As stated above, one of the first steps in implementing State laws is to supervise the making and enforcement of village codes of conduct. The People’s Congress should, at this stage, perform its function as a supervisory body to defend the authority of law. The autonomy of villages shall not surpass the boundaries set by law. Specifically, no local codes of conduct shall contravene laws and regulations made by legislative bodies. In dealing with infringements committed by village assemblies or village representatives’ conferences, People’s Congresses at various levels should ask local governments or administrative organs to take certain measures to ensure the integrity of the law. It is worth considering the adoption of a report and review system of village codes and folk conventions by People’s Congresses. This would means that all village codes would first be reported to and reviewed by the People’s Congress at the township or county level before they could be put into force. This proceeding would facilitate the administration of village codes and folk conventions; and any nonconformity of local codes that might lead to violations of women’s rights would be detected immediately and potential infringements prevented.

7. Legal Services should be Procured from Civil Organizations or Nongovernmental Organizations (NGOs)

53In recent years, civil society organizations and NGOs are becoming more and more active in carrying out experiments in rights advocating, such as research and legal actions. These actions have achieved exciting breakthroughs in the admissibility of cases filed by women on land disputes. The difficulties that rural women face in filing land dispute cases and in winning them have been lifted to some extent. These activities have not only opened the minds of relevant government departments, but also shed light on the judicature by opening a window through which a future with better protection of women’s rights to the land can be seen.

54While working in the Centre for Women’s Law and Legal Service of Peking University, a member of our task group was deeply impressed by the Centre’s commitment to the protection of rural women’s entitlements to land. The Centre, by providing pro bono legal aid services, has made great progress in promoting rural women’s legal actions defending their land rights. The following cases are chosen to demonstrate how the government can benefit from purchasing legal services provided by civil organizations. They are all typical and well-known cases in which the authors of this paper have been personally involved.

Case One

55Nie Cuilian, Xu Donghai, Xu Shuange and another 25 married women v. Village Committee of Shang Liang Village, Inner Mongolia.9

56Brief Description of Facts:

57In December 1999 and November 2000, two meetings of village representatives were convened by the Village Committee of Shaliang Village, located in Bashan County, Saihan District of Hohhot, capital of the Inner Mongolia Autonomous Region. The meetings, moderated by local village cadres, reached the following decisions that were against the law:

• A previous decision that the village would not allocate land to women born in the village during the second round of land contracting was sustained.
• Each villager was entitled to two houses constructed by the village collective: a flat one for residence (about 75 square meters), and another one with street frontage for commercial use (about 75 square meters). This policy does not apply to everyone. Women who married outside of the village and their husbands were excluded from the list of beneficiaries, irrespective of whether they are still living in the village or not.

58The philosophy behind this decision is that married women, whether they stay or leave the village, become “outsiders” after their marriage. Following this philosophy, 28 plaintiffs altogether were deprived of their entitlements to land for the second round of contracting. They were also deprived of their share of the houses and many other important economic interests (e.g., RMB 300 land compensation and food subsidies, etc.). Consequently, these 28 plaintiffs and 40 other women born in the same village and who suffered from the same kind of discrimination, embarked on a hard journey to seek remedies. Since April 1997, they filed several complaints to higher authorities, including the district government of Saihan, the municipal government of Huhhot, the CPC Commission of the Autonomous Region, the Provincial Government, the People’s Congresses of various levels and the women’s federations. They allege that the defendant has, in violation of the Constitutional Law, the Law on Land Contracting, the Law on Protection of Women’s Rights and Interests, the Organization Law of Villagers’ Committee and the General Principles of Civil Law,10 infringed upon their rights and interests under the law.

59In response to these pledges, some authorities issued orders requiring the village to correct its “misdeeds.” However, the orders were resisted by village cadres and many ordinary villagers. On 7 June 2002, in order to come to terms with the village, the plaintiffs waived parts of their rights and reluctantly signed an agreement (referred to as the June 7 Agreement) that assigned them 1.7 mu (1 mu is equal to 0.0667 hectares) of land per person for the second round of contracting. This agreement did not last long. Two years later, the land assigned to the plaintiffs was taken back by the villagers committee again to build resident houses and commercial buildings. Due to some void clauses in the June 7 Agreement, the plaintiffs, who had just suffered from loss of land, were denied their rights to get houses either for residence or for commercial purposes. As a result, the 28 plaintiffs and their families were thrown into a predicament where they lacked adequate sources of income. It was against this background that a claim for the right to subsistence and equal treatment was made by the 28 plaintiffs. An action was lodged before the People’s Intermediate Court of Huhhot, alleging that the Constitutional Law,11 the Law on Land Contracting, the Law on Protection of Women and the Organization Law of Villagers’ Committees were breached by Article 4, Paragraph 1 of the June 7 Agreement drafted by the Shaliang villagers committee. The plaintiffs then asked the court to rule against the defendant. They demanded that the defendant correct its wrongdoing and treat the plaintiffs the same way as the male villagers, and thus that it reallocate the villages’ land and houses fairly and objectively. Specifically, the plaintiffs demanded that:

1. The court declare Article 4 of the Agreement signed on June 7, 2002 between the Shaliang Villagers’ Committee and the village’s married women on the second round of land contracting void.
2. The defendant assign all plaintiffs, as equals to the male villagers, with two houses: one for residence (about 75 square meters), and the other for commercial use (about 75 square meters). Alternatively, the defendant shall pay each plaintiff a lump-sum compensation of RMB 400,000, or RMB 9,999,999 in total.
3. The defendant bear the fees and costs arising out of litigation, including the litigation fees charged by the court, the costs for property preservation and the costs for executing the judgment, and any other such costs that may be incurred.

60In their statement of facts, the 28 married women of the village described themselves in the following terms: “We, 28 married women, were all born in the Shaliang Village and are still residents of the village after we got married. Our hukous are still registered here. Over the years, we have been working on our contracted land and contributing to the development of the local collective economy. ”

61The first hearing was held on 11 May 2006 by the court of competence. During the trial hearing, the plaintiffs presented evidence retelling the story of when and how the June 7 Agreement was formulated. The defendant did not deny the allegations, neither did it contest the evidence produced by the plaintiffs; instead, it argued that the June 7 Agreement was a result of group discussions by the entire village committee. The agreement found its legal basis in the Organization Law of Villagers’ Committees, and it expressed the will of the majority of villagers; hence, the agreement should not be overruled. The plaintiffs denounced this line of defense. They called the courts attention to the fact that gender equality is provided by the Constitution as one of its basic principles. Furthermore, during the Fourth World Women’s Conference held in Beijing in 1995, the Chinese government promised the world that China would incorporate gender equality into its decision-making process as a basic State policy. The plaintiffs argued that the Constitution and the law should circumscribe the autonomy enjoyed by villagers. The precondition for exercising village autonomy is that all laws, regulations, state policies and the whole legal system be respected. Nothing could justify an autonomy surpassing the boundaries of the Constitution and other laws; no organization or individual stands beyond the reach of the Constitution or other laws. Discriminatory and oppressive practices against a minority, under the pretence of majority rule, should not be allowed. This is especially true when the majority opinion is wrong or even illegal. Relying on the basic State policy of gender equality, the plaintiffs called upon the court to dismiss the defendant’s argument and to make a judgment in favour of the plaintiffs according to law. In its last statement to the court, the defendant agreed to abide by the judgment.

62The judgment of the first instance was made on 19 June 2006. The written judgment of the People’s Intermediate Court of Huhhot defined the case as “a dispute on membership of village collective economy and fair distribution of properties within the village collective economy, which at the same time, touched upon rights and interests of women and was associated with the implementation of the basic State policy of gender equality. ”

63The judgment reads as follows:

64Pursuant to Paragraphs 3 and 5 of Article 52 of the Contract Law,12 the court believes that Paragraph 1, Article 4 of the June 7 Agreement is void. Reasons for this ruling include:

1. The Shaliang village in which the plaintiffs were born and raised is a comparatively rich village with a fast growing economy. For that reason, women are unwilling to leave the village even after marriage. Instead, they and their husbands choose to abandon their entitlement to the second round of land contracting in their husbands’ villages and to continue residing in Shaliang. As a matter of fact, this choice is not contrary to law; it is the natural result of the human instinct for a better life. The village of Shaliang and society as a whole should respect the couple’s choice; this is part of democracy and the “rule of law” in the context of village life. Furthermore, this is also the prerequisite for constructing a harmonious society.
2. It has been clearly laid down in Article 2 of the Law on the Protection of Women’s Rights and Interests that women shall enjoy equal rights to men in all aspects of political, economic, cultural, social and family life. It is a basic state policy to realize equality between men and women. The state shall take necessary measures to gradually improve various systems in order to protect the rights and interests of women and to eliminate all forms of discrimination against women. Even though all daughters-in-laws from outside Shaliang Village of Xi Bazha County are accepted without dispute, villagers are still unwilling to accept uxorilocal son-in-laws. According to villagers, married women are like spilled drops of water that no longer belong to the maiden family; thus, they think it unjustified for them to compete with members of their maiden village for a share of its interests. Though popular among Chinese farmers, this way of thinking is against the State Policy and the law.
3. Article 4, Paragraph 1 of the June 7 Agreement is not a manifestation of the plaintiffs’ true consent. Instead, it was a compromise they had to make in order to win back their rights step-by-step. After they acquired the contracting rights to 1.7 mu of land, they did not quit striving for other due rights. It was when all the other efforts had turned out to be fruitless that they lodged the suit.
4. Article 5, Paragraph 3 of the Organization Law of the Villagers’ Committees stipulates that the villagers’ committee shall, in accordance with the provisions of the law, administer the affairs concerning land and other property owned collectively by the peasants of the village. Article 20, Paragraph 2 further requires that no charter of self-government, rules and regulations of the village, villagers’ pledges or matters decided through discussion by a village assembly or by representatives of villagers, may contravene the Constitution, laws, regulations, or State policies, or contain contents that infringe upon villagers’ rights of the person, their democratic rights or their lawful property rights. It is obvious according to the above stipulations that the village meeting’s decision that “married women and their husbands are not entitled to the two houses built by the collective economy, irrespective of whether they are still living in the village” is unlawful. As to the June 7 Agreement, even though it satisfied formal requirements for a contract, Article 4, Paragraph 1 of the Agreement violated compulsory regulations of law and constituted a so-called “illegitimate purpose concealed under the guise of legitimate acts. ” Based upon that reasoning, the court decided to declare Article 4, Paragraph 1 of the June 7 Agreement void, and to rule for the plaintiffs.

65The second issue is whether the 28 plaintiffs are entitled to two houses like the male villagers. The nature of the dispute involves deciding who, as members of the collective economy, are entitled to jointly owned properties of the collective economic organization. Therefore, the first question to be settled is whether the plaintiffs can be qualified as full members of the village collective economy. No statutory standards for this qualification could be found. To take care of the issue, the court has decided to apply the principle of fairness and equity as provided by the General Principles of Civil Law and the theory of “analogous interpretation.” In other words, if the plaintiffs are no different from other villagers in their status and in other comparable aspects, they should be entitled to two houses just like the male villagers. By hearing the case, the court has discovered that all male villagers who continue to live in the village after their marriage are entitled to two houses, and the only thing distinguishing these male villagers from the 28 plaintiffs is gender, Here, the principles of “gender equality,” “fairness and equity” and “nondiscrimination” come into play, giving all the female plaintiffs equal rights, However, while affirming the plaintiffs’ rights to houses, the court noticed that the claim for RMB 9,999,999 compensation was based on inaccurate estimation and subsequently decided to dismiss the compensation claim.

66The final issue is whether the contracted land of 1.7 mu per person has been taken back by the village committee. Since the defendant had expressly told the court that the plaintiffs could get back their lands whenever they want, the court felt that what the plaintiffs alleged was inaccurate and irrelevant. Based upon Article 2 and Article 48 of the Law on Protection of Women’s Rights and Interests, Article 4 of the General Principles of Civil Law, Article 25 of the Contract Law, and Articles 5 and 20 of the Organization Law of Villagers’ Committees, the People’s intermediate court of Huhhot came to the following judgment regarding the dispute between the 28 women villagers against the Shiliang Village Committee:

1. Article 4, Paragraph 1 of the Agreement between the Shiliang Village Committee and the Villages Married Women on the second round of land contracting is invalid.
2. The defendant, the Shiliang Village Committee of Xi Bazha County in the Saihan District of Huhhot, is ordered to deliver two houses, one for a residence and one for commercial use, or equivalent compensation, to each plaintiff. The size and location of the houses assigned to the plaintiffs should be the same as those assigned to male villagers. The plaintiffs, in exchange, should pay necessary fees in the same amount as male villagers.
3. The defendant bears the burden of costs.

67Even though the 28 female plaintiffs had won their case before the court, they had to wait before they could celebrate their victory. The defendant failed to fulfill its promise to the court. Instead, using the old excuse of majority disapproval, the village committee refused to perform its duties under the judgment.

68After several months of trying to have the judgment executed, the plaintiffs became so disappointed and angry that they decided to take another course of action. On 5 August 2006, the plaintiffs submitted open letters to all relevant departments and authorities at different levels. After ten days or so, these open letters finally received replies. Some authorities realized that the case represented a serious infringement of the women’s rights. Mediations were organized, and the court was finally pressed to take the mandatory measures necessary to execute the judgment.

69The plaintiffs, with all their unremitting efforts, finally welcomed a satisfying, and hard won victory.

Case Two

70Zhai v. Village Committee of X village, Beijing.

71Plaintiff: Zhai, female, born on 19 June 1968, a farmer of X village in the suburbs of Beijing.

72Defendant: Villagers’ Committee of X village, represented by Xu, Chairman of the Committee.

73The plaintiff asks the court to declare illegal the defendant’s decision that the plaintiff was not entitled to a share of the compensation from the expropriation of land; and to order the defendant to pay the plaintiff her due land compensation in the amount of RMB 23,775.

74Zhai is a villager from a village located in the suburbs of Beijing. She was married in December 1990. Subsequently, she moved to her husbands village, the X village, and has been residing there ever since. In 2000, Zhai divorced from her husband after suffering years of domestic violence. She did not leave the X village after her divorce, and her hukou was still registered in the village.

75The land of the X village was expropriated. In 2005, the village decided to allocate compensation from land expropriation among the villagers. The rules for allocation were: (1) Any person who has his or her hukou registered in the village is qualified for the compensation; (2) The time span for calculating compensation is that between 1 January 1985 and 31 December 2004; (3) Villagers working outside the village are only entitled to an amount of compensation accounted from the date of their marriage.

76The plaintiff got married in 1990. According to the rules of calculation made by the village, she was eligible to compensation for 15 years, that is, RMB 23,775 in total.

77On 13 July 2005, the defendant convened a meeting of village representatives. A decision was made to deny the plaintiff her entitlement to the compensation for land expropriation. The reason provided was that she had never really worked in the village. The plaintiff then went to various authorities of the village, the township and the city district, seeking help from any “superior department.” However, all she encountered was disappointment.

78After we were engaged as lawyers for the plaintiff, we paid several visits to the chairman of the village committee. It was obvious that our presence was not pleasing to him. The first time we met with the chairman, we were told after a few words with him that he was leaving for a meeting on conscription that was too important to be interrupted; he asked us to return later. The second time he was again busy, this time with an educational activity among Party members in the village. The third time, we finally got a chance to discuss the case with the chairman. His reply was that “Zhai is divorced, she is no longer our villager. Besides, we are talking about compensation for land we inherited from our ancestors, which is by no means available to an outsider.” The explanation was inadequate because of the fact that none of the villagers were natives to the village; they are all from families. In other words, they all have different ancestors who moved to the village from different corners of China. The land reform took place at the birth of the People’s Republic of China, which made all farmland collectively owned. The chairman interpreted collective ownership as “collective ownership by males. ” As head of the village, he seemed convinced of the soundness of his own interpretation of the issue. While frustrated by the chairman’s stubbornness, we also paid visits to several relevant administrations and organizations. From these visits, we learned that such discriminative practices against women are not uncommon in the larger suburbs of Beijing. Like us, people from other organizations also want to find a solution to this issue. After discussions with one of the government departments, we decided to cooperate with them. We combined information about all the problems we found and launched a motion at the People’s Congress at the district level. We provided the data that we collected and submitted a proposal in the name of the government department to the local People’s Congress. To our disappointment, the proposal was later sent back to our partners because the way that the District People’s Congress deals with motions and proposals is to send them back to whoever proposed them to resolve the issue. Thus, all the proposals, including ours, were sent back to their starting points after going around in a big circle. Another door was slammed close before us.

79After much deliberation, we chose to lodge a suit against the defendant. The court accepted the case and notified the defendant to prepare a defense within an appointed time limit. The defendant initially completely ignored the court’s notification and assumed that the plaintiff was just bluffing. When the second notification came, the defendant became flustered. Feeling ashamed to go to court, the defendant proposed reconciliation with the plaintiff. We grasped this opportunity and advised our client to bargain with the defendant over the following items: first of all, the plaintiff wanted to be recognized as a villager with equal access to the same rights as other villagers. Secondly, the village committee should correct its decision and give the plaintiff her share of the compensation. Lastly, the plaintiff should be treated equally in all other aspects of village life and activities, such as economic affairs, security and social participation. Due to our precise analysis of the case and prompt interference, the parties successfully reached an agreement.

80These two cases were both resolved through litigation. Looking back, we find that the major contribution to their resolution came from the judges. In both cases, judges were well equipped with knowledge and morality; they appreciated the importance of gender equity; and they applied and interpreted the law accurately. It is amazing to see how important judges are in realizing women’s rights to equality. The success of these cases also reminds us that if the judiciary were to become more open and transparent, a shield of social justice could be constructed to protect the rights of the underprivileged from violations. This would in turn win the judges and the judiciary more trust and respect from the people.

81Another contributing factor that is worth mentioning is the legal service provider in these cases, civil organizations. Compared to other sources of legal service, the advantage of civil organizations is that their benefits could enormously outweigh their costs. Additionally, recipients of their services are always those who are most in need. While serving their clients, civil organizations are also serving society by dissolving conflicts, reducing judicial costs, and maintaining social stability. At the same time, they do not do this for nothing; instead, they are repaid by having their services recognized and their reputation established. For these reasons, we believe it would be a good strategic choice for the government to establish a relationship with civil organizations by procuring the legal services they provide. This relationship would be beneficial to both sides. On one hand, the government would get what it wants, and on the other hand, civil organizations would be encouraged to develop and make more progress in helping the underprivileged.