Analysis of the Focal Issues of the Implementation of the Block System Reform in China—From the Perspective of the Protection of Civil Rights

Zheng Ni

Law School of Sichuan Administration Institute

Abstract: In February 2016, the Central Committee of the Communist Party of China and the State Council of China issued the “Several Opinions of the CPC Central Committee and the State Council on Further Strengthening the Management of Urban Planning and Construction”, stating that,in principle, closed residential areas will no longer be constructed and will be replaced by the promotion of the block system. This change in policy has aroused a great deal of controversy in various circles of society in China. In 2017, Chengdu, the capital city of Sichuan province, made an innovative attempt to implement “small block regulations.” In 2018, the first “block system”public rental housing district appeared in Beijing, the capital of China. These innovative practices have promoted the pace of block system reform in China, but in general, the implementation of block system reform is difficult. From the perspective of public opinion, it seems that many citizens misunderstand the block system. This may be due to the complex interactions among community environmental management, public security, privacy, and other factors where individual interests and public interests meet. This article, from the perspective of the protection of civil rights, analyses the advantages and disadvantages of the block system at the value level, distinguishes the differences between the block systems of China, the UK and the US and then puts forward the theory that the block system reforms for newly built and existing residences are different and should be implemented independently. Concerning the key point of the block system reforms, the “greater difficulty in the implementation of the block system reform in the existing residential quarters” is the proposal to expropriate the commonly owned internal roads and appropriately compensate the residents. Finally,to cope with the core issues effectively, this article advocates gradual implementation of the block system reforms in China, including legislation, policy transformation, cultural construction, and pilot trials to promote the success of the implementation.

Keywords: the block system, civil rights, expropriate, policy transformation

The CPC Central Committee and the State Council formulated and promulgated the “Several Opinions of the CPC Central Committee and the State Council on Further Strengthening the Management of Urban Planning and Construction” (hereinafter referred to as “the Opinions”) on February 6, 2016. the Opinions established the latest concepts and basic principles for urban planning and construction during the 13th Five-Year Plan period, which explicitly states: “New residences should promote the block system in principle, and closed residential areas should not be constructed any longer; residential quarters and compounds that have been completed should be gradually opened and the internal roads be made public to help solve problems in the layouts of the road networks, and to facilitate land conservation.”①Article 16 of Part VI of Several Opinions of the Central Committee and the State Council of the CPC on Further Strengthening the Management of Urban Planning and Construction.The reforms promoted by the block system, once put forward, caused widespread concern from the public. The focus of controversy and discussion is the contradiction between the promotion of the block system reforms and the protection of civil rights.

With the rapid advancement of urbanization, the use of land has become an overreaching concern.Wide roads, large shopping districts and closed residential areas are constantly being built but they are not being efficiently integrated into the community and the public facilities are not being shared.Although the main roads in urban areas are getting wider and even eight-lane roads can be found here and there, the wider the main roads are, the smaller the number of feeder roads and the worse the circulation becomes. Hence the problem of serious traffic congestion continues to grow. In this context, the implementation of district system reforms is the key to solving this difficult problem.The block system can allow increases in the quantity of public roads and road network density,alleviate traffic pressure on the main roads, enhance the utilization rates of public transit networks,and improve the connectivity between pedestrian and bicycle transportation networks. This is why so many large cities in Europe and America have adopted the block system. However, to implement the block system the roads in the residential quarters need to be public. As a consequence, the added traffic would increase security risks and noise pollution for the residents. Opening the roads of the residential areas that have been completed does pose a great challenge on how to protect the rights of the occupants, especially their rights of privacy and their property rights. How to balance the pros and cons of the block system, distinguish the block system reforms for newly built residences from those that have been completed, and the available solutions in the implementation of block system reform are valuable research topics.

Value Analysis — Advantages and Disadvantages of the Block System

Advantages of the Block System

In the early 1970s, US urban sprawl emerged due to the popularity of private cars and suburbanization of community businesses. In order to solve the resulting problems of environmental pollution, traffic congestion and other issues, the planning idea of “new urbanism” came into being.The basic idea is to promote the construction of street networks, use walking distances as the starting point for planning various activities, and effectively combine the natural environment with the community.

First, the block system can optimize land use. It is important for a populous country like China to improve resource utilization. It must make full use of the limited urban land by making as much land as possible a part of public’s resources while also making life more convenient within the neighborhoods by opening enclosed communities and tearing down the visible walls. In addition,as sprawl often becomes the main mode in some cities as they develop, the amount of arable land is severely reduced. The block system, as an expression of a compact layout, can curb city sprawl to a certain extent.

Second, the block system can effectively alleviate the current traffic pressure. At present, the main problem in metropolitan areas is traffic congestion, which is one of the most important issues to be resolved in promoting the block system. With rapid economic and social development, urban construction in China gradually stepped into the process of modernization planning, but the overall concept adopted the thinking pattern of “big and complete” in the initial stages of China. To achieve the goals of developing roads in a grid or chess-board way, improving road construction and making it sustainable, authorities should plan and open new channels rationally, improve road network density,and make urban traffic networks more densely embedded in the whole city operation rather than widen the existing roads blindly. Opening enclosed housing estate is the best way to help alleviate traffic congestion by converting the roads in gated residential communities to public transport roads,thus reducing traffic on the presently overcrowded main roads.

Third, the block system can promote economic development and offer a good living experience for residents. In general, a block is composed of streets, residential areas, and squares.In short, the block system is a combination of residential and commercial space that fulfils the residents’ need for living, business, and entertainment. The block system will open the residential area to form an open society without walls. The block system uses open blocks to break the gated communities, changing the traditional mode of separation of commerce and residence to a combined unit, gradually decentralizing the business district and expanding its customer base.Residents of the neighborhood can plan and experience business activities and leisure within walking distance, thus strengthening the close connections between residents and the surrounding environment. A compact layout and a variety of space for residents will provide a good living experience, and an important boost to the construction of a vibrant neighborhood with the cultural characteristics of sustainable development.

Disadvantages of the Block System

First, the block system, to a certain extent, can bring risks to the security of the residents. Closed residential developments are commendable for having relatively independent control methods.Their own entrances and exits and security systems give the residents a higher sense of security, the advantages of which are not available in a block system. Open communities have higher requirements for security, which is more difficult to manage. Once criminals enter a community, they have a greater chance of escaping if the security personnel or the police cannot respond quickly and apprehend them in a short time. For examples we can look at Chicago, Los Angeles and other cities in the United States where the practice of block systems is common. Local universities such as the University of Chicago, and University of Southern California have no “walls.” This results in security risks in an obvious way. In many places, the demand for police presence is very high while in other places,the requirement for citizen awareness is very high. For example, on the campus of the University of Chicago, located in a less developed southern part of the city, almost every street has a guard station equipped with security personnel, but there are few guard stations within Northwestern University,also located in Chicago. According to the locals, Northwestern University is located in a wealthy area with more socially aware residents. But whether in university or residential neighborhood, a large number of vehicles flooding into the community will restrict the leisure environment of the residents. Therefore, once the block system is adopted, the corresponding traffic regulations and other supporting provisions will be crucial, because traffic directly relates to the safety and security of residents in the neighborhood.

Second, the block system can reduce the environment’s comfort to a certain extent. An open community means that the privately-owned areas become public areas. Noise, exhaust and light pollution will become troubling factors. Opening the entrances to the community can bring the street vendors and cause damage to the facilities which originally may have had good maintenance.Environmental and health conditions may become regressive. Therefore, open blocks can bring greater challenges to urban management authority. Additionally, the existing property system will become an obstacle. At present, property management in China is based on a community’s private area which belongs to all the community residents. When the open blocks become a reality and the private area becomes a public area, property management authority will be questioned and the owner’s management right will be limited.

Third, the central issue is the property disputes arising from the implementation of block reform.The interests of all parties must be considered. Simply “demolishing the wall” to promote block reform will greatly reduce the ownership benefits and rights attached to the property, which will also reduce the personal rights and interests of the residents. The current social situation does not allow blindly developing the block system in China. Without a good system and relevant laws to protect property rights, the “one-size-fits-all” implementation of the block system will lead to many social problems, including conflicts between individuals, between individuals and governments. If we cannot make clear divisions and descriptions of property rights in the public areas of communities,and if we cannot provide reasonable and fair compensation for the losses community citizens will suffer, the block system reform will face great resistance.

Legal Basis to Distinguish the Newly Built Residential Quarters from Those that Have Been Completed and Lay a Good Foundation for the Rationality of Block System Reform

The Reform of the Block System for Newly Built Residential Quarters and Those that Have Been Completed Should be Implemented in Different Directions

With respect to block system reform, this paper holds that we should thoroughly understand the original, basic intentions of the Opinions, clearly distinguish the old and newly built residential quarters, and utilize different methods for implementing reform respectively.

First, the Opinions, put forward, “New residences should promote the block system in principle,and closed residential areas should not be constructed any longer.”①Article 16 of Part VI of the Several Opinions of the Central Committee and the State Council of the CPC on Further Strengthening the Management of Urban Planning and Construction.Thus, the object of this reform is new residential areas rather than the residential areas which have been completed. Even for new residences, it should start with pilot projects. The reform of pilot areas selected for the initial reforms of the block system should be implemented through the planning and construction design of the unbuilt cells before the construction of the residential areas. The construction costs of public roads in the new block should not be allocated to residential property owners. Also, residential property owners will no longer pay for the private areas. The government should coordinate the construction costs in the planning. Therefore, with the block system reform implemented, roads and green spaces in the newly built residence areas will be attributed to “urban public roads” and “urban public green spaces” according to the Civil Code of the People’s Republic of China.

Second, the Opinions stated, “Residential quarters and compounds that have been completed should be gradually opened to make the internal roads available to the public, to solve the problem of the layout of the road network, and to facilitate land conservation.”②Article 16 of Part VI of the Several Opinions of the Central Committee and the State Council of the CPC on Further Strengthening the Management of Urban Planning and Construction.“Gradually” reflects such a progressive attitude that not all of the completed residential quarters and compounds should be affected by the block system. The city construction planning of new areas is not retroactive to the old residences on a legal level. If the already built residential quarters and compounds have to be opened,then it must be based on the needs of the public interest.

The Focus of the Block System Reform for Completed Residences: Expropriating the Internal Roads that Are Co-owned by the Residents

The focus of the block system reform: Greater difficulty in the completed residence.

From the above analysis, although there are problems in the implementation of the block system reforms, plans, explicit ideas, strategy adjustments and co-ordinate arrangements, sharing the costs of reform in advance can help decrease the resistance. The focus of the problem is the block system reform for the completed residences seems to be in conflict with the laws and regulations of China.For the completed residences, the reform is bound to include part of the original internal roads and green spaces, causing conflicts between the rights of owners to use the internal roads and green spaces and the rights of outsiders to use the public roads. Making the internal roads public is a change to the rights originally belonging to the owners of the internal roads and green spaces.

As is stated in the “Real Rights” of the Civil Code, “The roads within the zoning lot shall be coowned by owners, except those belonging in the public roads of a city or town. The green spaces within the zoning lot shall be co-owned by owners, except those belonging in the public green spaces of a city or town or, as it is clearly indicated, belonging to individuals.”①Article 274 of the Civil Code of the People’s Republic of China.In addition, as is prescribed in the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Partitioned Ownership of Building Areas, “Owners shall share the right to use the land used for building with regard to the land within the building areas.”②Article 3 of the Interpretation of the Supreme People’s Court on Several Questions Concerning the Specific Application of Law in the Trial of Disputes over Differentiated Ownership of Buildings.

According to China’s real estate development model, real estate developers get the right to use the land originally belonging to the country (for seventy years) by purchasing the land transfer payments. Property price also includes corresponding land transfer payments. The internal roads and green spaces are calculated as private areas in the purchase. In addition, the construction, use and maintenance costs of the roads and green spaces are shared by all owners.Therefore, it can be considered that all owners of the residence enjoy exclusive and dominant rights to roads and plantings. If it is necessary to dispose of the roads and plantings, or to change their functions, it shall be carried out under the premise of legality. One is expected to follow the established Civil Code and relevant judicial interpretations and cope with the relationships between opening the closed areas and abiding by the Civil Code and other laws and regulations. If the country is determined to promote block system reform, assorted special laws must be established as soon as possible to regulate and guarantee a fair process to effectively avoid contradictions and conflicts.

The focus of the block system reform for the completed residences: Expropriation acts and their restrictions.

The country’s disposing of the real property originally belonging to the citizens shall be deemed to be expropriate acts. According to the provisions of the Constitution of the People’s Republic of China,①Artile 10 and Article 13 of the Constitution of the People’s Republic of China.“The state may, for the public interest, expropriate or take over land for public use, and pay compensation in accordance with the law.” Besides, Article 243 of the Civil Code states: “Land owned by collectives and buildings and other immovables of organizations or individuals may be expropriated in the interest of the public within the limits of power and under the procedures provided for by laws.” With regard to the implementation of the reform of the block system for the completed residence, expropriation is of great use. Expropriation aiming at meeting the needs of the public interest, via restricting private property ownership, is a product of socialization of ownership.

To a certain extent, the expropriation system makes some deviation from national protection of the citizens’ lawful private property system. However, because the fundamental point of the expropriation system is to safeguard public interests, and the constitutions of many countries include many stringent restrictions to expropriation, this system becomes much more legitimate and valid. According to the common views, it is necessary to meet the following three requirements for expropriate acts:

First, public interests. Due to the needs for public interests, the country can implement the expropriation acts, as well as in the block system reform for the completed residence. Public interest sets the limits for the expropriation system. Some countries use terms like “public use,” “public welfare” and “public need,” but no matter what kind of translation or interpretation is applied, it is always clearly stated that it cannot be used beyond the value of public interest. With regard to whether to make a clear definition of public interest, Chinese scholar Chen Xiaomin believes that “the public interest cannot be defined, for its content and object of benefits are uncertain” (Chen, 2001, p. 182).Therefore, it is very important to explain or interpret the “public interest” from the point of law. The interpretation of “public interest” cannot be expanded. “Public interest” contains only two categories:national interest and social public interest. Moreover, the bearing subjects of public interest could merely be the state or unspecific individuals, rather than certain social organizations, institutions,enterprises, or individuals.

Second, due process. Since it is hard to define the public interests, it should be supplemented by the clear and orderly rigid characteristics of procedures, in order to enhance the feasibility and stability in the practical application. Land Administration Law of the People’s Republic of China and its enforcement regulations have set stringent procedural limitations to land acquisition. China’s approval authorities for land acquisition are concentrated in the State Council and the provincial people’s governments, and their respective authorities of examination and approval are clear. It is necessary to go through the process of land acquisition announcement—survey and confirmation of land acquisition—letter of land acquisition—notification of land acquisition hearings—preparation for land acquisition hearings and other pre-process. Although the spirit of due process has been established in the legal level, in practice, the lack of rights for participating parties, qualified representation for the owners of expropriated lands and the shortage of proper supervision, among other issues are still severe problems. Therefore, continuous refinement and improvement of the law is of the utmost importance.

Third, reasonable compensation. From the perspective of effectiveness, because of the fact that land acquisition always goes along with compensation, a relatively high cost of expropriation is the most powerful guarantee for limiting the abuse of public power. Once the barrier is broken or prescribed as “can be compensated” rather than “should be compensated” in the law, land expropriation may be violated, and private property rights could suffer a large threat from public power.

In view of the reform of the block system for the residential quarters that have been completed,China should adopt the principle of appropriate compensation. It is necessary to establish a clear calculation model for the amount of compensation while the increasing amounts of compensation and the continuous expansion of the scope of compensation contribute to fully protecting the legitimate rights and interests of owners.

In the process of the implementation of the block system reforms, the acquisition acts towards people’s property due to the public interest must be in line with the objectives of public interest, due process, and reasonable compensation. Only when the acts of acquisition are in conformity with the provisions of the Constitution and the law can civil rights be protected and a win-win solution for both public interests and personal civil rights be achieved.

Probing the Paths—Proposals for Gradually Promoting Reform of the Block System

Legislation First: The Basic Prerequisite for the Steady Progress of Block System Reform

In the long run, the promotion of the block system is conducive to the maximum protection of the public interests. Therefore, it is suggested that the country should regulate urban planning through a certain series of acts. The relationship between policy and law should be addressed first, especially when some policies make it very difficult to avoid damaging individual rights. The implementation of such a policy must follow the principle of legislation, otherwise the authority of the law will be challenged and the requirements of the “rule of law” and “build a government under the rule of law”would be reversed.

With reference to legislation, we cannot merely learn from the practices of the United Kingdom and other Western countries to establish special laws concerning the block system reform. We must also amend the related terms and articles in the existing Civil Code, and urban and rural planning laws which conflict with policy implementation. No matter what kind of methods will be adopted, the core issue of legislation is still to maximize the protection of citizens’ private property and individual rights. Legal protection is mainly composed of two aspects: entity guarantee and procedural guarantee.

The entity guarantee.

The most important thing in the entity guarantee is to solve the problem of developing a nonnormative compensation system and the payment of construction costs incurred in the process of road reconstruction. The land compensation for the expropriation of the roads within the completed residential quarters should be calculated by the benchmark of the real estate market price at that time, in accordance with the corresponding private area shared by the owners. Beyond question,the same compensation system should be used for expropriated green spaces and parking spaces.Compensation principles should be based on reasonability and fairness, and it must be forbidden to make citizens’ loss too great simply because of market price fluctuations. Expropriation of the internal roads will definitely require road reconstruction costs, maintenance management fees and other expenses which shall be paid by the government.

In order to protect the personal safety of citizens, it should be made clear through legal provisions that the roads will have reasonable speed limits as well. The UK, for example, requires cars to travel at speeds not exceeding 20 miles per hour in residential areas, and the residential roads in Chicago have a speed limit of 25 miles per hour. In addition, noise interference will affect the living experience of residents, so it is required to establish legislation regarding the decibel limits and providing effective relief. In 1997, New York City passed the Noise Control Code stating that within a one-meter distance from residential buildings all noise sources of more than 45 dB are prohibited, and that sounds and whistles shall not last for more than 3 minutes if violating it for more than 3 times, the violator will be fined between $525 to $2,625 as penalty. All of the specific legal provisions are worthy of our reference. The environmental protection authority should set up a special noise processing agency,whose duty is to receive complaints from the public, review and investigate them in a timely manner,and apply impartial treatment.

The procedural guarantee.

The key point in the procedural guarantee is to establish a sound public participation and decisionmaking mechanism. The UK’s Town and Country Planning Act 1990, establishe in 1968 stressed that the most important aspect of the decisive procedure for the structural planning was about public participation, and “the common methods of public participation in urban planning adopted by the UK include consulting documents, liaison groups, public meetings, design consultations, and other means” (Sun, 2009). China can introduce ideas from the UK and establish a multi-level, multi-variety public participation mechanism. For the residential quarters that have been completed, whether to make the roads within the residence public should be jointly resolved by all the owners. According to Wang Liming, the owners share equal rights to possess and use the common property and the rights to dispose of the common property must be exercised under the prerequisite of consent of all the owners, otherwise the disposing behavior would be invalid. However, in actual practice, it is often very difficult for all the owners to agree on the disposing behavior, which means that if one votes against it, then the block system reform of the whole residential quarters would be in trouble,and the reform process of the entire area would be affected. As a consequence, under the premise of reasonable and fair compensation, only if a majority (more than 2/3) of the common owners have reached an agreement, the internal roads being made public could be implemented.

Improvement of the Supporting System and Facilities: The Material Guarantee for the Steady Progress of Block System Reform

The reform of the block system is a long-term and complicated task. While solving the severe problems of compensation, decision-making and other issues, we should adopt a gradual,measured approach rather than merely push forward in a rapid way. It is advised to regard unit compounds, government agencies and large communities as pilot areas in the first place, try to absorb and accumulate experience and then gradually apply what has been learned to the whole of society. Taking the compound for an example, under the planned economy system, planning and construction structure are the main reasons for unit compound produced by the unit of free allocation of land in most idle land. Meanwhile, the number of interior courtyard residents is getting smaller with the development of market economy gradually out of the compound, resulting in that the land waste problem is becoming increasingly prominent. In addition, it is a pilot reform for the unit compound residents and commercial housing residents to obtain housing ownership and pay for the price the first time to be far from the compound, which also has a positive role model for the whole society.

For the internal roads being made public, this should be gradual and progressive. It is believed that, as a first step, pedestrians and non-motorized vehicles should be taken as a model. Due to the current problem on domestic traffic congestion, the phenomenon of mutual interference between motor vehicles and non-motor vehicles, non-motor vehicle drivers are obviously being exposed to safety and security risks. If closed residential roads can seperate non-motor vehicle and pedestrian lanes from motorized vehicles, it will reduce traffic pressures by moving this traffic away from the main roads and increase vehicle speed. At the same time, pedestrians and non-motorized vehicles will not affect the safety of residents in the original area and will not cause the original residents to block reform.

Currently, the wisdom of community governance is a basic understanding. In order to safeguard the safety of the residents in the neighborhood, it is imperative to set up a comprehensive monitoring system and an advanced access control system. With the development of science, technology and networking, the traditional security systems relying on a wall and manpower is no longer the main trend. On the contrary, the boundaries between intelligent security technology and computer technology are clearly disappearing. Intelligent security systems include three parts: access control,alarms, and monitoring. A mature intelligent security system should be equipped with anti-theft alarms, video monitoring, entrance control alarms, security personnel patrol alarms, GPS vehicle alarms and a 110 alarm network transmission system. The system’s coverage area, coupled with additional systems as needed, can be reliable supports upon which we build open and safe areas. Of course, intelligent security advantages through software with the ability to strengthen the close ties between the property security personnel and the local police jurisdiction to improve the jurisdiction’s speed and reaction mechanisms needs to be constantly explored in practice and innovation, in order to truly carry forward the block reform resistance.

Cultural Construction: Effective Help for the Steady Progress of Block System Reform

At present, some citizens mistakenly regard the block system reform as the wall movement and consider the conversion of the internal roads from private to public as a conversion to a “market.”These misunderstandings then lead to the resistance against the block system reform. Block system reform is not simply about “remove the wall” and “open the gate area,” and blocking reform is not like blocking a great scourge. But it is still necessary to strengthen cultural construction in the process of reform, in order to let the citizens understand the superiority of the block system and the necessity of the reform.

Chinese urban residents, who have experienced from “courtyard” to “closed residential communities,” understand that “closed” is always associated with them. In the era of the planned economy, the closure of a compound was a symbol of rights and status; in the era of the market economy, the closure of high-grade residential areas is the proof of economic status. Therefore, in the traditional sense, closed residential communities bring more security and may represent a high-quality living environment. On the contrary, the block system is considered by some residents as a synonym for confusion and noise, which is caused by the closure of information and the lack of publicity. The implementation of any policy requires a full range of policy support. Therefore, first, the government should let the residents know the closed area is causing problems to the city, and that opening the area on behalf of civilization and an open, new city concept is the foundation for making the city a better place for everyone. This can make the whole society gradually accept and participate in the block system reform. Second, the government should carry out extensive publicity and promotion in the area of successful pilot block reforms, which can not only eliminate the misunderstanding of the residents of the block system, but also accumulate valuable experiences from the reforms.

Conclusion

As a solution to control urban disease, the block system reform cannot eliminate all the contradictions in the process of urban development, but the living experience and other positive aspects that come from easing traffic pressure for residents still have a positive impact on city life. The Supreme People’s Court provided this positive evaluation of the block system reform: “This opinion belongs to the policies of the Party and the state level, to protect the interests of owners, including the main body involved. There is a process through legislation to achieve the rule of law.”①The Supreme People’s Court responded to “community opening” : Legislation is still needed to realize the rule of law. Retrieved from https://finance.huanqiu.com/article/9CaKrnJU3OiIt is true that in the process of promoting the reform of the block system will encounter many obstacles and problems, but it is always a basic standpoint standing to solve these problems out of protecting civil rights. Only by taking into account the protection of civil rights, taking into account the interests of all, and fully listening to the demands of citizens can the reform steadily proceed and the ultimate goal of safeguarding public interests achieve.