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Analysis of the nature of state ownership of water resources

Author: QiuQiu From: www.yourpaper.net Posted: 2010-06-16 02:53:52 Read:
[Abstract] the ownership of water resources is the core problem of the reform of water right system in china.In the planned economy to market economy, in the process of codification of civil law, "property law" affirmed the state ownership of water resources transformation become the mainstream concept purely private.In fact, in the generation and development history of world water resources ownership of state, civil law, but did not bring it into private ownership system.The state ownership of water resources is the main provisions of the Constitution and the law on water resources, public property is more outstanding.Should private location correction in China "property law" on the state ownership of water resources is not appropriate, to achieve a return to its nature of public law, especially to emphasize the state ownership of water resources of the national and state responsibility.

[Abstract] The ownership of English water resource is the key issue in the reform of water right. During the proceeding of from the planned economy to market-based economy, the Real Right Law accept the mainstream idea, that the state ownership of water resource is the ownership in civil law. In fact, in the history of the state ownership of water resource, civil law never bring it into private ownership system., it has more public law characteristics. So we should correct the unsuitable regulation of Real Right Law on the state ownership of water resource, reture to it 's public law, especially pay more attention to the idea owned by whole people and the responsibility of the state.
[keyword] ownership of water resources state ownership in civil law; constitution; ownership of

[keyword] the state ownership of English water resource; ownership in civil law; Ownership in constitution

[Abstract]

In the reform of water rights, the ownership of water resource's attention and the discussion is far from the full right to use.Ownership "is the logical starting point of the system of civil rights.Can say, the lack of the concept of ownership, legal system of real right law, cannot be established."[1] can say, any effort on the paid use of water resources and market allocation can not bypass the state ownership of water resources and to obtain the real solution, long.

A, state ownership of water resources of the civil law interpretation of

According to the "property law" article forty-fifth and article forty-sixth, our civil law established the state ownership of water resources ownership rights, namely, by the representative of the state ownership."Property law" 123rd article will water into the usufructuary right system."The property law", China is in the period of transition from planned economy to market economy, in the process of codification of civil law, civil law scholars reflect mainstream ideas."Through the adjustment of civil law system is its own, expanding interpretation" through various, [2] of natural resources including water resources state ownership into the civil law system, which transformed into the significance of pure law the rights.

State ownership of water resources property right reform, in addition to the object of the ownership of the amplified interpretation, are also based on the following theoretical foundation:

(a) "universal theory" fallacy

State ownership of water resources is the main body of the country, is the ambiguity of its subject, does not meet the requirements of real right law.As the Czech civilian Kainapusuo said, "the people's ownership is an economic sense of the concept of ownership, is a concept used in the social sense, all the people in the law and is not an owner."[3] because, in the theory of civil law, as a collective, people do not have legal independent personality, not the civil subject.In the theoretical framework of civil law, clearly explain the state ownership "universal theory", so people regarded as residual an outdated political concept in law, have come under heavy criticism.Is generally believed that the civil law scholars, state ownership "universal theory" is false, "people is not a legal category, the subject is not legal, even if all of the people as the subject of ownership, also cannot implement property right exercise."[4] therefore, the subject of state ownership of water resources, as a legal category, is the only national, not universal.

(two) stripping   national dual legal personality;

The country is a special civil subject, it has dual legal personality: as a political entity, countries with a public personality, to the administrative subject to exercise state power; the state also has the personality of private law, the legal identity of this civil subject in civil circulation.In the traditional planned economy system, the public personality state completely absorbed the personality of private law, the country regardless of administrative power and ownership of water resources, water resources ownership completely administrative state.At this time, the national personality of private law is missing, state ownership of water resources is not the ownership in civil law, and performance for the administrative power.

Property right of the state ownership of water resources in the condition of market economy, primary goal is to distinguish between public law and private law personality personality state, the administrative subject and civil subject of national identity by peeling off, "the state ownership subject character out of public law".[5] clarifies the national civil subject status, the state with the civil subject and the public power in the role, to enjoy the ownership of water resources.However, the state as an abstract legal subject, to participate in civil relations, ownership, must set up the meaning organ and executive organ."The biggest characteristic of state ownership is that the state is an abstraction or collective body, although the political rights and property rights as citizens, but not as himself, must realize the state ownership through certain organs or legal activity can."So, through the determination of the main exercise of state ownership, the state ownership of water resources has become the national exercise the agent, completed the transformation of the subject property law.Since the state ownership of water resources in time, appear with the personality of private law, then, state ownership and others is not different from the main body, the equal protection also behoove.

(three) classification of the exercise of the state ownership of

In view of the complexity of state-owned property, scholars have put forward, it is necessary to classify the state-owned property according to the nature and function of the object, attribute and function of different state-owned property, state ownership rights exercise mode and protection rules and therefore have not."Two types of" the state-owned property will be divided into operational and non-operational class two, the latter includes natural resources owned by the state; "three model" advocates of public state property, state-owned assets and resources of state-owned property; "four types" that differences exist resources property, business property, the administration of property and public property.Whether it is "two types", "three types of" or "four types", considering the particularity of state-owned natural resources including water resources, admitting that the exercise should be consistent with the social welfare, and the requirements of sustainable development.However, the classification is done completely in the framework of civil law, the common theoretical foundation is acknowledged for the concept of state ownership in private law, has the character of private law.According to this logic, state ownership of water resources is the "country as the civil subject (with personality of private law), in law within specified limits,
Comprehensive control of water resources have".[6]

Two, state ownership of water resources of civil rights and confusing   theory;

Through the improvement, of natural resources including water resources state ownership obtained property law in the form of legal rights.However, the "ownership in civil law, Department of material object, refers to private ownership."The [7] property is a concept with strong individualism and liberalism color, whether in the function design, or in the system specification, are based on private ownership.The traditional sense of ownership, there is a natural barrier in explaining ownership based on state ownership of water resources, because of "understanding in modern civil law, nature of ownership is not without hypothesis, the hypothesis is based on the premise that private property ownership, or individual properties, as well as the economic system to market economic system".[8] in view of the special nature of water resources, the state ownership role as complicated, directly apply the traditional civil law concept of personal ownership, adhere to the law within the framework of the state ownership of water resource is not reality.

(a) contradiction of public water resources and national private.

Although the dual attributes of natural resources are of both public goods and private goods, services in the economic, social, ecological and other purposes, but social and ecological value of water resources is particularly prominent, compared with other natural resources have more public goods attribute strong.One of the most complex water or all of natural resources: first, water is flowing and circulation.Water is the only through the hydrological cycle and regeneration of a resource, water in the valley as a unit, surface water, groundwater, soil water, meteoric water in the river in constant motion transformation, so the water resource property right exact definition is almost impossible.Second, the duality of interest.Water is essential for human survival and development, too much will be the formation of flood disaster.Third, the distribution is not balanced.Natural water cycle in the uneven spatial distribution, change in time is also very unstable.
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