On Property Right To Water Resources

Nowadays the global is faced with severe water crisis, since water resources shortage has become a direct threat to the survival and development of human being, and this century will enter an era of competition for water resources. Whether for the present situation or the future development trend of water resources, China’s water crisis is particularly severe. In this international and domestic context, theoretical studies on property rights water resources will undoubtedly have far-reaching theoretical and practical significance. This paper with five chapters has systematically studied the fundamental aspects of property rights to water resources in the perspective that property rights can be divided into property rights in public law and property rights in civil law.Chapter I studies up on how to define the concept of property rights to water resources by the law theory of common law, the legislative practice of common law and the law theory of China, and it draws the following conclusions. In the Anglo-American legal system, determined by its legal language tradition the concept of property rights to water resources has three different forms of language which are water rights, water property rights and property rights to water resources, and they are only the general term for the right to use public water resources or public water bodies but do not include the ownership of public water resources or public water bodies. The concept of water right is transplanted into China from the Anglo-American law, and China does not have the legal language tradition to use the concept of water right, especially does not have the legal language tradition to call property rights to water resources water rights for short, so the theorists in China dispute the connotation and extension of water rights, property rights to water and property rights to water resources as well as the relations of these three concepts. The concept of property rights to water resources should be defined in accordance with the basic theory of property rights of China.Chapter II re-thinks the concept of water right by three basic concepts of rights, property rights and water resources and draws the following conclusions. First, it re-thinks the concept of property rights to water resources on the concept of right. It thinks that property rights to water resources enjoyed by the people and the administrative powers to water resources enjoyed by the government belong to different areas, that the nature of property rights to water resources consists of a number of elements, of which legel force is an important aspect of its nature, and that each specific property right to water resources consists of ten basic elements. Secondly, it re-thinks the concept of property rights to water resources on the concept of property rights and draws the following conclusions. Whether in common law legal system or in civil law legal system, it is generally believed that property right and ownership are two separate and mature concepts and property right include ownership, but in common law legal system it is common thinking in legeal theory scope that property right means private property right and public property right does not belong to the scope of property right, in civil law legal system property rights include private and public property rights.That is the reason why common law legal system defines property rights as rights to use water resources without including public ownership to water resources, and that is the reason why property rights to water resources should not be limited to rights to use water resources. In common law legal system property rights only refer to static Herrschaftsrechte to property, but in civil law legal system property rights include static Herrschaftsrechte and dynamic Anspruch, so in common law legal system property rights to water resources refer only to use rights to water resources but not to Anspruch to water resources, but in civil law legal system property rights to water resources should include static Herrschaftsrechte to water resources and dynamic Anspruch to water resources. In the end, it re-thinks the concept of property rights to water resources on the concept of water resources. It thinks that all the relatively independent water in nature can be the object of property rights to water resources, but we should set different system of property rights on different water resources according to their natural characteristics and different social needs to them.Chapter III thinks over the classification of property rights to water resources and proposes some innovative ideas about it. Some western scholars thinks that classification in the broadest sense of the term includes three different classification operations and three different classification products, and this chapter studies up on the theories on classification according to the view of western scholars first. Then it studies up on the theories on the classification of relevant legel phenomena as well as the status of and the problems in the study on classification of property rights to water resources in China, especially on the problems in the confirmation of classification criteria and the use of classification methods. In the end it puts forward some innovative view points about the classification of property rights to water resources. It divides property rights to water resources into property rights to water resources in public law and property rights to water resources in civil law according to the relationship of legal force, and divides property rights to water resources into Herrschaftsrechte, Anspruch and sekundares Recht according to the objects of legal force.ChapterⅣreviews the theories and legislations on ownership to water resources. First of all, it reviews foreign theories and legislations on ownership to water resources. Foreign theorists think that water resources should be publicly owned on inappropriability theory, that some water resources should be the object of land ownership based on the theory of land ownership, that all federates of a federal state own water resources within their borders according to the theory of state structure, and that the subject of national ownership should be all the people on public trust doctrine and popular sovereignty theory. There is a dispute about the nature of national ownership of among foreign theorists, some think that national ownership belongs to property right in civil law, some think that it belongs to property right in public law, some consider that it is not property right at all. Overall, foreign legislations on the ownership of water resources are consistent with their theories. Secondly, it studies the theories and legislations on ownership to water resources in China. Chinese scholars do not considere other forms of ownership to water resources but only national ownership, and there are many different viewpoints about the reasons for the existence of national ownership of water resources. Many scholars think that the subject of national ownership to water resources falls vacant, some scholars think that the government should be provided for the subject of national ownership to water resources. Some scholars insist that the national ownership to water resources is ownership in civil law in its nature, but some insist that it is ownership in public law. Finally, it puts forward some innovative viewpoints on the theory and legislation obout the ownership to water resources.According to inappropriablity theory and land ownership theory, some water resources should be regarded as part of land belonging to land owners, and the nation does not need to have the ownership to all the relatively independent water resources. According to public trust doctrine and popular sovereignty theory, the subject of national ownership to water resources should be the people but not the government. According to the theory on classification of property rights to water resources proposed by this paper, public ownerships to water resources should be ownerships in public law rather than in civil law in nature.Chapter V studies the use rights to water resources in the perspective of dichotomy of use rights to water resources in public law and use rights to water resources in civil law. First of all, it makes a comparative study on the characteristics of use rights to water resources in public law and use rights to water resources in civil law in foreign countries from four aspects of them:subjects, objects, roles and limitations. Secondly, it makes a comparative study on the re-classification of use rights to water resources in public law and use rights to water resources in civil law in foreign countries.Thirdly, it makes a study on the alteration of use rights to water resources in public law and use rights to water resources in civil law in foreign countries from four forms of them:original acquisition, derivative acquisition, change and elimination. In the end, it proposes some advices on theory innovation system building of use right to water resources in public law and in civil law by learning from the research results and legislation experience on use right to water resources in public law and in civil law in foreign countries.