Research On The Legal System Of Water Resources Utilization Of China

The use of water resource is a focus in the world. China is ranked as one of the countries which lacks of water resource in the world by U.N. The shortage of water resource has been a major factor that has a negative effect on our economic development, social harmony, and ecological environmental protection. The 18 th Central Committee of the Communist Party of China proposed that “we should center on the market closely and make the market play a decisive role in the distribution of resources to deepen the reform of economic system. ” The way of solving the shortage of water resource seems increasingly obvious. We should lead the market mechanism into the distribution of water resource and breed water market. However,market mechanism still needs to be tested that whether water resource can play a decisive role in the distribution of resources like property. The article takes the double attributes of water resource as the starting point of logic, and finds that the defect of frame of management system of use of water resource and deficiency of legal system of property right of water resource are the radical reasons of water problem in China by arranging the skeleton of historical development of legal system of use of water resource in China. The article also concludes that, on the basis of fully developing and inheriting our own advantage and tradition, our country should draw lessons from international experience of use of water resource and take the reform of management system of use of water resource as the basis to establish the legal system of use of water resource with Chinese characteristics by taking the system of water right as the core.Chapter 1: Analysis on the attributes of water resource. Having a correct understanding of the attributes of water resource is the premise and basis of establishing the legal system of use of water resource. The symbiosis of resource attribute and property attribute of water resource leads to that water resource is not only the natural basis for people to live, but also the thing that is dominated by humans. The property attribute of water resource promotes the establishment of property right system of water resource, which corresponds with human’s property benefit; while the resource attribute embodies the “social duty” that property right of water resource must undertake, which corresponds with human’s survival benefit. In the process of the use of water resource, we must take account of resource attribute and property attribute. The relevant legislations of water resource should pay more attention to the justiceof distribution and sustainability of use. “Combination of use and protection” is the underlying principle of legal system of use of water resource.Chapter 2 and Chapter 3: Arrangement and inspiration of legal system of use of water resource in China. This part makes a deep analysis on the development shortcut, achievements,and deficiency of legal system of use of water resource since the establishment of People’s Republic of China. On the basis of arrangement of the process of establishment of system, the author expects the development direction of legal system of use of water resource in China:reform the management mechanism of use of water resource, improve the management effect of water resource, balance administrative control and market distribution, disentangle the relationship between the government and market, establish the system of property right of water resource---system of water right, and regard property right as the special tool that water resource uses the market distribution.Chapter 4: Drawing lessons from international experience of use of water resource.Almost all of countries are face the crisis of water resource at different degrees. Long time ago, all countries were making efforts to seek the solution. The article selects some representative countries and organizations such as US, Australia, and EU to explore their hydrology situation, management mechanism of use of water resource, legal system of use of water resource, and establishment situation of water market, and finds some common features of establishment of legal system of use of water resource: the color of public law of legal system of use of water resource becomes more and more strong, and the intervention strength of country’s public right becomes bigger and bigger; the management of water resource changes from scatted management to comprehensive management gradually, from district management o watershed management; water right system is the core of the management of water resource, and market is a selection of the effective distribution of water resource.Chapter 5: Mode selection of legal system of use of water resource in China. Public ownership of water resource, centralization-type management, tradition of water-control in dimension code, and the market economy under macroeconomic control are the system advantages of management of use of water resource in China. On the basis of developing the advantages, the management of use of water resource should continue the outstanding factors in the traditional management of water resource with the help of advanced international experience that suits our national conditions to shape the management mode of use of waterresource with Chinese characteristics. The first core of the code is to establish unified and coordinate management mechanism of use of water resource, arrange the relationship between watershed management and district management to achieve the coordinate cooperation of relevant water departments, because scientific and reasonable management mechanism of water resource not only can raise the efficiency of use of water resource greatly, but also can make up the deficiency of imperfectness of legal system of use of water resource to some degree. The second core of the code is to lead into market distribution mechanism in the use of water resource, reestablish the water right system, and protocol an independent nature of right in rem---the use right of water resource that can be traded freely on the market, which could provide the basic conditions for the market distribution of water resource.Chapter 6: Reform of management system of use of water resource in China.Management mechanism of use of water resource mainly regulates the principles of management scope, authority and duty, benefit, and relationships among central government,local government, and watershed organization. The setting of management mechanism of water resource directly affects the efficiency and effect of management of water resource,which concerns the future development shape and direction of use of water resource. Reform of management mechanism of water resource in China is mainly divided into central government, local government and watershed level, whose core idea is to achieve the management system of water resource with “combination of watershed management and district management” that is regulated in our laws. In the level of central government, they should establish the coordinate mechanism managed by relevant water departments and comprehensive management and coordination system for natural resources to achieve the comprehensive management of water resource and make sure the representative of state ownership of water resource to avoid that the government manages water and uses water at the same time, play the roles of sportsman and judgment at the same time. A feasible idea is to build a department which is relatively separate from water administrative management departments as the representative of ownership of state water resource, which could hand the functions of water management and providing water service to different entities to reduce the conflict of benefit; in the level of local government, they should be responsible for the concrete functions of management of water resource, and deepen reform of water affair system and test system of water resource management in local government; in the level ofwatershed department, they should improve the legal position of watershed organization to make it become the comprehensive watershed management organization with independent position, and shape the organization frame of making decision, implementing, and coordinating by establishing watershed management committee, watershed protection management bureau, and watershed consult coordination committee, laying a good foundation of mechanism for the comprehensive management of watershed.Chapter 7: Establishment of water right system with Chinese characteristics. Through decades of development, our legal system of use of water resource has been perfect, but only the supply of water right system is rare. The relevant laws and regulations, and policy and documents of use of water resource in China don’t establish water right system in a true meaning. However, water right system is the basic system in the modern management of use of water resource, which especially plays a vital role in the market distribution of water resource. In the long future time, the establishment of legal system of use of water resource in China should take the establishment of water right as the basis to build efficient and reasonable market distribution system of use of water resource. Water rights include water resource ownership and usage right of water resource. The premise of public ownership of water resource decides that water resource ownership cannot directly enter into market to deal.Under the premise of state ownership of water resource, protocoling a use right regulation of water resource with independent interest attribute is the core of establishment of water right system in China. The concrete way is to transfer parts of rights of water resource ownership to usage right of water resource, making it become an active, independent, and free exchange right in the market. Meanwhile, when we protocol the usage right of water resource, we should add the goal of water resource management and lock it with the help of factors of right and authority, running scope, using time, and water share. We should also set the rules and forms of running of rights to achieve the management and protection of water resource at the same time of efficient distribution of water resource. However, not all of water resources can set up the usage right of water resource. Through the exploration of factors of purpose of using water and cost of definition of property right, we should divide the supply of water resource into “double-track pricing system”. The sate keeps the ownership authority of the use of water with stronger attribute of public items, because the cost of definition of property right of this kind of water use is high and it is reasonable in any society that the government provides pubic items.