The Research On The Right Use Franchise Of State-owned Natural Resources

In modern society,natural environment crisis have made we can not continue to "capricious" in the "private interest" and "economic targets".The commonweal mission of the natural resources and environment even requires us to "deliberate" focus on "public interest" and "ecological goals".So,the way that to continue the model of the civil law property rights and its theoretical framework,only need to moderate loosening of the so-called "social" salvation can't realize private interest and public welfare on both.After all,the natural resources are not generally "thing",it is a kind of special property.Its particularity and the special burden on it require to made some critical thinking from the perspective of public law for the civil law study mode in the problems of the right use franchise of state-owned natural resources,this will open up new ideas,explore more scientific and reasonable mechanism for the construction of the right use franchise state-owned natural resources.According to this idea,first of all,it should be noted that under the influence of civil law research mode,our understanding about using of natural resources is not reasonable,our attention to the particularity of natural resources and the magnitude order relationship between the needs of people and the diversity of natural resources is not sufficient.Therefore we also cannot make scientific and complete form for using of natural resources.But,whether the using form is scientific and reasonable will impact on the using of natural resources typed and the construction of legal system directly.So,the accurate classification of using state-owned natural resources has become the source of all problems.we should be take sufficient care for the multiple attributes of natural resources,and it with the person's multiple needs,on the basis,the right to use natural resources corresponding divided into existence with the right to use natural resources,ecology with the right to use natural resources,the public with the right to use natural resources,economy with the right to use natural resources four classes;Among them,the former three types should be essentially belong to the category of freedom,not real right,only the fourth class,namely economy with use right can be real right.It is generally believed that,this kind of economy with the right to use natural resources in our country is the state franchised right to the use of natural resources.In academic circles of our country,on the discussion of Problems of the right use franchise for state-owned natural resource mainly adopted the civil law real right legislation patter.In recent years,this problem is discussed more or less incidental in the discussion of the state ownership of natural resources.But the breadth and depth of it was clearly too shallow.And the right of use franchise for state-owned natural resources in such aspects as the object,content,exercise,protect are differences with the traditional civil real right,it not only embodies the specific subject to specific content of "direct control" relationship,differentiate more embodies the national and personal boundaries,and mainly by the national "indirect intervention" resource utilization,in order to realize the public value of state-owned natural resources.That is to say,although the right use franchise for state-owned natural resources has the property right,but will not be directly as the civil real right.Because it not only involves the problem of dynamic balance of rights and power,also involving collaboration with private interest and public welfare,combined with the natural resources not only has the important value of "ecological barrier",but also profoundly affects the value of fairness and justice.So,by contrast,the state-owned public value should have priority.Considering the implementation and maintenance of the public value,usually need to addition some public law restrictions for the right use franchise of state-owned natural resources,such as obtain,exercise,protection,for this,the so-called "the social responsibility of property" the civil real right shall have the essential difference,the main goal still is to realize and protect the private interest.These are giving us many supports to know the right use franchise for state-owned natural resources from the perspective of public law.So,the right use franchise for state-owned natural resources should be as a public law real right.By this conception as a baseline,take care of the right use franchise for state-owned natural resources mainly from the perspective of public law has become a kind of new and different path and method from civil law real right mode.Due on the value target of right use franchise for state-owned natural resources both with the private interest and public interest,therefore,on the right to obtain,a global experience is the state intervention,but because this power is a kind of the real and property rights,from the perspective of convenience the circulation and increase the wealth,we also should pay more attention to the introduction of market mechanism.So the relationship between government and market is become an important issue on the research of the right use franchise.So,we should be combined the theory and practice about the right of use franchise for state-owned natural resources to perfect related legal system,the basic path is,on the basis of respect for state intervention,seeking inspiration from public administration innovation and regulation changes,from traditional administrative law transfer to encouraging administrative law,in a words,we should introduce the market mechanism into administrative law,in order to realize the right of use franchise for state-owned natural resources more scientific,and form a cooperation pattern of government and market.The right of use franchise for State-owned natural resources has certain particularity on the subject,object,and its value target;to adapt to the particularity in order to solute the theoretical and practical problem,must be respect of the limitation in the right of use franchise for state-owned natural resources to exercise,under this overall situation,the subject of the right should be restricted,individual subjectivity should be respected,strengthen and safeguard,the public welfare of state-owned enterprise should be respected,as well as the profit-making state-owned enterprises access restrictions.To the problem of the object,on the basis of clarifying theoretical disputes and structuring mechanism,the object should be unified positioning for natural resources itself.In the mode of exercise,competitive,exclusive and paid embodies the real right attribute of right to use franchise for state-owned natural resources,for a combination of purpose,way,time,scope,tools and so on the public law restriction,is to reflect and respond to the public law real right attribute of the right,and it should be different from the civil law real right,but its legal norms can mutatis mutandis apply the property law.Precisely because of the right of use franchise for state-owned natural resources has many special place from the origin,nature,acquisition,exercise,so the protection of the right also have a certain uniqueness,public law protection method absorb the private law protection method makes protection of the right can't or don't need to apply to the civil law real right protection method.