Research On Circulation System Of Sea Area Use Right

The allocation of resources is an important topic in the field of law and economics.The optimal allocation of marine resources is an important guarantee for the sustainable development of economy and society.In the past,the ocean was considered as a completely open space,and there was no room for property rights.However,practice in recent decades has proved that ocean misfortune has become a real specimen of tragedy in the commons.The system of maritime property rights in various countries of the world has experienced a process of continuous improvement from scratch.Under the thinking of public law,the sea area,as a state-owned natural resource that is licensed for use,bears the value objectives of private benefits and public welfare,efficiency and fairness,and therefore has the attribute of public goods.The attribute of public goods of sea resources determines that the allocation of sea resources belongs to the research category of public law theory.The essence of the circulation of the right to use sea areas is the allocation process of sea resources.Under the influence of the long-term public law mode,the system of the right to use sea areas in our country lacks the embodiment and response to the property right of the right to use sea areas.The performance is as follows:the legislation in the field of sea area utilization and circulation of the right to use sea areas is mainly aimed at realizing the state's management and control of sea area resources.The relevant laws and regulations are mainly public law,with many obligatory provisions,strong public rights,insufficient private law norms and insufficient protection of private rights.This kind of system design played a role in stabilizing the order of using the sea and strengthening the state's management and control of the sea resources in the early days of the establishment of China's maritime property right system.However,in today's market economy,great changes have taken place in the social and economic environment,and great changes have taken place in legal concepts.The concepts of restricting power,equal rights and making the best use of everything have become deeply rooted in the hearts of the people.Therefore,pure public law thinking and public law mode are not conducive to the reasonable circulation of marine resources,to the maintenance of transaction safety,to the protection of the legitimate rights and interests of the rights subjects,and seriously affect the allocation efficiency of marine resources.In view of this,based on the theory of real right law,this paper demonstrates the legal status of sea resources as objects of real right in modern civil law,and analyzes that the essence of the right to use sea areas is ufructuary right.From the perspective of real right law,the essence of the circulation of the right to use sea areas is the change of real right in sea areas,which should follow the general rules of real right change.Therefore,on the basis of respecting the moderate intervention of public power,the transfer system of the right to use sea areas should be theoretically explained,systematically designed and legally regulated by the property law theory,so as to realize the return of the transfer system of the right to use sea areas to the property right.Clarifying the nature of the right to the use of sea areas is the basic premise for establishing the idea of the circulation system of the right to the use of sea areas.There are two fundamental reasons for the privatization of sea areas:one is to give private subjects exclusive control over a certain range of sea areas so that they can obtain due returns from their labor and investment in the sea areas;The second is to define the scope of exclusive domination activities that private subjects can engage in,balancing the interests of different private subjects and the interests of private subjects and society as a whole.Although sea area resources are the state-owned natural resources that are licensed to use,they belong to the problem of public law theory research,but under the condition of market economy,the value of property law theory and property right system in the theoretical explanation and system design of sea area use right system should be paid attention to.The "Property Law" establishes the usufructuary right nature of the right to use sea areas,which is an inevitable requirement for the full use of everything and the equal protection of real rights,as well as a realistic need to improve the efficiency of resource utilization and allocation efficiency.Therefore,although the right to use sea areas is subject to many restrictions of public law,it cannot change itsproperty rights.The sea area becomes the object of real right,which is the development of the traditional theory of object of real right.The sea area has specificity,domination and value,and can become a thing in civil law.It is a breakthrough and development in understanding that the traditional object of real right should be a thing in itself and has specificity,value and domination.The characteristics of resources and space in the sea area determine that the resources in the sea area can be comprehensively utilized.The current mode of single right to use sea areas does not meet the needs of multi-functional and multi-level utilization of sea areas.The layered ownership theory cannot fundamentally solve the complicated relationship in the process of comprehensive utilization of marine resources.Based on the spatial characteristics of sea area resources and aiming at making the best use of everything,this paper puts forward the idea of establishing the right to use sea areas according to their functional uses,which provides a new idea for realizing the three-dimensional comprehensive allocation and rational utilization of sea area resources.The circulation of the right to use sea areas is a form of change of the right to use sea areas.The choice of the circulation mode of the right to use sea areas is directly related to the efficiency of the real right change.In order to improve the efficiency and effectiveness of the change of maritime property rights,we must give full play to the regulating and guiding role of the market.First,on the basis of standardizing and improving the administrative examination and approval system for maritime use rights,we must vigorously promote the methods of bidding,auction and listing to improve the efficiency of resource allocation in the primary market for maritime use rights.Second,in the secondary market of the right to use sea areas,unreasonable restrictions will be removed to promote the free circulation of the right to use sea areas in accordance with objective laws.The change of the real right of the sea area needs the supporting system as the guarantee.We will improve the system of paid use of sea areas,the system of division of sea functions,and the system of registration of sea area use rights,so as to form an effective connection with the laws related to the circulation of sea area use rights,to make up for the deficiencies of the laws,to enhance the operability of the system,to be conducive to the equal protection of the sea area property rights of the state,legal persons,and individuals,and to provide institutional guarantee for promoting the market circulation of sea area use rights.In contemporary society,the transfer of the right to use sea areas should be based on the theories of real rights,property rights and sustainable development,with the balance between public and private interests,and the balance between efficiency and fairness as its value goal.Therefore,the construction of the legal system for the transfer of the right to the use of sea areas and the design of the management mechanism should be based on the theory of real right law.By improving the property right system and introducing the market competition mechanism,the market will play a decisive role in the allocation of resources in sea areas,thus realizing the sustainable development of the marine economy.The basic legislative path to improve the circulation system of the right to the use of sea areas is to realize the return of the circulation system of the right to the use of sea areas to the property right,to ensure the optimal allocation of searesources and to make the best use of everything through strengthening the property right of relevant laws and regulations on the premise of not changing the nature of the existing laws and regulations on the right to the use of sea areas.