| At present,the country is in full swing to promote the construction of ecological civilization system reform,the property rights system of natural resources assets as the first of the "four pillars" of the reform.As an important property rights system for natural resources assets,the maritime domain use right system is also on the list of reform.Following this idea,in April 2019,the General Office of the CPC Central Committee and the General Office of the State Council issued the "guidance on the overall promotion of the reform of the property rights system of natural resources assets",clearly put forward "to explore the right to use the sea area three-dimensional layered set of rights".Subsequently,the provinces and cities began the local practice of three-dimensional layering of the right to use the sea.The "three-dimensional layered right to use the sea" is always a policy requirement,which needs to be transformed into a specific legal system,and the construction of "layered right to use the sea" is the path to its realization.The stratified right to use the sea area constructed in this paper is the right of the subject of the right to use the sea area and the natural resources in the sea area continuously and exclusively according to the functional use of the sea area.It is not a simple stratification of the existing sea area use right,but a reshaping of the existing sea area use right by the opportunity of the present three-dimensional stratification of the right,which is different from the existing sea area use right in terms of the structure of the right and the nature of the right,and is a solution to the problem that the sea area use right created by the historical limitations and theoretical deficiencies ignores the ecological attributes,lacks the structure of the right,and does not clearly stipulate the operation and protection of the right.It is the necessary legal system construction to comprehensively improve the efficiency of the right to use the sea under the perspective of ecological civilization and to strengthen the degree of saving and intensification of the sea.The construction of the right to use the sea area in layers not only has a realistic foundation,but also has great value significance.Specifically,the basis of reality comes from the spatial resource nature of the sea,that is,the sea is not a flat concept,it is a three-dimensional organic whole,that is,the resources contained in the sea is also three-dimensional,the sea is a collection of various resources and functions in a unified body.As long as the utilization of various resources does not conflict,almost all the resources contained in the sea area can be used in layers,and they can be used simultaneously.Therefore,the construction of the layered use of the sea area,can be better clarified in the process of the layered use of the sea area ownership relationship,reduce the use of the sea area conflict,better determine the content of the rights of each subject and the scope of the object,clear rights,responsibilities and benefits of the user of the sea area,more to maximize the functional efficiency of the sea area resources,to achieve the economical and intensive use of the sea area.It can be said that the system of sea area stratified use right is a major legal system construction to crack the contradictory relationship between developing economy and protecting ecological environment by improving the overall resource efficiency under the strategic positioning of marine ecological civilization construction and marine strong country,which has great value and significance.The construction of any right needs to analyze the theoretical basis of the right,and the theoretical proof of the stratified use of sea area is based on the following points: first,based on the green expansion of the theory of spatial property rights,clarifying the positive significance of the construction of the theory of spatial property rights in sea area,drawing on the theory of stratified land spatial rights and expanding it,effectively integrating the content of the property rights of the stratified use of space with the content of the use of natural resources in space,that is,from the perspective of the resource nature of sea area,the use of sea area and the use of natural resources in space cannot be separated.The use of natural resources in space is inevitably related to the use of maritime space,and the use of maritime space and the use of resources should be unified from the perspective of right construction and the overall efficiency of resource use.Based on this,for the use of marine resources,the theory of spatial property rights should be expanded to determine that it is not only for the use of space,but also should be expanded to include the use of natural resources in marine space.Therefore,based on the profound grasp of the spatial theory of property rights to reconstruct the existing maritime use rights,determine the stratified use rights of the sea area contains two types of rights: the right to use the maritime space and the right to use the resources of the maritime space,and then analyze the connotation of the two rights,revealing the independent usufruct property attributes of the right to use the maritime space and the quasi-property attributes of the right to use the resources of the maritime space.Second,based on the attribute clarification of the object of the sea area.According to the attributes of sea area,it will be divided into sea area assets and public common sea area.The construction of the layered use right of sea area is based on the attributes of sea area assets.At present,the state is orderly promoting the establishment of a sound property rights system for natural resources assets,and the correct handling of the relationship between maritime assets and public common maritime resources is the key to reasonably and effectively develop,utilize and protect maritime resources,and maintain and protect the rights and interests of the public to enjoy maritime resources together.Third,based on the clarity of the right basis.The right to use the sea area in layers is mainly for the special permission to use the sea area above the assets.The sea area has the characteristics of wide area,various ways of utilization and complex bearing interests,so the use of different uses of the sea area is also different,mainly including free use,customary use,general permission use and special permission use.Among the above methods,free use and customary use should be the main way of using the public common sea area.Among the licensed uses,the special licensed use should become the main way of using the sea area assets.The construction of sea area stratified use right should be based on how to promote the efficiency of sea area use more widely,that is,to increase the intensive development and utilization of sea area without affecting or less affecting as much as possible,and to rationalize,scientific and technological,and coordinate the configuration of common use right that may be in the same vertical three-dimensional space.In fact,there are various options for the construction of the layered right to use the sea,but the choice of the path to be constructed should fully consider the functional properties of the sea and better meet the needs of the sea.The construction of the layered right of use of the sea should be a profound grasp of the spatial resource nature of the sea,a clear spatial structure of the sea and the spatial structure of resources,as far as possible to reduce the contradiction between the use of separate space and the use of natural resources in space,to resolve the current dilemma of frequent conflicts involving sea rights,and to achieve the coordination of sea rights.The existing concept of sea use rights is more directed to the use of sea space,so the model of layered rights is for the layering of physical space.However,it is easy to find that under such a hierarchical model,it conflicts with existing rights such as fishing rights and mining rights,and cannot realize the multi-functional use of the sea in the context of ecological civilization of the sea.Then,with reference to the design of the right structure of resource rights,the concept of the right to use spatial resources of the sea is proposed,which is more of a hierarchical model of rights,which is conducive to the standardized and intensive use of the sea,helps to coordinate the use of the sea in a macroscopic way,solves the conflict of sea-related rights,and facilitates the cooperation of sea-related organs.However,the above rights layering model tends to ignore the properties of existing sea space resources and lacks attention to the individual use of sea space.Therefore,this paper combines the advantages of the above two models and proposes a hybrid layering model.The hybrid model is a combination of the physical stratification model and the rights stratification model.In fact,the stratified right to use sea area constructed in this paper is a bundle of rights to use sea area,which contains two types of rights: the right to use sea space and the right to use sea space resources.The right to use the maritime space is more directed to the physical stratification model,where different levels of maritime space have different functional uses;the right stratification model mainly focuses on the right to use the resources of the maritime space,which is mainly a stratification of the composite right under the physical stratification,and the right is a composite formation of the right to use the maritime space stratification and the right to use the natural resources in the maritime space stratification.The operation of the right to stratified use of sea areas needs to be continuously improved by the registration system,the system of paid use and the system of transfer.First,the registration system of sea area stratified use right.Mainly from the innovative registration model,conversion of registration methods,clear registration content and other aspects of the corresponding construction.Specifically: including the innovation of "three-dimensional" registration mode,from the flat registration to three-dimensional registration method and the registration content of three-dimensional stratified right to ascertain the registration is clear,adding the transfer business of the registration of the stratified right to use the sea area;second,the system of the paid use of the sea area specifically includes the perfection of the graded stratified paid use of the sea area Secondly,the system of paid use of sea area includes strengthening the management by clarifying the criteria and procedures on the basis of improving the graded and stratified use of sea area;thirdly,the system of transferring the stratified use of sea area.Thirdly,the system of transferring the right to use the sea area in a tiered manner.The system is mainly improved from the primary market and secondary market.In the first level of the transfer market,the level of marketization will be strengthened,and the phenomenon of administrative approval in the past will be changed.In the secondary market,many unreasonable restrictions are removed,and the rights of the stratified rights to use the sea are fully released as capital,shares and mortgages,so as to fully realize the optimal allocation of sea resources,improve the efficiency of the use of sea resources,and promote the transformation of the marine economy to quality and efficiency.At the same time,it is necessary to pay attention to the ecological protection restrictions in the primary and secondary markets of the transfer of the stratified use rights of the sea,and to strengthen the protection of the marine ecological environment in the process of the transfer of property rights as much as possible.The right to stratified use of maritime areas needs to be landed by the legal system guarantee.Specifically,the following three aspects are discussed: First,the legislative model guarantee.The legislative model of the right to stratified use of the sea area is a public-private collaboration model based on the public law model and the property law model.The construction of the public-private partnership of the stratified right to use the sea is based on the division of the public common sea and sea assets,and the construction mode of the right to use the sea is different on different properties of the sea,and its foothold is different.The construction of the hierarchical use right of maritime assets needs to consider the ecological,resource and environmental values of the maritime area,and needs to take into account the restrictions of public purposes in public law and the unity of efficiency in private law.The legal protection of the layered right of use of sea area can be found in the constitution,civil law,administrative law and natural resources unilateral law to guarantee the basis.Second,administrative protection.The stratified use of the maritime domain is a broad cause,and to promote its forward development,it is necessary to have a scientific and efficient management system to match it,and the existing decentralized management system in China is difficult to adapt to it,which requires us to focus on the research of the multi-faceted cooperative management system,create an efficient management model,and improve the level of perfect management planning in the system operation environment,mainly by innovating the management system of the maritime domain and strengthening the Spatial planning and management in the stratified use of the sea area.Third,judicial protection."There is a remedy when there is a right,and there is compensation when there is damage" has become a generally accepted legal concept in contemporary society.In order to protect the legitimate rights and interests of maritime stratified use rights holders in the development and utilization of maritime space resources and natural resources in maritime space,the law should provide for a variety of public and private law remedies and innovate the existing marine public interest litigation mechanism to protect them. |
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