Research On Several Issues Of The Fishery Right

Since the opening-up and reform, with the overall opening of aquatic product market, the fishery development in China achieves great. But because the property rights legal system of our country has not been established for a long time,the exploitation and utilization of fishery resource is mainly realized by relying on administrative management. The nature, body and relevant system of fishery rights are mainly endowed from the aspect of administrative law, which causes that the current fishing license and system with regard to water surface and mudflat breeding lack the confirmation and protection of civil law, and the lawful rights and interests of fishermen is not effectively guaranteed by law. In fact, this phenomenon has become one of the most important factors that influence fishery industry development and the sustainable development of environment. At the same time, the practical experience in relevant countries and regions show that establishing and perfecting fishery rights system is necessary for ensuring the effective management of the country to fishery resources and realizing the sustainable development of fishery resource and the environment. At the same time, it has great significance for realizing the goal of sustainable development for fishery resource and the environment. Based on the above consideration and the essential nature of fishery rights, this paper begins from the aspect of protecting the rights and interests of fishermen, and analyzes the fishery rights system in America and Japan, and their implications for fishery rights in China. Moreover, in light of problems in legislature of fishery rights system in China, and combining with the current research condition in academic circle and legislature condition, the paper puts forward suggestion and plan for improving fishery rights system in China.The paper is divided into the following three parts:In the first part, the writer defines the concept and nature of fishery rights, which lays a foreshadowing for the following illustration of the paper. It points out that the fishery rights in China is a narrow concept of fishery rights, which is made up of breeding right and fishery rights. Besides, it tells the differences in relevant concepts related to fishery rights between theory and practice.Because of different mother rights,so there is a great difference in the content. But there are some uncertain places in the law which is based on these two rights,so the writer thinks that understanding the law deeply ,the two can coexist and coordinate.Differentiation between fishery rights and sea area using rights. The source of conflict lies in overlapping of adjusted subjects. On one subject matter, no two or more property rights of the same content or nature should exist. But the two has the necessity of coexistence and they can be coordinated. Lastly it analyzes the essential property of fishery rights, that is, property rights. Fishery rights comply with the feature and nature of property rights. At the same time, through the above description and analysis of fishery rights, we can get the conclusion that fishery rights are usufruct in property rights. But the special feature of fishery rights determines that it is different from typical usufruct and is a new-type usufruct.In the second part, fishery rights system in America and Japan belongs to two different kinds of fishery rights system respectively in common law system and continental law system. They are the representative type in the two law systems. Therefore, the writer analyzes and borrows ideas from American fishery rights system and Japanese fishery rights system by taking them as objects of study. The fishery law in America has no definite fishery rights concept and belongs to non-fishery rights fishery. Fishery rules and regulations are always set down from the aspect of administrative management. License system and individual transferable quota system constitute the fishery system in America. Individual transferable quota is the core contents of American fishery rights system under the quota modal and has gradually been privatized. It has the features of property rights, such as specialization, persistency and cession. The fishery rights in Japan is determined on the basis of fishery customary law and it has two types, that is, fishery rights (narrow meaning) and entry rights. The so-called narrow sense fishery rights include emplacement fishery rights, regional fishery rights and common fishery rights. Entry rights refer to the rights of operating fishery within the scope of fishery rights of others by paying certain entry fees as consideration according to the behavior of setting up with fishery rights (narrow meaning) person. The two both have the features of property rights. But the construction is different. In Japan the administrative government gives the specifie fishery rights to fishing association or fishing-productive cooperative team,which makes them have the right of managing and using the sea areas, and the fishing association or the fishing-productive cooperative team relief the specific fishery right to other people by the fish-putting rights, regulate and manage them by laws and rules, the writer thinks that it is feasible to introduce individual transferable quota into the fishery rights system in China and individual transferable quota system can be harmonious and uniform with the fishery rights in the property rights law of China. At the same time, the writer thinks that the actual conditions of China should be carefully considered and the requirement on fishermen's union is very high. The writer holds the opinion that we should boldly borrow from the mode of Japanese fishery rights and set up fishermen's union and separate the managerial rights and ownership rights of the country. And fishermen and fishermen's union should exercise the rights of civil law and the country conduct supervision and approval to the fishermen's union.In the third part, concerning the problems in legislature of fishery rights system of China, and combining the current research condition in the academic circle and current condition of legislature, the paper puts forwards suggestion and plan for improving the fishery rights system of China. The writer thinks that the legislature shortcomings of fishery rights system in China mainly include the following aspects: lack of legislature on concept of fishery rights, no determination on fishermen's main body position of fishery rights, frequent occurrence of infringement into fishermen's interest. The legislature shortcomings in obtaining fishery rights system makes obtaining manner of fishery rights unclear. Due to the legislature shortcoming in fishery rights transfer system, whether fishery rights can be transferred in not determined. The legislature shortcoming in protecting fishermen's rights causes that fishermen don't have relief means when their rights are damaged. The writer raises up the advice that we should improve the fishery rights system in China based on borrowing the theory and practice of fishery rights in America and Japan. In perfecting the concept of fishery rights, our country defines it as: fishery rights is the rights endowed to fishermen and legal fishing organizations for breeding and fishing within designated water bodies. The new fishery rights definition adds a main body, that is, fishermen. Improving the obtaining system of fishery rights: 1. organizing fishermen's union; 2. introducing contract system; 3. registration system for obtaining fishery rights. Perfecting the transfer system of fishery rights: 1. define the transfer of fishery rights; 2. define the registration system of transferring fishery rights, perfecting the protection system to fishermen and establishing compensation system.Fishery rights system is the foundation of fishery law and regulations and is the legal basis for protecting fishermen's rights and interests. Only by perfecting the fishery rights in China, confirming the property rights nature of fishery rights, enhancing the legal position of fishery rights and providing the civil rights theoretical foundation for fishermen, can we better protect the rights of fishermen. By the same token, only by defining the fundamental issue of fishery rights system, increasing relevant systems applicable to civil law, such as publicity, registration and damaged compensation, can we exercise requesting rights to the damage and hindrance incurred in fishery production from the aspect of law in order to eliminate danger and rightfully combat the illegal infringement of others, and make fishermen understand their relief manner and method to effectively eliminate obstacles.