On Water Property Rights

Water pollution and the increase of using water due to the rising population lead to water scarity, which people thought water is inexhaustible. In order to make full use of water resources, we must allot water through market. It is essential to allot the publicly- owned water resources properly. Owing to its physical trait and economical trait, we will encounter many problems when water is brought into the category of private right.This article is divided into four parts. The first part is the general introduction to the right of water. To begin with, the author explains the concept of the right in rem of water and briefly analyzes the reasons of the traditional civil law system lacking the institution of the right in rem of water. Next, through the comparing the right in rem of water with the existing concept, right of water, quasi - right in rem, the author contends the right in rem of water is a kind of civil right and the right in rem of water includes the ownership of water, usufruct of water, vouch of water. Therefore, the right in rem of water has its specific content. Lastly, through summing up the general characteristics of the right in rem of water, the author contends that due to the special attribute which the subject of average right in rem lacks, the right in rem of water is subject to more limit than the common right in rem.The second part is about the institution of water ownership. The author points out that the subject of ownership of water is the resource of water, and then points out that owing to two different types of specified existing ways, leads to two different modes of proprietary rights in vari-ous countries' legislation, namely the mode independent of.publicly-owned land and the mode dependent on land ownership. Finally, the author analyzes the contradictory points and mistakes which are used to define water ownership in the present law in our country.The third part is about the institution of water usufractuary right. As the land in our country is publicly owned, water usufractuary right is the only means for solving the problem that water is marketed. The fragmentary institution and principles in the traditional civil law can not regulate the use of water efficiently and can not allocate properly the private right to the water. The author contends the institution of water usufractuary right should be established. In the process of establishing the insituation of usufractuary right, we should follow the principle of considering both the need of living and the need of environment,uniform supervision and administering of country, two kinds of mode of ownership,priority of time,priority of region and maintaining the current situation. The categories of the usufractuary right of water cover the right of water - intaking, right of quatic - breeding, right of see - sighting, right of pollutant discharge, right of navigation and the right of excavating the sand. The extant institution of the license of acquisition of water in our country can not make water enter the market and it is still a kind of administrative right instead. The author contends that the project of water in the south being transported to the north can be carried out by the specialized company of water business in the future.The fourth part is about the institution of vouch of right in rem of water. Among the different kinds of right in rem of water, only the right of taking - in water and the right of aquatic breeding can be used to set up the vouch in practice. At the same time, it is proper to call them the mortgage of right. The vouch of right in rem of water should be reg-istered and the office in charge of registering is the administrative organization of water.