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Analysis of water use rights

Author: WangLiHong
Tutor: LiuXinWen
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Water resources Water rights Usufruct of Water Resource Usufruct
CLC: D912.6
Type: Master's thesis
Year: 2006
Downloads: 105
Quote: 1
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Abstract

All along we thought that water resources is inexhaustible. Therefore many countriesregard it as total state ownership or usufruct attached to land. However, along with thecontinuous changes of world weather, water pollution and water consumption increase ledby population growth, the shortage problem of water resources is presented, allocatingwater resources rationally, diminishing the waste of water resources, and achieving thegreatest benefits of water resources have become the common recognition of all countries.One of important methods to achieve the greatest benefits of water resources is to buildwater market, so we can optimize the water resources by water market. Establishment ofmature water market shall base on perfect water laws. But because of lag of recognitionfor importance of water resources by most people and uncertainty of physical features ofwater resources, and there are theoretical barriers to put it into traditional property rightsdomain in the civil law, it is difficult to find any law related to water resources in the civillaw. Therefore, it is very necessary to study the relevant rights of water resources as tomake foundation for building perfect water resources laws.Currently, the main theory of water resources rights is “water rights”, the meanings ofwater rights are different from different experts in different subjects, and the disputes ofmeaning of water rights will cause negative effect to the foundation of water market.Therefore, I suggest to use usufruct of water resource, a clear legal term, to replace thecontroversial “water rights”, as to define the usufruct of water resource legally and avoidthe confusion aroused by different understanding of “water rights”.I will discuss the fundamental idea of the legal property of water rights is commonusufruct of real property after the proposal of usufruct of water resource. The content ofdiscussion include: object theory of traditional property rights;object concept of usufructof water resource;object feature of usufruct of water resource;moveable and real propertytheory. Subsequently, compare the usufruct of water resource with related property rights(ownership of land, usufruct of land and neighborhood rights). At last, take preliminaryresearch of the transfer, procedure and method of usufruct of water resource by combiningnational and international practices.The body can de divided into four parts:Part one is introduction. It includes two parts: the first is the research background,meaning and content of usufruct of water resource;and the second is the basic issues ofusufruct of water resource. In first section, explanations and reasons of water rightsmeanings by different experts are discussed, and then usufruct of water resource ispresented to replace water rights, and its theoretical and practical meanings are alsodiscussed. Meanwhile, analyze the legal barrier for legal system of water resources to beput into the traditional property rights domain. In second section, give right definition ofrelated rights of water resources, including: ownership of water resources, usufruct ofwater resource, water rights, ownership of water right. Then present the legal property ofwater rights is common usufruct of real property, which is aiming at the common theoriesof current legal property of water rights-concessionary property rights, special propertyrights, semi property rights and adjunctive property rights. Finally list the subordinaterights types of usufruct of water resource.Part two is the analysis of object and subject of usufruct of water resource. First Idiscuss the definition and division of subject of usufruct of water resource with theexample of “Dongyang-Yiwu” usufruct of water resource transaction, and then thedemands of object of usufruct of water resource and theories of movable and real property;then give the definition of object of usufruct of water resource, and discuss the objectfeatures of usufruct of real property in the object of usufruct of water resource;finallysimple analysis of concessionary property rights, special property rights, semi propertyrights and adjunctive property rights, define usufruct of water resource as commonproperty, no need to set up a new property type.Part three is the comparison and analysis between usufruct of water resource andrelated property rights. The object of usufruct of water resource and most object ofusufruct of real property exist on the land, and water resources is connected with landnaturally, closer relationships. Therefore the relation between usufruct of water resourceand related property rights can be understood as the nature property and internal relationsbetween them. First the comparison and analysis between usufruct of water resource andrelated property rights;then the comparison and analysis between usufruct of waterresource and usufruct of land;finally the comparison and analysis between usufruct ofwater resource and neighborhood rights.Part four is the transfer of usufruct of water resource. The transfer of usufruct ofwater resource is an important method of market allocation of water resources. Currently,the transfer is in the initial stage in China, there are legal barriers blocking the transfer ofusufruct of water resource, especially the lag of related laws in the transfer of usufruct ofwater resource, therefore it is more important to find a practical transfer system of usufructof water resource. I also take preliminary research of the transfer, procedure and methodof usufruct of water resource by combining national and international practices.

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