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On the Exertion of Water Rights in China

Author: WangChao
Tutor: PeiLiPing
School: Huazhong University of Science and Technology
Course: Civil and Commercial Law
Keywords: water rights private rights public rights
CLC: D922.66
Type: Master's thesis
Year: 2007
Downloads: 92
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Abstract


The water is a kind of scarce resource which has attributes of the personal and the public goods, and multi-value of the life, economy and ecology. Facing the stern situation which water resources seriously polluted and reduced day by day, the jurists proposed the concept of‘water rights’,and construct the related legal system. In these law system about water rights, the water rights exertion law system appear increasingly important, which directly relate to the goal of sustainable use and development of the water resource.How are the law and system revolves to this goal carried on well? The nature of the water rights has provided a ponder zero point. Water rights is concurrently private rights and public rights, but essentially the latter. The exertion of water rights are simultaneously accepting the regulation from the private rights and private rights’standard. The former mainly displays for the country’s management, the latter as a kind of property rights which exercised by‘Autonomy of Will’, also these two kinds of standard forms close relation, benign interaction. Concrete manifestation for public rights to private rights rules and private rights to public rights involvement. The former further displays for the intervention, management and limit while the latter displays for the molding of water rights civil body status ,and the development of water property rights.Based on the water rights theory above, the article then enters the system and standard analysis of water rights exertion. Through analyzing the water rights exertion system in our country such as "freely taking system", "water rights licensing system" , "paying for use system" as well as "water rights priority system", and making the comparative analysis with the overseas water rights system, the article draws the preliminary conclusion: Water rights exertion cannot emphasize public or private at the expense of another, but must delimit respective adjustment scope of public and private rights, and establish the communication mechanism between these two kind of scopes. Then the article has selected the irrigation water rights and the underground water rights which are two kinds of water rights types to carry on real diagnosis analysis. The article mainly through irrigation water rights’transfer system vicissitude and underground water rights’present situation analysis, separately promulgates phenomenon from two different angles: In water rights exertion of the practice and the standard, water rights simultaneously presents two kind of changes - private rights growth and public rights strengthening.Finally, the article attempts to propose suggestion for the legal standard and the system of water rights exertion. On the one hand must persist the national highest authority in the domain involving water resources public and exterior, make the legislation limit in the water rights contract involving unspecific third person and the public interest, and the introduction of environment provision, entrust with the third person of independent benefit requesting rights;On the other hand must persist water rights a personal private rights in nature, and makes widely known water rights the essence of private rights in laws, the excavation of water rights property attribute, the rich of water rights property connotation. Simultaneously revolves this theory, positively cultivates the civil main body of water rights, namely the establishment water resources company and replaces the local authority by it to exercise the water resources management function, establishes the countryside water used household association, and strengthens it property agent’s status of water rights of the basic unit farmers.

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CLC: > Political, legal > Legal > Chinese law > Natural Resources and Environmental Protection Act > Water Act
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