Acquisition And Transfer Of Water Rights: Based On Justification Of State Ownership On Water Resources In Civil Law

Water resources crisis is extremely severe in the world today. It has become a common subject in many areas such as philosophy, politics, economics, law and so on. Among these subjects, the law is playing an irreplaceable role in Dealing with the water resources crisis and will continue to do so. Research on the legal theory and the establishment as well as the implementation of the legal system have played an important role in the field of water resources ownership, allocation, utilization and supervision.The basis for resolving water resources crisis is to clarify the rights that the water resources owners and users should enjoy, legal obligations they should perform and legal duties they should bear. Without definition of ownership on water resources and water rights, the relevant duties and obligations are impossible to be settled. Among them, the imperfect rule of water rights acquisition is an important enhancer to the formation of the water crisis, which is also closely related to the insufficient of research on the ownership of water resources. It is because that without the ownership of water resources, there would be no water rights. In order to deal with so many problems we have encountered in theory and practice on water resources ownership and water rights, the article studied the acquisition and transfer of water rights based on analysis of state ownership on water resources in civil law.This article can be divided into four sections except introduction and conclusion. The contents of each part are as follows:The first part is about the definition of the nature of water resources as the object of ownership. This definition is the premise of legal research on water resources and will have a significant impact on water resources ownership and utilization. In this part, the definition and characters of legal regulations on water resources has been analyzed,and by analyzing the principle of particularity of ownership object, we drew the conclusion that water resources could be an object of ownership. Then, on the basis of comparative analysis of non-private properties such as publica juris gentium, Offentliches Sachenrecht, ?ffentlichen Sachen im Gemeingebrauch, domaine public, res public use, res publicae, the nature of water resources as ?ffentlichen Sachen im Gemeingebrauch has been justified. It is believed that the definition provides the theoretical foundation for the justification of the theory of state ownership on water resources. The second part is about the justification of the theory of state ownership on water resources. The water resources ownership constitutes the basis of allocation and utilization of water recourses. Nowadays, most of legislations in the main countries provide that water recourses are owned by the nation, the state or the whole people rather than private individuals. Water resources ownership by the whole people is not common ownership or joint right but similar to gesamteigentum. Since the water resources ownership of the whole people strictly is not a legal concept, it shall be clearly defined as a state ownership in constitution to gain legal protection. Based on this, the state ownership in constitution need to be transformed into the state ownership in civil law, then the water resources can be the object of civil rights. With the transformation of sovereign country in constitution into a state legal person in civil law, the nature of state ownership of water resources becomes a civil ownership, which makes it possible to set water rights as a kind of usufructs on it. Thereafter it can guarantee the maximum utilization of water resources consequently.The third part is about the acquisition system of water rights and its improvement. This chapter studied the acquisition of water rights loaded on the state ownership of water resources and put forward our improvement suggestions. Water rights is a kind of usufructs. In China, the acquisition system of water rights exists great defects and shortages both in substantive rules and procedural rules. Meanwhile, other countries'rules of water rights acquisition system such as the riparian right principle, the prior appropriation principle, and the absolute ownership doctrine are still quite inadequate and towards the decline consequently though adjustments have been done. In this situation, the modern acquisition rules of water rights are sharpening increasingly. Complying with the legislative trend, each person being equal in using water should be the premise of Chinese water rights acquisition rules, the sound public participation system should be the guarantee of the rationality, and the definition of the principle of primary title should be the core of the acquisition rules. Furthermore, Chinese law should establish water rights acquisition registration and publicity system, granting the registration public credibility, which will provide the premise of water rights transfer system.The last part is about water rights transfer system and some proposals has been put forward. Based on the foundation of the sound water rights acquisition system, this part discussed the possibility of achieving market efficiency through the water rights transfer system as well as the system construction. Water rights transfer is a kind of private rights transfer; however, the contemporary Chinese law makes great restriction on it, which is lack of theoretical basis. A good water rights acquisition system will be helpful to establish the transfer system. Water rights transfer is actually a kind of jus ad rem alternation. Water rights transfer contract is Kausalgeschaft of the water rights transfer. Such a contract will have a significant impact on the transfer efficacy, where the non-cause of act of property right is not practiced. In this case, without the water rights transfer contract, there would be no water rights transfer. However, solely a water rights transfer contract is still unable to produce the efficacy of water rights transfer. The feature of water rights transfer requires the water rights transfer registration as the public notification to ensure the validity of the transfer. To guarantee the safety of the dynamic transaction and protect the interests of a bona fide third party, the water rights transfer registration should be given the public credibility.