Study On The Right Of Using Sea Area

"The Property Law of the People's Republic of China"(briefly, the"Property Law"), which was adopted at the 5th session of the 10th National People's Congress on March 16, 2007, has defined the nature of the usufructuary rights for the Right to the Use of Sea Areas (briefly, the"RUSA") in the form of legislation for the first time. However, the Property Law only simply stipulates that"The right to use the sea areas acquired legally shall be protected by law"in one of its article, but has not defined the objects, features, virtue, circulation, and the conflicts and coordination between the RUSA and related usufructuary rights, etc. In respect of theory research, though there are a few major breakthroughs on the discussion of property right attribute for RUSA, the systematic and more comprehensive published works are rare. Many problems exist both in theory and practice and raise controversies, with divergent views from different people.In order to clarify the basic theoretical issues for the RUSA and to provide theoretical support and guidance for the related system design, this article mainly conducts the theoretical analysis and discussion from the following six aspects:Chapter I:"Determine the private rights nature of the Right to the Use of Sea Areas". This chapter starts from concept and legal feature of the RUSA, based on various academic theories on the nature of RUSA, through comparison of a variety of theories and theoretical analysis, the author concludes that the RUSA is a new type of usufructuary rights, points out the theoretical and practical significance of defining the nature of RUSA as usufructuary rights in Property Law and making it return to the origin of Private Law.Chapter II:"the relationship structure of private law about the Right to the Use of Sea Areas". Legal relationship is the core concept of Private Law, the RUSA as a private right, its legal relations is also composited by subject, object and content ,this chapter make a deep analyse about the relationship structure in Private Law of the RUSA starting from the subject, object and content of the three aspects in order, especially from the specific nature, collective nature, differentiation and other particular attributes of the objects of the RUSA, by comparison of the commonality and differentiation of the objects between the RUSA and land use right, the author expurgates the space scope of the objects of the RUSA. This paper advocates the space scope of the objects of the RUSA including the territorial sea, harbor, beaches, inland waters, airspace, seabed and subsoil and uninhabited islands. Also the space scopes of the objects of the RUSA are different from each other. As the objects of the RUSA is an open system which constantly extends or shrinks with the social and economic development, the category and scope of objects for the RUSA is bound to make continuous adjustment with the technology progress, change in human needs and sustainable development and utilization of environmental resources.Chapter III:"effectiveness, restrictions and protection of the RUSA". As one kind of usufructuary rights, the effects of property rights of the RUSA include exclusiveness, priority and retroactive effect. The RUSA as a private rights, subject to restrictions such as the burden of social obligations of ownership, adjacent relations, the failure of private law rights ect; country take public management responsibilities in the use of sea areas, so the exercise of RUSA is subject to the restrictions of public law; at the same time, environmental issues have become increasingly prominent in modern society, environmental law as social law will inevitably regulate the exercise of the right to use, these restrictions will help to prevent the disorder in the exercise of the right, and achieve the sustainable development of use the sea area. Significantly the feature of property about the RUSA, while strengthened property protection for the RUSA, including protecton in public law and private law, of which the protection of private law is mainly reflected in the two aspects including property claims and recognition of property claims.Chapter IV:"alteration of the RUSA".The general theory of alternation for the property rights is applicable to the RUSA,and the registration system of the RUSA in China is under continuous improvement aiming at the feature of RUSA. By integrating the existing systems in China, based on specific analysis over the requirements for application, acquisition, bidding, auction and listing for trading, procedures, and various advantages and disadvantages for the RUSA, this paper concludes that it is necessary to take effective measures to widely promote the bidding, auction and listing system to push forward marketization of marine resources allocation, and standardize the system for application and acquisition of the RUSA to meet the need of market economy. By establishment of the circulation mechanism for the RUSA, the marine resources can be allocated rationally to improve efficiency and protect the ecological environment and promoting marine economy."Alternation to the RUSA"includes alternations to the objects and contents of the RUSA. The alternations to the objects of the RUSA includes contribution, transfer, bestowal and succession. Alternations to the content of the RUSA include changes to the usage of the sea area, the validity use period, the objects, rent and mortgage of the RUSA, etc. The absolute lapse of the RUSA is due from expiration of, disappearance of the objects, abandonment of or early recovery of the RUSA, which will have corresponding legal consequences.Chapter V:"conflict and coordination between the Right to the Use of Sea Areas and related usufructuary rights".The "Property Law" promulgated in March 2007 has creatively integrated the usufructuary rights system in the Part of Usufructuary Rights, added new types of usufructuary rights. In addition to defining the usufructuary rights of the RUSA in Article 122, it also defined the attribute for the rights relating to mineral exploitation, mining, water and the right to engage in aquaculture and fishing in Article 123. However, due to the overlap of the objects between the RUSA and the new types of usufructuary rights and inconsistency of the related laws and regulations, more than one conflicts between the RUSA and its related rights occurred, especially conflicts existing among the right to engage in aquaculture, fishing, mining and land use right. According the analysis results from these conflicts and their coordination, the author holds the view that the legislative body shall, based on the principle of"efficiency first and fair be considered", the property right rule of "first come first served" among rights as well as benefits assessment rules, improve the related legal system and establish a unified real estate registration system and registration agencies to maximize the value and economic performance of the RUSA.Chapter VI: legal framework and legislative proposals for the Right to the Use of Sea Areas system in China.Through analysis of the reality that the RUSA requires legal reconstruction, the author points out the status and problems existing in the RUSA system, particularly, the property law on the use of sea areas dominated by administrative law cannot adapt to the needs of property right development, as it requires the RUSA system to fully reflect its feature of private rights.As for legislative system, in the author's opinion, China should learn the legislative model adopted by most countries that takes the Basic Law as the basis and Special Law as the dominant law, improve the RUSA system by modifying the"Law of the Peoples Republic of China on the Administration of the Use of Sea Areas"or by formulating corresponding regulations, which including but not limited to: the definition, the nature, the scope for objects of the RUSA, contracting system of sea areas, application and approval of the RUSA, assignment, registration, transfer, recovery and mortgage of the RUSA, pay fees for the use of the sea area, and obligation of the owners of the RUSA.At the end, the author gives reasonable suggestions on"Law of the Peoples Republic of China on the Use of Sea Areas (draft)"through synthetic analysis and practice from the issued or to be issued law on the administration of the use of sea areas by local governments in China.