On The Legal Protection Of Water Resources Under The Real Right Law

Water is the source of life, and also an inexhaustible driving force to the development of human society. However, with the historical development of today's highly urbanization, water resources are facing with such a severe situation: river pollution, freshwater shortages, deterioration of the ecological environment, serious soil erosion and so on. Fifty percent of the water resources in the world are polluted with varying degrees. Eighty countries, with 40 percent of the world's population are facing the problem of water shortage; 110 million people can hardly drink clean water; and each year, 3.1 million people die of diseases caused by drinking unclean water. China is a country which is scarce of water resources, the amount of water resources take only about 6% of that of the world , but water consumption accounts for 12% of the world's water in-taken, the amount of freshwater resources per capita is only one fourth of the world's average, ranking over 100 in the world. In recent years, the environmental incidents such as the Huanghuai stop, and the pollution in Taihu Lake and Chaohu Lake have further deepened the country's water crisis, thus, the legal protection of water resources should be strengthened without delay.Water is a vital natural resource and it is included in the scope of public law adjustment for the nature of scarcity and publicity. For a long time in China, it is also dominated by the public power. Due to the concerning about the value of water resources, that is, the natural attributes,ignoring the property value of water resources, that is the social attributes, emphasizing the public law regulation, ignoring the private law regulation, stressing the ownership of water resources, ignoring of the beneficial use of water resources, stressing on the country's direct control of water resources, ignoring of the market in the allocation of water resources, and with more and more problems exposed during the social and economical development, problems concerned with water resources has never been eased, but even made Aristotle's "the Tragedy of the Commons" happened repeatedly in the contemporary world. This is caused by the deny of the property attributes of water resources. Water resources, as property, they share both value and use value. The adjustment of public law does not reject to that of Private Law particularly the Civil Law (Real Right Law). Private Law adjustment can precisely remedy the deficiencies and gap areas when water resources are adjusted by public law, and optimize the resource allocation.Scientifically analyze the connotations, values and characteristics of water resources, and the existing problems of our country, fully aware of the natural attributes of water resources, at the same time, deepen the understanding on the social attributes, that is, the property attribute, further explore the feasibility of property rights of water resources for intervention and protection incentive function, thus we can design the suitable property rights system in accordance to China's actual situation. In a sound legal system, the legitimate rights of the property make people have the reasonable expectations of property interests, and without a complete property rights system, and failing to form a complete set of rules to recognize and protect the property, the realization of property rights and the attainment of interests is uncertain. It will not form a reasonable interest expectation, and it is difficult to make people have the confidence to invest, the desire to purchase and the motivation for industry. Thus, the driving force of people to create the wealth will not be fully released, and the wealth of our society can hardly increase. Therefore, in some sense, there is a close relationship between the improvement of property rights system and property creation, and the generation of wealth largely depends on the rational use of resources. The law itself is a kind of ideology; it can not create social material wealth directly, but it can maintain the wealth creation and wealth protection through recognizing and protecting property. Through the construction of legal system to clarify the ownership and the channel of usage, so that the ownership can be distinguished and the disputes can be eliminated. However, this function of law is mainly achieved through the property rights system.Water resources ownership is the basic real rights of water resources, and it is the source of other rights. Water resources is regulated by the Constitution, the General Principles of Civil Law, the Water Law, the Real right law, and the country's attributes of Public Law of water resources and the only entity for the water resources ownership are emphasized. Taking water resources into the adjustment scope of the Property Rights Law, it is necessary to make more detailed design to these declarative provisions of the property rights system. The premise of the design of the water property rights system is the return of the private ownership of water resources. Defining the ownership of water resources, clarifying the subject, object and content of the ownership of water resources, analysis of the problem of water resources ownership and the inadequate design of the system in our country, breaking the traditional model of state ownership, advocating to entrust the limited ownership of water resources to the rural collective organizations and corporate, so that we can diversify the ownership of water resources in China, and lay the foundation for the market of water resources in China.The usufiuct right of water resources is the main target in the market transactions of water resources. The legislation of the Real Right law in various countries is shifting from ownership-centered to that of the use-centered. While emphasizing the ownership of water resources, it is necessary to pay attention to the use and benefits of water resources for the purpose of setting up the usufiuct right. How to identify the usufiuct right is a major issue for the legislation of water resources protection in China. With the establishment of marketing economy in China, the value and use value of water resources is relatively separated, the country as the owner will not lose ownership to water resources, and obtains the gains of the ownership rights through the direct use of water resources by the none-owner, so as to abandon the outdated water resources protection concept which emphasize the ownership and ignores the utilization. In legitimating, usufiuct right should first define the initial allocation system of water resources, that is, the beneficial use of water resources of the property rights system, open the usufiuct market of water resources, clear all kinds of connotations of usufruct rights, improve the change system of usufiuct right of water resources, establish the view that the ownership of water resources should be strictly control and the usufiuct right of water resources market allocated through markets.Under the theory of water resources responsibility constitution, water environment tort theory, that is, the special tort theory of water resources, though it is still not perfect, it has been basically established, and this reflects the demanding for the building of ecological civilization. For the lack of insufficient understanding of the general tort liability theory of water resources on property and the blank of the correlated real right legislations, or because of the specialty and sensitivity of water resources, once the general tort theory was replaced by special tort theory, or the two were jumbled together, which has not only caused the theoretical confusion but also harmed the protection of water resources. Therefore, improving the general tort theory of water resources, distinguishing between general tort liability and special tort liability of water resources are complementary to each other, and they together, constitute China's civil liability theoretical system of water resources infringement.The development, utilization and conservation of water resources are an extremely complicated and systematic project due to its special circumstance. The allocation, development and utilization of water resources must take consideration of fators as resources, the environment and the harmonious economic development, so as to maintain the high unity of ecological, economical and social benefits. Based on the safety of water resources protection, the efficiency of water resources utilization can be maximized with both the function of the government and the market.