On Licensed Water Right System Legal Analysis In China

Water is a precious natural resource, is the survival and development material basis of human society. Social progress and development, causing the increasing demand of water resources and water problems become an important factor to constraint social and economic development as well. Scarcity of water resources, making the rational allocation and efficient use of water resources is particularly critical. So, the right issue arising from water using has become an important research subject of law. The allocation of water rights is the core of water using rights issues. It is impossible that much national water legislation in the world can bypass the issue. The allocation of water rights and interests is the most important part of water legal system in China as well.There is difference of the allocation of water rights in many national legislation of world. China adopt the license system of water rights, that is, if someone want to get the water right he must submit an application to the water administrative departments, after examination and approval by them, access to water permits. Since 1993, China adopted the licensing system of water rights, and obtained very good social and economic effects. However, there are some problems in practice, which have aroused a jurisprudential debate about water resources, water rights and formed a different view. Unfortunately, scholars ignore the water right license that the cord of water rights, which become blank of water rights theory. I believe that the allocation of water resources is based on the establishment of license water right legal system, and its must established on legal theory. Therefore, the paper from a legal point, study on the license water right legal system.The Paper is divided into five parts, the main contents are:The first chapter describes the development of licensed water right. There is a close relationship between Water resources and human society. Water right is an old issue. In different historical background, there are many theoretical and legal systems of water rights arising from human vary requirements. The paper based on the analysis of different theories and comparative analysis of foreign and domestic legislation of licensing water rights system, consider that the licensing water right system based on mach national realities of world which has become an important way that governments manage water resources, and, increasingly, become scientific and operational.The second chapter focuses on legal logic of the licensed water right. First, this paper analyzes the mother right of license water right--proprietary of water resources, and studies the doctrine of ownership, onsides that ownership and proprietary belong to different areas. Whether define ownership nature of proprietary, or to define the nature of proprietary of ownership, are not correct. This paper argues that state ownership of water resources is different from all people ownership, from the government ownership. Water is a resource property, and there is reasonable that nation enjoys water ownership, that is, the purpose of setting national ownership of water resources is not possession of water resources, but to a more rational allocation of water resources interests, to improve water using efficiency. On this basis, analysis franchise values of water right license system, consider that its basic objective is to coordinate interests, and the ultimate goal is to protect the public interest. In addition, the goal of national ownership of water resources is realization of interest, which involves the routing problem. Thus, this paper analyzes different models and arms of water resources allocution, and considers that water right license system is the best way to exercise the state ownership of water resources. Finally, from an ethical point of view, the paper considers that water rights system license reflects life ethics and river life ethics.The third chapter focuses on basic category of licensed water right. First, the paper from the semantic level analyzes the concept of water right license, and further analyzes the characteristic of water right license. Secondly, the paper analyzes the material basis, economic and social foundations of water rights license system and basic principles. Thirdly, the paper arguer subject and object of licensed water right. The government can not be licensed water right holders, which is more conducive to the exercise of state ownership of water resources and rational allocation of water resources. Because licensed water right is derived by state ownership of water resources, its object should be consistent with the object of state ownership of water resources. Therefor, the object of licensed water right should be water resources. Finally, the paper analyzes the procedures of water right license, because water right license should be implemented through the specific procedures.The fourth Chapter analyzes the legal nature of water right license. The legal nature is the core of water right licenses, which is the key difference with other rights. So, this paper associate water right license with other related rights:ownership of water resources, water ownership and management right. There is relationship between water right license with other related rights, Instead of some scholars believe that the water right license includes water resources ownership, water ownership and management rights. Water right license is not a bundle of rights, but is only one right, that is, the right of using state ownership of water resources. The paper augers it is incomplete that the standard of nature relies on the law nature which it based on or the object nature of water right license. The paper concedes that the standard of nature of water right license should include the basis of generating and the comprehensive content of the right. Then, the paper analyzes the different theories of water right license, and considers that the legal nature of water right license is neither public right or private right, rather than mixed both public right and private right. In fact, its essence is proprietary. In addition, the paper argues that water right license has other special peculiarity, such as absence of possession; non-exclusive in principle; the right to achieve being to use; a period of quasi-property right.The fifth Chapter focuses on the main practice and main problems of water right license system in China. On this basis, the paper proposes a sound system of water right license. That water right licenses system should reflected the value of water resources reasonable, and protect the legitimate rights and interests of different stakeholders. For more efficient using of water resources and to overcome the negative externalities of water resources caused by public goods nature; and strengthening regional cooperation and communication of water resources using, we should be established regional mechanisms of horizontal collaboration and of water resources allocation mechanism.