Study On Traditional Fishermen’s Maritime Right Of Use From The Respect Of Public Law

As a precious gift from nature oean is a huge res publicae enjoyed by all mankind. Living along the coast and relying on the sea areas traditional fishermen is the pioneer in the field of ocean exploitation and utilization of human beings who has began to explore the ocean since the earliest recorded history. Farming and fishing on the sea has become a unique way of life from a way of living for traditional fishermen in the long-term historical process of living and Generation change. The "habit" or "hereditary" rights of traditional fishermen to use the adjacent sea areas for making a living has got the respect from the surrounding community and confirmed in international customary law, bilateral agreements between countries and domestic law of most coastal countries. In China the traditional fishermen’s maritime right of use is in a awkward state of "quasi-legal right" because it does not be clearly confirmed in legislation which did not take the fishery right institutional arrangements and also not make a difference between living fishing and commercial fisheries.The value and scarcity of marine resources has become more visible day by day while ocean is becoming a new hot exploitation spot with the increase in population, decline of land resources and deterioration of environment. The diversity of ocean resources leads to diversification of sea areas utilization and it is a normal state that many kinds of rights of ocean use coexist on the same sea area as the multisuitability of ocean has made the foundation for the rights coexistence although the homogeneous real right could not coexist on one object in property law. Constrained by the weakening of legal status and the fuzzy of legal effect traditional fishermen’s maritime right of use get into an awkward position in which it was helpless in the face of repeated violations from the sea area use right, the land use right and the commercial fishing right and the impact of sea areas administrative expropriation, the national obligations and so on. As a result the survival and development rights of traditional fishermen have been violated to a severe extent while a large number of traditional fishermen lost their sea areas and were out of work attached a series of social problems.Focusing on the Solution to practical plight of traditional fishermen’s maritime right of use and Based on the discrimination of its legal nature this thesis carried on the comprehensive discussion on the noumenon and protection problems of traditional fishermen’s maritime right of use mainly from the perspective of public law and by the method of comparative study and literature research. This thesis includes introduction and the main body. The introduction part first briefly expounded the theoretical significance and practical importance of the selected topic, and then reorganized the current research situations of the Chinese and foreign experts in the related fields and gives brief comments. Finally, it simply summarized the logical thinking and research methods of the paper. The main body was divided into six parts, the former three chapters could be summarized as "study on the right noumenon" which discussed the concept, content, effectiveness and legal nature of traditional fishermen’s maritime right of use; the latter three chapters could be summarized as "study on the right protection" which put forward legislative Suggestions on the protection of traditional fishermen’s maritime right of use based on comprehensive analysis on its practical dilemma and deeply research on the legal issues of administrative compensation of the right.Chapter Ⅰ was about basic legal issues of traditional fishermen’s maritime right of use. This chapter respectively differentiated and generalized the concept of traditional fishermen, fishing right, the sea area use right and traditional fishermen’s maritime right of use, then demonstrated and classified traditional fishermen’s maritime right of use into use rights of environment and resources based on the survival needs after reviewing the development course of traditional fishermen’s maritime right of use and relevant theories and deeply analyzing the characteristic of independence, property, personality and humanity of the right mainly from the public law perspective. The third section of this chapter discussed the main types, content and legal effect of traditional fishermen’s maritime right of use.Chapter Ⅱ discussed the relationship between traditional fishermen’s maritime right of use and different sea areas such as "internal Waters", "territorial sea", "contiguous zone", "exclusive economic zone", "continental shelf" and "high seas". Each section separately discussed the existence or not, types and characteristics of traditional fishermen’s maritime right of use on every sea areas especially in the exclusive economic zone after introducing the evolution, scope and legal nature of different sea areas.Chapter Ⅲ delt with the conflicts between traditional fishermen’s maritime right of use and other related rights. Combined with the related cases, each of the three sections respectively analyzed the conflict between traditional fishermen’s maritime right of use and the sea area use right, the land use right, the commercial fishing right and then proposed specific and targeted conflict coordination countermeasures on the basis of probing into the deep reason behind the conflict mainly from the system level.Chapter Ⅳ focused on the solution to the practical plight of traditional fishermen’s maritime right of use. Each of the four chapters respectively carried on the detailed analysis on the administrative expropriation plight, the public welfare infringement plight, the national obligation plight and the fisheries salvage plight of traditional fishermen’s maritime right of use, summarized the external manifestation and reveals the intrinsic reasons of every kind of dilemma, and then put forward constructive Suggestions about countermeasures of each plight from different ways such as the legislation, policy, law enforcement and judiciary.Chapter Ⅴ concerned about the legal issues of administrative compensation of traditional fishermen’s maritime right of use. This chapter discussed the basic principles and scope of administrative compensation of traditional fishermen’s maritime right based on probing into the theoretical basis of administrative compensation, and then separately explored the standards, ways, procedure and relief system of administrative compensation of traditional fishermen’s maritime right of use oriented toward the solution of the practical problems.Chapter Ⅵ committed to the legal system construction for the protection of traditional fishermen’s maritime right of use. Section I analyzed the legislation associated with traditional fishermen’s maritime right of use mainly from the respect of concept definition, legal nature discrimination, right transference and legal effective after reviewing the legislative status quo of the right. Section II put forward legislative recommendations about confirming and strengthening protection of traditional fishermen’s maritime right of use and made detailed explanation of important contents of the legislative proposals combining the reality of Chinese fishery production and the state of traditional fishermen’s life.