Research On The Public Power Nature Of The State Ownership Of The Natural Resources

According to article 9 of Constitution, natural resources are owned by the state, that is, by the whole people. Experts of civil law believe that the state ownership of natural resources is a real right and shall be governed by civil law.However, the state ownership of natural resources becomes more popular around the world mainly because of the special characteristics of natural resources. Natural resources are prescribed to be owned by the state for social justice, national welfare, the sustainable utilization of natural resources, political and economic security objectives. State ownership of natural resources is a public power with the nature of public interests.Meanwhile, the state ownership of natural resources is not compatible with the real rights in civil law: the foundation and purpose, the methods of acquisition, the subject and the object, power, exercise way, force of recourse, tort liability are all different from those of real rights. The rules of civil law also failed to solve the disputes raised in the use of natural resources.In fact, there may be five ownerships in law: 1. ownership by individuals in civil law, 2. ownership by individuals in constitution, 3. ownership by the state in constitution, 4. ownership by the state in administrative law, 5. ownership by the state in civil law. The state ownership of natural resources involves the ownership by the state in constitution and the ownership by the state in administrative law. Article 9 of Constitution shall be explained according to the theory of public trust. Natural resources are owned by the state legally, but owned by the people essentially. The nature of the state ownership of natural resources is legislative and administrative power on the natural resources as a whole. Such powers are duties of the state in public law rather than private rights of the state in private law. The state ownership of natural resources is not to give the government property rights in private law to make profits, but to impose duties of supervision to the state. It can not be explained as a property right to specific natural resources products.The nature of public power of the state ownership of natural resources determines that the legislative power and administrative power by the state on natural resources can not be excised capriciously. The legal regime of natural resources law shall focus on the supervision of power and protection of rights. The system design of national ownership of natural resource must reflect the essential characteristics for national interests, the exploitation and utilization of natural resources must return to its public purpose. Specifically, first of all, legislative power must be exercised properly to control and prevent the infringement of public equity and the right of rational use of natural resources. Prohibition and permission must be clearly prescribed by law, and shall comply with article 9 of Constitution and the permission setting rules in Administrative Licensing Law. The management costs and benefits must be balanced. The general public use and accustomed use of natural resources cannot be completely excluded. Secondly, the exercise of the administrative franchise power must follow basic substantive and procedural requirements: public interests shall not be damaged, third party’s vested rights shall not be infringed, the exercise of the licensing power shall follow proper procedures, including the procedure of public participation. Only behaviors which are expressly prohibited can be punished, the administrative organ may not punish people’s usage of natural resources only based on state ownership. Finally, the system of administrative public interests litigation shall be established to effectively supervise the illegal resource management acts.