The Construction Of The Legal System For The Control Of The Use Of Uninhabited Islands

Since the implementation of the island protection law in 2010,China has issued the certificate of the right to use uninhabited islands for the users of uninhabited islands.However,the “island protection law” has not classified the use of uninhabited islands,and has not defined the right to use uninhabited islands.Therefore,China's civil code passed in 2020 only defines the state ownership of uninhabited islands,and does not specify the right to use uninhabited islands in the usufructuary right classification.According to the legal principle of real right,the right to use uninhabited islands should be directly defined in the division of usufructuary right in the civil code of China.In order to incorporate the use right of uninhabited islands into China's property right system,it is necessary to control the use of uninhabited islands to clarify the use of uninhabited islands.In 2018,after the formation of China's unified natural resources management department,it is necessary to implement use control on all land and space in China.China's territorial space refers to the territorial space under China's sovereign rights,including China's territory,territorial sea and airspace.According to the natural characteristics,land space can be divided into land,land water area,sea area and airspace.Before the formation of a unified management model of natural resources,China only defined the land use control system.In addition,the use classification of inland waters and sea areas within China's territory has been clarified.Therefore,the research on the legal system of the use control of uninhabited islands is also of practical significance,which helps to improve the land and space use control system in China.Since the legal system of the use control of uninhabited islands is closely linked with social practice and needs to produce social effectiveness,it is necessary to demonstrate the necessity and feasibility of the system construction.From the perspective of necessity,the construction of the system can not only realize thefunction of the national natural resources management department,but also solve the problems existing in the actual use of uninhabited islands.From the perspective of feasibility,the construction of the system is supported by the national "land and sea overall planning" strategy and the existing management achievements of the state for uninhabited islands.The legal system of the use control of uninhabited islands is the content of economic law research,because the main purpose of building the system is to regulate the use of uninhabited islands and reduce market failure.In addition,the implementation of the system will also control the supply of uninhabited islands in China's marine economic field,which has a significant role in macro-control.However,due to the characteristics of uninhabited islands,such as remote location,no registered population,and far away from inland,it is very difficult for the public participation mechanism of environmental protection to detect the behavior of man-made destruction of uninhabited islands.As a kind of scarce public goods,if the exploitation and protection activities of uninhabited islands are not restricted by order,it will produce the effect of "tragedy of the commons".Therefore,the state controls the use of uninhabited islands and transfers the use right of uninhabited islands to civil subjects,which can encourage civil subjects to protect uninhabited islands.However,the use of uninhabited islands needs to be regulated in order to follow the objective economic law and not break through the bottom line of national policies.The conflict between public interests and private interests is the main interest contradiction in the development and protection of uninhabited islands.If there is no order constraint,private economic interests will seriously infringe on environmental public interests.Therefore,in order to protect the public interest,it is necessary to restrict the private interest.Therefore,it is necessary to establish a balance mechanism between public interest and private interest,because excessive restriction of public interest on private interest will also cause interest contradiction.In addition,the legal system of the use control of uninhabited islands needs the specific implementation of the state administrative organs and their staff,which will produce unreasonable government interests which are not completely consistent with the public interests.Therefore,it is necessary to deal with the unreasonable government interests so as to ensure the public interests.First,we need to deal with the conflict of interests between departments.The fundamental reason for the conflict of interests among departments lies in unclear rights and responsibilities and overlapping functions.The direct reason is that there are many departments and departments approved by different departments.Therefore,it is necessary to optimize and reorganize departments with similar functions.Second,we need to deal with the conflict of interests between the central and local governments.The conflict of interest between the central and local governments is mainly the allocation conflict of financial power and administrative power.Due to the administrative subordination relationship between the two,the central government takes over the financial power,and the local government often has too much power and insufficient financial resources,which is not conducive to the implementation of the legal system of the control of the use of uninhabited islands in the provincial administrative organs.Therefore,it is necessary to reasonably allocate local financial power to ensure that local financial resources are matched with administrative power.In order to control the use of uninhabited islands,the state needs to set up the right to control the use of uninhabited islands for natural resources management departments,which is a kind of administrative public power.However,the public power must be restricted because the unlimited expansion of government interests will embezzle private interests.Therefore,when allocating the discretionary power of non resident Island use control for administrative organs,it is also necessary to control public power by means of internal and external constraints,such as refinement of discretion,separation of incompatible functions,supervision of audit institutions and supervision of supervision organs.The construction of the legal system of the use control of uninhabited islands needs to be based on the unified land and space planning,formulate the utilization planning of uninhabited islands,implement index control on uninhabited islands in China,and implement zoning control according to the requirements of urban development boundary,permanent basic farmland and ecological protection red line.In view of the design of uninhabited island use,the empirical research method is used to investigate.Through the analysis of the issuance of the certificate of the right to use uninhabited islands after the implementation of the "island protection law",it is found that more than 40% of the uninhabited islands are used for tourism and entertainment,and the proportion of public service and fishery development purposes is far lower than that of tourism and entertainment purposes.Moreover,the uninhabited islands that have not been approved for agricultural,forestry and animal husbandry purposes are much larger than those before the implementation of the island protection law Different.According to the classification of land and sea area use and the characteristics of uninhabited islands in China,the use of uninhabited islands can bedivided into "three categories",12 first class classes and 45 second class classes.The legal system of the use control of uninhabited islands needs to be connected with the system of the right to use uninhabited islands.After the use of uninhabited islands is divided into "three categories",the use right of uninhabited islands needs to be subdivided according to the use of agricultural islands,construction islands and other islands,and the collection,exemption,use and management system of uninhabited islands use fees should be adjusted.In addition,it is necessary to clarify the responsibility mechanism and implement the legal responsibility of relevant legal subjects.Finally,if the right to use uninhabited islands is to be included in the usufructuary right classification of civil code,the particularity of the right should be recognized.The right to use uninhabited islands has obvious characteristics of private rights and usufructuary rights,but it also has a strong color of public law.Moreover,because the object of the right is not a single thing,but a combination,so the right actually contains a number of sub rights,and the circulation of uninhabited island use right is also the "package" transfer of these sub rights.