| Land reclamation has played an important role in the provision of survival and development of space for mankind,to alleviate the contradictions between man and land,to promote economic development,but now China reclaimed reclamation land use as a sea area of the right to use a type of right system model,There are many problems in theory and practice.The research object of the paper is that the real right legal issues involved the landfill in China.It centers on the problems of the ownership of sea area,the right to use sea areas and the elimination and generation of the right of ownership and use of land in the land reclamation.This paper summarizes the main problems of land reclamation and legal regulation of real right in China through the empirical study of a large number of data,cases and laws and regulations and normative documents.To reflect on the theoretical basis of the existing system,to design a new land reclamation rights as reclamation of the "basic rights",and reclamation of the relevant real estate in the elimination,resulting in specific improvement measures.Through the statistical analysis of the data released by the State Oceanic Administration each year,the total area of land reclamation in our country from 2002 to 2015 is 144942.85 hectares,and the amount of land reclamation land levied is up to 62.86 billion yuan,accounting for the proportion of the total amount of land use right to sell the total annual rate of about 77%,land reclamation land prices mainly include the use of land and reclamation costs,sea area levy standards than the other than the sea The levy standard is high,but the cost of land reclamation is much lower than the land price of the same location,which contributes to the reclamation style.In general,Land reclamation has played an active role in increasing land supply,increasing government revenue and safeguarding national sovereignty,but it also causes changes in coastal landforms,degradation of marine biodiversity and pollution of marine environment,intensification of social conflicts,Social resources,waste and many other ecological and social problems.On the basis of the theoretical basis,the current maritime real right system in our country is based on the ownership of the sea area,and through the establishment of the right to use the sea area to achieve the purpose of scattered waters,and reclamation is a type of land use rights into the category of usufructuary rights,And it is subject to more restrictions.Its theoretical basis mainly involves the theory of state ownership,the theory of usufructuary property and the theory of real right ecology.Although these theories provide a basis for China's reclamation,there are also major shortcomings: First,the right to use the sea as a reclamation of the "basic rights",making the nature of the use of land reclamation land use rights,including others All the waters in fact the right to punish,contrary to the basic principle of usufructuary property rights;the second is to reclaim land reclamation is limited to the scope of the scope of the sea,cannot reasonably explain the sea resources into land resources,the real source of rights;There is a problem in the legitimacy and rationality of the right to use land for reclamation and the right to use state-owned land.These theoretical defects can lead to many problems in practice.In the legislation,through the current national and local legal documents to comprehensively sort out,summed up and found that the current ownership of sea waters,sea use rights have been more detailed provisions of the land reclamation of land ownership ownership,sea use The right to convert into land use rights,land reclamation land use rights,land reclamation compensation and compensation for the right to have the overall provisions,and local regulations have done a lot of detailed provisions.But the right to use the sea as a reclamation of the "fundamental rights" there are fundamental flaws,and the relevant legislative system is not complete,in the land reclamation to obtain the right to use,sea use rights and land use rights of convergence,"replacement" Whether to pay the land use right transfer fee and reclamation caused by the compensation and damage compensation and other aspects of the provisions are still there are gaps and contradictions.In the judicial practice,through the analysis of the 40 case samples selected from the Chinese referee document network,the non-litigation case network and the database case database of Peking University,it is found that the disputes caused by land reclamation mainly focus on the land Or the territorial waters of the sea area caused by the different understanding of the collective ownership of land and sea ownership of the ownership of the dispute,due to reclamation caused by the recovery(collection)compensation disputes,reclamation caused by environmental pollution caused by property damage and compensation disputes,did not obtain sea use Rights or beyond the scope of the right to use the sea of land reclamation disputes and disagreement of land reclamation planning and so on.Land reclamation involves the development and utilization of marine resources and land resources.The substantive laws and regulations applicable to court referees are of course also related to laws,regulations of the sea,land and the environment,but mainly to the provisions of the Law on Sea Use Management.As many of the legal aspects of the law is not specified,reclamation of the departmental rules and regulations and normative documents and local laws and regulations and regulatory documents have become the main basis for the court referee,highlighting the current shortage of land reclamation legal system.In view of the shortcomings of the existing theory,it is proposed to create a new land reclamation rights to replace the land use rights.The essence of land reclamation is to transform the sea resources into land resources,involving both sea area and land resources.Only the state can be implemented based on the dual identity of the owner of the national sea area and the land owner of the state.The ownership of the sea and the land ownership of the country become the land The "maternity" of the land,land reclamation through the administrative license of the specific implementation.Land reclamation land obtains land reclamation rights through permission,and its contents mainly include obtaining the right to use the reclamation area,and can carry out civil nature reclamation behavior,and obtain the right of new land after the sea becomes land.Land reclamation rights are compounded in terms of rights base,rights content and rights object,a new usufructuary right,which can reasonably explain the source of land reclamation and solve all kinds of problems in reclamation time.Revise the "Property Law","Sea Area Management Law" and other land reclamation rights system,and in the future civil code to make the appropriate institutional arrangements,and to build land reclamation rights as the center of reclamation rights system and improve the administrative Permit as the center of the reclamation management system,for reclamation to provide a system,improve the system of protection.Not only using the right of reclamation land to replace the reclamation land use rights,but also to improve the land reclamation process of the original rights of the elimination,compensation and new rights of the system.In the area of territorial ownership and land ownership system,it is necessary to distinguish the different types of measures such as the elimination of ownership of state-owned seas,the generation of state-owned land ownership and the elimination and compensation of collective land ownership.In particular,it is necessary to pay attention to the retention of collective land ownership in special circumstances Specific measures.In terms of the right to use the sea area,it is necessary to perfect the collection and compensation system for the right to use the existing sea area,establish the habitual utilization right in the sea area of the public property,and create the system of elimination and compensation for the habitual use rights of the sea area.In the aspect of ecological benefit protection,it is necessary to establish the maintenance and transfer system of ecological value of land reclamation and create the compensation system of ecological value of land reclamation.The innovation of this paper is that,first of all,theoretically,by replacing the existing reclamation land use right with the new land reclamation right,the state ownership and the national land ownership are collectively as the "mother".The land reclamation rights are defined as the rights of the right,the content of rights and rights object has a complex new usufructuary,to overcome the existing theory in the interpretation of land reclamation "mother","basic rights" and so on.Secondly,it is in the specific system design,and demonstrates the concrete contents of the acquisition,exercise and elimination of land reclamation rights.On this basis,it puts forward that the land use right,the sea area use right and the habitual use of sea area Rights and other rights of the original rights of the elimination,compensation system and land ownership,land use rights and other new rights arising from the specific measures for the reclamation to provide a systematic and complete system of protection.Finally,the actual research methods,through field investigation,data analysis,the existing empirical analysis of legislation and case analysis and other empirical analysis of the method,so that research has become practical and reliable. |
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