On Basic Attributes Of Water Right

Water is the source of life; we can not live without it. Facing the reality of lack in water resources, it is of vital importance to definite the water right in law. What is the concept of water right? What is the connotation and extension for it? What kind of attribute does it share, public or private? And what is its object? Although there are many outputs of research on the foregoing problems, there exists much perplexity which we can not escape from, for it is difficult to coordinate the right with the traditional rights system and to orientate it in a proper position. Therefore, this paper attempts to deal with the above-mentioned problems in the premise of the theory of the dualistic framework of real right.The paper is composed of five parts as follows:Chapter One serves as an introduction to the concept and attributes of water right. On the concept, the concept is treated and defined in the outline of the national reality, legislative and judicial practice as well as in the light of the experience abroad instead of the analysis totally in a theoretical way, which just takes water right as the right to use water resource and excludes the ownership of water resource. On its attributes, water right is considered as real right, but not public power in administration.Chapter Two first criticizes the concept of res in traditional theory. The division of res visible and invisible puts the traditional real right in a dilemma, so it is reasonable to analyses the right in the perspective of value of the object of the title, which defines res as the benefits in property which specific civil subject directly shares in the form of real property or price. Then, the object of water right is defined as benefits in property which the subject should pay for in return for the use of certain water resource. According to the registration standard in division of res immobiles and res mobiles, water right is divided into water right immobiles and water right mobiles.Chapter Three expounds the attributes of traditional real right and wipes off some attributes which can not show the intrinsic essence of real right in the first section. It sums up the basic attributes shared by common real right: peculiarity, independence,dominating and exclusiveness. Section 2 mainly analyses the above-mentioned attributes of water right.Chapter Four is concerned with the supremacy right, an important problem in water right. It discussed the functions and confirming principle of the supremacy right: the principle of the bank right and the principle of primitive occupation. It is suggested that our country should use the confirming principle of the supremacy right. In the second section, the paper talks about the relationship between supremacy right of water right and that of real right, which shows that the nature of water right comes as a result of the supremacy of the neediest benefit instead of that of real right in the field of water right.Chapter Five presents the major realistic legal problem which appears in the market distribution of water resources in China. This part emphasizes the rules in the circulation of water right with permit along with those without permit, key problems of which are the status and role of the title holder in the circulation of water right, the essence of the circulation of water right and distinguishing all kinds of interests related to the circulation of water right.