The System Research On The Usufruct Of Natural Resources

Natural resources are important but scarce, so how to make good and rational useof natural resources is a big challenge facing the whole human beings. Analyzingfrom the sense of economic law science, rights in rem should be introduced in thisfield. The provisions on ownership of natural resources are clear in the existing lawsystem of our country, but the using rights are obscure. The separate regulations ofnatural resources are administrative, and the rules in the Law of Rights In Rem are toosimple, which could not form an integrated system of rights in natural resources.Based on the theory of"rem decides right"and with the method of induction,this thesis analyzes the rems of natural resources firstly, finds that although they arevarious in form, the rems of natural resources can be specialized into three kinds,according to the utilizing methods, that is, being the carrier of others to make use ofits space, making use of its producing ability, and being excavated from the land to benew products. Combined with the theories of rights in rem and the existing laws,those using methods could be structured into three kinds of rights in rem: the usufructin land for building, the usufruct in land (water, ocean) for production and theusufruct of utilization. The usufruct in land for building is the right of constructing inothers'land and obtaining the ownership of the building, while the owner of the landcould not claim the right in the building constructed in his land. This is the typicalright of usufruct. The usufruct in land, water, and ocean for production ensures theperson to plant or culture something in others'land, and acquire the products. Theusufruct of utilization is a kind of exclusive right, and the person authorized couldexcavate or mine in others'land and take the products, but this kind of right isquestioned bymanyscholars to be a usufruct right.The discussion focuses on the following three points, that is, the object of theright of excavation could not be specialized; the need of administrative permission inthe right; and the consumptive utilization, which is inconsistent with the definition of the usufruct in traditional law science. This thesis combats those opinions. Firstly, theobject could be specialized byother means. Secondly, the administrative permission isnothing with the character of usufruct. Thirdly, according to the comparative lawstudy, consumptive using is allowed in the usufruct. So it is the legislators that decidewhether the rights of excavation can fall into the category of usufruct, and this thesissuggests so.Then the thesis introduces the contents and structures of those usufructs ofnatural resources, and some typical specific rights of usufruct of natural resources,correcting some improper definitions in this field, such as"the right of water","theright of fishing", and raises its objection to the usufruct of prospecting. Conflicts mayrise between these usufructs, due to the association of different natural resources.Three principles should be adopted to solve those conflicts, that is, the priority ofpre-established right, negotiation, and priorityof the important project.