Research On Civil Aviation Right

Civil aviation right is a legal droit that derives from a state's sovereignty, which is endowed by the state who determines whichever domestic or foreign subject of navigational right can navigate in the domain of its airspace. Accompanied with the world-wide trend of free aviation, how to effectively protect the rights and interests of domestic aviation enterprises as well as how to appropriately open aviation right to other states in the present open market appears more and more significant. Compared with the western counterparts, the air industry in our country witnesses a relatively laggard legislation for the sake of its late initiation. Hence, the development of civil aviation industry in our country is straightly blocked by the imperfection of the aviation legislation and the deficiency of the related theoretical study.Considering the present lack in the theoretical study of the civil aviation right, this dissertation aims to analyze and investigate its basic theoretical issues, which is not only meaningful to the protection of our national air transport enterprises and the airspace resources, but also to the maintenance of the security of the navigational activities within the scope of domestic airspace, and to the improvement of aviation legislation in our country. Integrating the research methods of law interpretation, historical studies and comparative studies, the dissertation carefully explores the fundamental theoretical issues concerned with civil aviation right, with the purpose to provide beneficial reference to the related legislative fields and the actual judicial practice.Containing more than 30,000 words, this dissertation consists of six chapters.Chapter One, entitled as Concept and Categories of Civil Aviation Right, first investigates the concepts of civil aviation and civil aviation right, with a further indication that the latter has both a broad and a narrow connotation respectively. In the broad sense, civil aviation right is an overall term referring to all of a certain civil aviation subject's rights to take out any navigational activities within a state's airspace under the permission of the state sovereignty department. In the narrow sense, it means exclusively civil aviation transport right, which refers to the navigational rights that civil aviation transporting subjects have within a state's airspace under the permission of the state sovereignty department. This chapter also reclassifies civil aviation right in the above two senses. Chapter Two, entitled as Characteristic Traits of Civil Aviation Right, studies the concepts of state sovereignty and airspace sovereignty, indicating that civil aviation right is derived from a state's sovereignty. It is proposed next that a state possesses a comprehensive sovereignty to its airspace, which includes Right of Ownership, of Management, of Jurisdiction and of Self-Preservation.Chapter Three, entitled as Historical Development of Civil Aviation Right, traces the origin and the historical evolution of civil aviation right, bringing forward the conclusion that civil aviation right is the consequential product of Free Aviation Theory. Free aviation was formed at the theoretical level in the early twentieth century and it was categorized into five types at Chicago Conference in 1944. It is not until the theory of New Free Aviation appeared that aviation freedom was started to be confined. The latter part of the chapter elaborates the deep influence of the development of free aviation upon the concrete content of civil aviation right.Chapter Four, entitled as Permission of Civil Aviation Right, is the most important part of the dissertation. On the basis of our national civil aviation legislation and Administrative Permission Law, this chapter analyzes the organization and function of the institutions that endow civil aviation right, as well as the substantive qualifications and concrete procedures of obtaining the permission, indicating that every state has set up specific administrative permission institutions to endow civil aviation right, which apply their authority according to the state's functional classification. It also points out that the permission of civil aviation right falls into the category of the privilege of administrative permission.Chapter Five, entitled as Content of Civil Aviation Right, analyzes the permission right of foreign aerostats and the applicability of restricted airspace, the air defence identification zone and the national transport right. The specific content of civil aviation right is expatiated in the following part, which includes First freedom: Right to transit without landing, Second freedom: Right of technical stop, Third freedom: Right to set down traffic from home state, Fourth freedom: Right to pick up traffic bound for home state, Fifth freedom: Beyond rights, Sixth freedom: Unofficial right to pick up and put down traffic between foreign states, Seventh freedom: Right to pick up and put down traffic between two foreign states, Eighth freedom: Right to pick up and put down traffic between two destinations within a foreign state. This chapter suggests that there exist some deficiency in the mutual systems of exchanging civil aviation right.Chapter Six, entitled as Developing Trend of Opening-up of Civil Aviation Right, compares the current situations of the opening-up of the navigation right in America, European Union and China, and analyzes the influence WTO's regulations and rules in the procedure of opening up the navigation right, demonstrating the inevitable trend for the international civil aviation to widely open the navigation right. At the end of the chapter, several countermeasures are put forward to undertake the opening-up of the navigation right in China.