Study On Protection Of The Legitimate Rights And Interests Of Disadvantaged Fishers In China

Since the implementation of the reform and opening policy in 1970s, the Chinese fishery economy has made significant progress. However, the further development of Chinese fishery economy encounters many difficulties due to the resources and environment's constraint. Excess fishing capacity has brought tremendous pressure to fishery resource, as a consequence most of the traditional fishery resource is declining. Accompanied with social and economic development, the water area pollution, land reclamation in water area and beach, water project construction are increasingly endangering the fishery resource, fishery area, environment of fishery water area. All of these challenges have weaken resource for fishing of fishermen, compressed life space, eroded the fishery right of fishermen. In recent years, fishermen's income increase slowly, income gap between fishermen and urban residents is expanding, and the poverty-returning phenomenon has happened in some fishing community, the deficiency of social security, all of these problems have restricted fishery community's harmonious society construction.In view of the notional fuzziness and structural complexity of fishers are the fundamental reasons that prevent the safeguard of fishermen's right from solving long time. The article firstly defines the scope of fishermen deserving protection in fishing rights and interests, and put forward a notion of "disadvantaged fisher", which means the traditional fisher engaging in small-scale fisheries with small fishing boat or without boat, these fishermen as protected objective group in right. The infringement of these fishers' right and interest comes from two aspects. One is the non-fishing water utilization activity giving harm to the function of water fisheries, and this kind of the external damage of fishing almost happened in offshore area and inland water where the small-scale fishing was taken place. The other one is the fishing competition among the fisheries. The fishers engaging in the small-scale fishing are weak in the competition, bear much more harms from the over-fishing and social cost of the resource protection measures with unreasonable ratio. Out-fishing labor force and out-fishing cost which come into the fishing were harmful to the fishing rights and interests of traditional fisher. Fishermen right damage's causes root in various aspects, the basic one is externality of resource mutually utilization, including out fishing industry utilization to water area and mutual competition among fishermen. The defects of legislation lead to ambiguity of fishery right subject, object as well. Legislation in protecting disadvantage fishermen during competition of internal fishery industry is also in blank status. Water area function layout exist defects, no water layout about fishing exclusive utilization, lack of compensation system about fishing right invading, all of these problems lead fishermen lacking of channel to get compensation for the invasion of right. Administrative management oriented in economy development and ignore fishermen right, defect in fishery management lead fishing resource decline, the living base of fishermen weaken. Separate managing and decision making system lead fishermen's power in claiming right deficiency.To protect the basic living rights and interests, first of all, the fishermen should be endowed with the indemnificatory right of fishing to ensure their basic living. The article comparatively analyzes three modes of allocation of fishing rights: the fishing input factors allocation, the catch quota system and fishing ground allocation. Furthermore, the article presents small-scale fishing ground indemnificatory allocation framework system. It advised that the marine and inland water fishing grounds which is connected with the land from the marine motor fishing vessels' bottom trawl closed area line, as the exclusive small-scale fishing's special zone for traditional fisher. Moreover let the small-scale special fishing zone being further divided and allocated, each zone establish small-scale fisher association to implement internal management and endow each zone of the attribute of usufructuary right which was the power of exclusive utilization, long effectiveness inheritable and transferable. Focused on this point, the legal as well as the support of regimes including the water functional division and the compensation for the harm of the fishing are also needed. In addition, the ensuring of the disadvantaged fisher's rights and interests also need the government to make great efforts in strengthen and improve the protection and treatment of the fishing water environment, establishing more powerful regime of the fishing capacity-limit, and optimizing the conservation and management of fisheries resource. Aim at improving the basic neighborhood facility of the social living and producing in fishing community, the government should title the relevant policy and provide favoring financial input.