Research On Legal System Of Fisheries Rights

The fishing rights system is related to national economy and people s livelihood.In order to make fishing sustainable environmentally, economically and socially, themajor fishing nations of the world are trying to construct an advanced fisheriesmanagement system. The relevant research on fishing rights in China still lags behind,which can be manifested in the following three aspects: First, there exists bias in themainstream view on the legal nature of the fishing rights. Second, some academicsstill hold a wrong viewpoint of complete privatization as a solution to the fisheriesissue. Last but not the least, in solving the problems existed in the legal system offisheries rights, some scholars wrongly advocate that the officials of theadministrative enforcement of fisheries law should be brought back into the civilservice management system. This thesis tries to correct these wrong perceptions byfirst figuring out the legal nature of fishing rights, and then concluding that thedevelopment of legal system of fisheries rights is crucially fundamental for theguarantee of fishing rights, and finally arguing that deepening PSU reform in the fieldof the system of fisheries regulation is the right approach which is in line with globaltrend and meets the practical needs.Currently, the understandings of the nature of fishing rights in China can beroughly divided into three categories, namely the theory of public right, the theory ofcivil right and the eclectic theory. Among them, the public right theory is the l eastpopular, and the civil right theory and the theory of civil right with public right scharacteristics enjoy great popularity. This is mainly because that the right to engagein aquaculture, fishing form inland waters and beaches is initially prescribed in thepart of usufructuary rights in the Property Rights Law of the People s Republic ofChina. In fact, according to the fisheries law of Japan and Taiwan, right of fishery is aquasi property right, specifically is a quasi usufructuary right rather than ausufructuary right. Quasi property right is actually a hybrid right, whether it is moreof public right or more of civil right depends on different type of quasi property. Inaddition, fishery quota systems adopted by European countries are obviou sly of public law. After analysis, this thesis therefore concludes that China should establish adouble layer fishing rights system that encompasses a principal public right and aderived civil right, and further points out that the reform of enforcement system offisheries administrative law is vital for the development of fishing rights.This thesis argues that the problems existed in the legal system of fisheries rightscan be roughly divided into two categories: one is the visible unreasonableness,namely the illegal activities conducted by relevant government departments whenimplementing the existing fishery administrative law. Several infringement casescommitted by some local governments when implementing the Law of the People sRepublic of China on the Administration of Sea Areas are used as examples toillustrate that issue. The other is the issue of the existing legal system of fisheriesrights. They include the failure of the functional transformation of Chinesegovernment, failure to concentrate regulation powers and so on. Accordingly, thisthesis puts forward proposals of establishing a comprehensive regulation system offisheries, deepening the PSU reform in the field of fishery administrative regulation,setting up subsistence fisheries regime, and making full use of fishermen sorganizations in fisheries management.