| China is a big fishery and high catch country with numerous fishing boats and complicated structure. Total quantity of aquatic products has been the top of the world since 1990 and reached to 61720029 tons in 2013. The whole country has more than 304.9 thousands marine fishing boats through the general investigationin 2002. Now, protecting and managing fishing resources and promoting the contain development of fishing have becomed the topics of the world fishing development, but the contradictions between our country’s fishing development and resources’ rigid constraints are still poignant. Since the middle of 1980 s, our country strengthened the control of fishing boats and main engine power(Fishing boats double control system) and implemented fish catch output “zero increase” and “negative growth” policies and let fishermen change work, then the fishing output decreased since 1999 and stayed stable.But there is no solution to the constraints between fishery resources’ finiteness and the overlarge fishery ability, meanwhile,because of over-stress to administrative regulation and control, they ignored the acknowledge and judgement of management system’s self-justice and its reasonable and lawful, over limited all the fishermen’s basic rights.First, the management system of fishing boats has affected all the fishermen’s equal rights. Our country’s fishing boats double control system is not only a control to the total number of fishing boats and main engine power, but also a control to main body of fishing production as the fish catch abilities. This system sets time limit standard without the basis of the chances to compete or equal freely, then results in the unfair allocation and inequality face the law. A lot of no license boats arise and the government has to make them legal. Then the baseline of the double control is broke once again and this is unfair to the fishermen who always obeys the law. Second, Fisheries law has not made the legal status of the double control and the boundary of the rights and obligation of fishing boats proprietor explicit,this results that the fishing boats double control system affects the fishermen’s legal property rights. Fishermen’s personal owned legal fishing boats property reflect in that they can dispose their legal property according to their own wishes including selling and refreshing and remaking and obsoleting fishing boats. The law should protect this and give convenience on the basis of making the market play. But in fact, Ministry of Agriculture has set the regulations to supervise fish boats’ manufacturing, refreshing, remaking and import fishing catch boats. So fishermen lost their rights to dispose property freely. The third part is this affects fishermen’s right to work. Guaranteeing the employment is the important basis for maintaining the stable developments of social economy. Because of fishermen’s personal characteristics, it’s more important to maintain their rights to work. Our country has started to adopt a policy of marine fishing boats dismantling since 2003, but the design of system just guarantees the gain of the owner. If the boats’ owners dismantle their fishing boats, the majority of fishermen who has been hired will face being dismissed.There are a lot of reasons for that the fishing boats management system affects the fishermen’s legal rights, but the most important is that the system designers get problems in the value orientation. Main purpose of the fishing management is to realize ecology environment benefit, economy benefit, social benefit and sustainable development. Different countries choose different management targets according to their national conditions and different fishing characteristics, but it should protect the basic rights of citizen as the premise whether the main goal of fishing management system is biology, economy, society or the benefits between countries. Our country’s fishing boats management system has some main reasons that affects the basic rights of fishermen as follows:(1) The deflection of management goal. Current fishing boats management system changes its core to control boats for controlling, especially according to "Fishing license management stipulation", is taking the normal operating of the legal fishing boats as the important management grasps and certainly will make the system deflected under the pressure of the administrative orders, then results in the benefits of fishermen impaired.(2) The methods of management is simple. Modern world fishing management methods get through continuous development and complement, it has passed the journey from primary to modern, from simple to complicated and from part to whole. Our country’s fishing management concentrates the methods on the system with simple operation, low cost and short-term and obvious effect to develop its administrative management abilities and decrease the coming supervising pressure. They will impair the fishermen’s benefits because of the selective policies operating through benefits of themselves.(3)Administrative licensing is been abused. Current fishing boats management system is executed 3through the management methods set by "Fishing license management stipulation", because "Fishing license management stipulation" is earlier than Administrative Permission Law, the problems about its legality and reasonability have affected the legal rights of fishermen immediately.(4) The not cleat attribute of rights. No matter Fishery Law or "Fishing license management stipulation" or the other normative documents, they do not make the main rights body of fishing boats double control target and the relationships between relevant rights and duties clear, then result this right become spooofing.Through the analysis about the affection degree and reasons that the current fishing boats management system to the legal rights of fishermen, we can find that the problems and shortcomings of the current fishing management system. It is most important that improve the protection of the Chinese fishing vessels management system on the rights of fishermen. From the ideal angle, fishing management system should delete the limit about fishing boats as the production tool and take the fishing resources management seriously. From the angle of fishing permission, we should control fishing intensity strictly and ensure fishing resources sustainable development, then guide fishermen to manage their boats reasonably for ensuring themselves catch input through the management of fishing resources and fishing permission.But cancling the management will cause management mess and vacuum regulation if we do not pay attention to the country’s current management system and the management conditions and its history. So we have to analyze the advice about completing our country’s fishing boats management system based on reality.The main theoretical foundations to complete our country fishing management system are as follows:(1) Fishery right characteristic of fishing boats double control targets. Fishing boats double control target is not equal to fishing rights, because real fishing rights should be got based on the achievement of fishing permission, but it is one of preconditions to get the fishing permission and is a decisive role. The double control target is the right to get in our country’s fish and the definition based on fishery right is also one pattern of manifestation of fishery rights.(2) Administrative Disclosing principle. Fishing boats management as the administrative management relevant to fishermen’s benefits should let the administrative disclosing principle in the whole administrative process, only the things relevant to administrative rights such as the law stated may not be enrolled in the open administration scale. Meanwhile should let the relevant people get into the process for exercising administrative rights. The above are also the three basic principles about process, limit and property of participation of open administration.(3) Fair administration principle.The general low educational level of fishermen as the managed objectmakes them lack of professional knowledge to express their dissatisfaction about system shortage of administrative management and safeguard of themselves rights. The problems been reflected by fishermen include themselves benefits appeal, but they pay more attention to fairness and we should also pay more attention to show up the fair administration principle.Because the core of our country’s fishing boats management system is double control system, the other management methods all are for this service. So the core to complete our country’s fishing boats system is to complete double control system. Completing double control system is to build the whole management system with the center of fishing boats double control target’s right on the basis of the basic theory of fishery right and more important thing is making the target clear. No matter Fishery Law or "Fishing license management stipulation", they have made the legal status of double control target without notice of this right main body. Seeing from the angle of law completeness and the accuracy to determine rights, it is necessary to make the right’s main body in law. Second is to set out the limit of double control target scientifically. Because fishery has systematic attribute in nature and it is limited by a lot of elements such as biologic, ecological, environmental, technological, social, cultural and economic elements, so when make fishing boats double control target, we should consider all the elements that have affection on fishing adequately. Third is to complete double control target circulation system. Current fishing boats management system has not made clear that double control target can transfer freely and the assignability is one of fishery right characteristics. If we want to complete current fishing boats management system according to the principle of protecting rights, we should have to permit this transfer on the law lay and on the operation lay next.Management apartment has to make the right normative through some administrative management methods except making relevant rights clear. But these management methods have to use administrative power reasonably and use more scientific methods to replace intrinsic methods by steps. And these methods also have to obey the fairness principle, for without clear stipulation in law, either give up or make clear through legislation. Meanwhile fishery management apartment should also pay attention to the shortage of input control represented by current fishing boats double control and then use fishery management system with more scientific and reasonable output management. |
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