Study Of The Legal System Of Water Intake Entitlement's Transfer

Water rights include the ownership of water resources and the right to use water resources.In the framework of China's systems,the ownership of water resources is exclusive to the state and shall not be circulated and transferred in any way while the water entitlement which aims at using water resources can be transferred.Water intake entitlement is the core right of using water resources,which takes water resources as objects.Both the function of economic interests and the utilization of water resources make water intake entitlement a private right.To be exact,it is a property right.Water intake entitlement takes the usufruct of water resources as its right content and can be exclusively disposed by the right holder.Therefore,water intake entitlement is a right in rem of property right.Concretely speaking,it is a usufructuary right and can be circulated and transferred between subjects.The transfer of water intake entitlement is a transfer of private right from one right holder to another subject of right.The prerequisite and core of water intake entitlement's transfer is to define the scope of transfer.Not all of water intake entitlement can be transferred.Its transfer is restricted to quite a few factors,such as the use and means of drawing water.After acquiring the permission of drawing water,only the water intake entitlement that has economic utilization can be transferred.Meanwhile,we should expand the scope of water intake entitlement that can be transferred.In some special circumstances,the water intake entitlement can be transferred totally.Apart from this,we should make the restrictions to the transfer of the water intake entitlement of various usages and degrees explicit.Water resources are not only a personal item,but also a public item.Owing to water resources' nature of public item,the transfer of water intake entitlement which takes water resources as object is regulated by government to a certain degree.However,the transfer of water intake entitlement is actually a transfer of private right.Thus,the government should guide and supervise its transfer macroscopically and make the microscopical links of its transfer be adjusted by market.The system of the transfer of water intake entitlement should be interpreted and established from the perspective of civil law.The agreement of transferring water intake entitlement is a contract for credit.The rules concerning its establishment and validity should conform to the general rules of the contract law while the rights and obligations of the parties should comply with the rules of the sales contract.Meanwhile,the transfer of water intake entitlement,which is a transfer of usufruct,is in the scope of the change of right in rem and should apply the rules of property variation.