The Dilemma Of Herborizing The Wild Plants In China And The Outlet Through Real Right

In the past legislation of our country,wild plants were regarded as the land attachments.So the independent value of wild plants was ignored in legislation.Without the special legal attention paid to them which caused wild plants in China facing the following dilemmas in herborizing: First,the basic rights of herborizing the wild plants are not clear.The main manifestations are that the subject of national ownership is empty,the subject of collective ownership is missing.That caused a fight between the national ownership and the right of use based on the right of the contracted management of land.So many kinds of wild plant resources,especially wild plants that are not protected by the state will face tragedy of the commons.Second,the rights requirements for herborizing the wild plants have not received legal attention and confirmation.The property law does not establish the right to herborize the wild plants.And there is no specific law on wild plant resources that results in the lack of direct legislation for the herborizing of wild plants.The current herborizing rules based on administrative regulations can not solve the core problems faced by herborizing the wild plants in China—unclear ownership and lack of herborizing rights.Third,the dilemma of legal application in herborizing the wild plants.First of all,it is the legal application dilemma faced by herborizing the rights of wild plants in the circulation.Because the right to herborize the wild plants lacks legal basis,the right to transfer can not be justified,so that wild plant resources cannot be passed effectively to achieve the "best use." At the same time herborizing the wild plants faced the delimma of civil responsibility.At present,the legal liability system involving wild plants focuses on the protection of national public interests and ecological interests at the starting point of legislation.In the methods of bearing the liability,it values the punishment through criminal penalties,ignore the civil relief in private law,neglect the civil liability is the most effective method to protect the wild plants.Therefore,this paper suggested to establish the real right of herborizing the wild plants through the property law and the special law,and then clear and define this herborizing right of wild plant is an usufructuary right.So this paper also suggest to enact the "wild plant protection law",which will design the regulations about the concept of the right to herborize the wild plants,access methods,rights changes,rights elimination,civil liability and other regulatory provisions.This article is mainly divided into three parts:The first part is about the basic theory and the legal research of herborizing the wild plants.This section firstly defines the concept of wild plants and herborizing the wild plants.Second,it researched the regulations of the national ownership and herborizing rules in China.Third,it summed up the regulations of the national ownership and herborizing rules researched in the above.The second part is the legal dilemma while herborizing the wild plants in China.First,the basic rights of herborizing the wild plants are not clear,which mainly include that our country's legislation does not clearly define the ownership of wild plants;the main manifestations are that the subject of national ownership is empty,the subject of collective ownership is missing.Second,the rights requirements of herborizing the wild plants have not received legal attention and confirmation.And in the current,herborizing the wild plants are mainly based on the administrative law,which can not address the rights requirements for herborizing.Third,the dilemma of legal application in herborizing the wild plants are involved the right transfer dilemma and the civil liability dilemma.The third part is the outlet of herborizing the wild plants in China.First,this paper suggested to establish the real right of herborizing the wild plants and put it in the usufructuary right system.Second,this paper suggested enact the "wild plant protection law" and then design the regulations about the concept of the right to herborize the wild plants,access methods,rights changes,rights elimination,civil liability and other regulatory provisions and so on.