水权与民法理论及物权法典的制定

水权由水资源所有权派生出来 ,是汲水权、引水权、蓄水权、排水权、航运水权等组成的权利束 ,具有私权与公权的混合性质。由其支配形式的特殊性与其客体的特殊性所决定 ,其客体的特定性是个别形态 ,不特定性反而常见。汲水权、引水权等类型犹如水所有权主体的转换器 ,其运行使水所有权从水资源所有权中分离出来 ,转归水权人享有。因此 ,它们不含有占有权能。水权基本上不具有排他性 ,应通过优先性规则来解决水权人之间的利益分配。依据先占用原则取得的水权闲置达一定年限便归于消灭。因水权与典型物权差别过大 ,物权法不宜直接规定 ,但应为其预留足够的发展空间。

Water right is a cluster of rights derived from the ownership of water resources. It consists of the rights to draw, divert, conserve, and discharge water and the right of navigation on water and has the mixed nature of private and public rights. Due to the special character of the form of its disposition and of its objects, its objects are more of a non-specific nature than of a specific nature. The right to draw and to divert water and other types of water rights are like converters for the subject of ownership of the water. Their operation separates the ownership of water from the ownership of water resources and transfers it to the owners of water. Therefore, these rights do not have the capacity of possession. Basically, water right is not an exclusive right and the distribution of interests among the owners of water should be resolved according to the principle of priority. Water right acquired according to the principle of priority will become extinct if left idle for more than one year. Because water right differs greatly from the typical right of things, it should not be direct provided for in the Code on the Right of Things, which, however, should leave enough space for its development. The relevant civil law theories should also reflect on this issue.