论渔业权

On Right of Fishery

渔业权不是一项独立的民事权利类型,渔业权制度的存废与海域的法律地位紧密相连。作为内国法上的渔业权制度,在英美法系国家并非一种财产权而是一种公权,体现为国家对海洋渔业资源进行管理的许可证制度;在以日本为代表的大陆法系国家,渔业权是一种由本权和派生权利共同组成的双层权利结构。由于我国明确宣示海域为国家所有,传统法上的渔业权制度被现有的不动产物权体系所吸收,若创设渔业权,将破坏物权法上的一物一权原则。

Fishery is not a separate civil right, the existence of which is closely connected with legal status of sea waters. In common law countries, being a right in domestic law, fishery refers to a public right rather than a property, which embodies a licensing system established by a state to administer its sea fishery resources. In contrast, in civil law countries, e.g. Japan, right of fishery means a double layer right that encompasses a principal right and a derived one. In this author’s opinion, right of fishery is actually not an independent civil right. As far as the PRC is concerned, the establishment of fishery is insignificant because right of fishery has been merged into the existing real right law system (after the government’s declaration that sea waters are a state property). With right of fishery, the principle in real right law that one right is for one thing would be contravened.