论水权的性质及构成

On the Nature and System of Water Rights

水权的客体、性质和权能结构可从其自然属性、经济属性、法律属性三方面进行分析。水权是自然资源产权,水权的客体是水资源而非水产品,即生态用水之外的部分水资源。水权是具有公权色彩的私权,是符合物权属性基本前提下的准物权。我国水资源为国家所有,在水权权系构成中,水资源所有权是第一位的权利。水资源所有权的派生权利如占有权、使用权、部分收益权、部分处分权等可与所有权相分离并进行流转,从而形成水权市场和水权交易制度。在我国,水资源使用权即是取水权,根据取水方式的差异,包括汲水权、引水权、蓄水权等;根据水资源使用方式的差异,则包括灌溉权、经营权、饮用权等。本文认为,水域(水面)使用权、排水权、水资源分配权等不属于水权的范畴。

Water scarcity is a crisis which threatens the development of China. Water institution innovation of water rights and water market is necessary for China to overcome water problems. Water rights should be viewed as natural resources property, with water resources （not water product）, excluding ecological water demand, as its objects, water rights is thought to be private domain with the features of public domain and quasi-property with the features of typical one. In China, the country owns water resources. In the system of water rights, the property of water resources is the mother of the other water rights including possession right, use right, profitability right and disposition right, which could be departed completely or incompletely from the mother-body and transferred in the water rights market. In China, water is also called waterdrawing rights, which could be divided into water-lifting right, water-ditching right, and watersluicing right according to the methods of water drawing, or into water demand right of agriculture, industry, family and civicism activities according to the means of water utilization. The author don＇t agree with the opinions that the use right of water body（or water suface）, water-draining right and the administration of water sector belong to water rights.