有限资源特许流转若干问题研究——以《物权法》为视角

A Study of the Issues of the Franchised Circulation of Limited Resources——From the Perspective of Property Law

"公法的私法治理"理论在现代行政法中呼声日高,原先公权力味道甚浓的有限资源特许在现实中已经开始了二级市场的流转。《物权法》规定了矿业权、取水权等特许的用益物权属性,为该部分特许的流转发展提供了法律空间。创造社会价值、使有限资源发挥更大效能是允许这些特许进行流转的目的所在。法律积极引导、政府有效监管与尊重私权利主体意思自治相结合,有限资源特许的流转必将走上良性轨道,为扭转我国环境资源紧张带来福音。

There is an increasing urgency for ＂Private Management of Public Law＂ in the area of Modem Administrative Law. The franchising of limited resources has been in circulation in the secondary market, though it was controlled by the public power before. The Property Law provides the legal foundations for such franchised rights as the watering right and the mining right, and hence for their franchised circulation. The purpose of such a franchised circulation is to create social value and make more efficient use of limited resources. Active legal guidance, effective supervision and management by the government combined with the respect for the self-governing intended by private rights subjects will lead to the circulation being on the right track, which will in turn help to reverse the situation of insufficient natural resources supply in China.