依靠法制和科学规范渔具许可制度——以底扒网、帆张网为例

Regulating fishing gear licensing system by legality and science——taking D.P.W.fishing gear and F.Z.W.fishing gear for example

本文针对江、浙两省渔业管理条例有关禁用渔具条款,以底扒网和帆张网为例,从法律和技术两个层面进行剖析,阐明作者观点:①法律体系层面,两渔具不应在《渔业法》规定"禁用渔具"类别内,两省渔业管理条例分别定性其为禁用渔具,不符合"下位法不得与上位法相低触"之立法原则;技术的自然属性层面,两渔具体现了客观的自然属性与人的主观能动性的综合,不失具独特的先进性。②相关禁用渔具法律条款之法律绩效无法实现的症结在管理层面,因此工作着力点应放在强化管理上。③建议对两省渔业管理条例中的有关禁用渔具条款启动"法律修改"程序,并同步实施与解禁渔具相配套的制度与体系构建,即根据幼鱼资源发生和时空分布等客观规律,积极引导捕捞生产,努力寻求利用资源与保护幼鱼之间的平衡。④基于配套法规之科技支撑体系难以短期解决现状,与解禁渔具配套法律体系只能分步构建和逐步完善,可先依据《渔业法》第三十条赋予权限,依法针对资源敏感区、幼鱼高发期实施探索性的临时禁渔规定,并可同时出台最小网目尺寸、幼鱼比例抽检等辅助性渔政管理规定等。

This article takes D.P.W. fishing gear and F.Z.W. fishing gear for example, to the question of Jiangsu and Zhejiang Provinces control regulations which emerged in specifical implementation, the author illustrated his viewpoint based on legal aria technical level：①The two provinces added the two fishing gears in banned fishing gears in fishery management which is not agree with the principle of ＂A lower level law cannot contravenes a higher level law＂ in legal level. The two fishing gears with distinctive advancement represented the combination of their natural quality and subjective initiative; ②The reason of principles of law concerned with forbidden fishing gears which is unfulfillable is from management, so the main focus of work should be strengthen management; ③Advise on implementing the ＂law amending＂ procedure related to banned fishing gears articles in the regulations of fishery management of those two provinces is proposed, and lift ban on the necessary system with system establishment of fishery tackles is put into effect. Namely, it should be based on objective laws as well as space-time distribution of juvenile fish resources to create favorable conditions, so as to protect juvenile fish resources while utilizing resources efficiently. ④ Because of the situation that is difficult to solve in the short-term by the scientific supporting system of regulations, while lift ban on regulation systems can be only step-by-step instructed and gradually improved. Thus, permissions could be granted according to Article 30 of ＂The Fishery Law＂, to implement exploring transitory provisions of closed fishing aiming at sensitive area of natural resources and high season of juvenile fish. Meanwhile, to issue regulations such as, the minimum size of meshes and casual inspection of the percentage of juvenile fish, as supplementary regulations of fishery administration.