美国渔业公共信托理论评析——中国构建现代渔业管理制度的借鉴

Comments on the Public Trust Doctrine of US Fishery——Inlightment of the Construction of Modern Fishery Management System for China

在美国法上,渔业资源被界定为具有特殊性质的物,不适合由私人所有或者在特定情况下即使由州和联邦政府授权私人享有使用权,其权利人也不得排除公众对渔业资源享有天然的利益。"公产"与"私产"之争、公共渔业权与个人排他性捕捞权之争催生了英美法上特有的利益平衡机制——"有限介入权制度":将渔业资源归入公共信托资源,以此破解哈丁所关切的"公地悲剧"。我国《渔业法》虽经两次修订,但仍然不足以调整日益繁复的渔业法律关系。借鉴公共信托原则作为现代渔业管理创新机制的理论基础,并使之转化为我国渔业法条款,可望构建起有中国特色的现代渔业管理制度体系。

According to the American law, fishery resources have been defined as a thing with special characte-ristics, which is not allowed for private ownership or even under particular circumstances with state or federal authorization not allowed to use exclusively, and whose holders may not interfere the public with the use of natural interests such as fishery resources. Those disputes, which are between ＂public＂ and ＂private property＂ and between public access to fishery and individual exclusive fishing rights expedite a special interests balancing mechanism, limited access right, which is typical in Anglo-American law system. It would make fishery resources Public Trust resources in order to give solution to the Tragedy of Commons. Even after two amendments, Fisheries Law of the Peoples Republic still cannot meet the need to adjust the increasingly complicated fishery legal relationship. The paper holds that the Public Trust Doctrine is the theoretical basis of the modern fisheries management innovation mechanism. One should learn from the Doctrine, convert it into Terms of Fisheries Law in China, and construct a modern fisheries management system with Chinese characteristics.