填海造地物权研究

Study on the Property Law of Sea-filling Land

受土地供应量和土地价格的影响,陆上土地开发成本越来越高,人工填海造地成为沿海地区新的开发趋势。开发商盲目的热情与法律制度不合理共同造成了填海造地的混乱局面。如何消除现有的混乱局面,关键在于理顺法律关系,不同的制度生硬地放在一起难免会滋生麻烦。海与地是不同的权利客体,适用不同的法律制度,填海造地行为理论上由两种法律制度规范,实践中行政部门生硬地把两者放在一个程序中完成,看似程序简化了,实则产生更多问题。填海不得地的情况屡有发生,有的情况适用现有制度无解,这既损害了开发者利益,又造成资源的极大浪费。海域使用权是权利群,既有公法权利也有私法权利,属于私权的部分应由私法调整,主要由《物权法》调整,私权行为由私法调整更有利于问题的解决。

Affected by the land supply and land prices, costs of land development are getting higher and higher, and land reclamation by sea-filling has become a trend in coastal areas. However, the developers＇ enthusiasm and unreasonable legal system are contribute to the chaos of reclamation. Different legal system to adjust development activities is the main reason for confusion, therefore, straightening out the legal relationship is the key to eliminating the existing confusion. Sea and land, as the object of the two rights, should be adjusted by the two legal systems, but in practice they are forced to deal with together. Work seems to be simple, but it brings more problems. For example, some developers can not own rights of land after sea-filling reclamation, yet the existing legal system can＇t solve this problem. Thus, this is not only damaging the interests of developers, but also causing a great waste of resources. The nature of the right to use the sea areas is the right group, which has the right of public law as well private law. The private right should be adjusted by private law, the sea-filling reclamation should be mainly adjusted by the property law, which is better to solve the problem.