社区参与旅游发展制度增权二元分野比较研究

Comparative Study of Dual Division in the Institutional Empowerment for the Involvement of Residential Communities in the Development of Tourism

出于对社区之于旅游的正外部性以及旅游之于社区的负外部性及其内化问题的关注,催生了社区参与旅游发展理念与实践。鉴于中国社区参与失败的核心症结——制度缺陷导致的权利失败,学界围绕社区制度增权机制的构建,已大体形成了立法增权(即为旅游吸引物权立法)与依法增权(即启用地役权)二元分野态势。基于定性研究方法并辅之以多元三角校正,就其制度增权的学理逻辑、实现路径、适用范围等进行了较深入的比较分析。研究表明,闲置中的地役权与创设中的吸引物权,同属物权范畴,各有其制度价值和应用空间,且制度效力可并行不悖,而地役权制度的统摄力更强,更易落地,二者可构成制度增权时间维度上的现在时和未来时。

The concern about the positive externalities of residential communities for tourism and negative externalities of tourism for residential communities and its internalization expedite the emergence of the idea and practice of the involvement of residential communities in the development of tourism. Due to the core crux for the failure of the involvement of Chinese residential communities——failure of rights caused by the defects in the system, the academia has already formed a situation of dual division——legislation empowerment（namely the legislation of the rights of tourist attractions） and law compliance empowerment（namely the use of leasement） on the whole. Based on the qualitative study approach and assisted by the correction of plural trigonometry, we have a conducted comparatively insightful comparative analysis on the logic of scientific principles, path of realization and scope of application of legislation empowerment and law compliance empowerment. The studies have shown that both the idle leasement and rights of tourist attractions in creation belong to the category of right of thing, but the former is the right over the property of another and the latter is a selfuse property right. They have their own institutional value and application space respectively with the institutional effectiveness running in parallel. The governing strength of the leasement system is much stronger and easier to be implemented. The two can form the present tense and future tense in the time dimension of institutional empowerment.Among them, the legislation school focuses on the situation of＂having no right＂for the part of residential communities in their involvement and advocates the＂legislation for the rights of tourist attractions＂from the perspective of self-use property rights. It wants to seek the participating route of equity of the attracting assets of residential communities in the end through defining the property rights,expecting to construct the internalization mechanism of positive externalities for tourist attractions of residential communities in terms of tourism; however, as to the current Property Law in our country, the creation of the category of the rights of tourist attractions will not only surpass the＂principle of numerus clauses＂, but expand the rights of thing from things corporeal to things incorporeal. Its degree of innovation and difficulty in implementation are self-evident. Once the rights are defined by legislation, the residential communities and residents as the holders of the rights for tourist attractions can not only say＂No＂to the tourism developer relying on their disposition right and then realize＂independent management＂via corporatization to enjoy the benefits from tourism by themselves, but choose to cooperate with the developer to realize and safeguard legitimate rights and interests of community residents in the circulation of rights. And the school of law compliance empowerment mainly focuses on the＂derighting＂situation in the involvement of residential communities. It tries to realize the rights of thing related to creditor. s rights through the regulation by contract for leasement and announcement of leasement registration based on the leasement system of the current Property Law in China. So, community residents can realize the participation in the form of creditor ruct the double internalization mechanism——positive.e s rights-turned rights of thing and then constxternalities of residential communities for tourism and negative externalities of tourism for residential communities.But, as the generation of the current leasement must require the existence of two different rights of land/property at the same time, so, leasement is powerless for the regenerative attracting tourist site/scenic spot under the replacement of property rights; and in an era of all-for-one tourism, the rights of attractions are unable to govern all the use forms of land/property and the issue of the internalization of its negative externalities（the multiple purpose in utilization such as passage, drawing water, water diversion/draining）, but leasement can do a good job in this area.Therefore, the dual empowerment mechanism of rights of attractions and leasement can be expected to run in parallel for its different suitable spaces; because of the stability of the legal relation of creditor＇s rights-turned rights of thing, leasement is more advantageous than rights of attractions for the numerous original attracting type tourist sites/scenic spots at present.