论公物性质的国有海域使用制度的构建

On the Construction of the Use System for State-Owned Marine Areas with Public Nature

我国法律规定了海域等自然资源归国家所有,但国家海域所有权还存在性质不清、主体虚化的问题,国家对海域使用权出让的范围过宽导致与民争利的情形时有发生,需要将海域进一步区分为公物性质的海域和私物性质的海域,分别设定不同的使用规则。在公物性质的海域使用方面,应通过划定公物性质海域的范围,明确公物性质海域使用的原则和具体的使用方式,分清公物性质海域上的权力、权利结构,合理确定公物性质海域利用权的性质和内容,特别是明确赋予沿海居民对公物性质海域的习惯性利用权,以保障公物性质海域上公共利益的有效实现。

Although China’s laws stipulate that natural resources, such as marine areas, should be owned by the state, there still exist such problems as the unclear nature and the vacancy of the main body in the national maritime ownership. The range of concessions granted by the state for the use of marine areas is too broad,which often leads to the controversy over the profits between the state and the people. Therefore, it is necessary to further divide the marine areas into the waters with public nature and those with private nature, and set different rules of use respectively. In terms of the use of marine areas with public nature, it is supposed to delineate its scope, clarify the principles and specific means for its use, distinguish the structures of its powers and rights, reasonably confirm the nature and contents of its use rights, and particularly endow the coastal residents with their habitual use rights, so as to ensure the effective realization of public interests in these marine areas.