我国取水权转让法律制度研究

发布时间：2018-10-09 12:01

【摘要】：水权包括水资源所有权和水资源使用权,在我国制度框架内水资源所有权归国家所有,不得以任何方式流通转让,但以水资源利用为目的的取水权则可以转让。取水权是水资源使用中最核心的权利,以水资源为客体。水资源的经济利益功能和可支配性决定了取水权的私权属性,确切的说是一种财产权。取水权以水资源的使用收益为权利内容,可以被权利人排他性支配,所以取水权是财产权中的物权,具体而言是一种用益物权,可以在主体间进行流通转让。因此取水权转让是一种私权的转让,即取水权从权利人转移到另一个主体的过程。取水权转让的前提和核心是要明确转让的范围。并非所有取水权都可以转让,而是受到取水权用途、取得方式等诸多限制。只有许可获得取水许可证的经济用途取水权才可以进行转让。同时我们应扩大可转让取水权的范围,某些特殊情况下允许取水权的全部转让。除此之外我们还应明确不同位阶取水权之间转让的限制。水资源不仅是一种私人物品,更是一种公共物品。水资源的公共物品属性决定了以水资源为客体的取水权转让应受到一定的政府规制。但本质上取水权转让是一种私权转让。因此政府应该只从宏观上引导和监督取水权的转让,而转让的微观环节应交由市场调节。要以民法的思维解读和构建取水权转让制度。取水权转让协议属于债权合同,其订立与效力等规则应当使用合同法总则,而当事人的权利与义务则应使用买卖合同规则。同时取水权转让作为一种用益物权的转移,属于物权变动范畴,应当遵循物权变动规则。
[Abstract]:Water right includes the ownership of water resources and the right to use water resources. The ownership of water resources belongs to the state within the framework of the system of our country, and can not be transferred in any way, but the right to take water for the purpose of using water resources can be transferred. The right to take water is the core right in the use of water resources, which is the object of water resources. The economic benefit function and dominability of water resources determine the private property of water right, which is a kind of property right. The right to water takes the income of water resources as the right content, and can be exclusive by the right holder, so the water right is the real right in the property right, specifically speaking, it is a usufruct right, which can be circulated and transferred between the subjects. Therefore, the transfer of water right is a transfer of private rights, that is, the transfer of the right to water from the obligee to another subject. The premise and core of water right transfer is to define the scope of transfer. Not all water rights can be transferred, but they are restricted by the use of water rights and the way of obtaining water. The right to receive water for economic purposes can be transferred only if the right to obtain a permit to take water is granted. At the same time, we should expand the scope of transferable water rights, some special circumstances to allow the full transfer of water rights. In addition, we should also clarify the transfer of water rights between different levels of restrictions. Water resource is not only a kind of private goods, but also a kind of public goods. The property of public goods of water resources determines that the transfer of water right should be regulated by the government. But in essence, the transfer of water right is a private right transfer. Therefore, the government should only guide and supervise the transfer of the right to take water from the macro level, and the microcosmic link of the transfer should be regulated by the market. It is necessary to interpret and construct the transfer system of water right by the thinking of civil law. The agreement on the transfer of water right belongs to the contract of creditor's rights, and the rules of contract law should be used for its conclusion and validity, while the contract rules for sale and purchase should be used for the rights and obligations of the parties. At the same time, the transfer of water right, as a kind of usufruct right, belongs to the category of real right change, and should follow the rules of property right change.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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