water right
Water right refers to the ownership of water and various water rights. Its main contents include water ownership, water intake right and other rights and interests related to water conservancy. The basic attribute of water determines the characteristics of water right, which is mainly manifested in the limitation of water right establishment, the uncertainty and instability of water right object and the publicity of water right principle.
Water right refers to the ownership of water resources and the usufructuary right separated from ownership. The ownership of water resources is the power to possess, use, benefit and dispose of water resources, which has the characteristics of comprehensiveness, integrity and permanence. China's water law clearly stipulates that water resources belong to the state, and the ownership of water resources is exercised by the State Council on behalf of the state. Water in reservoirs built and managed by rural collective economic organizations is used by rural collective economy. In order to meet different purposes, we can separate the functions of water resources based on the right to use, and create the right to use, the right to use water and the right to develop. One of the most important is the right to use water resources. The state encourages units and individuals to develop and utilize water resources according to law and protect the legitimacy of water resources.
Water right has the nature of public right, but it should belong to private right in essence. To understand the private right of water right, we should make clear the following questions.
(1) What are the criteria for dividing public rights and private rights? Regarding the division of public rights and private rights, modern jurisprudence generally believes that all laws involving public rights, public relations, public interests, subordinate relations, management relations and compulsory relations are public laws. And any law that belongs to personal interests, personal rights, free choice and equal rights is private law. Therefore, the power in public law should be public power, and the right in private law should be private power. As far as public regulations are concerned, not any ordinary person can be the subject of rights or obligations, but only the sovereign subject or the administrative department can be the subject of rights or obligations, and the behavior implemented by this subject in accordance with public regulations is a public law behavior. On the other hand, for the norms of private law, ordinary people can also become the subject of rights or obligations of acts, not limited to sovereign subjects or administrative organs, but acts according to the norms of private law are private acts. According to this theory, the Water Law stipulates that "the state protects the legitimate rights and interests of units and individuals who develop and utilize water resources according to law", indicating that the main body of water rights is units and individuals, not the state or government that represents the color of public rights. Therefore, water rights are the rights and obligations enjoyed by ordinary people, and water rights should belong to private rights.