论水资源国家所有的必要性

水资源权属在宪法、民法通则和水法中都已经有了明确规定 ,但在民法典起草的过程中 ,对水资源的国家所有权又产生了不同的看法。本文首先以水资源权属的演变为据 ,证明在 2 0世纪中叶以前 ,虽然水资源一直是为私法调整的财产但却不是独立的私有权客体这一事实。通过分析 ,作者认为 ,水资源私有与水资源的整体性、生存价值以及产权多重结构要求相对立 ,而水资源国有既符合水资源作为民法公有物的特殊性质 ,又适应了国家作为特殊民事主体的要求 ,还是实现水资源市场配置的必要前提条件。现代各国立法和判例都规定水资源国家所有的事实 ,提醒我们将国家所有权与社会主义公有制在任何时候都捆绑在一起的立法模式和思维习惯应该转换

On the Necessity of State Ownership of Water Resource

water resource titlehood has been clearly stipulated by the Constitution, the general principles of civil law and the wate r law. Nevertheless, in the course of drafting the civil code, there existed dif ferent views about the state ownership of water resource. This article takes the development of water resource titlehood as evidence proving that water resource had been a kind of property adjusted by private law before the mid 20th century , but it wasn't the independent object of proprietary rights. Through the analys is, the author suggests that water resource privy is opposite to the requirement of the integration of water resource, its existent value and its multiple-struc tured property right. Water resource owned by the state accords with the specifi c nature that water resource as the public object of civil law, it also meets th e need that the state as the special civil subject. Moreover, it is the necessar y premise that brings about the market disposition of water resource. The fact t hat legislation and case (S) in every modern country provide that water resource belong to its country reminds us that we need to change the legislation model a nd thought habit that binding the state ownership and the socialist public owner ship at any time.