As the “blue landâ€, sea areas increasingly demonstrate their strategic and economic significance. Tidal flats generally refer to beachfronts. Due to the effects of tides, the mudflats are sometimes flooded and sometimes exposed. Does the tidal flat belong to the sea or the land? What is the legal relationship between the ownership of sea areas and the ownership of beach ownership? This issue is particularly important for our province because of the Yellow Sea in the east and the Bohai Sea in the west. It is also a major concentration of tidal flats in the northern part of the country and is extremely rich in resources. Development of sea areas and tidal flats is an important support for the construction of coastal economic belts and adjustment of economic layout. And the effective way of industrial structure. The premise and foundation for development is the clear definition of ownership of the sea area and the tidal flat, and to rationalize the legal relationship between the two.
I. Study on the Natural Properties of Sea Areas and Beaches
(i) Sea areas
The sea area refers to a certain range of oceans and is a three-dimensional space composed of a certain range of sea surface, water body, seabed and subsoil. Geographically, the sea area refers to all the components of the ocean. According to the different legal statuses, they can be divided into inner seas, territorial seas, contiguous areas, archipelagic waters, exclusive economic zones, continental shelves, high seas, international seabed areas, and straits used for international navigation. In China, it is based on the “Regulations on the Use of Sea Areasâ€. The sea area refers specifically to the water surface, water body, seabed and subsoil in the inner water and territorial waters. Its natural properties are:
First, it is resourceful. The sea area is a treasure house of resources. There are entertainment resources and port resources on the sea surface. There are fishery resources in the water body, mineral resources in the seabed and subsoil. It occupies a very important position in human production and life. From the convenience of boats and boats, the benefits of salt and fish, to marine aquaculture, tourism development, mineral development, and energy use, the resources of the sea area are constantly being developed and utilized by people.
Second, it has three-dimensionality. The sea area is three-dimensional. From top to bottom, it can be divided into four parts: the water surface, the water body, the seabed, and the subsoil. Each part is crisscrossed and it is an organically integrated whole. The three-dimensional nature of the sea area determines that the resources contained in the sea area are also three-dimensional, and as long as the utilization of various resources does not conflict with each other, it can be developed and utilized at the same time.
Third, the sea area is specific. That is, the entire sea area and its components can be countless specific, specific, and relatively independent objects due to "segmentation." However, the sea area also has features such as the versatility of functions and the fluidity of water bodies. It is a spatial resource that cannot be completely separated.
(b) Beach
The beach is the general name for beaches, river beaches and beaches. This article studies the beach in the usual sense of the beach. The beach is generally divided into three parts: (1) the tidal flats above the tidal flats mean the muddy sedimentary areas above the average tidal and high tidal line; (2) the tidal flats between the tidal flats mean the mean tidal highs and tidal lines and the mean low tide line, ie Between the intertidal zone, muddy, sandy, and rocky beaches; (3) The subtidal tidal flats refer to the siltous sedimentary areas in the shallow water below the average low tide line. Its natural properties are:
The first is dynamic. Due to various types of shores, effects of water flow, sediment concentration and other factors, some shores are washed by water and the tidal flats recede toward the land; some shores have a strong accumulation effect, and tidal flats stretch in the direction of water; some shores It is relatively stable and the beach is relatively stable.
Second, it is resourceful. The tidal flat is an important geomorphological feature. The coastline of our province is long, reaching 2,290 kilometers, and the corresponding coastal tidal flat is positive. As an important land resource and space resource, the tidal flats are naturally lacking in land resources and fully utilize the significance of tidal flat resources.
Second, the legal properties of sea areas and beaches
(i) Sea areas
The statutory sea area in our country is defined as the water surface, water body, seabed and subsoil in the inner water and territorial sea. Inner water refers to the sea area where the baseline of the territorial sea of ​​the People's Republic of China goes from the land side to the shoreline. Since the territorial sea baseline refers to the low tide line, the coastline here should refer to the high tide line of the average tide. This shows that the space range between the high tide line and the low tide line and the low tide line to the territorial sea is the sea range. According to Article 46 of the Property Law, “minerals, currents, and sea areas are owned by the stateâ€, and these sea areas are all owned by the state. Under the premise of a maritime country, the unit or individual may obtain the right to use sea areas according to law.
(b) Beach
According to the current laws and the land classification approved by the State Council, the beach belongs to the category of land, and the land management department has always managed the beach as land. Article 2 of the Implementation Regulations of the Land Management Law stipulates that: “The following land belongs to the state owned by the whole nation: (4) Forest land, grassland, waste land, beaches, and other land not legally owned by the collectiveâ€. According to Article 48 of the Property Law, natural resources such as forests, mountains, grasslands, unreclaimed land, beaches and the like belong to the state, except where the law stipulates that they belong to the collective. Tidal flats exist in both national and collective forms. The unit or individual may also obtain the right to use the beach.
(3) Legal conflicts and settlement of sea areas and tidal flats
Both the “Regulations on the Use of Sea Areas†and the “Land Management Law†did not classify tidal flats as tidal flats, tidal flats and subtidal flats. However, they were all included in the scope of adjustment. The marine administrative department defined tidal flats as average. In the sea area above the low tide line below the high tide line, the land and resources management department will define the coastal area as a tidal zone between high tide tides and low tides. After the current law defines the tidal flat as land, it does not clearly divide the boundary between the land and the sea. The existing territorial limits defined by some local rules and regulations often extend beyond the low-water line to the shallow sea.
There must be a legal boundary between the tidal flat and the sea area. I think it should be the coastline. Coastline refers to the boundary between sea surface and land, which changes with the fluctuation of the tide. Generally refers to the line reached by the seaside during many years of high tide. According to the coastline, the part of the shoreline facing the land belongs to the land, and the tidal flat belt belongs to the land; and the part of the coastline to the sea belongs to the sea area, the tidal flat and subtidal tidal flats belong to the sea area. The main reasons are:
1. Because of its clear geographical concept, the coastline can be coordinated with domestic and international law relating to the baseline, internal water, and territorial waters of the territorial sea, becoming a boundary line between oceans and land, and it is specifically clear and operability is strong in practice management. .
2. According to this standard, the implementation of tidal flats along the tidal flats in accordance with the relevant provisions of land management is possible, and also in line with the essential attributes of things; while the tidal flats and subtidal tidal flats are affected by cyclical ocean tides and are typical of marine ecology. The system itself is an inalienable part of the ocean and it should be implemented in the use of sea areas.
III. The connotation and nature of ownership of sea areas and ownership of beach ownership
There are two main types of legal ownership, ownership and use rights. In terms of ownership, the sea area belongs to the state. It is the ownership of property rights, and the main body of rights is the state. The tidal flats can be owned by the state or collectively. The nature is also the ownership of property rights. The main body is the state and the collective. In the use of rights, the two are more complex, and in practice are mainly reflected in the use of this form of development and use.
(1) The connotation and nature of the right to use sea areas
1, connotation
The right to use sea areas refers to the right to apply for the use of sea units or individuals in accordance with legal procedures and registration, and to continue to engage in exclusive development and utilization activities and enjoy the benefits of a certain state-owned sea area within a certain period of time. According to Article 122 of the Property Rights Law, "acquisition of the right to use sea areas obtained by law shall be protected by law."
The sea use rights mainly include: (1) possession, (2) right to use, (3) income, (4) right to transfer, (5) mortgage, (6) right to retrieve and compensation. Its main features are: the special nature of rights object; the derivation of rights; dominance; profitability; term and compensation.
2, nature
The right to use the right to use sea areas mainly includes the following viewpoints: “Theory of negation of real property rights†holds that the right to use sea areas has the dominating and natural features of civil law property rights, but it opposes the view of the subject. It is the material of civil law; the “Theory of Real Right†holds that the sea area is governable and conforms to the concept of the material in civil law. Therefore, the right to use sea areas is a property right; the “quasi-property rights theory†holds that the right to use sea areas is not civil law. Property rights, which are legally regarded as property rights, use the provisions of civil law concerning real estate rights.
China's "property law" adopts the property right theory. The so-called usufructuary right refers to the limited property rights set up on the other person's property (mainly immovable property) with the purpose of using within a certain range, income, and the use value of the controlling object as the content. The usufructuary rights are generated on the basis of the separation of the ownership rights and the owner, and the non-owner has a certain degree of control over the property; the subject matter is mainly immovable property, and the establishment and realization of the property is the possession of another person's real property. The premise; the purpose of its establishment is the use of objects and benefits, the content of its control is the use of the value of things. The right to use sea areas is a right derived from the national ownership of the sea area and separated from the ownership and subject to the will of the owner. The realization of this right is premised on the possession of a specific sea area, and the purpose of use and income is to pay for certain sea areas. The use of gold is a consideration, therefore, it has the basic characteristics of usufructuary rights and should be characterized as a kind of usufructuary right. Moreover, it cannot be used as a right to use land for construction purposes or land use rights for agricultural land. It is even less likely to be classified as a pawning right or easement, but rather as an independent type of beneficial right, which satisfies the direct control of the sea area owner. The fundamental needs of the sea area and the optimization of marine resources through the market have solved the contradiction between the exploitation and utilization of marine resources.
At the same time, the object of the right to use sea areas is not land. Compared with traditional usufructuary rights, the right to use sea areas has its own characteristics:
First, the object of the right to use sea areas is complex. The subject matter of traditional usufructuary rights is immovable and limited to land and buildings. The object of the right to use the sea area is the above ground and underground soil and the resources (such as minerals, biology, etc.) in a specific sea area.
Second, the composition of sea-use rights is complex. The composition of traditional usufructuary rights is based on factors such as possession, use, and income. The composition of the right to use the sea area, on the one hand, takes the powers of possession, use, and income as an element, and on the other hand, it also has the right to engage in salt fields and deep-sea breeding operations in specific sea areas.
Third, the right to use sea areas belongs to private rights that are public law. The traditional usufructuary rights are private rights. Compared with the two, the use of sea areas is more affected by the public law.
(B) the connotation and nature of the right to use the beach
1, connotation
The right to use the tidal flat is the right of the unit or individual to occupy, use, and benefit from the tidal flat according to law. It is not an independent category of the right to use the property in the property law, but mainly refers to the right to use the tidal flat as the object.
Since most of the utilization of the tidal flats is in farming, some legal systems use the right to use tidal flats as the "cultivation use right." From the perspective of property law, "cultivation use right" is not a rigorous concept. The reasons for this are: (1) The use of a variety of forms on the mudflats is not limited to aquaculture, and thus the right to use the mudflats cannot be generalized in terms of aquaculture use rights. (2) The concept of farm use rights confuses the distinction between obtaining a culture permit and obtaining the right to use tidal flats for farming. Obtaining a culture permit and obtaining access to the farming area involves two different legal relationships and cannot be confused.
2, nature
The nature of the right to use tidal flats is usufructuary rights. The use of tidal flats for agricultural purposes such as tidal flat culture, land use rights for land use rights; the use of tidal flats for marine tourism development, such as the shore part of the beach bathing, land use rights for the use of construction rights.
IV. Legal relations between ownership of sea areas and ownership of beach rights
The legal relationship between sea area ownership and tidal flat ownership is relatively simple and clear. The main body of sea area ownership is only the state, and the main body of tidal flat ownership is national or collective. Here, we mainly study the legal relationship between the right to use the sea and the right to use the beach.
(a) The relationship between the two
1. The right to use the sea area and the right to use the mudflat are all rights to use income for the purpose of establishing the property of others, and they are also used as the right to use property in nature. Therefore, they all have their property rights, possession, and profitability. The general characteristics of usufructuary rights, such as time limits.
2. Both use licensing and paid use as their basic systems.
3. Both are subject to certain restrictions on use. The establishment of the right to use the tidal flat must comply with the land use control and overall land use planning. The establishment of the right to use sea areas must comply with the marine functional zoning.
(B) The difference between the two
1, the right object is different. The object of the right to use the sea area is the sea area. The object of the right to use the tidal flat is the tidal flat. The former consists of the water surface, the water body, the sea bed and the subsoil. It is a kind of three-dimensional space. The scope of the latter is generally limited to tidal flats and is mainly tidal flat. There are major differences in geographical distribution, natural attributes, and uses. They are two different natural resources.
2. The contents of the rights are different. The contents of the right to use the tidal flat mainly include two types of tidal flats for construction use and tidal flats for agricultural aquaculture. The contents of the right to use the sea area are relatively broader, including the sea for aquaculture, sea for salt industry, sea for port, sea for ship recycling, tourism use. There are many types of sea use such as the sea, mining sea, submarine cables and pipeline laying, and sea for public utilities.
3, the duration of rights varies. The ecological complexities of the sea area are stronger than land, and it is necessary to adjust the situation of using the sea in a timely manner. The working objects set at sea are also shorter than the buildings on the land. Therefore, the duration of use of the sea area is generally shorter than that of the beach.
4, different nature of rights. The right to use the tidal flat is not an independent type of the right to use the property, but is divided into the right to use construction land and the right to use agricultural land according to the purpose of use of the tidal flat; the right to use sea areas should be an independent type of usufructuary rights, and land use rights. Coexist in the rights system developed by usufructuary rights.
V. Study on Solving the Contradictions in the Rights of Sea Areas and Beaches
In the conflict between the sea area and the beach rights that occurred in practice, only one law can be selected for adjustment, and two different attributes of the law cannot be applied simultaneously or repeatedly. The choice is based on the nature of the object. The ownership of sea areas is mainly directed at the sea area, including the water surface, water body, seabed and subsoil of the internal waters and territorial waters, and is owned by the State; the ownership of the beach is mainly for the tidal flats and belongs to the land. It should be excluded from the scope of the water body, that is, only the tidal zone. Tidal flats are owned by the state or collective.
Conflicts of ownership, including conflicts of ownership and rights to use, as well as conflicts of use and use rights, and conflicts between ownership and use rights. Conflicts between sea area ownership and tidal flat ownership can be defined through legislation or legal interpretation to clarify the nature of their rights and the scope of the object. On this basis, it is divided into three situations:
1. There is a right to use tidal flats, but no right to use sea areas has been formed in tidal flats on tidal flats and under tidal flats. For example, if the country grants the right to use the sea area, under the same conditions, the right to use the beach shall have priority, and if it waives its right of priority and does not become the right holder of the sea area, it may give appropriate compensation if it can expect benefits.
2. The right to use sea areas exists, but the right to use tidal flats has not been formed. For example, the right to use tidal flats for transfer in the future is limited to tidal flats on tidal flats. People who use sea areas have priority, and if they give up priority, they do not become tidal flat owners. Its sea use rights should be maintained.
3. There are both the rights to the use of tidal flats and the right to use sea areas. For example, tidal flats are state-owned, and there are crossovers of rights objects, mainly tidal flats and tidal flats. It is up to the marine and land administrative departments to jointly determine the two right to use. The scope of the object, the two users of the right to negotiate settlement of the interests arising from the change, can not reach an agreement, the party that suffered the loss can file an unfair profit, or apply for state compensation or state compensation. If the mudflats belong to the collective and the right object exists, it should be based on the law that the beach owned by the collective shall be limited to the tidal flat on the tidal flat, and the tidal flat and tidal flat on the tidal flat shall be state-owned, and the tidal zone traditionally owned by the collective In the tidal flats and subtidal flats, the state can provide appropriate compensation if necessary. These areas should be enjoyed by sea use rights holders. For the investment and the expected benefits of the beach owner and the owner, the rights of the beach owner and the user of the sea area can not be agreed upon. The party who suffers the loss can file a lawsuit for unjust enrichment, or apply for a state in accordance with the regulations of the state. make up.
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