关于水权性质及转让范围的探讨

水权是具有公权性质的私权。虽然水权具备物权的基本特征,是一种财产性权利,但水权是一种用益物权,是对他人所有物享有以使用收益为内容的他物权。水权的法律性质决定了水权转让的范围:水权转让的主体主要是在水权流转中通过水权交易移转水资源使用权的单位或者个人。水权转让的客体,在我国目前情况下只限于多样化的经济用水,且必须是获得取水许可证的水权。从水资源使用权的位次看,家庭生活用水满足人类最起码的生存需求,其第一位次的地位不可动摇,紧随其后的是生态环境用水权。从水资源的用途看,无论是转让人还是受让人,都不能随意变更取水许可证的记载。

Discussion on the Characters and Scope of Transfer of Water Rights

Water rights is a kind of private right which has the characters of public right.Although water rights has some basic characteristics of real right and is a kind of property right,it is a kind of real right for usufruct and its content is enjoying the benefits from the property owned by others.The scope of the transfer of water rights is determined by its juristic characteristics.This paper points out that nations are not included in the subjects of the transfer of water rights.The subjects are mainly the organization or individuals who transfer the usufruct of water resources by water rights transactions.Currently in China the objects of water rights transfer are merely various economic utilization waters which have been granted water licenses.From the point of view of the sequences of usufruct of water resources,drinking water is used to satisfy the basic need of people,so its primary status is unshakable.The next important is the environment water.From the view of the purpose of water resources,neither the endorser nor the transferee can modify the recordation on the water licenses at random.