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随着我国社会经济的不断发展,水域开发利用活动日趋频繁,由此造成的渔业水域面积缩小、水域渔业功能退化的情况已十分严重。由于海域被其他用活动占用或者海洋污染造成渔业功能退化等显性、隐性原因,现实中产生了渔民“失海问题”。依照物权法第一百二十三条规定,依法取得的捕捞权利受法律保护,从而明确了捕捞权的物权性质,但是法律没有从民事权利即“私法”的角度对捕捞权进行明确定义,导致该权利主体、客体模糊,在合法取得捕捞权的权利主体受到权利损害时缺乏相关救济措施。本文从捕捞权是一种带有强烈公权色彩的私权,即“准物权”角度入手,分析其独特的物权效力,认为法律应明确捕捞权的主客体,并在此基础上完善我国捕捞管理制度,如在我国渔业法中明确定义渔业权的概念,同时区分准渔业权渔业、渔业权渔业、娱乐渔业;鼓励成立民间渔业组织,确认民间渔业组织捕捞权的主体资格等。
With the continuous development of our society and economy, the activities of water area development and utilization are becoming more and more frequent, resulting in the reduction of the size of the fishery water area and the serious deterioration of the fishery function in the water area. Due to the fact that the sea area is occupied by other activities or the obvious and hidden causes such as the degradation of fishery functions caused by marine pollution, fishermen have actually produced the problem of losing the sea. According to Article 123 of the Real Right Law, the fishing rights obtained according to law are protected by law, so as to clarify the nature of the real right of fishing rights. However, the law does not clearly define the fishing rights from the perspective of civil rights, that is, “private law” Resulting in the obstruction of the subject and object of the right and the lack of related remedial measures when the subject of the right to obtain the fishing right is damaged by the right. In this paper, the fishing right is a kind of private right with a strong public right color, that is, “quasi-property right” perspective, analyzing its unique property right effect, that the law should clear the subject and object of fishing right, and on this basis On the improvement of China’s fishing management system, as in China’s fishery law clearly defined the concept of fishing rights, while the quasi-fishery rights of fisheries, fisheries rights, fisheries, recreational fisheries; encourage the establishment of private fisheries organizations to confirm the civil rights of fishing organizations, the main qualifications .