浅议海域使用权流转之基本价值取向

海洋在过去被认为是完全开放的空间,物权没有存在的余地。但近几十年的实践证明,由于人们恣意于私益,放任于经济利益,海洋不幸成为公地悲剧的现实标本。由于海域资源具有公共物品属性,关乎公益与私益,关乎效率与公平。所以,海域使用权流转制度的构建与完善应以公益与私益平衡、效率与公平兼顾为基本价值取向,因此在尊重公法适度干预的前提下,应从私法的视角对海域使用权流转制度进行理论解释、制度设计和法律完善,使其回归物权性,实现物尽其用。

On the Basic Value Orientation of Circulation of the Right to the Use of Sea Areas

In the past,the ocean was considered as completely open space,and there was no room for real rights.However,the practice in recent decades has proved that the ocean has unfortunately become a real specimen of the tragedy of the commons because people indulge their private interests and indulge their economic interests.Since sea resources are public goods,related to public and private interests,as well as the efficiency and fairness,the construction and improvement of the circulation system of the right to the use of sea areas should keep the balance between public and private interests,efficiency and fairness as the basic value orientation.Under the premise of respecting a moderate intervention of public law and from the perspective of private law,a theoretical interpretation,institutional design and legal improvement should be conducted aiming at the right of the use of sea areas,so that it can return to the nature of real rights and be utilized to the fullest.