物权法视野下的林权研究
发布时间：2019-07-08 10:16
【摘要】：、林权问题起源于我国林业生产经营与林权制度改革的实践。我国《宪法》明确规定森林资源只能由国有和集体所有,在林业生产资料公有的情况下,如何促进林业生产力的发展,是一个重要的基础问题。林权制度就是通过赋予国家和集体以外的非所有权人以森林资源的使用、收益的权利,以明晰产权为基础,支持林权人自主经营,有效利用森林资源,促进森林生态及环境的可持续发展。我国半个多世纪林权制度改革的实践证明,森林资源公有制并不影响将林权作为一种私权看待,从民法物权法的角度对其加以具体规范,才能有效地利用相关的法律制度确定林权的效力,同时为林权提供适当的制度规范和法律救济。对私权意义上的林权研究的起点和基础是对林权概念的界定,总结“林权”一词在我国法律和政策体系中的历史及现状可以看出,林权问题关注的焦点和法律规制的目标在于：林权的主体是只能是国家、集体之外的自然人、法人和其他组织；林权的客体是森林资源,包括森林、林地、林木以及依附于其间的其他林业资源；林权的内容是林权人依所物权法,对森林资源所享有的权利,包括占有、使用、收益及适当的处分权。因此,在概念上,林权是以森林资源所有权为基础,以对特定的森林资源的使用、收益为目的的、特殊的用益物权。在我国物权法体系中,林权因其客体特征、规范功能与矿业权、渔业权、取水权等自然资源用益物权相同或相似,在法律位阶上应当与上述权利类型一致。但与现有的自然资源用益物权(渔业权、矿业权、海域使用权等)和土地用益物权(土地承包经营权、地上权、地役权等)相比,林权仍有其独具的法律特征,物权法应当在用益物权一章将其作为一种独立的权利类型加以单独规定。同时,林权因其标的物的复合性构成,在其内部有着独特的,体系化的具体权利构造,在权利类型上包括林地使用权、林木经营权和森林经营权。三者依客体关系既相互独立、又相互联系,共同构成林权的下位概念体系。在此基础上关联而成的林权,又是一个独立的权利概念,其功能在于统摄全部具体权利,以体现森林资源作为一种生态系统的独立存在,并协调内部各具体权利类型间的冲突和矛盾。从法律效力上看,林权也具有排他效力、优先效力、追及效力和物权请求权效力等物权效力。但受标的物特征和权利性质的影响,林权的物权效力显然与普通的物权存在差异。为保证林权法律效力的实现,在我国,无论是公法和私法都对林权提供了一定的法律保护和权利救济。但目前看来,这些救济方式未成体系且规范不明确,针对性不强,仍有待完善。在林权制度的物权法建构中,还涉及林权设立、流转和消灭等物权变动的问题。在权利设立方面,我国区分森林资源的国家所有和集体所有,依不同的设立方式决定林权登记的不同效力。同时,在资源初始分配后,为鼓励更多主体参与森林资源的开发利用,提高效率,法律上也应对流转作出相应的制度规范,解除现行法对林权流转的不必要的限制。对于林权的消灭,法律尚无明确规定,但依物权法理,林权也会因特定法律事实的发生而消灭,导致林权法律关系的终止。林权的这些法律制度应当被纳入物权法的规范体系中加以明确,但同时也需要由森林法等单行法规对林权的相关具体问题进行规定,通过不同法律部门在林权内外部体系构建上的分工和协调,共同实现用益物权体系内林权法律制度的建构。
[Abstract]:The problem of forest right originates from the practice of the reform of forestry production and management and forest right system in China. The Constitution of our country clearly stipulates that the forest resources can only be owned by state-owned and collective, and how to promote the development of the forestry productivity in the public of the forestry means of production is an important basic problem. The forest right system is the sustainable development of forest ecology and environment by giving the right of the non-title to the state and the collective to use the forest resources, the right of the income and the clear property right, to support the independent operation of the forest right person, to effectively utilize the forest resources and to promote the forest ecology and the environment. The practice of the reform of the forest right system in more than half a century has proved that the public ownership of forest resources does not affect the right of forest to be regarded as a kind of view. At the same time, it provides appropriate legal and legal remedies for the right of the forest. The starting point and the foundation of the research on the right of forest right are the definition of the concept of forest right, and the historical and present situation of the term ""Lin Quan"" in our country's law and policy system can be seen, and the focus of the problem of forest right and the goal of the legal regulation are that the subject of forest right is only the country, natural persons, legal persons and other organizations other than the collective; the object of the forest right is the forest resources, including the forest, the forest land, the forest and other forestry resources attached to it; the content of the forest right is the right of the forest to the right of the forest resources, including possession and use, The income and the right place of separation. Therefore, in the concept, the forest right is based on the ownership of the forest resources, and the special usufructuary right is used for the purpose of the use and the income of the specific forest resources. In China's property law system, the right of forest right is the same as or similar to the usufructuary right of natural resources such as mining right, fishery right and water-taking right because of its object character, and should be consistent with the above-mentioned right type in the legal order. But compared with the existing usufructuary right of natural resources (the right of fishing, mining right, the right to use the sea area, etc.) and the usufructuary right of land (land contract management right, land right, easement power, etc.), the forest right still has its unique legal characteristic, The property right law should be defined as an independent right type in the chapter of usufructuary right. At the same time, the forest right is composed of the compound nature of the subject matter, and has the specific right structure of forest land use right, forest management right and forest management right in the right type. The three elements are independent and interrelated and form the lower-level concept system of the forest right. On the basis of this, the forest right is an independent right concept, its function is to take all the specific rights, to reflect the forest resources as an independent existence of an ecosystem, and to coordinate the conflicts and contradictions between the internal specific rights types. From the legal effect, the right of the forest also has the effect of exclusive effect, the priority effect, the pursuit and the effect of the real right and the effect of the real right. However, the effect of the property of the subject matter and the property of the right is obviously different from that of the ordinary property right. In order to guarantee the legal effect of the forest right, in our country, both public law and private law have provided certain legal protection and right relief to the forest right. At present, however, these relief methods are not systematic and the specification is not clear, the pertinence is not strong, and it is still to be improved. In the construction of the property law of the forest right system, the problem of the change of the real right of the establishment, circulation and elimination of forest rights is also involved. In the area of the establishment of rights, we distinguish the state and the collective of the forest resources, and decide the different effect of the forest right registration according to different establishment methods. At the same time, after the initial allocation of resources, in order to encourage more subjects to participate in the development and utilization of forest resources, to improve the efficiency, the laws should also make corresponding system specifications for the circulation, and the unnecessary restriction of the current law on the flow of forest rights. In the case of the extinction of the right of forest, the law is not clearly defined, but in accordance with the law of the property right, the right of the forest will be eliminated by the occurrence of a specific legal fact, which leads to the termination of the legal relationship of the forest right. The legal system of the right of forest should be incorporated into the normative system of the property law, but at the same time it is also necessary to regulate the relevant specific problems of the forest right by a single-line regulation such as the forest law, and the division and coordination of the internal and external system of the forest right through different legal departments, The construction of the legal system of forest right in the system of usufructuary right is realized.
【学位授予单位】：福建师范大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D923.2;D922.63;F326.2
本文编号：2511516
[Abstract]:The problem of forest right originates from the practice of the reform of forestry production and management and forest right system in China. The Constitution of our country clearly stipulates that the forest resources can only be owned by state-owned and collective, and how to promote the development of the forestry productivity in the public of the forestry means of production is an important basic problem. The forest right system is the sustainable development of forest ecology and environment by giving the right of the non-title to the state and the collective to use the forest resources, the right of the income and the clear property right, to support the independent operation of the forest right person, to effectively utilize the forest resources and to promote the forest ecology and the environment. The practice of the reform of the forest right system in more than half a century has proved that the public ownership of forest resources does not affect the right of forest to be regarded as a kind of view. At the same time, it provides appropriate legal and legal remedies for the right of the forest. The starting point and the foundation of the research on the right of forest right are the definition of the concept of forest right, and the historical and present situation of the term ""Lin Quan"" in our country's law and policy system can be seen, and the focus of the problem of forest right and the goal of the legal regulation are that the subject of forest right is only the country, natural persons, legal persons and other organizations other than the collective; the object of the forest right is the forest resources, including the forest, the forest land, the forest and other forestry resources attached to it; the content of the forest right is the right of the forest to the right of the forest resources, including possession and use, The income and the right place of separation. Therefore, in the concept, the forest right is based on the ownership of the forest resources, and the special usufructuary right is used for the purpose of the use and the income of the specific forest resources. In China's property law system, the right of forest right is the same as or similar to the usufructuary right of natural resources such as mining right, fishery right and water-taking right because of its object character, and should be consistent with the above-mentioned right type in the legal order. But compared with the existing usufructuary right of natural resources (the right of fishing, mining right, the right to use the sea area, etc.) and the usufructuary right of land (land contract management right, land right, easement power, etc.), the forest right still has its unique legal characteristic, The property right law should be defined as an independent right type in the chapter of usufructuary right. At the same time, the forest right is composed of the compound nature of the subject matter, and has the specific right structure of forest land use right, forest management right and forest management right in the right type. The three elements are independent and interrelated and form the lower-level concept system of the forest right. On the basis of this, the forest right is an independent right concept, its function is to take all the specific rights, to reflect the forest resources as an independent existence of an ecosystem, and to coordinate the conflicts and contradictions between the internal specific rights types. From the legal effect, the right of the forest also has the effect of exclusive effect, the priority effect, the pursuit and the effect of the real right and the effect of the real right. However, the effect of the property of the subject matter and the property of the right is obviously different from that of the ordinary property right. In order to guarantee the legal effect of the forest right, in our country, both public law and private law have provided certain legal protection and right relief to the forest right. At present, however, these relief methods are not systematic and the specification is not clear, the pertinence is not strong, and it is still to be improved. In the construction of the property law of the forest right system, the problem of the change of the real right of the establishment, circulation and elimination of forest rights is also involved. In the area of the establishment of rights, we distinguish the state and the collective of the forest resources, and decide the different effect of the forest right registration according to different establishment methods. At the same time, after the initial allocation of resources, in order to encourage more subjects to participate in the development and utilization of forest resources, to improve the efficiency, the laws should also make corresponding system specifications for the circulation, and the unnecessary restriction of the current law on the flow of forest rights. In the case of the extinction of the right of forest, the law is not clearly defined, but in accordance with the law of the property right, the right of the forest will be eliminated by the occurrence of a specific legal fact, which leads to the termination of the legal relationship of the forest right. The legal system of the right of forest should be incorporated into the normative system of the property law, but at the same time it is also necessary to regulate the relevant specific problems of the forest right by a single-line regulation such as the forest law, and the division and coordination of the internal and external system of the forest right through different legal departments, The construction of the legal system of forest right in the system of usufructuary right is realized.
【学位授予单位】：福建师范大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D923.2;D922.63;F326.2
【引证文献】
相关期刊论文 前1条
1 刘采;;生态物视野下的森林生态补偿机制研究[J];安徽农业科学;2014年16期
相关硕士学位论文 前4条
1 汤元瀚;林地使用权抵押法律问题研究[D];浙江农林大学;2012年
2 陈贝贝;商品房土地使用权分割方法改进研究[D];西安建筑科技大学;2012年
3 赵琪;林权纠纷解决的法律对策研究[D];东北林业大学;2013年
4 李松;我国林权抵押风险研究[D];浙江海洋学院;2014年
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