自然资源国家所有权公权说
巩固自然资源国家所有权公权说
State Ownership of Natural Resources as a Kind of Public Power
期刊名称：《法学研究》
期刊年份：
作者：巩固
单位：浙江大学光华法学院
中文关键词：自然资源;国家所有权;宪法权;物权
英文关键词：natural resources;state ownership;constitutional power;real right
中文摘要：
自然资源国家所有权在主体、客体、内容、行使、救济与责任等方面都与物权存在本质差异，其并非处理平等主体间财产关系、以确立特定主体对特定物的“直接支配”为内容的民法物权，而是划分国家与个人界限，为“全民”意义上的抽象国家以立法和行政手段“间接干预”资源利用提供合法依据的宪法公权。资源国家所有权与资源物权并非同一层面的事物，二者并不排斥，而是互补并存。国家所有权只是形成资源利用秩序的前提，资源物权才是建立秩序的关键，其需要明确的法律规定，而无法从宪法权性质的国家所有权中推出。没有清楚区分公权与私权、公物与私产是导致国有资源与民众产生“疏离”、偏离公益本质的根源，这一状况应当改变。
英文摘要：
There are essential differences between state ownership of natural resources (SONR) and real right in their subject, object, content, implement, responsibility, and so on. SONR is not a kind of real right which is used to cope with the property relations among equal subjects and entitle specific subjects to directly control specific objects, but a kind of constitutional power which provide legitimacy for the state who represents the whole people to intervene into the resource utilization by legislation and administration. SONR and natural resources real right are different things in different level, and they are not mutually exclusive but cooperative and complementary. SONR just provides a prerequisite to form the utilization order of natural resources, and natural resources real right is the key to the formation of the order. It should be determined by the specific provisions in the law whether some kind of recourses are monopolized by the public body. The natural resources which are just stipulated to be owned by the state in the constitution without specific real right rules in the law should be deemed to permit social members to utilize reasonably according to the principle of preoccupancy.There is no problem for the Heilongjiang people's congress to reclaim that the climatic resources belong to the state in the local legislation, but it is beyond its power and violates the constitution to lay restriction on the use of climatic resources. Meantime, as a kind of natural resources which has no specific real right rules stipulated in any law, the ebony which be found by somebody should belong to the founder, but the state legislative intervention can be taken when it is necessary. The deviation of the state-owned resources from the common people and public interest is due to the confusion between the public power and the private right and the absence of distinction between the public property and the private property. This should be changed.
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