谁是中国沿海滩涂的所有者？——滩涂所有权的制度变迁与争议

研究目的:梳理沿海滩涂所有权制度变迁,提出解决沿海滩涂所有权冲突的政策建议。研究方法:文献资料法,比较案例分析。研究结果:土地改革后,沿海滩涂国有和私有并存,合作化后形成既有国有也有集体所有的格局,之后在1982年《宪法》中得到重申,在民法通则、渔业法、农业法、物权法等法律中得到确认和细化;国家曾有将沿海滩涂全盘国有化的倾向,但最终均回到既有国有也有集体所有的轨道上;进入21世纪后,由于对《海域使用管理法》中"海域属于国家所有"的解读,大量涉及沿海滩涂的用海活动按照滩涂属于国家所有来审批和实施。研究结论:沿海滩涂应部分属于国家所有,部分属于集体所有;将沿海滩涂一律视为国家所有有悖宪法、相关法律和历史传统,引发了无数冲突;应尊重历史和现实,公允对待沿海滩涂集体所有的主张,加快推进沿海滩涂所有权确权登记颁证。

Who are the Owners of China's Coastal Wetland? The Institutional Change and Controversy of the Ownership of Coastal Wetland

The purpose of this paper is to investigate the institutional changes of ownership of coastal wetland. The methods of documentation and case study were employed. We find that, after land reform in the early 1950s, there were two types of ownership regarding coastal wetland, the state-owned and the private-owned ones. During collectivization in the 1950s, the private-owned coastal wetland was turned into collective-owned. Such institutional arrangement was restated by the 1982 Constitution, and elaborated by General Principles of the Civil Law, Fisheries Law, Agriculture Law, and the Property Law. Nevertheless, there were several attempts to nationalize all coastal wetland in history. Although such attempts did not succeed, such inclination and its underlying mode of thinking brought chaos and led to a great deal of disputes and conflicts in practice. In conclusion, it is necessary to respect the history and reality of the ownership of coastal wetland, to be fair to collective ownership, and to speed up the confirmation, registration and issuance of coastal wetland certificates.