我国海洋经济近些年来得以迅速发展,但随着航运业、海上工程的蓬勃发展,传统渔场呈现“管线弥补,航线纵横”的状态,传统渔区日渐萎缩. 再加之各省市伏季休渔期的不断延长,传统渔民生产作业的渔场面积逐渐减少,而渔民对于捕捞需求量日益增多,形成了供不应求的局面. 由此引发的近海海域养殖权和捕捞权的纠纷不断,渔民间矛盾纠纷不断升级,甚至引发群体事件. 这一系列的问题表面上是由于利益分配不均造成,但更深层次的原因还是养殖权与捕捞权之间,对于水域利用的不同性质与法律效力所导致的. 因此正确地分析养殖权与捕捞权二者的性质与特征,是缓和日渐紧张的渔事纠纷事件,从根本上解决捕捞养殖作业渔场纠纷问题,维护海上渔业生产安全与秩序的必经之路. 本文深入分析了我国养殖权与捕捞权的概念特征与法律属性,并以此为基础,针对近海捕捞与养殖之间的矛盾进行研究,以遵循处理海上渔事纠纷基本原则为出发点,提出了构建渔业权双层结构、推行海域分层使用机制、建立海上役权、完善海上侵权赔偿机制等一系列解决方案.
With the rapid development of China's marine economy in recent years, with the rapid development of shipping and marine engineering, traditional fishing grounds show a state of "pipeline remedies, routes and horizontal", and the traditional fishing areas are shrinking. In addition, the area of the traditional fishermen's fishing ground has been gradually reduced, and the fishermen's demand for fishing is increasing, which has formed a situation in short supply. As a result, disputes over aquaculture rights and fishing rights in coastal waters have been increasing, and disputes and disputes between fishermen have escalated and even triggered mass incidents. This series of problems are caused by the uneven distribution of interests, but the deeper reasons are between the right of aquaculture and the right of fishing, and the different nature and legal effect of the water use. Therefore, the correct analysis of the nature and characteristics of the two parties of the right to fishing and fishing is to mitigate the increasingly tense fishery disputes, to fundamentally solve the problem of fishing farm disputes and to safeguard the safety and order of marine fishery production. In this study, the concept and legal attributes of the right to fishing and fishing in China are deeply analyzed. On the basis of this, the research on the contradiction between fishing and aquaculture is carried out. In order to follow the basic principles of dealing with fishery disputes at sea, this paper puts forward a two-layer construction of fishery rights, the implementation of the stratified use mechanism of sea area, and the construction of the sea area. A series of solutions, such as establishing maritime servitude, improving maritime tort compensation mechanism, and so on.