1. Established the national ownership system of wildlife resources. There is a great controversy in academic circles about whether the national ownership of wildlife resources should be stipulated. The national ownership system of wildlife resources established in Article 49 of China's Property Law conforms to the objective situation of wildlife resources management and utilization and the unity of the current legal system, and has certain scientific nature.
2. Implement the paid use of animal natural resources. Article 1 19 of the Property Law stipulates: "The state practices a system of paid use of natural resources, except as otherwise provided by law", thus clarifying that the use of natural resources, including animal resources, is based on the principle of paid use, except for free use. The Property Law establishes the system of paid use of natural resources. According to the comprehensive standards of transfer price, development, utilization and protection ability, the government can transfer the specific property rights of natural resources to the market entities that meet the legal conditions in the primary market through fair and open procedures such as consultation, auction and bidding, so as to maximize the economic value and ecological value of natural resources.
3. The rights of raising animals and fishing have been clearly defined. Article 123 of the Property Law stipulates that "the exploration right, mining right, water intake right and the right to use water areas and beaches for breeding and fishing are protected by law", which establishes the usufructuary right of animal resources, namely the breeding right and fishing right. The provisions of the Property Law make it clear that the breeding right and fishing right are usufructuary rights obtained on the basis of state or collective ownership. Then, when the rights of the obligee are infringed, they can seek civil relief according to law.
Second, the Property Law should be improved in the protection of animal resources.
Although the above provisions of the Property Law reflect a great progress in the protection of animal resources in the field of private law in China, we believe that from the perspective of protecting animal resources and solving current social problems, the existing legislation such as the Property Law needs to be improved in the following aspects:
(1) Give animals special legal status.
We believe that under the current level of science and technology, animals can't express their will, exercise their rights and undertake their obligations, and it is not legal and operable to stipulate the legal subject status of animals. However, animals, as creatures and objects of real rights, do have their particularity. Animals are advanced life forms and have the same perceptual and emotional needs as human beings. They should not be treated equally with other things, but should be reflected in the property law. Whether out of reason, morality, sympathy, self-reflection or safeguarding human dignity, most people think that animals enjoy certain welfare. More than 100 countries in the world have enacted animal welfare legislation to varying degrees, and China is no exception. Property law is the basic law that stipulates the way people use things. If we can learn from the revision of the German Civil Code and establish the special status of animals in the property law by oath, it will be a good choice to protect animal resources and coordinate with other animal welfare legislation in China.
(2) Expand and clarify the adjustment and protection scope of animal resources in the Property Law.
The scope of protection of animal resources in China's relevant legislation is narrow and chaotic, which has been criticized by environmental and resource law scholars. There are also defects in the provisions of the Property Law on the protection of animal resources. First of all, the concept and category of animal resources protected by property law are rather vague. Secondly, the property law follows the consistent hierarchical protection of animal resources in China, and there is no progress at all. In fact, the Wildlife Protection Law, which is the basic law of animal resources protection in China, has been unable to meet the needs of comprehensive protection of animal resources because it obviously focuses on the protection of "endangered species". Third, the Property Law does not specify the ownership of animal resources in other laws, but stipulates the breeding right and fishing right in the usufructuary right when its ownership is unknown, which cannot provide sufficient basis for the source of usufructuary right and the implementation of administrative license by the state. According to China's Constitution, Property Law, Wildlife Protection Law, Fisheries Law, Forest Law and other relevant laws and practices, it can be inferred that the ownership of animal resources includes the following categories: 1. According to the Wildlife Protection Law, "precious and endangered terrestrial and aquatic wildlife" and "three haves" (the same. 2. Unprotected wild animals that grow on forests, trees and woodlands belong to forest resources, except those that are collectively owned by the state according to the law; 3. The ownership of aquatic non-protected animals is not clearly defined by law. In practice, aquatic non-protected animals, as a part of the waters and beaches where they live, belong to the state unless the law stipulates that they are collectively owned. The usufructuary right holder obtains the ownership of aquatic animals through breeding and fishing after obtaining the contracting right or administrative license; 4. Unprotected animals other than the above animals belong to the state according to Article 9 of the Constitution, but there is no similar provision in the Property Law. This extremely abstract state ownership conflicts with the use of animal resources in practice, which is not conducive to the goal of protecting animal resources.
It can be seen that the ownership system of animal resources in China is messy and incomplete. The author believes that the property law should expand the scope of protection of animal resources and change the current situation of incomplete ownership of animal resources. At the same time, the property law should pay attention to the ownership setting of non-protected animals. The existing unprotected animals will become endangered in the future if they are not effectively protected. We must emphasize reasonable and limited utilization on the premise of protecting its ecological value, and lay the foundation for animal welfare legislation. We suggest that non-protected animals should be divided into companion animals, economic animals, experimental animals, wild animals and working animals according to their utilization methods, and be protected accordingly.
(3) Expand the types of usufructuary rights related to animals.
Article 5 of the Property Law stipulates: "The types and contents of property rights are prescribed by law." According to the qualitative principle of property law, the parties have no right to create new types of property rights, and the content of property rights and the legal relationship of property rights agreed by the parties in the legal relationship can only be the content stipulated by law. However, the usufructuary right of animal resources established in the Property Law is only the right of feeding and fishing, which is far from meeting the practical needs. First of all, the breeding right and fishing right are aimed at aquatic animals, and the usufructuary right of terrestrial animals is not involved at all, which is a big legislative blank; Secondly, it does not include the utilization of animal resources stipulated by existing laws. For example, Article 16 of the Wildlife Protection Law stipulates: "If it is necessary to hunt wild animals protected at the national level due to scientific research, domestication and breeding, exhibitions or other special circumstances, it is necessary to apply to the wildlife administrative department of the State Council for a special hunting and catching license; Anyone who hunts and hunts wildlife under second-class national protection must apply to the wildlife administrative department of the government of a province, autonomous region or municipality directly under the Central Government for a special hunting and catching license. " Article 17 stipulates: "The state encourages the domestication and breeding of wild animals. Anyone who domesticates and breeds wild animals under special state protection shall hold a license. The license management measures shall be formulated by the administrative department of wildlife in the State Council. " Article 27 stipulates: "Anyone who engages in the management and utilization of wild animals or their products shall pay the management fee for the protection of wild animal resources." It can be seen that the methods of wildlife utilization clearly stipulated in the Wildlife Protection Law include hunting, domestication and breeding, management and utilization. If the property law does not recognize the above rights as usufructuary rights, what rights does the right holder who has obtained the above activity license have? How to get legal protection? Therefore, the property law should increase the types of usufructuary rights of aquatic and terrestrial animals according to actual needs in order to protect the interests of obligees.
(4) Improve the compensation system for wildlife damage.
In China, cases of personal and property losses caused by wild animals such as wild boar and bear are common. All along, China has compensated victims through the national compensation system established by the Wildlife Protection Law. Article 7 of the Law on the Protection of Wild Animals stipulates: "If crops or other losses are caused by the protection of national and local key protected wild animals, the local government shall compensate them." Article 10 of the Implementation Regulations on the Protection of Terrestrial Wild Animals further stipulates: "The relevant units and individuals shall take preventive measures against the possible harm caused by national and local key protected wild animals. Anyone who suffers losses due to the protection of national and local key protected wild animals may claim compensation from the wildlife administrative department of the local people's government. If compensation is really necessary after investigation, the local people's government shall give compensation in accordance with the relevant provisions of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government. " However, the implementation effect of the state compensation system is not ideal. According to statistics, from 199 1 to 200 1, the actual losses caused by wildlife injuries in all parts of the country reached 60.65 million yuan, but the government received less than110. The reasons mainly include the following aspects: First, the above-mentioned laws only stipulate the right of the victims to receive government compensation for personal injury or property loss caused by terrestrial wild animals under special state and provincial protection. However, there is no clear legal basis for compensation for damage caused by "three beasts" and unprotected wild animals. Secondly, there are only a handful of local legislations on the state compensation system, including the Measures for Compensation for Personal and Property Damage Caused by Key Protected Terrestrial Wild Animals in Yunnan Province, the Measures for Compensation for Personal and Property Damage Caused by Key Protected Terrestrial Wild Animals in Shaanxi Province and the Measures for Compensation for Personal and Property Damage Caused by Key Protected Terrestrial Wild Animals in Jilin Province. In most areas, the compensation objects, compensation standards, compensation procedures and other issues after wildlife damage are in the legislative blank. Third, the subject of compensation is unknown. The "local government" stipulated by law refers to the people's government at which level, and there is no basis for how to share the liability for compensation between the central government and the local government, which often leads to the phenomenon that governments at all levels prevaricate the parties to the claim. The Property Law stipulates the national ownership of wildlife resources, and Article 7 stipulates: "The acquisition and exercise of property rights shall abide by the law, respect social morality, and shall not harm public interests or the legitimate rights and interests of others." On the basis of the above provisions, a national compensation system can be established to make up for the deficiency of the national compensation system in the Wildlife Protection Law. First of all, confirm that the subject of compensation is the state. Because the country, as the owner and manager of wildlife resources, should fulfill the obligation of being a kind manager, and the wildlife it controls should be fully compensated by the government on behalf of the country, not properly compensated. Second, wildlife resources are owned by the state, that is, by the whole people. The ultimate beneficiaries of protecting wildlife resources are the whole society and all citizens, so the losses it brings cannot be borne by only a few places and a few people. Therefore, compensation should be based on the central government, supplemented by local finance. The reality of our country is that most of the areas rich in animal resources are economically underdeveloped areas, with great differences in economic strength between regions and obvious differences in financial strength among local governments. The state should set the compensation ratio between the central government and local governments according to the economic level of each place.