The Foundation of Natural Resource Legislation:A Comparison of Resources and Property

The difference between‘real’requirements in property law and‘resource’character in the natural environment, and the possibility of applying the concept of‘real’to natural resources are being increasingly discussed within China. According to traditional theory, the adjustment of public law is distinguished from one of private law by public interest. So public interest held in natural resources becomes a theoretical obstacle to the legal regulation of real property to natural resources. Modern property rights systems are the summarization of the experiences of legal practice in land resources. When a legal theory based on real estate, such as land resources, is applied to natural resources with a variety of states, there is a tight contradiction between exclusive feather of property system and common interest of natural resource. To this end, property interest contained by natural resource was analyzed to determine the internal difference compared to land property rights. To meet the requirements of market reform for natural resources, the traditional principle of property interest should be adapted to both the dual character of public interest and private interest in natural resources. The natural resource should be brought into the category of the concept of‘real’in the property system. Investigation of the practice in China's wind energy resource sector indicate that natural resources with the character of scarcity and utility can be regulated by property systems in the condition of market economy, and public interest derived in resources is involved in the justification. The legislation about real rights can respond to these challenges as a result of characteristic of natural resource by entrance into the resource market. The understanding in diversification forms of natural resources is the key to grasp the property concept of natural resources. Historical review and analysis of natural resource legislation point out that the groundwork property system in natural resources is not a debate about tangible or intangible property, nor a debate about the name of property legislation. By the means of property theory of common law, all natural resources can be regulated by property legislation no matter whether tangible or intangible, and single or collective. Natural resources with utility and scarcity characteristics can become the object of the property right by a market bargaining system because of an inherent legitimate public interest.