The legal attributes and system improvement of water rights: from the perspective of the modified application of the two-stage theory

As the core of the water rights trading system, water rights possess characteristics of administrative public interest and features of free negotiation and autonomy of private law. Academiahas long been divided on the legal attributes of water rights, primarily between the public law attribute and the private law attribute. However, confining the discourse to this dualistic “public law vs. private law” debate holds little significance for clarifying the legal attributesof water rights. The two-stage theory offers a framework for defining the legal attributes of water rights through a dual-stage approach, but a rigid application of this theory can lead to ambiguities in definition. Examining water rights through the lens of a modified application of the two-stage theory, which divides them into two distinct stages, allows for a clearer delineation of the legal attributes of water rights. The first stage exhibits typical public law attributes and is governed by administrative law norms. The second stage is primarily characterized by private law attributes but incorporates public law elements, adopting a composite regulatory model based on private law regulation while granting administrative authorities limited preferential rights. Based on this dual-stage division of legal attributes of water rights, this paper further proposes constructing a corresponding dual-stage relief pathway and a diversified dispute resolution mechanism, thereby providing theoretical support and institutional references for the improvement of China's water rights system and the market-based allocation of water resources.