Research On Chinese Legal System Of The Grant And Transfer Of Mining Rights

The system of the grant and transfer of mineral rights which is an important component of Chinese natural resources legal system is essential to realize the optimum allocation of mineral resources. The establishment of the system of the grant and transfer of mineral rights helps to promote the circulation of domestic and foreign mineral capitals and to intensify the exploitation of mineral resources through importing the foreign advanced prospecting and mineral technology. After years of exploration and efforts, China has basically formatted a market oriented assignment system which uses the main method of tender, auction and bid in competition. However, current system still has some problems and needs to be consummated.Chinese mineral legislation has no direct definition of mineral rights. As to the legislation of mineral rights, there are many ideas such as administrative licensing, the right of finding, property right, quasi real right, obligatory right, usufructuary right and etc. Article123of Chinese Real Right Law has ascertained the real right arbitration of mineral right. It builds the foundation of the legal system of circulation of mineral right. The market of transfer of mineral right includes primary market, namely the market of assignment of mineral right and secondary market, the market of transfer of mineral right between holders of mineral right. Chinese mineral legislation before1996did not accept the legal circulation of mineral rights as the special commodity. After1996, the mineral legislation gradually established the basic legal system of 'acquisition for value and assignment by operation of law'for mineral right. Relevant laws and regulations have laid down the norms for the condition and procedure for examination and approval of the transfer of mineral rights. The amendments are made by Minister of Land and Resources which is the competent authorities of minerals through regulations and normative documents. However, Mineral Resources Law which deeply holds the color of planed economy has not been changed essentially. Therefore, the system of transfer of mineral right has not been fundamentally improved. After publication and implementation of Real Right Law, China has established the system of real right which is more suitable for the socialist market economy. Under such circumstances, the contradictions between the current system of assignment of mineral rights and both market economy and current system of real right are more and more outstanding.Together, the main problems of Chinese system of circulation of mineral rights are as follows:the legislations of the transfer of mineral right are not normative since the conflicts of laws and jurisprudence and logical problems of legislation; the power of exam and approval of transfer of mineral rights is too centralized; during the evaluation of mineral rights, the legislation is not perfect, the self-discipline evaluation institution is insufficient, the method of evaluation is not scientific, the basic theory of evaluation is not consummate and employees' qualities are not high; the conflicts and contradictions exist between mineral rights and land rights; the market of transfer of mineral rights is imperfect; the condition of transfer of mineral rights is unreasonable; the status of private holders and state owned holders are unequal.There are three reasons result to the problems of current system of circulation of mineral rights. First, there sexists too much administrative intervention and appropriate and legal principles are insufficient. Second, there are many misunderstandings in the current basic theory of mineral rights. For instance, many concepts and basic theories of mineral rights are obscure, the guiding ideology of legislation is hysteretic. Third, the civil legal system of mineral rights lags behind and is largely insufficient. Third, the market mechanism of transfer of mineral rights is deficiency.With the deepening of globalization, the mineral legislation becomes internationalized and legislations of different countries turn to be unified, mainly in the trend of mineral rights turning into real rights, the classified management of mineral rights, the reasonable system of mineral lands and mineral taxes, free, flexible and various market transfer and etc.Australian system of granting and transfer of mineral rights is one of the most perfect systems in the world. Some outstanding legislative experience has been cumulated during its development history, especially in the filed of setting up the conditions for granting mineral rights, the safeguard of right of first refusal in transferring prospecting into mining, the management of the use of state owned land which is needed in construction and exploitation of mineral mountains. During the improvement of the system of assignment of mineral rights, we can consult and use the advanced experience of other countries'legislations, including the experience of Australia. The learned legislative experience mainly reflects in the field of priority of application, the management of other usufructuary right relating to mineral rights, the building of conditions for the transfer of mineral rights and etc.Considering the main problems in the circulation of the mineral rights, after using the foreign experience, we can improve following places. In terms of legislation, in order to improve the legal system of transfer of mineral rights, the main measure is to change the current legislative model of mineral resources law which combines the public law and civil law and strengthen the mineral laws and regulations and establish the perfect civil;legal system according to the characters of real right. In the field of the exam and approval of mineral rights, we should build the classified management system of mineral rights. In the meanwhile, the procedure of exam and approval should be disclosed. With respect to the improvement of system of evaluation of mineral rights, we should sound the laws and regulations of evaluation, establish the scientific theory of evaluation, accelerate the training of intermediary organs which charge the evaluation of transfer of the mineral rights, build the self-discipline organs, improve the evaluation standards, raise the qualities of employees and strengthen the management. With regard to the conflicts between mineral rights and land rights, we should improve the legislations and establish the system of selling both mineral rights and the right to use the state owned land. In terms of improvement of the market mechanism for the transfer of mineral rights, we should build the trading canters, national trading information platforms and normative intermediary organs. Plus the market competition oriented assignment system and appropriate national intervention. In addition, China should relax the limitations of transfer of mineral rights and protect holder of mineral rights equally.The other marketization measure to improve the circulation of mineral rights is to carry out the multi-channel mineral financing. Under the current system, it is very difficult for the prospecting company to make direct IPO. In meaning, the way for the capitalizing of mineral industry is remote. Therefore, it is necessary to establish a mineral GEM as soon as possible, after considering the foreign advanced model, in order to find the way for the mineral capital market.