Research On The Nature And Systems’ Improvement Of Mining Right

Many disciplines are involved in the research of mining right,such as civil and commercial law, natural resources and environmental protection law, administrative law, resource economics. This paper does deep research into the nature and basic systems of mining right by focusing on the civil and commercial law and using the achievements of other fields for reference.The first part of the paper is the introduction, including the research background and basis, present documents review, research contents and the train of thought. The second part is the main body of the paper and is divided into five chapters.Chapter 1 is the overview and nature debate of mining right. Mining right is a kind of right to mine mineral resources within the scope recorded in the legally granted mining license.Mining right arises from the state ownership of mineral resources, and is an effective realization form of the state ownership of mineral resources. With the further development of market economy, the law and regulations of mining right are being improved, the property right nature of mining right is more and more clear. The debate of mining right’s nature has not stopped during the legislative process and after the promulgation of Real Right Law. Exhaustiblility, administrative lisence grant and more obligation of public law compose the reasons why mining right is not a type of usufructuary right.This paper refutes above three views and argues that mining right is a type of usufructuary right. Mineral Resources Law and relative regulations have the provisions of the mining right, but these provisions focuse on administrative management and lack civil right protection.Real Right Law puts the minging right in the in the general provisions of usufructuary right,which provides the direction of the improvement of mining right systems.Chapter 2 is the object of mining right and the essence of usufructuary right. The object of mining right is some mineral resources within a particular scope.The object has the basic attributes of the thing of civil law. Real Right Law giving the provisions to natural resources is very necessary. Usufructuary right has the function to ease the contradiction between scarce resources and human need, and is more and more important in Real Right Law. Property ownership and property use are composed of the dual structure of Real Right Law, usufructuary right and creditor’s right constitute the dual system of real property use.The essence of usufructuary right is the real right use of others’property.From a comparative prospective,the object of usufructuary right can be exhaustible or inexhaustible.Each concrete usufructuary right has its own domination scope. Many foreign Civil Codes, China’s General Provision of Civil Law and Real Right Law regulate the mining right as usufructuary right. The relations between mineral resourses within a particular scope and mineral product are original property and accrued interests.The disposal of the mineral product is a way to gain the interests for person who has the minging right.The State can realize her interests by gaining related mining right fees.Chapter 3 is the mining right grant system. China’s mining right grant system has undergone three phrases.The present grant patterns are approving application, bidding, auction,listing and agreement.We should define the scope of every grant pattern according to the features of the existence of mineral resources and its mining. The mining right grant system should abide by the principles.They are the combination of macro-control and market allocation, grant with compensation and equal grant. Administrative licensing is imperative in mining right grant,because mineral resources is scare and the its mining and utilization is relative to public.Administrative licensing process is the review process whether the applicant has the qualification.When the applicant is determined,the land and resources authorities will sign grant contract with the applicant. Administrative licensing and grant contract are two phases and reflect the different identities of the State. Administrative licensing is only one element of mining right creation.The grant contract is a civil contract and creditor’s right contract.Chapter 4 is the mining right transfer system. The mining right transfer system has narrow and broad meanings,the former is the transfer in which the subject will change and the latter is not limited by that. Present administrative provisions have some shortcomings. Real Right Law’s relative provisions give the mining right transfer a good opportunity. The existing limit provisions of the mining right transfer are not necessary,the conditions are not reasonable and the procedure is so complicated .We should delegate the transfer approval authority to lower land and resources authorities.What’s the relationship between approval and the validity of the transfer contract of mining right? There are three views.I have the opinion that the transfer contract of mining right does not come into effect without thet approval.Furthermore,this view can also protect the related party’s interests under present rules.Chapter 5 is the mining right registration system. Registration is the public pattern of realty.In China,the alteration of the real right abides by the principle of no effect without registration. As a kind of real right,the mining right should observe the general provisions of registration in Real Right Law.We should further strengthen the effect of mining right registration.The realty register is the basis for deciding the ownership and contents of a realty and shall be under the management of the registration organ.The realty ownership certificate is the evidence for the holder’s ownership of a realty.Present mining right register is not complete and not public enough.The certificate of mining right is mining license,which confuses the mining right and the administrative license.We should use the mining right certificate instead of mining license. Current laws and regulations has the provisions of the mining license’s suspension,revocation,cancellation,but the suspension and revocation’s impact on the mining right is not clear.This paper suggests that withdrawal should be used in place of suspension and revocation,give unified provisions to termination,and use deregistration for publicity.The last part is conclusion.