The Theoretical Construction And System Standardization Of Use Franchise Of Natural Resources

Natural resources provide basic material for human survival and development. It is expected that the exploitation and use of natural resources should be efficient and sustainable in order to achieve harmony between human and nature, and should be fair and equitable in order to achieve a harmonious society. In our country, the use franchise is an important way to exercise state ownership of natural resources and allocate natural resource use rights. With the theme of use franchise of natural resources, this dissertation is based on two levels of theoretical construction and system analysis. Discussion on the basic concept is the logical starting point, and the further analysis is the main theoretical issues of the natural resources use franchise; finally we will study two major institutional issues around “Administrative License Law”.Administrative franchise, also known as franchise or special license, is a concept adopted by the legislature, but the connotation is not consistent in different legal norms. For a long time, how to define the concept, there are different points in the academic circles. Through contrasting extraterritorial administrative concession theory and teasing our legal norms related to the concept, according to “Administrative License Law” we believe that the administrative franchise is an authorizing administrative act, but the general administrative license is an act of unbanning or proving right. The points that the nature of administrative license is authorizing, unbanning or proving right are unscientific. On this basis, the use franchises of natural resources refers to the acts that the administrative agencies exercise state ownership of natural resources, and authorize the administrative opposite party to use natural resources.Although this dissertation argues that the basis of the administrative franchise is state ownership or monopoly right, some scholars believe that the power source of the use franchise of natural resources is police power. From the characters of administrative franchise and natural resources royalty, and the differences between management powerand police power of natural resources, etc., all of these can be sufficient to prove the state ownership of natural resources to be the power source of use franchise of natural resources. The necessity of natural resources owned by the state and the justification of public law character of natural resources state ownership, further reinforce the legitimacy and legality of the use franchise of natural resources.Although the administrative franchise is an important means of allocation of natural resources use, but it does not mean that all state-owned natural resources should be configured to use by franchising. Natural resources shoulder the mission of public interest, so the single franchise means may lead to the “social Darwinism”. In other words, the use franchise of natural resources should be applied in certain extent. We think should not only take “internalize negative externality” as the limiting standard, but begin with the fundamental function of natural resources. That is to protect the public right to fairly and reasonably use natural resources. Based on the public right, the using forms of state-owned natural resources can be divided into free use, customary use and licensed use(including general licensed use and franchised use). Not only state-owned natural resources as public property but also state-owned natural resources as private property are likely to correspond to a variety of use forms, so kinds of exploitation and use of natural resources are faced with the problem of how to choose using forms. In order to more effectively protect the public right to use natural resources, the relevant standards should be established, including “free use, general licensed use and customary use takes priority over franchised use”. Therefore, the applicable scope of the use franchise of natural resources will be clear.Compared to the general administrative license, the implementation method of the use franchise of natural resources is distinctive. According to the provision of Article 53 of “Administrative License Law”, the implementation methods of use franchise of natural resources can be divided into competitive transfer and noncompetitive transfer. As a principle the competitive transfer is established by “Administrative License Law”, but this method may also be some negative effects, so it is necessary for noncompetitive transfer to exist. Reviewed the present situation of implementation methods of natural resources use franchise, we can find something is inconsistent with the spirits of “Administrative License Law”, and the legal provisions of implementation methods of the use franchise are confusing. To this end, the legislator should step up efforts toamend the relevant provisions, and in practice the administration agencies should correctly handle the relationship between the various implementation methods of the use franchise.The Licensee was granted to use natural resources by the administration agency, but also need to fulfill the corresponding obligations. Through the legal supervision of use franchise, the administration agency is required to ensure the realization of the purpose of natural resources use franchise, the stability of natural resources market, and the national public policy implementation. At least we need pay attention to three aspects of the legal supervision. Firstly, the supervisory agencies should be reasonably set up, which achieve the unification with the decision agencies of use franchise, eliminate the longitudinal separation phenomenon as soon as possible. Secondly, the contents of supervision are the exercise of the right to use natural resources and its circulation. The supervisory agencies should appropriately regulate the circulation, but fully respect the market mechanism. Thirdly, the agreement of natural resources franchised use should be positioned as public law agreement. It will play an active role in the legal supervision.