On The Legal Realization Of The Fair Distribution Of Shale Gas Mining Rights

The transition from the resource advantage to the competitive advantage must be accompanied by the distribution of mining rights from the government to the market.As a dual transformation model of shale gas distribution has become an important indicator of the development of energy transformation,and the initial distribution of the equity of its mining rights to bear the brunt of the performance of the system is greater than the cost of the transition opportunity.Change the monopoly clusters,the lack of innovation,market atrophy,pollution of the environment for competition vitality,innovation contend,market prosperity,shale gas market environment must change the existing power and market law of marginal,let "power list" and "negative list" can be realized in the fairness and efficiency of the system.The author believes that the government led allocation is the main reason of the unfair distribution of shale gas mining rights.Fair distribution first requires fair competition in the distribution process,the distribution of the results of the pursuit of relative equality,fairness allocation of mining rights is to obtain mining rights through market competition,the market to play a decisive role in the allocation of resources.The design of the legal system of fair distribution of shale gas mining rights should be to build a competitive market as the core,around the reduction of property rights,improve the transfer market,the pursuit of capital priority,limiting the power of the government,the practice of economic freedom.Shale gas exploration rights tender years ago had to test the water allocation of mining rights market,but it has become the state-owned feast;the third Plenary Session of the 18 th CPC Central Committee proposed the main market equal use of production factors ",again for the private capital equity participation in mining rights distribution brings hope.The third round of bidding for shale gas exploration is under way.This paper discusses how to realize the fair distribution of mining rights.The thesis is divided into four chapters besides the introduction.The first chapter "the development of shale gas industry calls for equitable distribution of mining rights",discusses the impact of unfair distribution of mining rights on industrial development,and then analyzes the necessity and importance of fair distribution of mining rights.The author believes that the negative impact of unfair distribution of shale gas mining rights in two areas,namely,hinder market competition,inhibit technological innovation.Specific analysis is as follows:First of all,the unfair distribution of mining rights hinder market competition.Resource advantage is equal to the premise of competitive advantage,the distribution of shale gas mining rights to determine the market competition pattern,the unfair distribution of upstream mining rights hinder the formation of shale gas market,leading to effective competition is difficult to expand.Shale gas is an unconventional natural gas,the industry chain is divided into upstream exploration and mining,transportation and midstream downstream placing links,the monopoly of state-owned enterprises upstream shale gas mining rights,station for the control of state-owned enterprises in the middle reaches of the main trunk pipeline network and LNG receiver,although the downstream link of open competition,allowing private capital into state-owned enterprises,but through monopoly the mining right to control the supply of raw materials and downstream enterprises,will transfer to the downstream upstream monopoly advantage.Because shale gas resources is scarce and irreplaceable characteristics,the upstream resources of the enterprise products constitute the only source of raw materials and downstream enterprises,mining rights of state-owned monopoly enterprises can not make the downstream active alternative suppliers of raw materials,can only passively accept the sales decision of state-owned enterprises,greatly weakened the bargaining power of enterprises.The lower part of the private enterprises and state-owned enterprises in the "asymmetric competition" pattern,can obtain adequate resources supply does not depend on the energy efficiency of the enterprise,but depends on whether there is any relationship with upstream state-owned enterprises,non affiliated private enterprises often can not guarantee the supply of raw materials and at a competitive disadvantage.Therefore,it is necessary to cut the interests of the chain from the upstream,giving private capital to participate in the distribution of the right of mining rights,in order to truly establish shale gas market,to achieve effective competition in the shale gas industry.In the context of the development of energy transformation,the effective competition of the multiple mining rights is the basic way to improve energy efficiency and promote the development of shale gas industry.Although shale gas subsidies and other fiscal policy helps to increase exploration enterprises expected return,attract business investment,but the tax incentive has short-term and volatility,and cause the enterprise excessive dependence on the dividend policy,the shale gas industry evolved to rely on government finance to public welfare undertakings,the lack of internal development ability.Therefore,it is necessary to change the fiscal and tax incentives to encourage property rights,especially the upstream resources,mining rights,and protect the mining rights of all enterprises through legislation.In recent years,mixed ownership reform of state-owned enterprises to stop in the middle and downstream transportation sales,and the proportion of private equity capital and financing is limited,in essence,the core link and failed to get to the upstream industry chain,to break the monopoly of state-owned mining rights is still difficult.Secondly,the unfair distribution of mining rights restrain technological innovation.When the benefit of the enterprise is greater than the price incentive,the enterprise will seek more power incentive and give up the price incentive,which will cause the market to shrink.State owned enterprises monopolize the mining right of shale gas,depriving the possibility of competition between private enterprises and state-owned enterprises.Hydraulic fracturing technology is the technical support of U.S.shale gas industry,but the technology is not for the exploitation of shale gas first,but the traditional technology of oil and gas industry used in shale gas exploration,constantly improved trial and error,ultimately to the industrialization of shale gas resources with no commercial value,the change of energy the structure of the u.s..This kind of technology improvement is a kind of destructive innovation process,trial and error is accompanied by a huge cost of investment and risk,only entrepreneurs with entrepreneurial spirit can be completed.The purpose of entrepreneur innovation is not to improve technology but to pursue profit and gain competitive advantage.The monopoly of state-owned enterprises the main mining area of mining rights,thereby acquiring monopoly profits far higher than the technology innovation expected return,lack of motivation of risk involved in shale gas exploration;state owned enterprise leaders accustomed to sustaining innovation,disruptive innovation are not willing to bear the risk of failure,and the resulting political responsibility,so the state-owned enterprises also lack of innovation incentive.Private enterprises subject to the mining right inferior in all aspects of the industry chain and the state-owned enterprises cannot compete effectively,it is difficult to shake the monopoly of state-owned enterprises,unable to obtain excess profits,build a competitive advantage,so the lack of innovation incentive.Therefore,it is necessary to break the monopoly of the state-owned enterprises in the mining right,realize the fair distribution,and stimulate the disruptive technological innovation through effective market competition.The United States shale gas industry's success is the large number of small and medium enterprises fully competitive results,our country can follow the United States,the shale gas industry to create new plots of fair distribution of mining rights,let more private enterprises obtain mining rights,mining rights to control variable cost constraints,to encourage business innovation in the market through trial and error.The mechanism of survival of the fittest.The fair distribution of mining rights is not to deny the monopoly of state-owned enterprises to the shale gas industry,but to question the state-owned enterprises through the control of mining rights to form a monopoly process,worried about the adverse effects of this monopoly.In the effective competitive market environment,the state-owned enterprises should take the advantage of resources into the competitive advantage,and form the core competitiveness through innovation rather than the control of mining rights.In the process of innovation of state-owned enterprises,with the advantages of scale still has a comparative advantage,is to implement protective measures unique price policy,production control and other large enterprises;has stronger anti risk ability,able to develop and maintain a more targeted innovation plan etc.The second chapter,"the government administrative monopoly hinders the fair distribution of mining rights",analyzes the reason of the unfair distribution of shale gas mining rights.The author believes that there are two reasons for the unfair distribution of mining rights,one is the abuse of government power led to the administrative monopoly of mining rights,and the other is the collective action of state-owned enterprises makes the monopoly of the institutionalization and normalization of the.Specific analysis is as follows:First,the administrative monopoly of state-owned enterprises monopoly barriers.Most of the high quality shale gas resources exist in China The oil,Sinopec has registration of mining rights within the block,the main means of shale gas resources are monopolized by state-owned enterprises,the formation of competitive monopoly is not economic monopoly,but the abuse of administrative power of government administrative monopoly,abuse of power in the form of concrete and abstract administrative acts.In 1998,China's oil and gas industry strategic restructuring,by the State Economic and Trade Commission request,the State Council approved the formation of the oil,Sinopec two oil and gas group company,authorized two large group of exploration and exploitation of natural gas resources in the main land area,using the administrative authority established a monopoly of state-owned natural gas resources.At the same time,in 1998 the State Council promulgated the "regional registration of exploration of mineral resources management measures" provisions,apply for the exploration and exploitation of natural gas resources must be approved by the State Council department in charge of the examination and registration,licensing,units and individuals are prohibited to enter others has been prospecting area for prospecting or mining activities.But in fact only in the oil,Sinopec and other companies to obtain the approval of the government,state-owned enterprises through the first registered subject mining area of mining rights,the natural gas resource monopoly legal,other enterprises can not re registration of mining rights.Since then,the government has become the main way of administrative allocation of mining rights distribution,until 2003 the Ministry of land and resources issued "prospecting and mining rights bidding auction management approach(Trial)",the competent departments to recruit the mandatory provisions of the way to sell the prospecting shoot,but its scope is limited to the new mining rights,for both there is no retroactive effect of mining rights.The Ministry of land and resources in 2011 and 2012 bidding for shale gas exploration rights,deliberately avoided the overlap with Petro China,Sinopec block,select the blank inferior blocks transfer,and the invitation to tender in the first round of bidding,only issued the invitation to tender for the state-owned enterprises,state-owned enterprises to continue to maintain the monopoly status of shale gas mining rights.Shale gas mining rights administrative monopoly reflects the resource allocation pattern dominated by government in China,the pattern is under the planned economic system of the allocation of resources,mining rights allocation as a part of government resource management,to manage the resources industry by controlling the allocation of resources,ensure the government administrative efficiency,but it is difficult to adapt to the need of energy the industrial market transformation,mainly to the adverse effects in three aspects: first,administrative monopoly leads to unfair distribution of mining rights of shale gas.The government uses the administrative power to set up the system barrier for the private enterprise to enter the industrial chain upstream,and this kind of barrier is the enterprise through the technical innovation,the improvement management and so on the method cannot overstep.Second,administrative monopoly reduces the efficiency of resource allocation.Because all the information it is impossible for the government to collect relevant market demand,so there is a fatal flaw in the blind distribution supply of mining rights,resulting in a waste of resources,the state-owned mining circle instead of exploration "problem is the concentrated expression of the monopoly of state-owned enterprises;impede effective competition,suppress innovation technology,the resource utilization efficiency is always maintained at a low the level of.Third,administrative monopoly is easy to capture the interests of the government.The government led the distribution process of mining rights,so that the government's power is too concentrated,in the absence of supervision,to facilitate the government rent and interest group rent-seeking behavior,and easy to breed corruption.Secondly,the state-owned enterprise collective action solidified mining rights monopoly.The center position of government centralization in mining right distribution of shale gas,making state-owned interests through collective action can capture the government,has prompted the government to meet the interests of the group policy or legislation,leading to institutionalization and normalization of mining rights monopoly.Specifically,the impact of collective action of state-owned enterprises' interest groups on the distribution process of shale gas mining rights in two aspects: first,to maintain the monopoly of state-owned enterprises to mining rights.Although the fair allocation of mining rights of shale gas is helpful to enhance energy efficiency,but the state-owned enterprises can only get part of the benefits,but they have to bear all the costs,including the cost of action and the loss of the monopoly of opportunity cost,so more state-owned group tends to maintain the mining right from the shale gas industry monopoly,the total revenue received more share,rather than to improve energy efficiency to create greater industry total revenue.Second,to create market demand for government regulation.State owned enterprises through the manufacture of special market supply and demand and other abnormal circumstances,the government's power to lead the distribution of mining rights to provide the legitimacy of the process to facilitate the state-owned enterprises continue to capture the government to guide policy legislation.This also means that state-owned enterprises will be more resources for rent-seeking rather than production activities,resulting in the elimination of productive incentives,incentive to improve distribution.Although private enterprises also want to influence government policy legislation,to achieve the goal of equitable distribution of mining rights,but the government behavior is always inclined to protect the interests of state-owned enterprises,the reason,in addition to the closer relationship between the government and state-owned enterprises,state-owned interests of small group characteristics also can not be ignored.This small group characteristics make state-owned enterprises engaged in collective action returns higher than its cost,the group members will be able to overcome the free rider problem,through collective action alone or propensity to provide policy and legislation of the public goods for the whole group.On the one hand,state-owned enterprise itself is usually huge,any bias brought by the legislation of marginal income increase are very significant,members of a limited number of enabling free sharing of public goods enterprises is very scarce,and the positioning of oligarch enterprises at the time of the establishment of distinction,by car ride for other enterprises to gain a competitive threat to the action of the enterprise.Therefore,even if unable to reach a collective action,individual state-owned enterprises have sufficient incentive to implement the impact of government activities.On the other hand,because the relationship between state-owned enterprises of many state-owned enterprises has perplexing,the actual control of the same,coordination is relatively easy,but the number of members were scarce and further reduce the organization cost,thus easier to achieve collective action.On the contrary,due to the large number of private enterprises,it is difficult to overcome the free rider problem in order to achieve collective action to implement the activities of government policy legislation.In the third chapter,"the construction of the competitive market to promote the fair distribution of the mining rights",the market is more fair than the government system arrangements.On the one hand,to obtain mining rights through market competition,help to improve energy efficiency,increase shale gas supply,to meet consumer demand,the practice of the difference principle;on the other hand,the market competition is helpful to realize the sharing of resource rent,break the state-owned enterprise exclusive resources rent status.Therefore,the distribution of mining rights through market competition,and play a decisive role in the allocation of resources in the market,is the path to achieve fair distribution of mining rights.Specific analysis is as follows:On the one hand,the competitive market to explain the meaning of fair distribution.The market is a fair resource allocation model,the equitable distribution of shale gas mining rights is to change the government led market competition,give full play to the role of the market in the allocation of resources.The fairness of the mining rights market for shale gas distribution reflected in the market competition mechanism to improve the efficiency of resource allocation,increase the supply of shale gas resources,to meet the needs of the society,improve the whole society,especially the low income crowd energy consumption level,the difference principle of the practice of Rawls.Mining right market allocation is a competition mechanism in the mining rights distribution,such as bidding,auction,public sale,ownership of enterprises excluding differences,allow enterprises to play a guiding role in fair competition,price information,encourage enterprises to decentralized decision making,mining rights to enterprises ultimately transfer to the highest production efficiency.Due to the non equity pre institutional arrangements,state-owned enterprises with advantages of mining rights has established a monopoly,simply give equal status of private enterprises to participate in the allocation of mining rights will eventually lead to unfair results.Fair distribution system design requirements can make the opportunity to improve the situation of the disadvantaged groups,even if the private enterprises have a greater opportunity to obtain mining rights.This is not discrimination of state-owned enterprises,but to establish the market competition mechanism in the mining rights distribution,break the status of government centralized center,destroy the congenital advantage of state-owned enterprises,creating more opportunities for private enterprises to obtain mining rights.In contrast,government led to unfair distribution of resources allocation process will lead to the mining rights of shale gas,is the source of government has the attribute of economic man,the maximum in the exercise in the process of pure pursuit of their own interests,expanding its mechanism and seek power.Although the main body of the market also has the attribute of economic man,the realization of self-interest preference must be based on the premise of satisfying the market demand.When the government leading mining rights allocation,it is not considered by improving energy efficiency,but to complete administrative tasks with higher pay,reduce political risk,political capital,and the government is more inclined to make conservative decisions,safeguard the interests of vested interest groups.Shale gas exploration rights tender eventually become state-owned enterprises because of the mining rights feast,distribution of industrial development has a decisive influence,the dominant position of the mining rights distribution constitute the core interests of the government,the government cannot tolerate their own power to withdraw from the mining rights distribution link.The government chooses state-owned enterprises as the main successful enterprises,both state-owned enterprises and avoid touching mining interests,because state-owned enterprises in the pillar position in the energy industry and the whole national economy,the government hopes to mining right cost for state-owned interests political support to maintain their dominant power in mining right allocation;on the other hand indeed,compared to private enterprises,state-owned enterprises have a comparative advantage in capital,technology,and exploration and mining experience,the state-owned enterprises as the main body of the government helps to reduce the decision risk,to avoid the political responsibility.On the other hand,the competitive market allocates the resource rents equally.The economic essence of equitable distribution of shale gas mining rights is to enable all citizens to share resource rents through market competition.The resource rent is the price of the resource factor,which is the resource owner's right to dispose of the resources to the subject of the development,and to the monetary income of the developer.China's "constitution" provides that mineral resources owned by the state,that is,all the people,affirmed the identity of all Chinese citizens of the resource ownership.Therefore,the resource rent should be shared by all the citizens,which is also the original intention of the design of the state ownership system.The resource allocation pattern under the market economy,property value and mining right of the resource itself is recognized,the mining right price through market competition,enterprises must pay corresponding consideration to obtain mining rights,so as to avoid the exclusive resources of individual enterprises after the rent charged rent;resources can build public trust and trust management institutions,for public goods or public welfare undertakings,the resource rent to benefit all citizens.However,in the government led resource allocation model,not only failed to achieve universal sharing of resource rent,but the evolution of state-owned enterprises and the interests of the government.On the one hand,the state-owned enterprises through the administrative allocation of free access to mining rights,although the need to pay the resource tax and resource use fees,but the amount is much lower than the resource rent,can not reflect the value of resources.The state-owned enterprises do not fully incorporate the cost of resources into the cost accounting system of enterprises,which leads to the increase of enterprise profits.On the other hand,the government through administrative power,will belong to the whole people of the resource rent into the profits of state-owned enterprises,state-owned enterprises is essentially transmission of interests,is a kind of monopoly rent,the purpose is to protect the interests of state-owned enterprises and government.Because the state-owned enterprises can not only provide political support for the government,which make profits constitute an important source of government finance,government rent which contains resources state-owned enterprises can share the resource rent charged by way of profit.If the private sector to obtain mining rights,the government is clearly unable to share the operating profit of private enterprises,which is difficult to tolerate the government.The fourth chapter,"the design of the legal system is a fair distribution of mining rights",and discusses how to achieve the goal of fair distribution of mining rights through the design of the legal system.The path dependence of economic transformation is the transformation of the system,the legal system as a tool for social change is not only a reflection of social reality,but also a powerful means to achieve social reality.Since the market competition is more equitable than the government led institutional arrangements,then the fair distribution of the design of the legal system should focus on the allocation of competitive market segments.The specific legal system design is as follows:First,restore the property rights of mining rights.The real right law stipulates the mining right as the usufructuary right,affirms the nature of the property right of the mining right,and provides an opportunity for the competition of the mining right.However,the "property law" does not clear the way to obtain mining rights,referring to the institutional arrangements of land use rights,mining rights should be registered as a valid entry.The current "mineral resources law" requires the mining rights to obtain the approval of the government,giving the effectiveness of the administrative examination and approval of the establishment of mining rights,resulting in the erosion of administrative power on property rights.Although the registration and approval of the administrative license is the way,but there are differences between the two of property rights.The examination and approval makes the government have the right to decide whether the mining right is obtained or not.Since the "property law" has been affirmed by the nature of property right of mining right,it should comply with the basic principles of civil law autonomy,terminate the administrative power to the mining right bundle,government approval for the government registration,attribute reduction of mining rights of property rights,the implementation of the "property law".Second,improve the transfer of mining rights system.The mining right transfer system is the main legal form of the mining right competition,which requires the country as the resource owner to use the public bidding,auction,listing,etc..Although the Ministry of land and resources issued administrative regulations has been provided in the system of transfer of mining rights,but the system has not been confirmed "mineral resources law" legislation,and the current transfer system itself has many defects.Under the existing institutional arrangements,the people's government at or above the county level,the Department of Geology and mineral resources on behalf of the state for the transfer of mining rights,not only the lack of clear legal authority,but also caused confusion of government departments.Therefore,the primary task of perfecting the transfer system of mining rights is to rebuild the subject of mining rights transfer.The author suggests that we should establish the National People's Congress and its Standing Committee as the representative in the form of subject of the ownership of mineral resources,and the establishment of independent commercial entities such as state-owned mineral resources management company,responsible for the transfer of mining right.State owned mineral resources management company through open competition,the enterprises of various ownership of mining rights assigned to including private enterprises,all qualified enterprises can participate in the competition of mining rights,breaking the monopoly of state-owned enterprises to the mining right,to achieve a relatively fair distribution process.In addition,we should further improve the mining right transfer system from the aspects of the qualification conditions of the transferee,the right to regulate the mining rights assessment,and the establishment of mining rights information platform.Third,given a fair opportunity for various subjects.Equality of opportunity is an important part of the fair distribution,in accordance with the equality of opportunity,the legal system should first ensure the equal status of all market participants have to participate in the competition,we should give priority to private capital to obtain mining rights under the same conditions of shale gas.Equal status of equal opportunity first to protect state-owned enterprises and private enterprises to participate in the allocation of mining rights,but because of the state-owned enterprise and the government is closely related with the mining right and advantage has been building competitive advantage,there is a natural endowment difference between private enterprises and state-owned enterprises,laying emphasis on the formal equality will eventually make private enterprises at a disadvantage.Therefore,the pursuit of a more equitable opportunity fairness,that is,the design of the system can be the opportunity to expand the opportunity to reduce the chance of less,that is,to increase the opportunity for private enterprises to obtain mining rights.The "mineral resources law" provisions of state-owned enterprises as the main body of the exploitation of mineral resources,providing a legal basis for state-owned enterprises obtain mining rights,but in the national strategy of fair distribution of production factors,this provision clearly does not meet the requirements of fair opportunity.Therefore,it is necessary to amend the provisions of the mineral resources law,giving priority to the private sector to obtain the right to shale gas mining under the same conditions.In the case of shale gas mining rights bidding,if the private enterprise funds,technology and other competitive conditions with state-owned enterprises,it should be given priority to the mining rights sold to private enterprises.Fourth,regulate the administrative authority.Under the institutional arrangement of the mining right competition,the government should change the resource management into the market regulation,and the purpose of the regulation is to create a fair competition market environment for the mining right person,and to combat the unfair competition behavior.In shale gas exploration,mining and mining rights distribution links,the legislation should clarify the government's regulatory responsibilities,including the following: first,detailed regulations in mining rights allocation of the qualifications of enterprises,not only limited to the registered capital,exploration qualification,legal independent status,should also provide safe production and prevention of environmental risks etc.the qualification does not meet the qualification conditions,crack down on the illegal exploitation of resources;second,the government should open has important influence on the judgment of the block address information resource value before the mining rights bidding,including geological structure,recoverable reserves assessment;third,the mining right of successful enterprises will usually make exploration,mining investment commitment in the tender,the government should supervise the fulfillment of this promise,to avoid the "circle instead of Fourth,the government should strengthen the supervision of the production safety of exploration and mining links,investigate the legal liability of the responsible person of the safety accident,and improve the illegal cost.Fifth,through the law to protect economic freedom.When the distribution system of shale gas mining rights is in line with the principle of difference,this kind of system design is fair,and the market-oriented resource allocation model can be used to protect the economic freedom.The principle of difference requires the design of the system to maximize the benefits of the worst of the situati...