The Research On Leqal System Of Mining Right

The usufructuary right is an exclusive right of the owner of the non owner in the limit within the scope prescribed by law independent,to possess,use,income limits the use value to establish actual possession in the usufructuary right of movable and immovable property,private property is typical,and for profit the positioning of the nature of mining right,but with the public property and private property,apparently with the legal characteristics of usufructuary right in civil law is not the same,which launched a competition for the discussion of the nature of mining right,in the perspective of public law and private law angle for the fuse,in public law from the perspective of existence of Chartered real right,special property right,quasi real right so,in the presence of private perspective from real right,usufructuary right,creditor's right said,will focus on the problem of mining rights and mining rights of the subject and object of usufructuary rights Expand on these two points.According to the German "three class theory of the object of rights,the object of the mining rights as a whole and punished,that the object of mining right is a specific area of mineral resources,but in theory and can not solve the mining rights to the mineral product disposition reflects the non ownership and usufructuary rights out of confusion,therefore,to clarify the association of national ownership of mineral resource and mining rights and mining rights to know the object and positioning of the usufructuary right become the key.The relationship between mineral resources state ownership and mining right can not be concluded by the relationship between the owner and the non owner in usufructuary right theory,but is explained by an open usufructuary right.Because of the particularity of mineral resources,mining rights attached to the national ownership of mineral resource,is the way to realize the ownership of mineral resources,mining rights of mineral products reflect the punishment is not the ownership of people;mining right legislation object,right by the domination scope as well as the domestic and foreign research,dispose of mining rights of mineral products still,the range of use value,which makes the legislation conflict due to property and the particularity of mining right obtain reasonable explanation,however,the mining right as a transaction object,legal system of mining rights and the inevitable public property and private property from the perspective of trade in the market the process involved,mainly in the mining rights transfer system,transfer system and registration system as a typical representative,therefore,it is necessary to mining rights The specific legal system of mining right under the positioning is rerecognized and constructed.As the subject of administrative supervision of mining rights and the stripping of the ownership of mineral resources,the government is bound to affect the judicature and legislation in the transfer of mining rights.Reflect the administrative supervision in the mining right transfer of property mainly exists in the relationship between the paid transfer of mining rights and mining rights,leasing relations,reflects the government of mineral resources management power and mining rights of property right;property attribute of mining rights that the mining right is a kind of property right.The administrative supervision of the transfer of mining rights and the property of the owner have been fully embodied in the system establishment and the way of the mining right.According to the theory of usufructuary right,usufructuary right is derived from the ownership of civil rights and mining rights is separated from the ownership of mineral resources of our country,private property ownership is rooted in the national identity,as the ownership of the mineral resources,in accordance with the theory of civil law on the principle of equality,mining rights and ownership subject inequality and mining rights as usufructuary right,transfer of mining rights through the administrative examination and approval procedures shall be the real right change effect,and the civil law usufructuary right does not need this program,therefore,the"property law,and the law of mining right of mining right transfer contract effectiveness,the change of real right effect."Property law" pattern of property right change in the use of the principle of distinction,the validity of the contract in accordance with the relevant provisions of the "contract law",in accordance with the relevant provisions of the "effectiveness of the alteration of real right law",and the"mineral resources law" and related laws and regulations have not taken "distinguish principle",leading to the effectiveness of mining right contract the identified a practical problem.The nature of the contract for the transfer of mining rights exists in the theory of administrative contract,the theory of civil contract and the double nature of the contract.Because of the nature of mining right is usufructuary right,which determines the contract for the assignment of mining rights with civil and legal attributes,behaviors and not to judge the nature of the contract on transfer of mining rights,mining rights transfer contract signed in the country,not to manage the identity of the person,but with equal civil subject participate in,only the subject of civil activities are public law obligations,therefore,the mining right transfer contract is the nature of civil contract,but also is a kind of contract,the pattern of property right change mining right and the "property law" of the conflict,the administrative examination and approval registration system is only effective conditions of mining right transfer contract that is to confirm the form of transfer of property of the doctrine,which in practice to solve the transfer of mining rights transfer scope,responsibility principle of change of circumstances in the mining rights The application of the contract disputes and the judicial review of the legality of the subject of the transfer of the mining rights.Of course,there is still a legislative stipulation about the transfer of mining rights.There are still unclear legal basis for the right to sell mining rights,the low level of legislative norms of mining rights transfer,and the unfair treatment of the subjects of the mining rights.The legislation should be perfected accordingly.Similarly,for the transfer of mining rights,since the "property law" to the real right change effect and the validity of the contract(basic behavior)effect to be treated differently,the "mineral resources law" and related laws and regulations did not distinguish between the administrative examination and approval efficiency,effectiveness and basic behavior of real right therefore,it is necessary to change of real right effect and basic behavior in according to the theory on the transfer of mining right in effect to explain.The understanding of the fifteenth article of the property law:first,the main reason for the change of real right is the contract.Unless there are other provisions in laws and regulations,once a contract is established,it will have legal effect without violating the mandatory provisions of the law and the interests of the public.Secondly,registration is only a publicity way for the alteration of real right.The contract is signed under the principle of autonomy of the parties,and there is no necessary connection with the registration.The property law does not negate the influence of the ratification of the law on the validity of the contract,but only denies the effect of the registration of real right on the validity of the contract.At this time,the contract should be approved and the distinction between the administrative examination and approval registration to civil rights movements and set point,is not the contract behavior,the registration is only a change of real right publicity,administrative approval registration is the requirement of mining rights transfer contract,does not affect the interests of the assignee.Therefore,changes in the property and basic behavior effect,the public law and the "property law" are not in conflict,in that time effect of mining right transfer contract,should first consider the"management approach" the transfer of mineral exploration right and mining right,if there is no specific provisions to apply the "contract law","property law"".This solves the effect of mining right transfer contract in practice as well as the transfer of mining rights and the main conditions of judicial review and other issues,at the same time,we should perfect the transfer of mining right legislation:mining right transfer contract effectiveness standard is approved by the approval authority,the approval of the essence is a kind of administrative license,in favor of mining right transfer contract effective and effective legal hierarchy.Since the mining.right is usufructuary right,its object is immovable,the theory should be in accordance with the "property law" provisions on real estate registration,the mining right into the real estate registration within the scope,but our "real"Provisional Regulations on property registration are excluded,which makes the mining right as a kind of the incorporated into the unified registration of immovable property within the scope of the problem of real estate rights.For the "property law" real estate registration of two main points:demonstrative principle and the changes of immovable property(registration and registration antagonism);for the registration of mining rights is not reflected in the "property law",but there is a conflict of property registration and the registration of mining right that is the mining right registration prior to registration or earlier,the legislation is not clear.At present,unified registration of immovable property system of the dual attribute,the legal validity of registration agencies still exist decentralized,the scope of registration is not clear,the register is not clear,according to the registration is not unified,the registration process is not specific and the information platform is not perfect these problems,considering the mining rights as property rights into the necessity of moving property registration system,namely the "one card" two rights "under the limit of mining rights is property rights play,suggestions will be the mining right of property and property,the administrative license stripping mining right registration into the real estate registration scope,improve the mining right registration system and registration system and property registration of mining right registration and the system of real estate registration system reform requires collaborative innovation.