The Research On The Relationship Between Administrative Approval And Validity Of Mining Right Transfer Contract

The mineral resource plays a major role in Chinese national economic development,while the transfer of its bearer-mining right is necessary to be reined by administrative examination and approval for the sake of guaranteeing safe and stable running of economy.However,a must-to-discuss problem is whether and how the above public law influences the transaction relation under private law,to be concrete,i.e.the complicated relation between administrative examination and approval and validity of mining right transfer contract.This is also a hotspot and challenge in the current theoretical cycle and practice cycle.The issuing of Interpretation of the Supreme People's Court with Regard to Several Problems about Applicable Laws for Trial of Mining Right Dissension Cases solved a host of like problems,such as dissension solution clauses and independence of examination and approval obligations as well as assumption of responsibility in case of violation of above obligations.Yet this has failed to conclude the academic discussion.The validity problem of the contract that is not examined and approved as supposed in mining right transfer has always persecuted the judgment by the court in juridical practice.Despite that after 2011 most courts believed this kind of contract should be regarded as not-in-force,but some courts also thought it should be an invalid contract.More than that,the legal consequences produced based on different validity judgments and same validity judgment are not consistent.Therefore,how to substantially tease the relation between validity of contract and the administrative examination and approval is not only a problem of juridical practice,but also a profound theoretical problem put forward by juridical practice,with important theoretical value and outstanding practical significance.Related Chinese laws and local regulations as well as departmental rules such as Contract Law and Mineral Resources Law,etc.clearly stipulate administrative examination and approval as key elements for validation of mining right transfer contract,which also implies the transfer of mining right in China must be examined and approved.Nevertheless,to bind together the administrative examination and approval and validity of mining right transfer contract leads to over-intervention by the public law,causing the lawful rights and interests of transfer parties to be impaired,which thus led to a series of contradictions in current practice of administrative examination and approval for mining right transfer contract in China.Current Chinese laws and regulations take controlling creditor's right behavior as a cut-in point,thus generating the problem of relation between validity of mining right transfer contract and administrative examination and approval,hence the concept of "non-in-force contract".This does not only somewhat violate the autonomy of will principle and proportionality principle,but also may get into a paradox in interpreting,causing the logical mess when the system of contract validity is applied to theory and practice,thus making against healthy and orderly development of mining market.The over-intervention by public law will also make system cost pile up.In the past juridical practice involving dissension about mining right transfer contract,the core difficulty of case judgment lies in determination of validity of contract not yet administratively examined and approved,for which the court usually takes two analysis paths of contract being not-in-force and invalid,which two,however,do not tally with the judgment trend of decreasing occurrence of invalid contracts as far as possible on the one hand,and closely binding the consequence of contract being not-in-force and invalid with administrative examination and approval will cause undesirable legal responsibilities and undesirable behaviors among the parties to the contract,thus not favorable for stability of legal rules;while on the other hand,the consideration about law and economics factors such as actual transaction scene,efficiency and incentive effect,etc.is also insufficient to effectively guarantee equitable distribution of benefits of parties to the mining right transfer contract and their lawful rights and interests.In the final analysis,the above established analysis paths for validity of the contract have drawbacks in survey on the defects of analytical approach of intention manifestation,concrete content of national compulsiveness,market logic and general behavior rule of parties,while these problems can be fully solved through the new path based on pragmatic analysis and the validity determination mode of determining the contract is valid thereby,thus providing a clear and exhaustive analytical framework for clarifying the relation between administrative examination and approval and validity of mining right transfer contract to powerfully interpret the legal consequence and applicable rules in different situations and realize effective relief for default.From another perspective,the real logic behind the judgment for the validity of not yet examined and approved mining right transfer contract lies in that the analysis on contract validity is transforming from simple analysis on national will and intention manifestation to the economic analysis.The economic analysis of contract validity means the necessity of more valuing the basic status of market in resource allocation in terms of the relation between administrative permit and market,trying to alleviate litigation burden,stabilizing transaction order,respecting merchants,reasonably allocating commercial risks and avoiding risk transfer by dint of legal rule,establishing dissension solution status of court,and maintaining commercial credit.Such transformation conduces to teasing the relation between market logic and state control and clearly realizing the domains where the state control exerts functions,thereby avoiding corruption,etc.Based on such cognition and differentiation between contract validity and contract performance,the concept of contract being valid should become a more persuasive theory with natural advantage over the concepts of contract being invalid and contract being not-in-force,i.e.it both respects the intention manifestation of the parties to the contract and interprets the dissension solution clause in judicial interpretation,independence of obligation of submitting for approval and the liability for breach of aforesaid obligation.Of course,such legal ideal is realized with necessary supporting mechanisms such as transformation of law governing concept,strengthened supervision and law execution and a benign mining right market.To be concrete,this requires: 1.Reforming the legislation mode of fusion of public law and private law on Chinese mineral resources,perfecting related legislation of Chinese mining right;2.establishing a hierarchical and classified management system of mining right to make transfer of prospecting and mining right more open,perfecting the examination and approval system of mining right transfer;3.perfecting laws and regulations on mining right evaluation,strengthening self-disciplinary organization of mining right evaluation,stepping up efforts at supervising evaluation agency and evaluators,so as to perfect the evaluation system of mining right;4.perfecting the trading market of mining right sale by modifying or deleting the legal provisions banning mining right sale,normalizing evaluation agency for mining right sale,scientifically and reasonably determining the sale price,and building an information platform for mining right transaction,etc.