Research On Mining Right Transfer System In China

Mineral resources are not only the material basis on which the vigorous development of China’s social productive forces can rely,but also important strategic resources.The improvement of mineral resources development and utilization efficiency and the optimization of mining right allocation efficiency have always been the focus of attention from all walks of life.It is the reform and reconstruction of the transfer system of mining rights that provides ways and opportunities for the healthy and green development of mineral resources.At the same time,it can also promote the reform of the overall system of the development and utilization of mineral resources.The improved design of the transfer system of mining rights involves different aspects,such as the general idea,the transfer subject,the transfer mode,the transfer registration,the transfer market and so on.Each aspect refers to different legal issues,which is worth studying and discussing by legal scholars.The original meaning of the transfer of mining right refers to that the country,as the holder of the ownership of mineral resources,establishes a usufructuary right on the basis of the ownership of mineral resources in order to realize its own owner’s rights and interests,and transfers the usufructuary right to the transferee.By analyzing the theoretical logic of the mining right transfer system,it can be seen that it is the translation of the construction land use right transfer system.The characterization of mining right as usufructuary right,which is of great significance to the development and improvement of China’s real rights system and civil legal system and meantime is also conducive to the protection of private rights and the transformation of government functions,adheres to the basis of the civil code and complies with the basic value orientation of civil law.In addition,the transfer system of mining rights is also a way to realize the state ownership of mineral resources,and shows the legal form of making the best exploitation of mineral resources.By exploring the historical logic of the mining right transfer system,it can be seen that the transfer of mining right by following the way of administrative license setting is the product of the absence of ownership of mineral resources.Through the analysis of the essence of administrative license,it can be seen that the application of administrative license transfer to the current mining right is not in line with the legal principle,and there are the following disadvantages: the administration of mining right transfer is contrary to the asset nature of mineral resources,the indistinguishableness between the paid acquisition of mining right and the paid use of mineral resources,the coincidence of exercise function of mineral resources property rights and the use of supervision function,and the disproportion between tax collection and the practice.In order to comply with the development of the socialist market economy,it is urgent to reform China’s mining right transfer system and return it to its original meaning,which means to design the mining right transfer system according to the idea of establishing usufructuary right,which possesses the following positive effects: It is conducive to promoting the transformation of government functions to allocate mineral resources in line with the market mechanism;It is conducive to enriching the usufructuary right system and promoting the development and improvement of the usufructuary right system.As a legal system,the transfer system of mining right,whose value orientation refers to balancing public and private interests,has the general characteristics of the system,that is,taking the transfer of mining right as the main content,which is born in the general background of the reform of socialist market economic system.The purposeful value of the mining right transfer system includes freedom,justice,order and other elements.Among them,the so-called free value of the mining right transfer system refers to that the subject of the mining right transfer can independently determine the subject of the mining right transferee,both of whom are in an equal position and do not interfere with each other.The order value of the mining right transfer system refers to that the mining right transfer activities should be carried out within the legal framework.The function of the justice value of mining right transfer system is to coordinate the relationship between freedom value and order value when they conflict.The instrumental value of the transfer system of mining rights is based on the realization of its purposeful value,including benefits,fairness and efficiency.Among them,the transfer system of mining rights has economic benefits,social benefits,ecological benefits and environmental benefits.At the same time,the transfer of mining rights must take into account the value of fairness and efficiency.The essence of the transfer of mining rights is the exercise of the ownership of mineral resources,and the clarification of the specific subject of the ownership of mineral resources also means the explicitness of the subject of the transfer of mining rights.The theory of dual ownership subjects,both the state and the whole people are the subjects of state ownership of mineral resources,is more supported in theory and reality.Considering the virtual position of the state and the whole people as the main body,according to the principal-agent model,the exercise of mineral resource ownership,that is,the transfer of mining rights,has gone through five principal-agent relationships through legal authorization and administrative entrustment: the principal-agent relationship between the whole people and the state,the authorization of national mineral resource ownership,the representative body of national ownership of mineral resources,the representative body of mining right transfer and the agent body of mining right transfer.By analyzing the internal structure of the current transfer subject of mining rights in China,it can be seen that there are the following problems: the representative subject of mining rights transfer replaces the subject of mineral resources ownership,the representative subject of legal mining rights transfer passively dominates and controls mineral resources,and the local government actually transfers mining rights on behalf of the state.The reason is that the representative subject of mining right transfer and its authority are unclear,and there is a lack of supporting system for the whole people to participate in and supervise the representative subject of mining right transfer.Therefore,the country should be given civil subject and legal status,the qualification of the representative subject of mining right transfer at all levels should be clarified,and the authorized subject of mining right transfer constructed.The transfer methods applicable to mining rights in China can be divided into two categories: non-competitive transfer and competitive transfer.The essence of non-competitive transfer is administrative examination and approval,which enjoys the advantages of high efficiency.However,as a transfer method with a strong color of planned economy,it also has the following disadvantages: shielding the elements of market competition,not conducive to the protection of the rights of the transferee,and the unequal status of the transferor and the transferee.Competitive transfer methods,which include bidding,auction,listing and other methods have made the transfer of mining rights more reflect the characteristics of market competition,improved the marketization of mineral resources and mining rights,and become the mainstream way of mining rights transfer at present.No matter how the mining right is transferred,the transfer and the transferee subject need to sign a mining right transfer contract which is characterized as an administrative agreement in current practice.However,from a theoretical point of view,based on the dual identity of the mining right transferring subject,the establishment of mining right as the object of the mining right transfer contract,and the establishment of civil rights and obligations as the content of the mining right transfer contract,it is more reasonable for the mining right transfer contract to be characterized as a civil contract,which,at the same time,is followed by the advantages that it contributes to strengthening the systematic construction of mining law,forming a unified trial standard for mining related dispute cases,and speeding up the marketization process of mining right transfer in China.In order to realize the reasonable application of mining right transfer mode and legal carrier,the mining standard level of regulating mining right transfer mode should be improved,the specific application of mining right transfer mode defined and the civil contract attribute of mining right transfer contract confirmed.After obtaining the mining right,the transferee of mining right shall register the mining right.The transfer registration of mining right has the functions of both public law and private law.At the level of private law,the transfer registration of mining right has the effects of confirming the right,maintaining transaction safety and reducing transaction cost.At the level of public law,the transfer registration of mining right can help the country effectively grasp the allocation of mineral resources and mining right.The registration items of mining right transfer recorded in the mining right register can be used as evidence of mining right transaction disputes.The perfection of the registration system of mining right transfer can promote the enrichment of the connotation of the unified real estate registration system.China’s current registration of the transfer of mining rights has the following deficiencies: The effectiveness of the registration of the transfer of mining rights needs to be improved;The effectiveness of the legal basis of the registration of the transfer of mining rights is limited;The provisions on the registration institution of the transfer of mining rights are defective;And the mining administrative license certificate is confused with the certificate of property right.In order to overcome the disadvantages,the effectiveness of mining right transfer registration should be clarified,mining right transfer registration institutions integrated,mining administrative license certificate and property right certificate distinguished,and the publicity and enquiry of mining right transfer registration information strengthened.