Study On Legal Issues Of Mineral Rights Transfer

Although China has vast land and rich in mineral resources, the per-capita quantity of the resources is small. As non-renewable natural resources, mineral resources are an important material foundation for the survival of humankind and have great strategic influence on the social development of a country. Therefore, we must stick to the path of sustainable development and building a resource-saving and environment-friendly society, and strive to improve resource utilization. Due to the imperfection of current mineral rights system, the mineral market of China is still a bit in disorder. On certain degree it caused great waste of our country's mineral resources. With the basic concept of mineral rights as a start, by analyzing of the current rule of mineral rights transfer, the author will point out some deficiencies of the current system and make some suggestions, expecting that this study will play a promoting role to the effective use of mineral resources and to the protection of environment in the mining area.The first part of this paper is a general statement of mineral rights. The author first defines the concept of mineral rights. It refers to the rights obtained in accordance with the law for the exploitation of mineral resources and the possession of mineral products in specific registered mining area, and is excluding the interferences from others. Then the author summarizes the nature of mineral rights. The"Property Law"passed on the fifth Session of the 10th National People's Congress defined the usufruct nature of the prospecting and mining rights. It indicates that the provisions on the real estate property rights which set forth in the"Property Law"are applicable to the prospecting and mining rights. Thus it lays legal foundation for the perfection of prospecting and mining rights management system which is demanded by market economy. Finally, the author discusses the legal relationships related with the mineral rights. In China, the subject of mineral rights in principle is China's corporations, partnerships or citizens. However, the regulations also affirmed the foreign companies, partnerships and other economic organizations and individuals the status of the subjects of mineral rights. The object of mineral rights has its speciality. Not all of the mining regions can be mined. Legal mining does not only require mineral resources, but also need to be consistent with state laws and regulations. Mineral rights can not be exercised in law prohibited areas or areas without the approval of appropriate authorities.The second part of this paper explains the conditions for mineral rights transfer. To get the mineral rights from the possessor (the state) of the mineral resources by the subject is the precondition for the lawfully transfer of mineral rights. The bargaining of mineral rights formed a primary market or initial market with main parties of the possessor of mineral resources and the owner of mineral rights. A secondary market is formed when an enterprise who obtained mineral rights retransfer the mineral rights under certain conditions. Part Two mainly contains the following three aspects: (1) The subject of the mineral rights transfer. In China, the subject of the legal relationship of mineral rights compensable transfer includes mineral rights assignor and mineral rights assignee. (2) The legal conditions for mineral rights transfer, including the authority for approval of mineral rights transfer, conditions for the prospecting rights transfer, and conditions for the mining rights transfer. Double level review is required for mineral rights transfer. The approvals from departments in charge of geology and mineral resources at both provincial and state level are needed. (3) The legal form of the mineral rights transfer,including forms of initially obtaining mineral rights and forms of transferring mineral rights in the way of the transfer. Initially obtaining mineral rights mainly take the forms of applications - approval - Registration, tender, auction sale, and negotiate - approval– registered. The transfer of mineral rights includes forms of sale, mortgage and rent.The third part of this paper discusses the problems in the mineral rights transfer system. The main deficiencies in China's mineral rights transfer system are, (1) Conflicts exist between mineral rights and land rights in the process of mineral rights transfer. At present, the mining lease hasn't been provided in China's"Mineral Resources Law"."Mineral Resources Law Implementing Rules"provides that to the use of mining land shall in accordance with the relevant laws and regulations on land. Due to the limited nature of mineral resources and the non-selectivity mining sites, the use of mining land is different from the use of industrial land. Therefore, conflicts often arise when the owner of mineral rights do not consist with the original user of the land. (2) There are too many constraints in the mineral rights transfer system. The requirements to the mining subjects of mineral resources are unfair; too many restrictions have been set as preconditions or time constraints; intermediary services are not standardized; drawbacks exist in the management of government; scientific value assessment system remain to be established. (3) The environmental issues in the mineral rights transfer process. The main problems are: not enough attention on protecting the environment and ecology of mine have been paid by local governments; environmental management in mine construction project is not in place; the law enforcement capacity of ecological environment protection on mine is weak; historical debt in mine ecological environment is relatively heavy, while the governance finance is seriously in short; forceful laws on protecting the environment of mining area is lacking.In the fourth part this paper, the author gives some suggestions to improve the mineral rights transfer system. First, the author proposes specific solutions for the conflict between mineral rights and related rights on land from aspects of the mineral rights and land contract rights, mineral rights and residence land use right, mineral rights and national ownership of land, mineral rights and the collective ownership of land, and mineral rights and use state-owned land use right. Secondly, the author suggests relax the restrictions on the mineral rights transfer system. Specifically, (a) set the equal eligibility for the subjects of mineral rights. Under the circumstance of socialism market economy, the legal status for the subjects of the market should be equal; (b) Reduce preconditions for the transfer of mineral rights, and develop flexible minimal time limit; (c) Establish detailed conditions specific to different mine category; (d) Standardize the services provide by intermediaries in the mineral rights transfer process; (e) Establish appropriate government intervention in the mineral rights transfer system. (e) The Ministry of Land and Resources issue the proposed regulations of"mining rights valuation approach". Finally, we should enhance environmental protection in the mining area, mainly from the following aspects: (a) Establish Margin System for environmental restoration and control in the mining area; (b) strictly supervise, implement regulatory responsibility; (c) Establish dynamic management system on resources reserves; and (d) Establish terminal environment control system of closed mines.Although the transfer of mineral rights can promote the development of China's economy, and speed up the flow of funds of mineral enterprises, the problems existed in the system of mineral rights transfer should not be overlooked. Study on the transfer of mineral rights can not be limited to its economic benefits, but should take the transfer process as a whole to analyze, and to identify imperfections in the transfer system, so as to find ways to solve these problems. Environmental issues are not only for contemporary people, but also are related to the well-being of future generations. The author hopes that the present study on legal issues of mineral rights transfer can ameliorate China's mineral rights market, and at the same time, to make some contributions to the environment protection.