Research On Quasi-Usufruct And Restriction Of Mining Right

Mineral resources is an important material base of the human production and life, as well as social development and progress. According to China’s relevant laws and regulations, the mining right refers to the person who holds the right to exploit mineral resources and obtains the mining license according to law which is in accordance with the the scope of provisions, that is to say, exploits mineral resources and gains the right of mining to exploit mining of minerals and possesses some specific mineral resources that exist in specific area. The mineral right origins from the national ownership of mineral resources in our country, and is the main realization form of national ownership of mineral resources. For a long time, however, the academic circles are no unified point of view for the legal attribute of mining right. In view of different legal characteristics owned by the mining right, there are a great many theories in the the theoretical circle, such as "theory of right of full ownership", "theory of usufructuary right" and "theory of quasi real right" and so forth. The theory of full ownership of the mining right fully recognizes the mining right, which is gradually consumed step by step and transfers the country’s mineral resources in the process of establishment and exercise, and there is existing problems of consumption in theory. Therefore, the mining right regards as the right of full ownership from the extreme perspective, however, mineral deposits, mineral resources shall be owned by the state due to the "constitution" and "property law", so the theory of right of full ownership of the mining right should not be adopted. The theory of usufructuary right of mining right has made a great contribution for manifestation of private rights of the mining right. After all, the mining right in the obtained way and the process of exercise exists a big difference from the traditional usufructuary right. As a consequence, the positive sense of the theory of usufructuary right of mining right should be given the height of the affirmation, but for the mining right, is not defined as the pure usufructuary right. In addition to other views in theory, they are also existing shortage in a certain degree. "Property law" promulgated in 2007, which took the mining right into one part of usufructuary right, under such kind of the regulation, the debate about the properties of the miningright does not eliminate in the academic areas.In the analysis and comparison of rationality and deficiency of various theories of the mining right, the author defines the legal attribute of the mining right as a kind of quasi-usufructuary right. Quasi-usufructuary right mainly refers to the special law on real right. Because its particularity in the legal content is different from the property law on real right classification, but quasi-usufructuary right on the applicable law shall apply the regulations of the adjustment of real property, usufructuary right and other legal rules. Due to mining right deriving from state ownership of mineral resources, therefore, the mineral resources ownership is the "mother right" of the mining right, both the state and the mining-right owner have the relationship of owner and user, which promotes many similar characteristics between the mining right and the usufructuary right. At the same time, the mining right in the obtained way and in the process of the right to exercise, there are a lot of restrictions of public power, which differs from traditional usufructuary right. So t the legal nature of mining right shall not be defined as usufructuary right. But on the application of law, the usufructuary right and other relevant laws and regulations shall be applied to adjust the content of the mining right. Attributes of quasi-usufructuary right of the mining right can be available for providing better guidance for the mining right obtaining and practice of transfer of the mining right. In addition, because of much of scarcity, irrefragable characteristics for mineral resources, development and exploitation of mineral resources is concerning problems with mineral resources owner’s interest, social public interests, environmental protection and national security. So the relationship between state-owner and mining-right owner and public power constraints of correct understanding and application of the mining right and mining right in the process of exercising should be given high priority so as to better safeguard the interests of the state, society and the mining right owner, as well as promote sustainable and healthy development of mining industry in our country.Apart from preface and epilogue, this article is divided into four parts in all.The first part analyzes controversy of legal attribute of the mining right. First of all, this thesis intends to set forth specific point of views for legal attribute of the mining right through review of private law, environmental resources law, public law and different disciplines in research field with the analysis of support arguments different doctrine and revelation of rationality and insufficiency of various theories of the mining right in order to provide certain theoretical basis for giving a clear definition of legal attributes of the mining right.The second part is an introduction to analysis of certainty and rationality of attributes of quasi-usufructuary right of the mining right. This part is the core component of this thesis and mainly focuses on the subject, the object, real right validity, private right attribute and the principle nature of the mining right to discuss attributes of quasi-usufructuary right of the mining right. And the clarity of the applicable law of the mining right, particularity of the mining right obtained and multiplicity of mining right person obligations are illustrated in this chapter, so defines the mining right as the rationality of the quasi-usufructuary right. On this basis, the author also discusses meanings and values of the mining right obtained and transfer of mining right in a view of attributes of quasi-usufructuary right of the mining right.The third part makes an analysis of the relationship between the state ownership of mineral resources and mining right owner. In this part, the author mainly discusses the relationship between the owners and the usufructuary right holder under the general theory, and then analyzes the particularity of the relationship of the country as the ownership of mineral resources and the mining right owner. On this basis, the requirements for the mining right is introducing competition mechanism in the transfer process to redefine the role of administrative licensing, and eventually achieve the balance of interests between the state ownership and the mining right owner.The fourth part pretends to analyze the problems of public power constraints in the process of the mining right exercising. This part mainly discusses the particularity of the mining right as quasi usufructuary right, namely, the mining right exists the problems of public power constraints in the process of the mining right exercising. Based on mineral resources scarcity, the maintenance of public interest and the requirements of environmental protection is the theoretical foundation of the public power restrictions.Moreover,this part analyzes overall planning for administration as far as the mineral resources is concerned and illustrates the current situation and existing problems of too much public power limits through the restrictions of the transfer ways, conditions and procedures of the mining right under the existing system.