Research On The Legal Nature Of Mining Rights From The Perspective Of Administrative Segregation

Mining industry right is the upper concept which contains the mineral prospecting right and the mining right.The mineral resources law system is based on the theory of separation of the powers and functions of ownership and the mining right roots from the ownership of mineral resources.The mining right should be a kind of real right and belongs to a special usufructuary right.But the views depicted above have a lot of problems in our researching and practicing,such as the contradiction of the right content,conflict between the premise and conclusion.According to the "Administrative Licensing Law" and the "Mineral Resources Law"stipulates that the establishment of mining right is the result of mining administrative franchise,so mining administrative franchise is an important angle to recognize the legal nature of mining industry right.Administrative franchise is a type of administrative licensing in "Administrative Licensing Law".Thought its legal nature has many disputes in the theoretical researching,its essence is a kind of mixed administrative licensing.It doesn't only contain the administrative license of property which base on the national mineral resources ownership,but also contains the administrative license of freedom which base on the administrative power.The Third Plenary Session of the 18th Central Committee of the Communist Party of China asks to constitute the natural resource assets property rights system and use control system.It also focuses on how to implement the national natural resources ownership in accordance with the principle that owners and managers should be separated.The mineral resource is an important natural resource types.To reform the mining resource administrative license is the inevitable requirement under this background;it is also a necessary way to achieve the goal of reform.In this way,to achieve the goal of separating the mining resource administrative franchise,we should make our mining resource administrative license of property in the natural resource assets property rights system and make mining resource administrative license of freedom in the use control system.Based on the separation of mining recourse administrative franchise,the nature of mining right is changed into a rights based on the administrative license of property.The mineral prospecting right is based on the mineral prospecting administrative license.It is a type of property and its essence is the administrative priority right.The mining right is based on the mining administrative license.It is a type of real right and belongs to the system of jus in ve aliena.As a conclusion,mining industry right is a complex bundle of right.Its goal is to make full use of mineral resource.It is a bundle of right which bases on mineral resource administrative franchise.It also has some characteristics both of right in public law and right in private law.