Research On Administrative Examination And Approval In Mining Right Transfer Contract

Mineral resources play an important role in the development of a country.As the owner of mineral resources and the supervision and management organ,although the mining right is a usufructuary right,it is necessary to intervene through administrative examination and approval when it is transferred.Therefore,it is necessary to discuss how the provisions of public law affect the transaction behavior of private law.From the perspective of civil law,this paper discusses what it is,what it should be examined,how it should be examined,and the legal effect of the mining right transfer contract without administrative examination and approval.Due to the limitation of mineral resources,in order to safeguard national security,economic sovereignty and social public interests,it is legitimate to establish an administrative organ to examine and approve the mining right transfer contract.The administrative license act made by the administrative organ belongs to the special effective requirements of the mining right transfer contract and should be included in the scope of "approval" in article 502 of the Civil Code.Based on the particularity of its object,the examination and approval of the mining right transfer contract should belong to issuing a new administrative license,which actually belongs to the administrative organ agreeing to give the transferee a new qualification,so that it can exercise the mining behavior of mineral resources and have the qualification of market access.Based on the particularity of the mining right transfer contract itself,the scope and mode of administrative examination and approval should be understood accurately.In terms of the scope of examination and approval,it shall mainly examine the performance of the obligations of the transferor and whether the transferee is capable of development,environmental protection and safety,etc.However,according to the existing provisions,the review of important environmental protection obligations is not included.With the determination of the green principles in the Civil Code,the environmental protection obligations should be included in the review scope.In addition,the agreed obligations in the transfer contract can be set as a servitory right,requiring the assignee to reasonably carry out mining according to the agreed content,purpose and nature of the contract,and the review of the contract should also be a compliance review.In terms of the examination and approval methods,substantive examination should be carried out through the mode of written examination and brief investigation or written examination and comprehensive investigation.For specific strategic security activities directly related to national security and important ecological protection areas,the comprehensive investigation method should be introduced.At the same time,it is determined that the mining right transfer contract is not effective if it has not been examined and approved,which further solves the problem of the independence of the obligation to report for approval and the responsibility of the parties.