Study On The Changes Of Mining Right During The Late Qing Dynasty And The Republic Of China

From Qing Dynasty to the Republic of China,legal system of mining industry had been through several stages of development.It transferred from traditional mining management to modern mining legal management.The mining right is the core of the mining legal system.Its essence is an distribution of mineral resource's benefit by country.Research on mining right in Late Qing and the Republic of China period will help us not only deeply understand social picture in the transition of modern Chinese mining legal system,and also provide reference for perfecting the property of mineral resource and equity allocation legal system.Upon the analysis on mining right legislation,administrative execution and judicial dynamic operation in early Qing Dynasty,late Qing Dynasty,Beijing Government and the Nanjing national Government,the paper try to answer the following two questions.How did the traditional mining right transferred to modern mining right?How did the modern Chinese mining right legal system come into being in the process of collision and integration between borrowed western mining right law and regulation and Chinese traditional mining practice?In the early period of Qing Dynasty,the country has not promulgated unified mining laws and regulations.It only published different mining rules applicable to several specific regions.In accordance with the mining rules in that time,it defines the prohibited area of mineral resource and local people can conduct mining activity locally.People are obliged to engage in mining activities with national mining license on state-owned land.For private land,except for the minerals monopolized by the state,land owners could conduct mining activities as he like.The government specifically regulated and punished the following two illegal mining activities:unlawful mining and aliens' engagement in mining activities.Hundreds of coal mountain rental agreements in Baxian county and coal mining partnership contracts in Mengtougou district reflect private agreement is substantially the mining rules.Coal mountain rental agreements in Baxian county could be deemed as the mining permission issued by mountain owners.In accordance with coal mining partnership contracts in Mengtougou district,miners and land owners cooperate in the mining activities,the mining right has not transferred from land owner to miner.Mining rights attached to land ownership,once the land is sold,and the mining rights will be transferred to land owner naturally.Notably,some mine owners will independently rent out the underground coal land for mining,and they will retain the right to farm on the ground.This practice will lay the foundation for the future separation of underground mines property and land right on the ground.At that time,there were mainly three types of mining right dispute,miners and mining land natives,miners and owners of mines,between unlawful mining natives.In the late Qing Dynasty,government absorbed western mining legal system and operation experience,promulgated a lot of mining regulations.The Provisional mining 38 articles sets up mining right at first time in China,defines the statutory principle of mining right,and separates the exploitation right from mining right.The Qing Dynasty mining regulations,which was published in 1907,ensures primary effectiveness through setting up mining right regulations systematically.It clearly extracts the on the ground property owned by land owner and mining right beneath ground owned by country from the traditional land property.Fatherly,it lay legal basis on the mining and land property separation,and priority of mining right over land property.By combing dozens of China and foreigners joint mining companies' articles and contracts in mining archives,we could clearly know the implementation of mining law and regulation in late Qing Dynasty.Those company articles and contract acts as agreement between joint venture parties and foundation of mining companies on one hand,and on the other hand,they became localized mining right rules after getting official approval.The basic localized mining rules includes mining right's duration,narrowing of land owners' right,erection of exclusive mining right,protection over lawful pre-miner's benefits and insurance of local people's right in the employment of mine exploitation.Some of articles and contracts take into effect before the publication of Qing Dynasty mining regulation,and some occurred afterwards.It is really interesting to find the implementation of mining right was interwoven with state legislation process.Beijing Government attached importance to the development of mining industry,and set up special department in charge of mining.Agriculture and commerce department published Mining regulation which established the basic mining right legal system,and Mining regulation for small-sized mines which tried to legalize the mining activities of small mines.Agriculture and mining department was responsible for the explanation and clarification over the question proposed by local mining administrative institutions and people in the execution of mining right law and regulation.For the locals make a living by private unlawful mining,mining administrative institution gave temporary tolerance to such unlawful mining,and instructed locals to apply for mining license in accordance with the mining right law and regulations.When the miners with mining license suffered infringement from locals,bandits and hooligans,the local government will give protection accordingly.In the process of handling mining right disputes,Dali yuan tried to extract the mining right from land ownership,so as to change the traditional vision of the "land and mine underground indivisible" and strengthen the statutory principle of mining right through judgement.The administrative appellate court set more specific standards on priority in mining right,detailed in the scope of forbidden mining area,and deepened the protection over mining right holders.Mining is increasingly important in the national economy.The Nanjing National Government has established a mining right legal system,which has created a legal platform for pushing the development of mining.The 1930 "Mining Law" not only regulated the state ownership of mining right and the separation of land ownership and mining right.Even if the landowner of the mine "has no mining right in accordance with the law,no exploration can be made";and it is determined that the prior petitioner obtained the priority of mining right.Landlords can no longer claim priority for mining right due to their land ownership of mine.In the implementation of the "Mining Law",the Ministry of Industry and the Ministry of Economic Affairs successively carried out an administrative interpretation of the norms of mining right,such as clarification of "landowners have no right to give approval of mining right" and "the time standard for the priority of mining rights",explaining the concept of mining land,and enhanced the accuracy and applicability of the mining right norms.When reviewing the application of mining right,the mining authorities focused on removing landlord interference and further separating the mining right from land ownership.At the aspect of mining right protection,they concentrated on cracking down on private mining and stealthy mining,and to some extent responded to requests for protection of mining right holders.In dealing with mining right disputes,the relative authority took into account the mining interests and the local people's livelihood,as far as possible to bridge the relationship between mining right holders and mining land natives.Although the administrative courts dealt with a few mining rights cases,they further supplemented the mining right priority rules and clarified some doubts in the mining right review.Since the late Qing Dynasty,the social demand of mineral resources has been soaring,which requires the state to construct suitable mining right norms.Mining development requires free competition in markets,which must break the restrictions on the inflow of foreign capital and technology by the removal of "local mine ought to be exploited by natives" tradition.Emerging capitalists are eager to be protected by national laws in their investment in mining.The change of mining right mainly originates from four aspects.First,with the assistance of Western learning,China has the opportunity to choose the right system of new mineral property from the collection of the newly-arranged system.Secondly,the mining technology's remarkable promotion put forward the higher system request to the mining right distribution and the regulation.Thirdly,the promotion of the mineral social value requires the state to make appropriate institutional arrangements for mine land use and mineral exploitation.Enriching our country by development of mining industry becomes the mainstream concept of society.How to standardize the period,scope and acquisition of mining right,and how to restrict foreigners' investment in China's mining industry,rely on the enactment of appropriate mining rights norms.Through analyzing and integrating the early Qing Dynasty mining contracts,the late Qing Dynasty "mining archives" and the Republic of China's mineral industry magazine,the Official Gazette and other historical materials,we found that the change of mining right is mainly manifested in four aspects:firstly,the separation of mining right and land ownership,and the second is that the people with mining right are no longer natives only,the limitation of native has been broken through.Thirdly,the mining right access guarantee transferred from the person's guarantee to the goods guarantee,Fourthly,the mining dispute processing becomes standardized and orderly from not very normative and disorderly.In traditional Chinese society,the national law lacks the definition of the relationship of mineral property rights,and the legislation involving mining is fragmented.There are some drawbacks in the original mining property arrangement in China.First,the state prohibits foreign businessmen from mining in mine land,which factually leads to mine idle.Secondly,the transaction costs of the miners and mine land owners are very high.Thirdly,mining disputes are settled in private,the fairness and effectiveness are difficult to guarantee,and sometimes even lead to serious bleeding conflicts.Both production order of mining and the personnal safety of miners are not fully safeguarded.The private mining property rights are mainly adjusted by the customary rules of mining rights,but some customary rules hinder the development of the mining industry because of their limitations.The government is the leader of the change of mining right in modern times.The legislature has promulgated many mining laws in accordance with the Western law system,so that there are laws relative to mining rights to abide by.Through the explanation,the administrative organ made up the omission in the mining right standard,and clarified the operation criterion of the mining right management.The state not only set up a specializad mining management institutions,but also set up appeals and administrative litigation proceedings,and standardize the treatment of mining rights disputes.The administrative organs and the judicial organs have further clarified the legal relationship of mining rights through the adjudication of disputes over mining rights.The transformation of mining rights have overcome multiple obstacles and promoted the freedom of mining development.Firstly,the state has nationalized minerals through mining legislation,and gains the power to grant mining qualifications.Mining activities are no longer subject to mountain owners.Secondly,the removal of the origin requirement in mining qualifications,miners were not limited to "locals".Thirdly,to resolve the contradictions among the mining right person,the owner of the mine land and the natives.Fourthly,miners' mining activities are protected by related laws,and reduced the bloody conflicts of private relief.In this way,the transplanted mining right criterion,combined with the actual situation in China,has gradually changed the Chinese traditional mining right structure and produced the"Chinese" mining right system.The change of mining right optimized the structure of mining property rights.A more profitable pattern of interests comes into being among miners,mine landowners,locals and the state.Firstly,the mining law has regulated that the landowners can obtain the land rent and damage compensation,the official guidance over the rent and transaction price leaded to reduction of the owner and the miners bargaining costs,so that the owners of the mine mountain's income increased.Secondly,the establishment of mining right priority is a competitive mechanism of mining,which drives the miners to actively seek the first petition for the mining right of a certain mining area and it finally improved the efficiency of mining.Thirdly,the natives can not only be employed by mining companies,but also enjoy a certain mining dividend and local public welfare,and their overall benefits got promoted.Fourly,the country obtained considerable tax revenue,and the mining industry pulled the social overall economic development rapidly.From the end of Qing Dynasty to the Republic of China,the interference of the foreign countries and the local separatist regime destroyed the uniform application of mining norms,combined with the immaturity of the mining right norms,the implementation of mining rights norms was not satisfactory,it is unfavorable to make too high evaluation.