Research On The Transference Of Mining Right

Although there is no clear provision that the mineral resources should be broughtinto the real estate registration in the newInterim Regulation on Real EstateRegistration, according to the nature of mining right and the related provisions of thecurrent laws and regulations on mining rights registration, it is more reasonable thatthe change of mining rights should refer to the changing mode of real estate. SinceMineral Resources Law was enacted against the background of our planned economyin early days of the republic, the legislative experience was limited and administrativemeans were used a lot. Mining right was not considered as property right ofimmovable or the private property right. Therefore, registration system in PropertyLaw and administrative record-keeping system were easily to be confused. Theregistration effect of mining right is not clear. It is necessary to adopt the formalismtransference mode of property right if we want to differentiate between registrationand administrative examination and approval of mining rights as two completelyindependent systems. The transference mode of property right in our new PropertyLaw still belongs to the creditor’ rights formalism transference mode.Though, usingthe reasonable part of formalism of property right can improve the creditor’s rightformalism transference mode of property right, it still refuses to take the theory ofjuristic act of real right as the legislative basis. The transference mode needs thesellers to possess higher quality to know the danger in trade and to bear the risks.Therefore, it is more reasonable for the mining right to adopt creditor’ rightsformalism transference mode.Our current law norms on classified assignment system of mining right have lesslegal effect. The relative legal system is in a mess. Although the current legal normssatisfy the need to rapidly develop the mining economy, it violates the principle that alower-level law shall obey the higher-level law. The administrative approval is theprecondition to obtain the mining rights. The particularity of the development ofresources forces the government to adopt the administrative means to limit the casual obtaining of the mining rights. By the system of license registration system, thecountry can lay the use of mining rights in the national monitor area. The countryshall be seen as civil subject in the mining rights assignment contract. Although thereare some articles in the contract that involves the situation in which the countryreoccupies the mining rights for the sake of public interests, above-mentionedprovisions are not the manifestation of absolute privilege of administrationdepartment. It only writes some mandatory provisions of national law into thecontract. The mandatory provisions can not deny the character that it is a civilcontract.Administration of Granting and Assigning Mining Rights Tentative Provisionsadds the methods to assign mining rights. It not only stipulates the assignment injuristic acts, such as selling, leasing, mortgage, donating and exchanging, but alsostipulates the non-juristic acts, such as inheritance. However, it is a lower-level law.Some of the contents do not conform to the provisions in Mineral Resources Law andsome relative administrative regulations. It violates the principle that a lower-levellaw shall obey the higher-level law and breaks the consistency of the legal system.Also, there are some unreasonable provisions on the selling and leasing of the miningrights. The current two-level examination and approval of the transference of miningrights and four-level examination and approval of the assignment of mining rights arethe manifestation of the backward of administrative management methods. The trivialprocedure increases parties’ cost of the time and trade in one hand, in the other hand,it also adds to the difficulty of coordinating jobs for the competent departments ofland and resource at all levels. It causes the waste in administrative management.Itwill not influence the benefits of the assignee to set the approval as the effectiveelements of the contract. According to our current law and judicial interpretations,when the mining rights assignment contract comes into force, the protection of theassignee can still exist. In the mining rights assignment contract, it does not mean thatthe assignor does not go through the formalities for approval, he or she must take thenegligence liability in contracting. The assignee can go through the formalities byitself. Then it can let the assignor bear the cost and the loss. The assignor must takeresponsibility because he or she violates the bona fide doctrine, There are three ways to extinguish mining rights, revoking, cancellation andsuspending. The cancellation of license means the extinguishing of the mining rights.Nowadays, as the marketization of economy rapidly develops, it is inappropriate toadopt single administrative methods to manage the mining rights. The reasonable wayto extinguish mining rights is to reoccupy, then to establish the cancellationregistration, and to separate the administrative management method and propertymanagement method of mining enterprises. Also we need to issue the ownershipcertificate to testify the right of possession and make it public by canceling afterreoccupying.