Study On The Effect Of Mining Right Transfer Contract

In recent years, the mining rights transfer activities have become more frequently, which signed a mining right circumstances without an approval of the contract have also occurred. According to "People’s Republic of China Contract Law"(hereinafter referred to as the "Contract Law"), Article 44, "prospecting and mining right management approach"(hereinafter referred to as the "Rules"), the provisions of Article X, mining right transfer contract is approved enters into force, but without a contract after signing and validity of the approval was not clearly defined, which thus became a major problem in the theory and practice. In 1999, the Supreme People’s Court promulgated the "contract law interpretation(a)" Article IX clear that the concept of "not active contract"; in 2009, the Supreme Court issued a "contract law interpretation(b)" clearly Article 8 application for approval of entry into force of the obligations under the contract and liability for breach of the obligation arising; this would such "commencement of the contract is not established" patterns of behavior and the legal consequences of making became the focus of research scholars. From a typical case of unauthorized mining right transfer contract cuts this article, combined with the focus of the dispute cases and related legal analysis to study the effectiveness of such contracts identified problem and the way responsibility.The authors collected a large number of such cases, the referee found that the standard judicial practice in such cases is not uniform, they chose one of the more complex case analysis, with a view to resolving such disputes in the future to improve and offer some of the relevant legislation reference. This article, in addition to the introduction, epilogue, includes four parts.The first part, this part is mainly through the case study of this paper is to lead to problems, including the focal point between the case profiles, disagreement theorists and scholars dispute. For overcoming such contracts, the effectiveness and performance of the obstacles identified was the focus of controversy, different scholars have different opinions.The second part is the most important part of this article, which contains a solution of such cases to use the theoretical knowledge. First, the validity of the contract without the approval of academic legal effect on such contracts are the following theory- "valid contract" "invalid contract" and "not-in-force contract". Secondly, the differences between the contract and the contract is not invalid in force, no different from the commencement of the contract and the contract is invalid, should be corrected in the judicial practice of such contracts found to be invalid contracts mistake. Finally, the contract performance barriers by analyzing the possible remedies to solve the current problems.The third part, this part is the conclusion part of this case, combined with theoretical knowledge to analyze the first part of the text in the selected case. Comments by the court’s decision to elicit the author’s point of view, without the approval of mining right transfer contract is not in effect, the parties can exercise the right to terminate the contract to resolve the dispute, in order to reduce their losses.The fourth part, this part is the revelation of this paper. The recognized law theory said that the validity of the contract is divided into establishment- entry into force of the two-level theory, but the author is more sympathetic to the approval of contracts should be separate from the validity of the contract, the existence of contracts into "the formed, effective and in force of " the three stages of the three-level theory. In practice, but also pay attention to the convergence of the executive power and judicial power, in order to protect the legitimate rights and interests and maintain normal trade order.