| Since the reform and opening up,China’s market economy has been moving towards prosperity.With the increasing emphasis on the protection of private rights and the gradual release of the constraints on the mining market,the circulation market of mining rights continues to heat up.However,in view of the fact that the transaction of mining rights touches on such important issues as national energy strategy,resource utilization efficiency and ecological environment protection,judicial practice still adopts certain supervision and restriction on the transfer of mining rights.In short,the transfer of mining rights must be subject to administrative approval,and the administrative agency will conduct a strict review of the qualifications of both sides of the transaction.In addition,China’s mineral resources laws and regulations explicitly prohibit illegal reselling of mining rights for profit,and prohibit the disguised transfer of mining rights by contract.In recent years,driven by the high demand and high profits for mineral resources,the trading demand of mining rights has continued to rise.The voice of speeding up the transfer of mining rights and the necessary restrictions on the transfer of mining rights have become a pair of increasingly prominent contradictions in the current mining market.Many parties try to wander around the edge of the law to circumvent the restrictions of the state on the transfer of mining rights,so as to reduce the transaction costs by every means.Therefore,the transaction mode of "indirect"transfer of mining rights through equity transfer came into being.In practice,such transactions not only cause a large number of unqualified entities to flood into the mining market,but also lead to a significant reduction in the efficiency of mining and utilization of mining resources,but also breed many practical problems such as illegal speculation in mining rights.Therefore,the validity of equity transaction and equity transfer contract of mining companies has aroused widespread controversy in theory and practice circles.Based on the above discussion,this paper attempts to start with the connotation,causes and practical problems of the equity transfer of mining companies,through analyzing the legal status and different opinions of the validity of the equity transfer contract,and then puts forward the specific rules of the validity of the equity transfer contract of mining companies.Specifically,this paper is divided into the following four parts:Part Ⅰ:Overview of equity transfer of mining companies.Equity transfer of mining companies refers to the act of the mining company’s shareholders transferring their shareholders’ equity to the transferee.In practice,the equity transfer of mining companies can realize the change of controlling shareholders or actual managers of the company,and then transfer mining rights indirectly.In contrast,the transfer of mining rights through equity transfer can greatly reduce the transaction cost of mining rights.Because the laws of our country do not explicitly prohibit such transactions at present,this kind of low-cost transaction mode is very popular in practice.However,while promoting the transfer of equity and mining rights,such transactions have caused practical problems such as reducing the mining efficiency of mineral resources,illegal speculation in mining rights and ecological damage,which has led to controversy in theory and practice on the validity of the equity transfer contract in mining companies.Part Ⅱ:Current situation of validity recognition of share transfer contract of mining company.At present,there is a legislative gap in the determination of the validity of the equity transfer contract of mining companies in China.There are different standards for the validity of the contract in different local courts,and the high courts in different regions set up their own provincial judgment rules according to different cases,which leads to the risk of"different judgments in the same case"in different regions.Under the circumstance that there are some defects in the validity of the equity transfer contract of mining companies in the local courts,it is urgent to fill in the legislative blank to regulate the practice chaos in this field.Part Ⅲ:There are two main opinions about the validity of the mining company’s equity transfer contract:validity theory and invalidity theory.In validity theory,there are also differences between two opinions-the contract is valid at the time of its establishment or after examination and approval.All viewpoints are reasonable to some extent,but there are still some points worth discussing.The controversy over the validity of the equity transfer contract of mining companies reflects the conflict between the two value concepts of public interest and autonomy of will.Therefore,the design of the rules for determining the validity of such contracts should be based on prudent consideration of the two values and seek a new balance between protecting the free trading of equity and maintaining the necessary supervision of mining rights transactions.Part Ⅳ:The rules for determining the validity of the equity transfer contract of mining companies should establish the principle of taking into account public interests and autonomy of the will,respecting the dual distinctive structure of the company,and be based on the relevant provisions of the Contract Law on the validity of the contract,should be specifically designed around the two major factors of equity transfer and the qualifications of the equity transferee,and should be classified according to the specific transfer situation,and should avoid "one-size-fits-all"type of judgment. |
