Study On The Legal System Of Mining Right Transfer In China

According to the relevant laws of China,mining right,refers to the right to exploit mineral resources and obtain the minerals extracted within the scope specified in the mining license obtained according to law.Long before the Civil Code was promulgated,China’s Property Law established the property attributes of mining rights and characterized mining rights as usufruct rights.The development of China’s legal regime for the transfer of mining rights has generally evolved from a "prohibition of transfer" to a "restriction of transfer".In the "prohibition of transfer" stage,China was in the implementation of the planned economic system,in this economic context,mining rights were not only prohibited from circulation,but also subject to administrative penalties for transfer.In the "restricted transfer" stage,China’s socialist market economy system,mining rights can be legally transferred,and provides for the conditions of application for transfer,the required materials,approval process,etc.,the initial formation of the mining rights transfer system.Compared with the previous stage of prohibiting the transfer of mining rights,this change in the legislation is undoubtedly a progress,which has initially adapted to the needs of the market for the transfer of mining rights,thus laying the foundation of China’s mining rights transfer market.China’s current mining rights transfer has the following characteristics: 1.the object of the transfer of mining rights is mineral resources;2.the transfer of mining rights is a legal act;3.the subject of the transfer of mining rights is restricted;4.the transfer of mining rights has strong administrative intervention.Through the analysis of the legal system related to the transfer of mining rights and the judicial precedents related to the effectiveness of the transfer of mining rights,the author analyzes the problems of the current system of the transfer of mining rights in China: First,the nature of "mining rights" and "mining behavior" is confused,and the concern about the mining behavior is grafted onto the whole mining behavior.First,the nature of "mining right" and "mining act" are confused,and the concern of mining act is grafted onto the whole mining right system,and the "act of transfer" together with the "act of mining" is strictly restricted by administrative approval.Second,the administrative approval system reflects excessive interference of public power with private rights.Third,administrative approval as a valid element of the transfer of mining rights is in conflict with the property rights regime and does not provide complete protection for the interests of property rights holders.Fourth,the undue restriction on the qualification of the transferee has become the biggest obstacle to the transfer of mining rights to natural persons.In the author’s opinion,to improve the above problems,we should return to the property attributes of mining rights.The former is a property right of a civil subject,which should be protected by public authority and not strictly interfered with,while the latter is a civil activity,which is strictly controlled by public authorities..On the basis of clarifying the property right attributes of mining rights,the existing system of mining rights transfer can be improved from the following paths:First,the different legal attributes of mining rights and mining behavior should be clarified,and the object of strict government control is the "mining behavior" of minerals rather than the "mining right" itself;second,in principle,the registration system should replace the administrative approval system,but for the purpose of maintaining national For the purpose of maintaining national security,the administrative approval system is still applicable if the transferee involves foreigners;third,the registration is not set as the effective element of the contract for the transfer of mining rights,and the registration only affects the change of property rights of mining rights;fourth,the transferee is not restricted in principle,and the administrative approval system is only applicable if the transferee involves foreigners.