采矿权并非用益物权的法理辩析——与中国政法大学李显冬教授商榷

The Jurisprudential Analysis of Mining Right being not Usufructuary Right——Discussion on Some Issues with Pro. Li Xiandong

《物权法》颁布,一贯主张采矿权属准物权的专家转向采矿权属最完整的用益物权,以矿产资源是劳动对象,开采中即时消耗不须返还为采矿权客体的被处分作辩解。但是,法律关系的客体和经济关系的劳动对象不可能相通,而且客体没有在开采中即时消耗,完全可以返还,客体被处分误为标的物被消耗。采矿权是财产权、行政权、行为权三个不同层面整合的多面体,不同层面的性质不同。应重构采矿权为独立的矿产权和采掘权(开采权),矿产权是国有特定矿产所有权的让渡,属自物权。

With the ＂Property Law＂ promulgating, the experts who have always advocated mihing right owning to the quasi-real right turn to the position of the mining right owning to the most complete usufructuary right. Mineral resources , used up immediately with the exploitation, is the object of labor activites and cannot be returned. This is viewed as the object of the mining rights been disciplined for excuse. However, the object of the legal relationship differs in the labor of economic relations and that the object does not consume immediately during the exploitation, so it can be returned wholly . The disciplined object has been mistaked for the consumed subject . Mining rights comprise three different levels which are property rights, administrative powers, and conduct rights, all of these distinct level rights are different from each other. The author presume that we should reconstruct the concept of the mining rights as an independent mineral rights and excavating rights （mining rights）. The state-owned mineral rights are transferring ownership of a particular mineral, and should be attributed to the property.