论矿产资源上的权利配置

On Rights Distribution of Mineral Resources

我国矿产资源属于国家所有,并禁止其流转,矿产资源的流转要依赖于矿业权的流转,在矿产资源的权利配置上形成了自物权与他物权(他项权利)并行的权利安排。矿业权特别是采矿权的流转从实质上是矿产资源所有权发生转移,可以允许所有权流转而实现资产管理与资源管理的分离,并使矿业权成为资源管理的手段即行政特许权,矿产资源上的权利形成私权与公权并存的新的配置。

In our country, mineral resources are public properties and belong to the country as a whole. Iris not assignable and not transferable according to the law in operation. The delivery of mineral resources relies on transfer of mining rights including jus in re propria and jus in re aliena. In fact, the nature of the transfer of mining rights, es- pecially the transfer of exploitation right is the transfer of the ownership of mineral resources. This article holds that in order to separate property management from resources management, it is possible to permit transfer of the ownership of mineral resources to regulate mining rights as a method of resources management, i. e. an administrative franchise, and to form a new system of rights distribution in which private rights and public rights are coexisting.