矿业权与股权自由转让原则的冲突及解决

Discussion on the Methods for Dealing with the Collision of Mineral Rights with Free Transferability of Equity

我国现行法律对矿业权转让有严格的条件限制,这导致部分投资者选择以股权收购的方式获取矿业权。股东依法处分股权的结果涉嫌规避强制性法律规范,此行为的法律效力亟待确认。关键是正确理解股权自由转让原则和矿业权有限转让的关系,将现行司法经验上升为立法,明确矿业权转让的类型及要求,同时完善矿业权转让制度。

There are strict conditions for limiting the transfer of mining rights in China's current laws,and this results that some investors choose the way of share acquisition to obtain mining rights.Shareholders' handling the equity according to the law is suspected to circumvent the mandatory legal norms,so the legal effect of this behavior is urgently need to be confirmed.For this reason,the paper puts forward that the key point we must do it is to correctly understand the relationship between the principle of free transfer of shares and the limited transfer of mining rights;to raise the judicial experience to the level of existing legislation;clearly understand the type and requirements of transfer of mining rights while improve the mining rights transfer system.