反思与重构越界开采的法律责任

Reflection and Reconstruction of Legal Responsibility of Cross-Border Exploitation

通过剖析湖南整冶矿山越界开采的专项行动得出:越界开采应承担的法律责任设置不科学,非法采矿罪的犯罪客体不明确;行政责任处于强势,吸收和取代其他责任,以行政"责令"方式实现损害赔偿致使行政责任越位;民事责任的对方主体不确定,由行政主体替代而导致民事赔偿落空。应以保护公众利益为目的而重构越界开采的法律责任,越界开采的犯罪客体是矿业市场准入制度,行政责任的重点是界定第一性义务。

Cross-border exploitation is called ＂cancer＂ and it is very difficult for local government to deal with it. An analysis of the specialized action taken in Hunan indicates that the legal responsibility of cross-border exploitation is not scientific, and the object of crime of illegal mining is indefinite. Administrative responsibility is in a strong position, absorbing and replacing other responsibilities, and the mode of administrative order results in the ＂offside＂ of administrative responsibility. The uncertainty of civil liability for the other body, which is substituted by administrative body, leads to the failure of civil compensation. This paper advocates that reconstruction of cross-border exploitation liability is needed for the purpose of protecting the public interest, that the mining market access system is the object of crime of cross-border exploitation, and that the focus of administrative responsibility is defining the primary obligations.