应废止探矿权人优先权制度——兼与中国政法大学李显冬教授商榷

Priority Right System of Exploration-Right Possessor should be Abolished——Based on the Discussion with Professor Li Xiandong from China University of Political Science and Law

探矿权人优先取得采矿权的制度,在法律修改时是进一步完善还是废止,处于立法的十字路口。优先取得的对象,是静态的矿产物权还是动态的开采行为权,存在不确定性。若优先取得或直接取得矿产物权,则否定了资源的市场配置功能,将导致国有资产流失以及公权力寻租腐败等;若优先取得或直接取得开采行为权,则绕过市场的政府管制,形成市场的矿业垄断,将给社会公众造成不可挽回的损失。国外各类矿业优先权属于"程序性"优先权,并没有优先取得采矿权制度,因此,应当废止探矿权人的优先权制度。

Whether the system that the exploration-right possessor enjoy priority in the acquisition of the mining right is further improved or abolished is in a dilemma of legislation. There is uncertainty about the object that is priority in obtaining, because perhaps it＇s part of the static mineral property rights or the fact that it＇s the part of dynamic behavior right of mining. This paper argues that if we enjoy priority in the acquisition of the real right of mineral resource, or directly obtain it, the function of market allocation of resources will be denied, which will lead to the loss of state-owned assets, and rent-seeking of public power. And if we directly get behavior right of mining prior to others, governmental control over market disorder will be detoured, as a result, mining monopoly will be formed in the market, which will cause irremediable loss of the public. In foreign countries, all kinds of priority of mining pertain to procedural priority, and there is no priority to obtain the mining right system, so the priority right system of exploration-right possessor should be abolished.