矿业权流转问题及法律规制——矿业权流转问题研究系列之三

Mining Right Circulation and Legal Regulations——the Third Part of the Series Study on Mining Right Circulation

矿业权流转是矿产资源法律制度的核心和关键,是矿产资源国家所有权、使用权的政治、法律和经济关系的具体体现。对地勘单位而言,矿业权流转中的法律风险有:(1)内部监管制度不健全导致的合规性缺陷;(2)违规或非法操作导致的合法性隐患;(3)流转实践中因矿业权本身瑕疵、流转双方报批手续瑕疵,以及通过股权转让实现流转、矿业权整合和矿业权流转不符合条件等原因导致的风险。为此,要强化法律意识,建立合规合法的矿业权管理流程,发挥审计法务、纪检监察的职能作用,依法规范矿业权流转;同时,要充分利用中介机构和专业律师防范法律风险,并重点关注交易伙伴选择和交易合同。

Mining right circulation constitutes the core aspects of the legal system of mineral resources, which relfects politics, law, and economic relations with regard to the national ownership and the right to the use of mineral resources. For geological exploration units, the legal risks involved in mining right circulation should include the following. First, compliance defect is emerged due to the imperfect internal supervision system. Second, hidden danger to legitimacy is caused by irregularities or illegal operation. Third, in the practical circulation, there are some risks that are caused by the facts that the lfaw of mining right itself, the defects of formalities of the two sides, achieving circulation via equity transfer, and failure to meet the terms of integration of mining right and mining right circulation. For that reason, this paper points out that we should strengthen the legal consciousness; establish the compliance of legal mining right management process; play the function of audit, legal, disciplinary inspection and supervision; regulate the circulation of mining right in accordance with the law. At the same time, we should make full use of intermediary institutions and professional lawyer help us to keep away law risks. The focus of our efforts should be placed on the trading partner selection and business contract.