未经行政审批之矿业权转让合同的效力认定:裁判实践与应然路径

Confirmation of Effectiveness of Mining Right Tranfer Contract without Administrative Examination and Approval: Judgement Practice and Inevitable Path

在未经行政审批的矿业权转让合同效力裁判上,存在多种类型的裁判实践。当前存在确认"合同报批义务有效、其他部分未生效"、"合同有效"两种演进路线。其中确认"合同报批义务有效、其他部分未生效"更贴合裁判实践演进的理论脉络,更有利于确保当下裁判的统一和权威性,也更贴合我国矿业经济的本质内涵与复杂的发展前景,是一条稳健的改良路径,为立法论层面的应然选择。在解释论层面,亦应参考其他行政审批合同领域的实践成果,厘清矿业权转让合同报批义务的法律适用逻辑,并在尽可能尊重当事人意思自治的前提下,完善违反报批义务的救济制度。

There are many types of referee practice on the effectiveness of the contract for the assignment of mining rights without administrative examination and approval. At present, there are two evolution routes of confirming ＂ contract approval obligation is valid and the other part is not valid＂ and confirming ＂contract is valid＂ , in which the former one is more suitable for the evolution of the referee practice theory, more conducive to ensuring the referee＇s reunification and authority, but also more fits the essence of China＇s mining economy connotation and complex development prospects, is a sound improvement path and ought to be selected at the legislative level. At the level of interpretation, we should also refer to the practical results in the field of other administrative examination and approval contracts, clarify the legal application logic of the approval obligations of the mining right transfer contract and perfect the relief area which violates the approval obligation under the premise of respecting the autonomy of the parties as much as possible.