公私法双重视域下的矿业权退出问题研究

On the withdrawal of mining rights in dual aspects of public law and private law

地方政府通过注销矿业权登记,实现矿业权全面退出自然保护区,此举的根源是矿业权取得上的权证一体观点。即:将矿业权出让行为视为民事权利处分行为,行政许可作为权利变动要件;一旦行政许可效力终止,矿业权也随之消灭。然而,因矿业权出让合同的效力仍继续存在,在矿业权退出上出现了民事违约之诉与行政诉讼的救济途径之争。随着自然资源资产产权制度改革的推进,未来可能将矿业权出让的“民事合同+行政许可”方式统一在行政协议范畴内,以出让合同的生效达成物权变动和市场准入的双重法律效果。既然当事人能通过行政协议方式取得矿业权,那么自然资源主管部门也应转为通过行使行政优益权解除矿业权出让合同,达到矿业权退出的目的。

Local governments take the method of registration cancellation on the withdrawal of mining rights from nature reserves.The root of this measure lies in the view that mining rights are acquired in the form of licensing.That is,the transfer of mining rights is regarded as the disposition of civil rights,and licensing is considered as the essential of right acquisition.Once the validity of licensing is terminated,mining rights will also be eliminated.However,the validity of mining rights transfer contract continues to exist,and there is a dispute between civil breach lawsuit and administrative lawsuit about the withdrawal of mining rights.With the advancement of the reform of the property rights system of natural resources assets,the“civil contract+licensing”acquiring method of mining rights may be replaced by administrative contract in the future.It means that administrative contract will generate dual legal effects of property rights acquisition and market admission.The reform will lead to the separation of mining rights acquisition and licensing.So the natural resources authority should dismiss the transfer contract by exercising the administrative superiority right to realize the purpose of mining rights withdrawal.