Typical case of cross-border mining 1:
On June 5, 20 12, Jishan iron mine signed an agreement with the Municipal Bureau of Land and Resources to obtain the mining right of Jishan mining area for compensation by way of transfer, valid for 6 years to June 5, 20 10. The mined mineral is andesite for construction, and the approved mining area is 0. 1759 square kilometers, with three operating points. 20 12, 12 Jishan iron mine used a lot of stones to build tailings dams for the production of concentrator. Therefore, blasting mining was carried out at two operating points outside the approved mining area (west and southwest of the mining area) without authorization, and 200,000 tons of stone were mined across the border, of which about 6.5438+0.7 million tons were used to build tailings dams and the remaining 30,000 tons were used for sales.
[processing]
During the investigation and handling, the Municipal Bureau of Land and Resources did not exploit the stone 170 tons for the construction of the tailings pond of Jishan Iron Mine according to the relevant provisions in Article 2 of the Reply of the Ministry of Land and Resources on the Application of Laws on Mineral Resources (No.11998, Zi Han). Jishan Iron Mine is about 30,000 tons, which was not mined according to the approved mining area, and was identified as cross-border mining and dealt with.
On September 8, 2005, the Municipal Bureau of Land and Resources made a penalty decision according to Article 40 of the Mineral Resources Law of People's Republic of China (PRC) and Item 2 of Article 42 of the Detailed Rules for the Implementation of the Mineral Resources Law of People's Republic of China (PRC): 1, and ordered Jishan Iron Mine to return to the approved mining area for mining; 2. Confiscate the illegal income of Jishan Iron Mine and impose a fine.
[analysis]
This case is representative in mineral illegal cases, which is worth pondering and warning:
After obtaining the mining right according to law, Jishan Iron Mine plans to build a tailings dam in order to start mining as soon as possible and meet the needs of safe production. Therefore, the original intention of mining stone for facilities construction outside the approved mining area is reasonable, and its original intention is not for profit. According to the relevant policies of the Ministry of Land and Resources, it will not be punished as illegal mining. However, Jishan Iron Mine failed to properly handle the relationship between the demand for tailings dam construction and the actual mining volume. For the 30,000 tons of stone mined, Jishan Iron Mine sold the stone without knowing that the stone was mined outside the mining area and without obtaining the relevant permission from the land and resources management department, and obtained some illegal income. This behavior, according to the Mineral Resources Law of People's Republic of China (PRC), constitutes an illegal act of cross-border mining, and the national land and resources management department must impose administrative penalties on this behavior.
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law of the people's republic of china law
Fortieth mining beyond the approved mining area shall be ordered to return to the mining area, compensate for losses, confiscate the mineral products and illegal income from cross-border mining, and may also be fined; Refusing to return to the mining area for mining, thus causing damage to mineral resources, the mining license shall be revoked, and the person directly responsible shall be investigated for criminal responsibility in accordance with the provisions of Article 156 of the Criminal Law.
Detailed Rules for the Implementation of People's Republic of China (PRC) Mineral Resources Law
Article 42 Where a fine is imposed in accordance with the provisions of Articles 39, 40, 42, 43 and 44 of the Mineral Resources Law, the following provisions shall apply respectively:
(a) unauthorized mining without a mining license, unauthorized entry into the state-planned mining areas, mining areas of great value to the national economy and other people's mining areas, unauthorized mining of specific minerals that are subject to protective mining as stipulated by the state, and a fine of less than 50% of the illegal income;
(two) beyond the approved mining area, impose a fine of less than 30% of the illegal income;
(three) the sale, lease or other forms of transfer of mineral resources and mining rights, the seller, lessor and transferor shall be fined less than twice the illegal income;
(four) illegal use of mining rights as collateral, punishable by a fine of 5000 yuan;
(five) in violation of the provisions of the state on the purchase and sale of mineral products, a fine of less than one time the illegal income shall be imposed;
(six) the destructive mining method is adopted to mine mineral resources, resulting in serious damage to mineral resources, and a fine equivalent to less than 50% of the lost value of mineral resources is imposed.
Reply of the Ministry of Land and Resources on Legal Issues Concerning the Application for Quarrying, Sand Digging, Rock Digging, Earth Borrowing, etc. (Zi Han [1998] 190)
1998-08- 12
Geology and mineral resources departments (bureaus) of all provinces, autonomous regions and municipalities directly under the central government:
Recently, I received some requests for instructions on the application of laws such as cutting mountains, chiseling stones, filling the sea, building roads, digging sand, digging stones and digging earth. The answer is as follows:
1. According to Article 2 of the Detailed Rules for the Implementation of the Mineral Resources Law of People's Republic of China (PRC)? Mineral resources refer to solid, liquid and gaseous natural resources which are formed by geological processes and have utilization value? The sand, stone, clay and various rocks that make up this mountain belong to mineral resources.
Second, the construction unit uses sand, stone and soil for engineering construction, but does not put them into circulation for the purpose of obtaining profits from mineral products, or digs sand, stone and soil on the spot for public welfare construction, and does not apply for mining licenses or pay resource compensation fees.
Three, the need to open sand, stone, soil in different places for public welfare construction, should be handled in accordance with the provisions of the mining license, mineral resources compensation fees in principle should be reduced as appropriate according to the provisions of laws and regulations.
Four, all units and individuals who exploit the above and other mineral resources for profit shall go through the mining registration formalities and obtain the mining license in accordance with the relevant provisions of the Mineral Resources Law and its supporting regulations; Mineral products shall pay mineral resources compensation fees in accordance with the relevant provisions of the Regulations on the Collection and Management of Mineral Resources Compensation Fees.
Verb (abbreviation of verb) and other similar situations can be handled with reference to the spirit of this document.
Cross-border mining code type case 2:
Chongqing No.1 Intermediate People's Court's Civil Judgment The case of the dispute over compensation for damages in the United Coal Mine in Tongqiao Township, Shuangqiao District, Chongqing refused to accept the civil judgment of Chongqing Yongchuan People's Court (2004)No. 132 1 and appealed to our court. Our hospital formed a collegial panel to hear the case according to law, and the trial has now ended.
Yongchuan Yonghe Coal Industry Co., Ltd. claims that the original and defendant mining areas are adjacent, and the defendant has been mining in the plaintiff mining area since 2003. In March, 2004, entrusted by the relevant departments and eight coal mines, such as the defendant, the Geological Survey and Design Institute of Chongqing No.136 Geological Team surveyed the mining rights of the relevant mines. What is the conclusion? Tonglian Coal Mine +3 15 Shuangliantan Lane and +322 Shuangliantan Lane have both exceeded the minimum height (+430m) of the mine boundary registered by themselves and entered the mine boundary of Yonghe Coal Industry Company, with a plane position of 85m and an elevation of 55m. +365 Shuangliantan Lane is 462m long in the north, 55 1m in the south and 422m in the north. ? The defendant successively exploited or destroyed the plaintiff's coal resources 12 156 tons and 5,796 tons, with a value of more than 3 million yuan. The defendant's illegal behavior infringed the plaintiff's legitimate rights and interests, so the lawsuit demanded that the defendant immediately stop the infringement and stop mining coal in the plaintiff's mining area, and compensate the plaintiff for a loss of 200,000 yuan.
The defendant Tonglian Coal Mine argued that the report provided by the plaintiff was unscientific and should not be accepted. My coal mine didn't mine the coal in the plaintiff's mining area, and asked to dismiss the plaintiff's claim.
The court of first instance determined that the defendant and the defendant were adjacent mining areas. In April, 2004, in order to solve the mineral resource disputes in eight adjacent mines, such as Yongchuan, Dazu and Shuangqiao, the Geological Survey and Design Institute of Chongqing Geological Team 136 undertook eight projects, including Yonghe Coal Company and Tonglian Coal Mine, on the recommendation of Chongqing Coal Industry Bureau and entrusted by Yongchuan Small and Medium Enterprise Bureau, Dazu County Safety Production Supervision Administration, Shuangqiao District Safety Production Supervision Administration and eight related coal mines (including defendants). On April 28th, 2004, Chongqing Coal Industry Bureau, Chongqing Coal Mine Safety Supervision Bureau, Chongqing Municipal Administration of Work Safety and Chongqing Municipal Bureau of Land, Resources and Housing made the Minutes of Meeting on Solving the Cross-border Mining Problem of Adjacent Coal Mines in Dazu County, Shuangqiao District, Yongchuan City, saying that in order to stop the cross-border mining of adjacent coal mines in Dazu County, Shuangqiao District, Yongchuan City, ensure the safe production of adjacent coal mines and prevent major accidents. On April 3, 2004, Chongqing Municipal Administration of Work Safety and Chongqing Municipal Bureau of Land Resources and Housing organized a meeting in Yongchuan Small and Medium Enterprises Bureau to solve the problems of cross-border mining and related safety production in adjacent coal mines in Dazu County, Shuangqiao District. Yongchuan Small and Medium Enterprises Bureau, Yongchuan Municipal Bureau of Land Resources and Housing, Shuangqiao District Administration of Land Resources and Housing, Dazu County Administration of Work Safety and other units attended. The spirit of the participants? In principle, we listened carefully to the Investigation Report on Mining Rights of No.8 Mine in Shuangqiao, Dazu, Yongchuan. We believe that the report is fair, objective, realistic and in line with the actual situation. The minutes agreed at the meeting are as follows:
First, according to the measured data of 136 geological team, it is determined that there are cross-border mining or cross-border behaviors in seven coal mines, such as Tongqiao United Coal Mine, and the legal mining rights must be returned before April 20, 2004.
2. According to the joint investigation data of 136 geological team, the cross-border situation of the above seven coal mines is as follows: 2. The +365 double coal roadway of Tonglian Coal Mine in Shuangqiao District horizontally crosses the border and enters Yonghe Coal Company 35m west, 462m north and 551m south; +322 duplex coal roadway horizontally crosses the border into Yonghe Coal Company, 85m to the west and 483m to the north, and enters Yonghe Coal Company, with a vertical height of 55m. Third, illegal cross-border mining of coal mines involves cross-regional counties and cities. The Municipal Bureau of Coal Industry, the Municipal Bureau of Land and Resources and the Housing Authority will punish illegal cross-border mining of coal mines according to the Coal Law, the Chongqing Coal Mine Safety Supervision Bureau according to the Regulations on Coal Mine Safety Supervision. Four, all illegal cross-border mining or cross-border behavior of coal mines should be handled by the relevant departments of the city after the decision is issued, in accordance with the requirements of the quality standard of permanent sealing. On May 27th, 2004, Zi (2004) No.008 Decision on Administrative Punishment of Mineral Resources imposed a penalty of RMB 654.38+0.5 million on the defendant for mining beyond the designated mining area, and the above sum was paid by the defendant. On May 23, 2005, the discussion minutes of Yumei [2004] No.8 determined the plugging position, requiring the defendant to permanently plug the mouth of Xiashankou and the south wing at the level of +429. The defendant was also seized according to the regulations.
Cross-border mining code type case Article 3:
After accepting the case of Laohuchong Coal Mine (hereinafter referred to as Laohuchong Coal Mine) in Shilian Village, Lancun Township, Youxian County, and Qingshanpai Coal Mine (hereinafter referred to as Qingshanpai Coal Mine) in Shilian Village, Lancun Township, Youxian County, our hospital formed a collegiate bench according to law and held a public hearing. The person in charge of the plaintiff, the legal representative of the defendant and his entrusted agent all attended the proceedings in court. The case has now been closed.
The plaintiff Laohuchong Coal Mine claimed that in July 2003, the defendant opened the closed shaft of the mine without authorization, and the horizontal gangue was dug 40 meters across the boundary between the two mines and entered the plaintiff's mining area for coal mining. The plaintiff reported the situation to the village Committee and the township government, and the township government asked the original and the defendant to solve the problem through consultation. On June 4th, 2003, 65438+February 4th, 2003, some shareholders of the plaintiff signed a coal resource mining agreement with the defendant without the consent of all shareholders, but the defendant did not continue predatory mining within the plaintiff's mining area as agreed in the agreement, which made it impossible for the plaintiff to mine that part of the coal seam. During the trial, the plaintiff claimed that the agreement signed by some shareholders of the plaintiff and the defendant harmed the interests of other shareholders. It violates the mandatory provisions of laws and regulations and is an invalid agreement. The defendant's cross-border mining is an infringement. Request the court to order the defendant to compensate the plaintiff for the loss caused by the infringement of 314,400 yuan.
The plaintiff Laohuchong Coal Mine provided the following evidence to support its claim:
1, the plaintiff's mining license, coal production license and business license, which prove the plaintiff's subject qualification and legal mining right.
2. Rectification notice. Prove that the defendant exploited across the border and infringed on the legitimate rights and interests of the plaintiff.
3. Qingshan Pai Coal Mine violated the production order and entered the restricted area to stop risky operations. To prove the fact that the defendant still carried out cross-border mining operations after the rectification notice was issued.
4. A survey record (interviewee Liu Shilian). Prove the fact that the defendant crossed the line.
5. Investigation record of Huang Yunhua. Prove the defendant's infringement.
6, coal mine resource exploitation agreement. It is proved that the agreement was signed by some shareholders, which violated the legitimate rights and interests of other shareholders.
7. Receipts for internal settlement of administrative institutions in Hunan Province. Prove that the plaintiff pays state taxes and fees according to law and enjoys the right to mine and use.
8. Shareholders' agreement of Laohuchong Coal Mine. Prove that the shareholder of Laohuchong Coal Mine is 1 1 and its share distribution. In order to prove the fact that the signing of "Coal Mine Resources Exploitation Agreement" has infringed upon the legitimate rights and interests of most shareholders.
9. Evaluation report. It is proved that the value of cross-border mining in Qingshanpai coal mine and mining in Laohuchong coal mine is 3 1.44 million yuan.
10, a survey opinion and a supplementary opinion of roadway penetration survey. To prove the fact that the defendant used the infringement across the border.
1 1, witness Qiu Jifu's testimony. It proves that other shareholders did not know the fact that Laohuchong Coal Mine and Qingshanpai Coal Mine signed an agreement to exploit coal resources at that time. When they learned of the agreement, the shareholders went to the relevant departments and demanded to terminate the agreement. It proves that the signing of this agreement infringes upon the legitimate rights and interests of most shareholders.
The defendant Qingshan Pai Coal Mine argued that our coal mine was based on Article 2 of the Coal Mine Resources Exploitation Agreement signed by the original and the defendant on February 4, 2003. Party A (plaintiff) agreed to give up the 32m slope for Party B (defendant) to mine? Within the mining scope, the agreement is the true meaning of both parties, and it does not violate the mandatory provisions of laws and regulations, and does not harm the legitimate rights and interests of the state, the collective and others. It should be an effective agreement. According to the appraisal report (2004) No.029 of Xiang Qiushi Mining Rights Appraisal Report, our mine did not exceed the mining scope agreed in the agreement, and its behavior did not constitute infringement to the plaintiff. The No.8 and No.9 coal seams mentioned in the evaluation report were not mined by our mine, but by the original mine owner Pi and Tan Qiuhua in 2002. Request the court to dismiss the plaintiff's claim.
The defendant Qingshan Pai Coal Mine provided the following evidence to support its claim:
1, business license, production license, mining license, qualification certificate and so on. Prove the defendant's subject qualification and his legal mining right.
2, coal mine resource exploitation agreement. It proves that the defendant's exploitation of resources within the plaintiff's scope was negotiated by both parties and did not infringe upon the plaintiff's legitimate rights and interests.
3. A copy of the survey opinions and supplementary opinions of roadway penetration survey. Prove that the defendant's mining behavior conforms to the scope agreed by both parties and does not infringe the plaintiff's legitimate rights and interests.
4. Investigation record of Huang Yunhua. Confirm that the Coal Mine Resource Exploitation Agreement is signed by both parties through voluntary negotiation.
5. A copy of the coal mine purchase agreement?
Cross-border mining code type case Article 4:
The essence of cross-border mining is unlicensed mining. The degree of harm of these two illegal acts is the same, but the punishment methods are different.
The facts of a legal case
In March 2009, the Bureau of Land, Environment and Resources of Wenchang City, Hainan Province received a report from the masses and found a unit illegally mining zirconium-titanium placer at the junction of Longlou Town and Changsa Town. After field investigation and measurement, Wenchang Dongshan Mining Co., Ltd. (hereinafter referred to as Dongshan Company) is determined to be cross-border mining. After investigation, Dongshan Company obtained the mining right of Bailingxi zirconium-titanium sand mining area in Changsa Town, Wenchang City in March 2007, and obtained the mining license. In June, 2007, Dongshan Company signed a contract for 890 mu of temporary mining land with three villagers' groups of National Economic Society in Longlou Town, of which only 265 mu was within its mining area. In May 2008, Dongshan Company began to install units for mining. Field investigation found that 8 units were mined, 5 of which were mined outside the mining area. On March 26th, 2009, Wenchang Municipal Bureau of Land, Environment and Resources issued a notice to Dongshan Company, ordering it to stop its illegal activities. On March 30th, Wenchang Municipal Bureau of Land, Environment and Resources initiated an investigation into the illegal activities of the company in cross-border exploitation of zirconium-titanium placer. Appraised by the expert group, the value of cross-border exploitation of zirconium-titanium placer by Dongshan Company is 102540 yuan.
On June 23, 2009, Wenchang Municipal Bureau of Land, Environment and Resources made a decision to deal with the company. Ordered to return to the mining area for mining, confiscated illegal income of 6.5438+0.0254 million yuan, and fined 30.762 million yuan? Administrative punishment.
Comment and analysis
This case is a cross-border mining case.
Cross-border mining violates the approved development and utilization plan, destroys the overall layout of mineral resources development in adjacent mining areas, and easily leads to safety accidents.
Article 40 of the Mineral Resources Law stipulates that anyone who mines beyond the approved mining area shall be ordered to return to the mining area, compensate for the losses, confiscate the mineral products and illegal income from cross-border mining, and may also be fined; Refuse to return to the mining area, resulting in the destruction of mineral resources, the mining license shall be revoked, and the person directly responsible shall be investigated for criminal responsibility. The second paragraph of Article 42 of the Detailed Rules for the Implementation of the Mineral Resources Law stipulates that anyone who mines beyond the approved mining area shall be fined less than 30% of the illegal income.
In this case, Wenchang County Bureau of Land, Environment and Resources invited experts to appraise the value of cross-border mining of mineral resources in view of the cross-border mining situation of the parties concerned, and on this basis, made an administrative penalty of ordering to return to the mining area for mining, confiscating illegal income and imposing a fine, which was in line with legal procedures, accurate in qualitative and appropriate in quantitative. But what should I point out? Was ordered to return to the mining area for mining? Asking the parties to stop the illegal act is an administrative order, not an administrative punishment.
Mining right, as its name implies, is the right to exploit mineral resources. This right is not unlimited, but limited by conditions and corresponding obligations. One of the most important obligations is to exploit mineral resources in approved mining areas. Beyond this range, it will lose the corresponding legitimate mining rights and interests, and its mining behavior is essentially unlicensed mining. However, cross-border mining is more concealed, and there are some differences in punishment between the two: for cross-border mining, the existing mining rights of miners will bear joint and several liability, and if they refuse to return to the mining area for mining, the mining license will be revoked. For the mining right holder, it is to deprive him of the mining right in the legal area, which is the most severe administrative punishment, and the fine is less than 30% of the illegal income. However, unlicensed mining can be revoked because there is no mining license, so the fine amount is less than 50% of the illegal income, which is higher than that of cross-border mining. Although there are differences in punishment, in essence, the degree of harm of these two illegal acts is the same.
In this case, judging from the amount of fines, the value of the destruction of mineral resources caused by cross-border mining has exceeded the bottom line of 50,000 yuan stipulated by the Supreme People's Court judicial interpretation. After the administrative law enforcement organ orders the parties to return to the mining area, if the parties do not cross the border again, it does not constitute a crime.
In this case, after the parties have obtained the mining right, as an open-pit mining, the land scope should be consistent with the mining area specified in the mining license, and only 265 mu of the 890 mu of temporary land collectively rented by the parties from the local village is within its mining area. In addition, land leasing and temporary land exploitation are illegal and should be punished in accordance with the relevant provisions of the Land Management Law.
Related search contents of cross-border mining:
1. Discussion on accounting method of sewage charges in China
2. Mining right lease contract
3. Speech at the coal mine safety work conference.