How to determine the transfer price of mining rights in the integration of coal resources? 0? three

How to determine the transfer price of mining rights in the integration of coal resources? The integration of coal resources in Shanxi Province is developing in depth. Resource integration is achieved through the merger and reorganization of enterprises. In the process of merger and reorganization, the most important issue is the consideration of assets or equity transfer, and the most important asset of coal enterprises is mining rights, so how to price mining rights has become the core issue of this resource integration. On September 28th, 2008, the General Office of Shanxi Provincial People's Government forwarded the Measures of Shanxi Provincial Department of Land and Resources on the Disposal of the Price of Resources and Mining Rights Involved in the Merger and Reorganization of Coal Mining Enterprises (Order No.83 for short), which responded to this problem. However, after the publication of this document, not only did it not solve the problem of mining right transfer pricing, but it complicated this problem, which led to the delay in the normal promotion of resource integration. Because fundamentally speaking, this document does not really solve the problem of mining rights pricing, but is just a simple price limit order. So how should mining rights be priced? I will discuss this issue in three parts: 1. Is mining right ownership? 2. What are the price characteristics of mining rights? 3. What is the basic idea of determining the transfer price of mining rights? 1. Is the mining right ownership? Literally speaking, mining right is the right to exploit mineral resources. However, in practice, we have obtained the mining right, which can not only mine minerals, but also sell minerals and collect remuneration, and even buy and sell minerals and get high returns. Therefore, in the understanding of ordinary people, mining right is a kind of ownership, not the right to mine minerals, but the right to possess, use, benefit and dispose of minerals. However, this understanding conflicts with the current laws of our country. 1996 The third article of China's Mineral Resources Law stipulates that "mineral resources belong to the state, and the State Council exercises the state's ownership of mineral resources." 1998 the State Council promulgated the management measures for the transfer of exploration rights and mining rights, which strictly restricted the transfer of mining rights and stipulated that the transfer contract of mining rights must be approved before it can take effect. Article 46 of the Property Law promulgated in 2007 stipulates that "mineral deposits, currents and sea areas belong to the state." In other words, units or individuals cannot enjoy the ownership of minerals. Article 118 of the Property Law stipulates that "the natural resources owned by the state and used by the state that belong to the collective can be possessed, used and benefited by units and individuals according to law." This paper defines mining right as usufructuary right. The so-called usufructuary right means that the ownership of minerals belongs to the state, and units or individuals can possess, use and profit from minerals, but they cannot dispose of them. Legally speaking, usufructuary right is a kind of right form closest to ownership. But the reality is that, unlike land resources, mineral resources are non-renewable resources. The mining right holder obtains the mining right from the government by paying the resource price. At this time, he can build a mine and start production. However, the basic premise of the mining right holder's income is the disposal of mineral products. In other words, only when mineral products are mined and then sold can mining rights holders benefit. After the sale of mineral products, of course, minerals do not exist, and the state's right to dispose of them as owners cannot be realized. This feature directly leads the mining right holder to enjoy all the rights of mineral resources ownership when selling mineral products: possession, use, disposal and income. However, there are many ways to deal with minerals. For example, selling minerals, such as the coal mentioned above, is a coal mine's own business behavior and does not require government approval. Selling more and selling less is the decision of the mining right holder himself. At this time, he enjoys all the rights of ownership of mineral resources. However, there is another way to buy and sell minerals, such as selling minerals. There is no essential difference between the one-time sale of coal mines with reserves of100000 tons and the one-time sale of coal products with reserves of100000 tons, but it needs to be approved by the government, and the approval procedures are quite strict. At this time, the mining right holder cannot realize his right to dispose of mineral resources. Even if he pays the price of resources in full, he still needs to obey the government's decision. How can this conflict be explained by law? I think the current law cannot be explained, and it can only be explained from the legislative background. In fact, there are three legal systems in China: one is the legal system of China, which is unconsciously used by grassroots people. One of the core contents of China's 2,000-year-old civil legal tradition is private ownership. The main legislative purpose is to protect private property and promote the circulation of materials. At present, this legal system has no written provisions, and it is completely integrated into people's daily actions and thinking; The second is the legal system of the former Soviet Union, which has been used since 1950s. The core feature of this legal system is public ownership. In economic life, all means of production belong to the state or the collective, and no unit or individual is allowed to own their own means of production. At present, many written laws in our country are influenced and restricted by it, which leads to the government's great control over land, minerals and other core means of production and has the right to directly intervene in economic life. Thirdly, the European and American legal systems gradually introduced from 1980s are also characterized by private ownership, because developed countries in Europe and America realized full privatization as early as 18 and 19 centuries, and their legal systems also paid attention to protecting private property and promoting economic development. This legal system is embodied in law, which is the basic civil law represented by contract law and property law. If the first legal system is civil and grassroots, then the second legal system is official and conservative, and the third legal system is official but reformed. There are many contradictions between the people and the government, between conservatism and reform, and there are many conflicts in thoughts, actions, laws and policies. In addition, China is still in the process of changing from full public ownership to pluralistic ownership. In this process, the adjustment of laws often lags behind the changes in reality, so there is often no standard answer to the same question. Personally, I think that mining right is not ownership in the current law of our country, but a kind of usufructuary right, but the usufructuary right legally obtained should be strictly protected and its ownership should be realized in law as soon as possible. 2. What are the price characteristics of mining rights? Let me start with a common example. A local government leased a coal mine from Party A, and the transfer price of this resource was estimated by the appraisal agency to be 6,543,800 yuan. Through bidding, Party A, Party B and Party C finally paid the government a resource price of 20 million yuan, obtained the mining right, and then started the infrastructure construction. B saw that the energy market was good, but he could not get the mine from the government, so he asked A to buy the mine and bid 40 million yuan. C also made the same request to A, bidding 80 million yuan, and finally A and C clinched a deal with 654.38 billion yuan. After C got the mining right, Ding came to him again and bought his mining right for1200,000. C thought the price was too low, and finally the two sides made a deal with10.40 billion. After obtaining the mining right, Ding invested 20 million yuan to buy equipment, which improved the production level and safety level of the coal mine. But before production, it caught up with this resource integration. Because the annual production capacity of the mine can't meet the standard, it will be integrated by E. However, according to the provisions of Document No.83, E is only willing to give Ding 30 million as the purchase consideration, while Ding requires at least 65.438+0.5 billion to integrate it, and the negotiations are deadlocked. In this case, three basic characteristics of mining right price are explained: 1, and mining right is priced according to the characteristics of ownership. As mentioned above, the mining right is a usufructuary right, but it is regarded as ownership by all the people, because after obtaining the mining right, not only can you occupy and mine minerals, but you can also sell minerals (use and disposal) to earn high returns (income), so its price is priced according to the characteristics of ownership. The government transferred the mining right to A at a price of 20 million yuan. The basic premise of this transaction is that this resource belongs to the government. Party B and Party C send an offer to Party A instead of the government, and Party A transfers the mining right (actually transferring mineral resources) at the price of 1 100 million yuan. Its basic premise is that Party A obtains the mining right from the government by paying the price of resources and becomes the actual owner of resources. 2. The price of mining rights is not determined by the government, but discovered by the market. In the above case, A obtained the mining right for 20 million yuan, and soon changed hands and sold it at the price of 1 100 million yuan. Why can he get 400% profit out of thin air? Because there is a huge price difference between the primary market and the secondary market of mining rights in China, and A enjoys this price difference exclusively. Similarly, in the secondary market, there is also a price difference of mining rights. C earned 40 million yuan from Ding, although not as much as A, but also earned 40% of the profits for nothing, and enjoyed the price difference of mining rights in the secondary market. These price differences are collectively referred to as resource premium. If the secondary market premium is normal, then the huge premium between the primary market and the secondary market is a unique phenomenon in the process of China's equity conversion. So is it reasonable that this price is far from the original transfer price of mining rights? I think it is reasonable. Because the mining right is defined as usufructuary right by the current law, that is, a kind of property right, how high the property value is is not determined by anyone or organization, but is discovered through full market transactions. 3. The government has a huge voice in the pricing of mining rights, but the government pricing has its limitations and even has a negative impact. The compensation standard stipulated in Document No.83 is simple and easy, but it ignores an important fact-most investors who integrate coal mines now buy mining rights at a price several times or even dozens of times higher than the price of primary market resources, which is a complete market price. Setting the maximum price across the board by the government will not only help solve the pricing problem of mining rights, but also make investors think that the government wants to recover mining rights from them at a low price. Therefore, the government should not only listen to the opinions of all parties, but also make a choice from the opinions of all parties and formulate a plan acceptable to all parties when formulating the mining right transfer standard. This is a very difficult job. The above three characteristics are the basic starting point for us to study the pricing of mining rights. 3. What is the basic idea of determining the transfer price of mining rights? As mentioned above, mining right is a usufructuary right. Article 120 of the Property Law stipulates that "the usufructuary right holder shall abide by the provisions of the Law on Resource Protection and Rational Development and Utilization when exercising his rights. The owner shall not interfere with the exercise of rights by the usufructuary right holder. " As a result of the first resource integration in Shanxi Province, most coal mines have paid the resource price and legally obtained the mining rights. Since mining rights have become the assets of coal enterprises, the government should respect the independent management rights of enterprises in the process of resource integration, and should not interfere with the normal business activities of enterprises at will, let alone force enterprises to accept integration at unreasonable low prices. Therefore, determining the price of mining rights should follow the following three basic principles: first, mining rights are property rights and must be strictly protected; Second, the price of mining rights should be found through full market bidding; Third, the government's duty is to create a fair, open and just institutional environment for the transfer of mining rights, rather than helping large state-owned enterprises merge private enterprises. Under the guidance of the above principles, there are several feasible ideas to determine the transfer price of mining rights: one is to determine the transfer price of mining rights based on the resource price paid by the mining right owner in the primary market, plus some compensation (that is, the idea embodied in Document No.83). This price is mainly applicable to transactions between state-owned enterprises, especially when state-owned enterprises have obtained mining rights in the primary market and have not transferred them. Because both sides of this transaction are wholly owned or controlled by the government, the circulation of mining rights is very small. As long as the problems of employee placement and tax distribution are solved, the price will be easier to talk about. Two, based on the evaluation price, the two sides of the transaction through negotiations, near the evaluation price to determine a mutually acceptable price. Article 9 of the Administrative Measures for the Transfer of Exploration and Mining Rights issued by the State Council in February 1998 stipulates that "the transfer of exploration and mining rights formed by state-funded exploration must be evaluated." Therefore, in the transfer of mining rights, evaluation is an essential link. This price will be widely applicable, but it is not the best way. Due to the huge difference between the evaluation of mining right and the evaluation of real estate such as land use right, the existing exploration technology can not accurately draw the quantity, variety, quality and geological distribution of mineral resources, so the value evaluation of exploration report is inaccurate, even inaccurate. In practice, there are often great differences in the value evaluation made by different evaluation agencies, which shows that the evaluation standards and methods on which evaluation agencies are based need to be unified. However, it also has its advantages-as an independent third party, the evaluation agency is more likely to promote communication between the two parties to the transaction and obtain a fairer price on a professional basis. However, in order to adopt this method, the government must first solve the problem of evaluation criteria and strengthen the supervision of evaluation institutions to avoid the price from getting out of control because of its monopoly. 3. Determine the transfer price of mining rights on the basis of the preliminary investment of the comprehensive party and some compensation. This price is mainly applicable to infrastructure mines and coal mines that are not produced or rarely produced after the completion of infrastructure. Because a lot of funds entered Shanxi at the first time of resource integration, investors can only produce coal after obtaining mining rights and after a long period of technological transformation, reaching the production and safety standards stipulated by the government. However, due to the high pressure of the central government on coal mine safety in recent years, many coal mines have been asked by local governments to stop production for rectification for a long time and have not been put into production so far. Now they are going to be integrated, and recovering the initial investment is the top priority for the integrator. So if the integrator can meet this requirement of the integrated party, the price is still relatively easy to talk about. Four, the government will be the same area or the same type of coal mine as a whole or in batches, in the secondary market public auction, the highest price. This price is suitable for integrating contiguous resources. On the basis of doing a good job of preliminary investigation, the government can openly auction and share the auction proceeds with the integrated party, which can not only greatly reduce the risk of the integrated party and improve the integration efficiency, but also fully discover the price of resources and let the integrated party government enjoy the premium of resources. Under this way of thinking, the government has a heavy workload and needs to pre-integrate resources before selling them. This puts higher demands on the administrative level of the government. Moreover, according to the current integration policy, there are not many bidders and may not reach the standard of value saturation. Five, allow the integrator to freely choose the integration subject, and determine the mining right price according to the market price under the guidance of the value saturation principle. I have always believed that resource integration is a market transaction and the government should not interfere excessively. Under the condition of market economy, the value of commodities is ultimately determined by the market, not by evaluation institutions or the government. In the process of transferring mining rights, only enough bidders can bid in an open, fair and just environment, and the final transaction price is the real value of mining rights. Therefore, the realization of the principle of value saturation depends on the establishment of a benign trading environment for resource rights. In the process of market transactions, mining rights can achieve the maximum premium, and the government can divide the premium between resources and mining rights holders according to a certain proportion, thus realizing the interests of mineral owners and mining rights holders.