1In August, 1996, the National People's Congress Standing Committee (NPCSC) passed the revised Mineral Resources Law of People's Republic of China (PRC) (No.74), and established the legal system of paid acquisition and legal transfer of exploration and mining rights.
1February, 1998, the State Council issued the Measures for the Administration of Registration of Mineral Resources Exploration Blocks, the Measures for the Administration of Registration of Mineral Resources Exploitation, and the Measures for the Administration of Transfer of Exploration and Mining Rights. The Measures for the Administration of the Registration of Mineral Resources Exploration Blocks stipulates that the state shall implement a unified block registration management system for mineral resources exploration, which shall be approved and registered by the competent department of geology and mineral resources of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, and may also be obtained through bidding for compensation.
Since the establishment of the Ministry of Land and Resources, it has actively promoted the marketization of exploration and mining rights. As an important work to strengthen and improve the management of mineral resources, some departmental regulations or normative documents have been issued one after another:
1On March 30th, 1999, the Ministry of Land and Resources promulgated the Interim Measures for the Evaluation and Management of Exploration and Mining Rights.
1On June 7, 1999, the Ministry of Finance and the Ministry of Land and Resources promulgated the Measures for the Administration of royalties and prices of exploration and mining rights.
On June 6, 2000, the Ministry of Land and Resources and the Ministry of Finance promulgated the Measures for the Reduction and Exemption of the Use Fee of Exploration and Mining Rights.
/10 2000 On June 24, 2000, the Ministry of Finance and the Ministry of Land and Resources promulgated the Administrative Measures for the Transfer of the Price of Prospecting and Mining Rights to State-owned Capital.
On June 365438+1October 3 1 day, 2000, the Ministry of Land and Resources promulgated the Interim Provisions on the Management of Mining Rights Transfer. In this normative document, the method of "auction" was put forward for the first time. Article 15 of the Regulations mentions that "the transfer of mining rights refers to the act that the registration administration authority grants mining rights to the applicant by approving the application, bidding and auction". The transfer authority of exploration right shall be delegated to the competent department of geology and mineral resources of the people's government at or above the county level. Article 4 of the Regulations stipulates: "The transfer of mining rights shall be carried out by the competent department of geology and mineral resources of the people's government at or above the county level in accordance with the Measures for the Administration of Registration of Mineral Resources Exploration Blocks, the Measures for the Administration of Registration of Mineral Resources Exploitation and the administrative measures formulated by the standing committees of the people's congresses of provinces, autonomous regions and municipalities directly under the Central Government." It also stipulates: "The scope of mining right transfer can be the mineral land that has been explored and proved by the state, the mineral land that has been nationalized according to law and other blank mining rights."
Since then, the Ministry of Land and Resources will take promoting the market construction of exploration and mining rights as one of its priorities, and carry out bidding and auction pilot projects in places where conditions permit.
In 2002, the Ministry of Land and Resources held two seminars for mayors of land and resources management, summed up the exchange experience, and pushed for bidding, auction and listing to transfer exploration and mining rights. The ninth seminar was held in Qinghai Province from June 5, 2002 to 10. The theme was to cultivate and standardize the exploration and mining rights market and accelerate the construction of the "two rights" market. On the third day of the training course, all the delegates observed the first auction of mining rights in Qinghai Province.
From June 5438 to October 4, 2003, the Ministry of Land and Resources held a symposium on the construction of exploration and mining rights market in Nanning, Guangxi, calling on "anyone who can transfer exploration and mining rights by means of bidding, auction and listing shall not be transferred by means of administrative examination and approval", unswervingly exploring different ways to promote the transfer of exploration and mining rights by means of bidding, auction and listing, and actively exploring the way of "multiple quotation transfer".
On June 1 1, 2003, the Ministry of Land and Resources promulgated the normative document "Administrative Measures for Bidding, Auction and Listing of Exploration and Mining Rights (Trial)", aiming at improving the paid acquisition system of exploration and mining rights, standardizing the bidding, auction and listing of exploration and mining rights, safeguarding the state's ownership of mineral resources and protecting the legitimate rights and interests of exploration and mining rights holders. The Measures stipulate the scope and specific implementation measures of bidding, auction and listing.
Since June, 20001year, the people's governments of various provinces (autonomous regions and municipalities) have successively formulated the Implementation Measures for the Management of Paid Transfer of Exploration and Mining Rights, and vigorously promoted the paid transfer of exploration and mining rights. From the analysis of the management methods of 23 provinces (autonomous regions and municipalities), the efforts to promote the bidding, auction and listing of exploration and mining rights have been increasing. Zhejiang province is the first to try it out. On June 5th, 20001year, the Ministry of Land and Resources and the Ministry of Finance jointly promulgated the Interim Measures for the Auction of Mining Rights of Building Materials and Mineral Resources and the Management of Auction Income. By 2003, all provinces (autonomous regions and municipalities) had formulated management measures, among which Jiangxi, Guangxi, Guangdong, Yunnan and other provinces (autonomous regions) forwarded the management measures of the Ministry of Land and Resources; Liaoning, Jilin, Inner Mongolia, and Sichuan have formulated bidding, auction, and listing methods for exploration rights.
By the end of 2003, there were 12360 effective exploration rights for non-oil and gas minerals in China. In that year, 4,583 exploration rights were newly established, of which 290 were sold by competition, accounting for 6.3% of the newly established exploration rights, and the rest were sold by administrative examination and approval. Nearly 500 exploration rights were transferred, amounting to 800 million yuan. As of May, 2004, the Ministry has confirmed 455 evaluation reports of exploration rights, involving the exploration rights price of 3,353.34 million yuan.
China Land and Resources reported on August 6, 2004 that "the property rights market grew explosively in the first half of the year, and the number and price of' bidding, auction and hanging' cases doubled. There were 273 cases of "bidding, auction and hanging" of exploration rights, with a transaction price of 354 million yuan, 2.73 times and 6.84 times that of the same period last year respectively. Among them, Liaoning clinched a deal 124 boxes, and the price was 65,438+23 million yuan, ranking first in the country. "
In 2004, the General Office of the Ministry of Land and Resources wrote to the Provincial Department of Land and Resources twice in view of the problems existing in the paid transfer of exploration rights. On July 16, 2004, a letter was sent to the Guangdong Provincial Department of Land and Resources on the transfer of exploration right in the exploration blank area, and it was agreed that the exploration blank area would still be transferred by applying for approval. On June 5438+ 10, 2004, the general office of the Ministry of Land and Resources pointed out in the Reply of Hebei Provincial Department of Land and Resources on Urgent Request for Preliminary Examination of Municipal Exploration and Mining Rights that in the process of examination and approval of exploration and mining rights, provincial land and resources management departments should perform their duties within the statutory authority, and there is no problem of entrusting the preliminary examination to local (city) and county-level land and resources management departments.
Second, the main problems in the transfer of exploration rights in China at present.
(a) does not meet the requirements of the Ministry of land and resources management functions
The purpose of mineral resources management by land and resources department is not to get much profit from mining right management, but to "develop mining industry, strengthen exploration, development, utilization and protection of mineral resources, and ensure the current and long-term needs of socialist modernization". At present, some government departments lack scientific administrative consciousness, do not understand the characteristics of mineral exploration, equate mineral exploration with general industrial activities, and fail to realize that the benefit of mineral exploration lies in stimulating subsequent industries and regional economic and social benefits. The reason why the government is keen on the "bidding, auctioning and hanging" of exploration rights, and some even take pride in how much money has been recovered from the auction exploration blank, is really too eager for quick success and instant benefit, misleading the exploration work, rather than encouraging investors to explore mineral resources. The expansion of "bidding, auctioning and hanging" to only recognize money and not people will corrode managers and endanger resource management.
(two) does not meet the provisions of the state-owned assets management.
The state allocates geological exploration fees and other state funds to invest in exploration. These funds are all state-owned assets, and how to deal with these assets such as profits, losses and closures during the operation of state-owned enterprises is clearly stipulated. For the resource assets formed by state investment exploration in the past few decades, the State Council expressly stipulates that after the transfer of mining rights, part or all of them will be injected into the state capital of geological prospecting units to promote the exploration of mineral resources. Such a clear regulation cannot be effectively implemented, which seriously affects the development of mineral exploration.
(three) does not meet the requirements of administration according to law.
The adjustment of state ownership and use right of mineral resources shall be handled in accordance with the provisions of laws and administrative regulations. The laws and administrative regulations on mineral resources do not provide for the auction and listing of mining rights, which does not meet the requirements according to the Administrative Licensing Law of People's Republic of China (PRC). At the same time, the Ministry of Land and Resources has the responsibility to standardize and correct the existing problems in the bidding, auction and listing of mining rights by improving the legal system.
(d) There are problems in how to calculate and deal with the proceeds from the transfer of "bidding, auction and hanging".
At present, the calculation of "price" of exploration right is no longer the concept of "price" stipulated by administrative regulations. If the transfer income belongs to fiscal revenue, it shall be turned over to the state treasury and included in the budget revenue, and the expenditure shall be managed according to the budget. If the transfer proceeds are used for other purposes or privately divided, and do not flow within the scope prescribed by law, it shall be regarded as the loss of state-owned assets. Lack of effective supervision mechanism. The disposal of the price of exploration right has not benefited geological prospecting units, but also dampened the enthusiasm of prospecting.
(5) It has affected the improvement of the investment environment.
After the implementation of "bidding, auctioning and hanging" to transfer mining rights, some foreign businessmen shook their heads, thinking that the investment environment that had just improved in recent years was going to scratch their heads again, and explorers flinched. Some domestic investors don't understand exploration, and in order to show their strength, they got the exploration right without spending money, which is confirmed by expert evaluation. It is difficult for a market or quasi-market entity with real exploration technical strength to compete for exploration rights and become a "migrant worker", which will cool down the soaring investment boom.
Some provincial departments of land and resources decided to openly transfer mining rights and no longer accept new applications for exploration registration from geological prospecting units, which infringed their interests and even deprived them of the right to engage in geological exploration. This situation has seriously affected the enthusiasm of state-owned geological prospecting units with qualifications, technical information strength and willingness to contribute to economic and social development. Because the geological team is unwilling to take out the prospecting right of the lost mine with good metallogenic conditions and "recruit, shoot and hang"; Geological prospecting units introduce foreign capital to explore favorable metallogenic areas and cannot obtain exploration rights; State-owned geological prospecting units applying for state financial subsidies for local exploration projects or national resource compensation projects cannot apply because there is no mineral land with exploration rights. Even if the project is applied for, the exploration right must be obtained by the subordinate institutions of the department, and the geological prospecting unit cannot become the exploration right holder; Geological prospecting units should also use self-raised funds to conduct exploration "bidding, shooting and hanging". These phenomena have seriously affected the exploration enthusiasm of geological prospecting units.
Third, the understanding of the paid acquisition system of exploration and mining rights
At present, there are different understandings of the paid acquisition system of exploration and mining rights stipulated by laws and administrative regulations, and the understanding of laws and administrative regulations is also different. Some "bold innovations" have caused confusion in the management of exploration rights.
(1) The system of paid acquisition of exploration and mining rights is an important legal system stipulated in the Mineral Resources Law of People's Republic of China (PRC), and the administrative organ must administer according to law.
The necessary reforms should be cleaned up on the basis of the pilot, summed up experience, revised and improved laws and regulations, and formulated necessary management regulations, so as to be fully promoted. In this way, there will be no confusion. If we simply call for "breaking through the shackles of traditional concepts and practices, boldly trying, boldly rushing and boldly doing", it will inevitably lead to chaos.
(two) a correct understanding of the legal provisions of the paid mining system of mineral resources.
The system of paid acquisition of exploration and mining rights, correctly understand the provisions of the Mineral Resources Law of People's Republic of China (PRC) on adjusting various economic relations in the process of mineral resources exploration and mining.
(1) Paragraph 2 of Article 5 of the Mineral Resources Law of People's Republic of China (PRC) stipulates: "In mining mineral resources, resource compensation fees must be paid in accordance with relevant state regulations." 1994 implements the regulations on the collection and management of mineral resources compensation fees. This system embodies the rights and interests of the country as the owner of mineral resources, and the mining right holder pays the compensation fee for mineral resources, which reflects the paid use of mineral resources.
(2) Paragraph 2 of Article 5 of the Mineral Resources Law of People's Republic of China (PRC) stipulates: "Mining mineral resources must pay resource tax in accordance with relevant state regulations." This is a tax levied by the state by virtue of its political power.
(3) Paragraph 1 of Article 5 of the Mineral Resources Law of People's Republic of China (PRC) stipulates: "The state practices a system of paid acquisition of exploration and mining rights." According to this regulation, the "exploration right use fee" stipulated in Article 12 of the Measures for the Administration of Registration of Mineral Resources Exploration Blocks; The "mining right use fee" stipulated in Article 9 of the Measures for the Administration of the Registration of Mineral Resources Exploitation is the fee that the prospecting right holder and the mining right holder who have obtained the prospecting right should pay to the state.
(4) The "exploration right price" stipulated in Article 13 of the Measures for the Administration of Registration of Mineral Resources Exploration Blocks; The "mining right price" stipulated in Article 10 of the Measures for the Administration of the Registration of Mineral Resources Exploitation is the fee that the applicant should pay for applying for the block exploration right or mining right of the proven mineral land funded by the state. This is the investment compensation obtained by the state as a special investment subject.
(5) The registration fee paid by the applicant when handling the formalities of prospecting and mining rights is the handling fee.
The above five kinds of fees and taxes are different in nature and economic relations, so they should be correctly understood and disposed of according to law. Mining rights should not be disposed of at will in the process of circulation.
(three) the form of paid transfer of exploration and mining rights must be based on laws and administrative regulations.
(1) There is no basis of laws and administrative regulations to implement administrative licensing of exploration and mining rights by auction or listing.
Article 16 of the Measures for the Administration of Registration of Mineral Resources Exploration Blocks stipulates: "The exploration right can be obtained with compensation through bidding." This administrative regulation does not stipulate the way of auction listing. The purpose of bidding is to see who has more ability and investment to make the exploration work have better expected results, rather than to see how high the price of competitors will make the government more profitable.
Article 13 of the Measures for the Administration of Mining Registration of Mineral Resources stipulates: "Mining rights can be obtained with compensation through bidding." The administrative regulations also do not provide for auction and listing.
(2) The Ministry of Land and Resources did not formulate effective management standards-departmental regulations before comprehensively promoting the bidding, auction and listing of exploration and mining rights. On June, 2003 1 1, the Ministry of Land and Resources issued the normative document "Administrative Measures for Bidding, Auction and Listing of Prospecting and Mining Rights (Trial)". In this way, each place can not help but have its own understanding and take what it needs.
(3) The paid transfer of exploration and mining rights does not mean that bidding, auction and listing must be adopted.
(d) From the perspective of mining economic relations, the paid transfer of mining rights should consider the labor value of geological prospecting units.
Geological prospecting units have their labor value in the process of forming the production value of mineral products. In the past, the funds invested by geological prospecting units basically came from the state, but geological prospecting units are the representatives of legal person property rights, and they have also invested a lot of technology and management to form information products. The value of in-situ prospecting units must be considered in the income distribution of paid transfer of mining rights. In order to promote the development of mining industry, geological prospecting units, as one of the main bodies of mineral exploration work, should give support according to the actual situation in China and give play to their exploration enthusiasm.
Four, improve the construction of China's mining rights market policy recommendations
In order to further implement the Mineral Resources Law of People's Republic of China (PRC), manage scientifically according to law, promote the healthy and sustainable development of mineral resources exploration and mining industry, protect the rights and interests of mineral resources owners, and safeguard the legitimate interests of mining rights owners, it is suggested to seriously sum up the experience and existing problems in the pilot work of mining rights transfer in recent years, take effective measures, establish a scientific, reasonable and standardized mining rights management system in line with international practices, and strengthen mining rights management.
(A) to further clarify the mineral resources exploration policy objectives
The mineral resources exploration policy formulated by the state should be consistent with the overall situation of economic and social development, reflecting the original intention of policy formulation, that is, encouraging geological prospecting and promoting mining development, which is conducive to mobilizing the enthusiasm of investors and prospectors, rather than aiming at how much revenue the government will increase.
(two) improve the legal system, administration according to law.
1. Adhere to the principle of administration according to law.
In the new revision of the Mineral Resources Law of People's Republic of China (PRC), various economic relations related to mining rights management will be further straightened out, and the legal system of paid transfer and legal transfer of mining rights will be refined.
Before the Mineral Resources Law of People's Republic of China (PRC) was revised, the management of mineral resources exploration and development activities could only be carried out under the framework of the Mineral Resources Law of People's Republic of China (PRC) and its supporting administrative regulations. Seriously study the current mining right "bidding, auction and hanging" method and the problems existing in its implementation and operation, and properly handle it. If it breaks through the existing laws and administrative regulations and is proved inappropriate by practice, it shall make a decision and reiterate that it shall be handled in accordance with laws and administrative regulations; If it is proved feasible in practice, it is necessary to revise and improve laws and administrative regulations as soon as possible, or make clear provisions in the implementing departmental rules.
It is necessary to formulate measures for the management of the distribution and use of paid transfer of mining rights, further rationalize the relationship, and make clear provisions on the distribution of paid transfer of exploration rights and mining rights, bidding, auction and listing. It is reiterated that the state capital should be increased in accordance with the relevant provisions of the state to enhance the vitality of geological prospecting units.
Article 53 of the Administrative Licensing Law of People's Republic of China (PRC) stipulates: "To implement administrative licensing for the matters listed in Item 2 of Article 12 of this Law, the administrative organ shall make a decision through fair competition such as bidding and auction. However, if laws and administrative regulations provide otherwise, such provisions shall prevail. " After consulting relevant legal experts, how to transfer exploration and mining rights can be implemented according to the characteristics of mineral resources management and the Mineral Resources Law of People's Republic of China (PRC) and its administrative regulations.
2. Adhere to management according to scientific laws.
Different types of mineral resources have their own natural, economic and legal attributes, so different mineral resources should be classified and managed.
(1) classified by minerals. Oil, gas and mineral exploration is generally suitable for bidding, but it can also be divided into competitive bidding (cash reward) and non-competitive bidding (exploration scheme). The principle of prior applicant priority can also be applied to blank land.
Solid mineral exploration can be treated differently according to mineral classification. Straform deposits such as coal mines, bauxite mines and phosphate mines can apply for bidding; The risk of vein deposits such as copper, lead, zinc and gold is too great to invite public bidding. Minerals that have been confiscated, revoked or revoked according to law and have a clear prospect, or minerals that have multiple competitions in the same block and are not in chronological order can bid.
Sand and gravel resources used for ordinary building materials are directly applicable to auction mining rights.
(2) Classification according to the degree of risk. High-risk exploration projects can only implement the principle of giving priority to early applicants; Medium and low risks should be treated differently according to their specific conditions, especially market conditions; Risk-free, suitable for bidding, auction and hanging.
(3) Management by combining the above two classifications. It is necessary to administer according to law and strictly limit the discretion of administrative organs.
3. Learn from international practices
In order to reduce the cost of mining right management and improve administrative efficiency, we should learn from the mature experience of mining right management in market economy countries on the basis of fully understanding the national conditions of China. The difference between China and foreign countries is that there are few blank lands in the hands of the government, and there are many mineral lands funded by the state. On the basis of summing up experience, distinguish the existing work levels of transferring mineral land, and clarify the conditions and scope of applying for approval and bidding and auction.
(C) efforts to improve the level of mining management
1. Further clarify the management system and responsibilities.
The authority for examination, approval and issuance of exploration rights is the Ministry of Land and Resources and the administrative departments of land and resources of the people's governments of provinces (autonomous regions and municipalities). Power should not be delegated. The people's governments at the city and county levels and the competent departments of land and resources shall be responsible for the supervision and management of the paid transfer of exploration rights and the implementation of exploration projects according to law; The information submitted or filed by the applicant and the prospecting right holder shall keep business secrets and protect the legitimate rights and interests of the prospecting right holder. Governments at all levels should create a good investment environment and provide good services to attract more investors. Land and resources management departments at all levels should be equipped with management cadres with professional qualities suitable for mining administration.
2. Standardize intermediary behavior and industry self-discipline.
Under the guidance of the Ministry of Land and Resources, the Association of Mining Intermediary Evaluation Institutions should be established as soon as possible, and its industry self-discipline principle, responsibility and rights relationship and supervision mechanism should be clarified. Formulate the practice standards and activity rules of intermediary evaluation institutions, and standardize their behavior. Do a good job in the qualification examination and annual examination of intermediaries and appraisers. Evaluation institutions engaged in intermediary activities such as resource reserve evaluation, mining right evaluation and mine environmental impact assessment shall independently carry out activities according to law, decouple from administrative organs and independently bear civil liabilities.
3. Strengthen the supervision and management of the circulation of exploration rights and mineral resources exploration.
Land and resources management departments at all levels should strengthen the supervision and management of law enforcement in mineral resources exploration, administer according to law, and promptly investigate and deal with illegal acts.
4. Strengthen the publicity and education of legal knowledge of mineral resources.
It is necessary to strengthen the training of legal knowledge of mineral resources for cadres at all levels, and strive to improve the professional quality and mining administration level of cadres. Correctly understand and recognize the connotation of law and the seriousness of legal system norms; Correctly understand and understand the economic relations in the exploration and development of mineral resources; Correctly define and use the administrative power of mining administration (for example, the main purpose of examining and approving mining rights is the rationality of exploration plans and mining plans rather than how much revenue the government gets); Strengthen the legal consciousness and administrative ability of cadres in administration according to law.
It is necessary to carry out extensive publicity and education on the legal system of mineral resources for personnel engaged in mineral resources exploration and mining activities and all sectors of society, so that they can explore and run mines according to law.