China: 矿业权出让怎么设计才合法合理? 覧对自然资源部《矿业权出让管理办法A

Last Updated: 8 April 2019
Article by DeHeng Law Offices
Most Read Contributor in China, March 2019

2019年3月15日,自然资源部发布公告,向全社会发布《矿产资源出让管理办法(征求意见稿)》(以下简称"征求意见稿")并向社会各界征求意见。借此机会,笔者首先对我国矿业权出让制度的前世今生、来龙去脉做了一个纵向梳理,然后对征求意见稿进行认真学习和思考,现将笔者的粗浅认识与矿业界、法律界的同仁分享如下:

一、矿业权出让制度的历史沿革

2000年10月31日,国土资源部发布《矿业权出让转让管理暂行规定》(国土资发〔2000〕309号),该文件对"矿业权出让"做出明确定义。根据该文件,矿业权出让是指登记管理机关以批准申请、招标、拍卖等方式向矿业权申请人授予矿业权的行为。该文件还分别对批准申请、招标、拍卖这三种方式的定义、程序、要求等做了具体规定。该文件的第五十五条已经被国土资源部关于停止执行《关于印发〈矿业权出让转让管理暂行规定〉的通知》(国土资发〔2014〕89号)废止,但其余条款仍然有效。

2006年01月24日,国土资源部发布《国土资源部关于进一步规范矿业权出让管理的通知》(国土资发〔2006〕12号),该通知设置了《矿产勘查开采分类目录》,目录设置了可按申请在先方式出让探矿权类矿产(第一类)、可按招标拍卖挂牌方式出让探矿权类矿产(第二类)和可按招标拍卖挂牌方式出让采矿权类矿产(第三类),规定不同类别的矿种可以采取不同的出让方式。按照征求意见稿的规定,该通知将在《矿业权出让管理办法》正式生效时被废止。

2008年9月4日,国土资源部发布《国土资源部关于规范矿业权出让评估委托有关事项的通知》(国土资发〔2008〕181号),该通知全文共13条,通篇围绕不同的矿业权出让方式下如何进行矿业权评估机构选择展开,并没有对矿业权出让的概念做出解释,更没有涉及矿业权出让方式、出让组织、审批权限等具体的管理制度。

2012年05月15日,国土资源部发布《国土资源部关于严格控制和规范矿业权协议出让管理有关问题的通知》(国土资发〔2012〕80号,简称80号文),该通知以严格控制和规范矿业权协议出让,遏制矿业领域腐败现象为宗旨,以列举方式将协议出让矿业权的范围控制在"1.国务院批准的重点矿产资源开发项目和为国务院批准的重点建设项目提供配套资源的矿产地;2.省级人民政府批准的储量规模为大中型的矿产资源开发项目;3.为列入国家专项的老矿山(危机矿山)寻找接替资源的找矿项目;4.已设采矿权需要整合或利用原有生产系统扩大勘查开采范围的毗邻区域;5.已设探矿权需要整合或因整体勘查扩大勘查范围涉及周边零星资源的"五种特定的情形。该通知还对协议出让探矿权、采矿需要具备的前提条件、提交的资料、批准权限和程序、协议出让申请等做内容了详细的规定。

2015年08月24日,国土资源部发布《国土资源部关于严格控制和规范矿业权协议出让管理有关问题的通知》(国土资规〔2015〕3号),该文件的印发将80号文全面废止。该文件保留了80号文对于可以协议出让的5种情形的规定,并进一步规范了协议出让的要求和审批程序。按照征求意见稿的规定,该文件将在《矿业权出让管理办法》生效时被废止。

2017年06月29日,财政部、国土资源部印发《矿业权出让收益征收管理暂行办法》(财综〔2017〕35号)。该文件包含矿业权出让收益的定义、收取方式、配套政策和组织实施等方面的规定。

除上述6部直接与矿业权出让相关的规范性文件(部门规章)之外,涉及到矿业权出让的法律法规和规范性文件还包括:《中华人民共和国矿产资源法》、《矿产资源勘查区块登记管理办法》、《矿产资源开采登记管理办法》、《国务院关于印发〈矿产资源权益金制度改革方案〉的通知》(国法〔2017〕29号)、《探矿权采矿权招标拍卖挂牌管理办法(试行)》(国土资发〔2003〕197号)、《关于规范勘查许可证采矿许可证权限有关问题的通知》(国土资发〔2005〕200号)、《关于调整钨和稀土矿勘查许可证采矿许可证登记权限有关问题的通知》(国土资发〔2007〕92号)、《国土资源部关于开展煤炭矿业权审批管理改革试点的通知》(国土资规〔2015〕4号)等。根据征求意见稿的规定,后面四项规范性文件(规章)将在《矿业权出让管理办法》生效时被废止。

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