Earth Day | Analysis of illegal acts and legal responsibilities in the prospecting stage
Published:
2024-04-23
Prospecting right refers to the right to explore mineral resources within the scope of the exploration license obtained in accordance with the law. According to the relevant laws and regulations, this paper analyzes the legality and legal liability of the above-mentioned acts of mining enterprises in the prospecting stage.
Prospecting right refers to the right to explore mineral resources within the scope of the exploration license obtained in accordance with the law. The unit or individual that has obtained the exploration license is called the prospecting right owner. The prospecting stage usually has a long cycle and low returns, so in practice, prospecting rights owners often have behaviors such as mining while exploring, mining without obtaining a mining license, and recycling by-products. According to the relevant laws and regulations, this paper analyzes the legality and legal liability of the above-mentioned acts of mining enterprises in the prospecting stage.
Analysis of Illegal Behavior in 1. Prospecting Stage
(I) the act of mining on behalf of exploration is illegal mining and is subject to legal liability.
Article 3 of the "the People's Republic of China and Mineral Resources Law" stipulates that the exploration and mining of mineral resources must be applied for separately in accordance with the law, approved to obtain prospecting rights and mining rights, and registered.
China implements the mining right system of separation of exploration and mining, prospecting rights and mining rights have different rights attributes, and prospecting and mining activities should apply for licenses separately. The prospecting right owner has the right to obtain the mining right of mineral resources in the exploration operation area in priority, but the prospecting right owner has no right to exploit the mineral resources in the exploration area at will before obtaining the mining license corresponding to the mineral resources in the exploration area. Unauthorized mining and "exploration instead of mining" constitute illegal mining.
It should be noted that mining enterprises must strictly follow the legalism in mining, and if the mining right owner fails to obtain a mining license or mining registration in accordance with the law, even if the local government agrees to mine mineral resources, its mining behavior is still illegal mining.
Some special minerals in (II) are allowed to be mined while being mined, and in other cases mining while being mined is illegal.
Article 18 of the Detailed Rules for the Implementation of the the People's Republic of China Mineral Resources Law stipulates that the prospecting right owner may mine complex types of deposits that meet the requirements of the national regulations on exploration and mining; however, it shall report to the original authority that issued the exploration license and the mineral reserves approval agency And the department in charge of exploration projects submit demonstration materials, and after review and approval, go through mining registration in accordance with the provisions of the State Council on mining registration management regulations.
Article 19 of the Measures for the Administration of Registration of Mineral Resources Exploration Blocks stipulates that when the prospecting right owner conducts exploration within the validity period of the exploration license, if he finds a complex type of mineral deposit that meets the requirements of the state's regulations on exploration and mining, he may apply for mining and go through the mining registration formalities with the approval of the registration administration authority.
According to the above provisions, for complex types of minerals, the prospecting right owner may apply for mining registration after approval. If the above conditions are not met, the prospecting right enterprise that explores and mines without authorization is illegal mining and shall bear legal responsibility.
Recovery of by-product ore at the (III) prospecting stage does not constitute illegal mining
Article 16 of the "Detailed Rules for the Implementation of the the People's Republic of China and Mineral Resources Law" stipulates: Prospectors have the following rights: "The (VII) sells mineral products recovered in accordance with the approved engineering design and construction during the exploration, except for mineral products that are uniformly purchased by designated units as stipulated by the State Council."
According to the above provisions, as long as the prospecting right owner works in accordance with the approved engineering design, he can sell the recovered mineral products on his own, which is not illegal mining. However, some areas require the sale of by-product ore to be approved by the natural resources department and the approved sales volume. If it is not approved by the relevant departments, it may also be found that the sale of by-product ore is illegal.
Legal Liability for Illegal Acts in the 2. Prospecting Stage
Article 39 of the the People's Republic of China Mineral Resources Law stipulates that anyone who, in violation of the provisions of this Law, mines without obtaining a mining license, enters a mining area planned by the state and is of great value to the national economy, and mines a specific type of mineral that is subject to protective mining as stipulated by the state without authorization, shall be ordered to stop mining, compensate for losses, confiscate the mined mineral products and illegal income, and may concurrently impose a fine, if the damage to mineral resources is caused, the person directly responsible shall be investigated for criminal responsibility in accordance with the relevant provisions of the Criminal Law.
Article 27 of the measures for the Administration of Registration of Mineral Resources Exploration blocks stipulates: "those who, in violation of the provisions of these measures, carry out rolling exploration and development, exploration and mining or trial mining without approval, the people's government at or above the county level shall, in accordance with the authority prescribed by the competent department of geology and mineral resources under the State Council, order the illegal acts to stop, give a warning, confiscate the illegal income and may concurrently impose a fine of not more than 100000 yuan."
Article 343 of the the People's Republic of China Criminal Law stipulates that whoever, in violation of the provisions of the Mineral Resources Law, mines without obtaining a mining license, and if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or separately be fined; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
Therefore, illegal mining activities such as "exploration instead of mining" and "exploration while mining" without approval will be subject to administrative punishment. If the circumstances are serious, it may constitute the crime of illegal mining, and criminal responsibility should be investigated according to law.
With the continuous development of China's mineral industry, a series of problems have been exposed. In recent years, illegal phenomena such as "exploration instead of mining" in the process of prospecting are more serious, so they have become the focus of attack, which has sounded the alarm for mining enterprises. Mining enterprises need to understand the corresponding industry legal knowledge, compliance exploration.
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