Mineral legal perspective | Analysis of the legal effect of mining rights contracts from the perspective of judicial adjudication
Published:
2021-03-01
In mining practice, there are a large number of mining rights holders and others to sign mining rights contracts, due to mining rights contracting disputes also occur frequently, according to our lawyers to search the relevant cases, found that mining rights contracting disputes mainly focus on the effectiveness of the contract. In judicial practice, there are many forms of mining right contract, but its nature can be divided into "production management right contract" and "transfer of mining right in the form of contract". When determining the legal effect of mining right contract, two types of contract should be distinguished. This paper selects the typical cases of judicial practice, combined with the provisions of relevant laws and regulations, to analyze the legal effect of the mining right contract that often appears in practice.
The validity of the contract of 1. production management right.
The contracting of production and management rights (labor contracting) is a "pure" contracting method, that is, the parties agree to jointly mine or give the production and operation management contained in the mining right to others, and pay the contractor a certain amount of labor remuneration and enjoy the contractor's labor The results, but the main body of the mining right does not change, the contractor as the mining right holder does not withdraw from the mine management, and continues to perform the legal obligations of the mining right holder. In such cases, the mining right owner has the right to contract the mining right to others in accordance with the law. The current laws and regulations do not prohibit this kind of contracting method, and the contract shall be a valid contract as long as it does not violate the mandatory provisions of validity. Through the case search conducted by our lawyers, courts at all levels are generally positive about the validity of mining rights contracts in this way.
According to the first paragraph of Article 12 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Mining Rights Dispute Cases": "If the parties request to confirm that the mining rights lease or contract shall take effect from the date of establishment in accordance with the law, the people's court shall support it." This provision further clarifies the judgment rules for the legal effect of the production and management right contract.
Typical Case 1:(2019) Min Min Shen No. 4684
Referee's point of view: ...... If the mining right holder only signs a contract and continues to perform its obligations and assume responsibility externally, the contract shall be deemed valid. The first paragraph of Article 12 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Mining Rights Dispute Cases" also clarifies the validity of the mining rights contract, that is, "If the parties request confirmation that the mining rights lease or contract is established in accordance with the law If it takes effect from the date, the people's court shall support it".
Typical Case 2:(2020) Liao 10 Min Zhong No. 2242
Referee's point of view: In this case, the "Lease Contract" and "Supplementary Contract" signed by both parties agree on the lease contract relationship. Both parties claim that the ore mined when the mining license is valid in 2017 will be processed, and the subject of the mining right has not changed. In the actual performance process, foreign relations are also carried out in the name of the Limestone Mine of Luodatai Construction Bank in Wensheng District, Liaoyang City ...... are in line with the characteristics of the contract, and do not have the characteristics of the transfer of mining rights, should be recognized as a mining rights contract. The Lease Contract and the Supplementary Contract are only internal agreements on the relationship of rights and obligations between the parties to the contract, and shall not be valid for the purpose of the contract, and shall not violate the mandatory provisions of laws and administrative regulations.
2. the validity of contracts for the transfer of mining rights in the form of contracting
The transfer of mining rights in the form of contracting, that is, the parties sign a mining rights contract, stipulating that the contractor will give up the management of the mine, and will no longer perform all legal obligations as a mining right holder, except for collecting fixed fees or income, and no longer bear any legal liability, shall be deemed to be the transfer of mining rights in the form of contracting, which belongs to the disguised circulation of mining rights. Although mining rights belong to the use of beneficial property rights, but because of the strategic significance of mineral resources and has a strong nature of public rights, the transfer of mining rights in addition to the parties expressed the same intention, but also need to be approved by law to take effect. According to Article 6 of the Mineral Resources Law and the second paragraph of Article 3 of the Measures for the Administration of the Transfer of Exploration Rights and Mining Rights of the State Council, mining enterprises that have obtained mining rights need to change the subject of mining rights, they can only transfer mining rights to others for mining after approval in accordance with the law. Article 15 of the Measures for the Administration of the Transfer of Exploration Rights and Mining Rights stipulates that if the mining rights are transferred to others for mining without authorization by means of contracting, the department in charge of geological and mineral management of the people's government at or above the county level shall, in accordance with the provisions of the competent department of geology and mineral resources under the State Council, order corrections, confiscate illegal gains, and impose a fine of less than 100000 yuan; if the circumstances are serious, the mining license shall be revoked by the original issuing authority.
Therefore, the transfer of mining rights in the form of contracting essentially circumvents the approval process of relevant departments and violates the mandatory provisions of the Mineral Resources Law and the Administrative Measures for the Transfer of Exploration Rights and Mining Rights. This kind of contract should be deemed invalid. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Mining Rights Disputes, Article 12, paragraph 2: Mining rights leasing and contracting contracts stipulate that mining rights owners only collect rent and contract fees, give up mine management, and fail to perform safety If the legal obligations such as production and ecological environment restoration do not bear corresponding legal responsibilities, the people's court shall determine that the contract is invalid according to law.
Typical Case 1:(2014) Lu Min Re-zong Zi No. 26
Judgment Point of View: According to the contract, Yuanfa Mining Company enjoys the rights of iron ore production, management, investment, income and other rights, and bears the production risks alone. The content of the contract also covers the relevant rights included in the mining rights. Based on this, the original court found that the contract in this case was actually a correct contract for the transfer of mining rights in the form of contract, and the court confirmed it. Regarding the issue of whether the transfer of mining rights by both parties is effective, the Court believes that the the People's Republic of China Mineral Resources Law and the State Council's Measures for the Administration of the Transfer of Exploration Rights and Mining Rights and other laws and regulations clearly stipulate that the mining management right is a franchise right, and its approval The approval procedures should be strictly performed. According to the provisions of the third paragraph of Article 10 of the Measures for the Administration of the Transfer of Prospecting Rights and Mining Rights of the State Council, "if the transfer is approved, the transfer contract shall take effect from the date of approval", accordingly, Yuanfa Mining Company shall perform the corresponding examination and approval procedures before the mining right transfer contract in this case can have legal effect. The court of first instance decided that Yuanfa Mining Company failed to perform the examination and approval procedures, violated the mandatory provisions of the law, and found that the contract in this case was invalid and not improper, and the court upheld it.
Typical Case 2:(2015) Qian Gaomin Zi No. 4
Referee's point of view: The "Eagle Rock Coal Mine Contract" signed by both parties violates the prohibitive provisions of the above-mentioned administrative regulations on prohibiting the transfer of mining rights by contract, and belongs to Article 52, Paragraph 1, Item (V) of the the People's Republic of China Contract Law The contract is invalid, so the "Eagle Rock Coal Mine Contract" signed by both parties on September 1, 2002 is an invalid contract.
How to determine the "disguised transfer of mining rights in the name of contracting" in 3. judicial adjudication"
In the actual operation process of mining enterprises, foreign contracting of mining rights is a relatively common business behavior, but care should be taken not to transfer mining rights in the name of contracting, so as not to be invalid by the court. By combing through the relevant court decisions, the following circumstances should be identified as a disguised transfer of mining rights:
1. The main content of the mining right contract not only agrees on the contracting of mining tasks or the contracting of part of the mining management right, but also agrees on the ownership and disposition of the mining right itself.
2. The parties agreed in the mining rights contract that the contractor would give up the management of the mine, fail to fulfill the legal obligations such as safe production and ecological environment restoration, and no longer bear any legal liability except for charging fixed fees or income.
3. The parties agree in the mining rights contract that the legal acts such as enterprise operation and sales shall be carried out in the name of the contractor rather than in the name of the contractor (mining enterprise).
4. The contract stipulates that the contractor has the right to subcontract, subcontract, transfer, mortgage and other rights to the mining management right or the ownership of the mining enterprise.
5, the contract will be the contractor's legal representative and other important positions agreed by the contractor's personnel, and the contractor's personnel actually no longer serve.
6. In the contract, the contract period is stipulated as "long-term" or "until the mining of mineral resources is completed" and other permanent states.
Advice from 4. lawyers
By summarizing the criteria for determining the judicial decisions of the courts, we suggest that attention should be paid to the following when signing a mine contracting agreement:
1. Mining enterprises shall contract their business operations to qualified entities. According to Article 46 of the "Safety Production Law": Production and business units shall not contract or lease production and business projects, sites, or equipment to units or individuals that do not have the conditions for safe production or corresponding qualifications. The Mineral Resources Act also imposes corresponding restrictions on the subjects of mineral exploitation. Therefore, if a mining enterprise adopts the method of production and operation contracting, it should contract to a unit or individual with relevant qualifications stipulated by laws and regulations, so as to avoid the "contract" being deemed invalid for violating laws and regulations and being subject to administrative punishment by the competent department for illegal contracting.
2. If a mining enterprise signs a contract for mineral rights, it is not appropriate to agree in the terms of the contract that "the subject of the right to change the mining right", "the transferor waives the mine management", "the transferor no longer performs the obligation of safe production" and other similar expressions, so as to avoid the risk of the contract being deemed as a transfer contract and resulting in invalidity.
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