Perspective | The Core Boundary in Determining the Crime of Illegal Mining—A Practical Analysis from “Mining Without a Permit” to “Overstepping Mining Boundaries”

The establishment and refinement of the crime of illegal mining within China’s criminal legal system have been closely aligned with both the growing need for mineral resource protection and the evolving practices in mining regulation. In 1997, Article 343 of the Criminal Law first included the act of “mining without obtaining a mining permit” within the scope of criminal regulation, providing a fundamental legal basis for cracking down on illegal mining activities. However, from a practical perspective, the early provisions were rather general and lacked clear guidance on key elements such as the criteria for determining “serious circumstances” and the methods for calculating the value of mined minerals. As a result, judicial practice in Shandong Province has seen inconsistent sentencing standards and blurred boundaries between administrative violations and criminal offenses, posing numerous challenges for law firms handling related cases.

The 2016 Interpretation by the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Mining and Destructive Mining (hereinafter referred to as) “Interpretation of 2016” The issuance of this [document/measure] marks an important milestone in standardizing the identification of the crime of illegal mining. By specifying concrete scenarios of “not having obtained a mining permit” through a list-based approach, quantifying the criteria for determining “serious circumstances,” and unifying the rules for calculating the value of mineral products, this interpretation effectively addresses the previous challenges of vague identification standards and confusion in legal application.

On November 8, 2024, the 12th Session of the Standing Committee of the 14th National People's Congress revised and adopted the Mineral Resources Law of the People's Republic of China (hereinafter referred to as the “2024 Mineral Resources Law”), which has now come into force. The new law further clarifies the legislative orientation toward ecological protection and refined management of mineral resources, introducing systematic revisions in areas such as full-process supervision of mining rights, ecological restoration of mining areas, and optimization of the legal liability system. It incorporates into the statutory framework provisions on responsibilities for ecological damage remediation and standards for the transfer of mining rights, thereby providing updated and more precise institutional grounds for judicial determination of the crime of illegal mining. From the perspective of practical experience at law firms, this legislative evolution clearly demonstrates a shift in China’s criminal protection of mineral resources—from a “result-oriented” approach to one that places equal emphasis on both process and outcome, and from an approach primarily focused on crackdowns to one that balances regulation with guidance. It also sets higher compliance requirements for mining enterprises.

In conjunction with the practical application of identifying the crime of illegal mining, the key revised provisions and their main impacts of the “2024 Mineral Resources Law” are primarily reflected in three aspects:

(1) Strengthening the linkage between ecological protection and criminal accountability, Article 75 explicitly stipulates: “Anyone who violates the provisions of this Law and causes harm to the person or property of others or damage to the ecological environment shall bear civil liability in accordance with the law; if such conduct constitutes a violation of public security administration, administrative penalties for public security management shall be imposed in accordance with the law; and if it constitutes a crime, criminal liability shall be pursued in accordance with the law.” This provision makes the consequences of ecological damage an important factor in determining the nature and sentencing of the crime of illegal mining, thereby shifting away from the previous logic that focused primarily on the loss of resource value. It now requires that, in practice, the extent of ecological damage be assessed concurrently. This has also become a new core focus for law firms when handling cases of this type.

(2) Refine the full-process supervision of mining rights, clearly defining the statutory procedures for the granting, renewal, and modification of mining rights, as well as the circumstances under which they become invalid. Supplement the regulation by stipulating that “if a renewal application is not completed before the expiration of the mining right’s validity period, the holder shall not continue engaging in mining activities.” This provides a clearer legal basis for characterizing actions taken during the “gap period” following license expiration, thereby narrowing the scope for judicial disputes and uncertainties.

(3) Improve the mechanism for linking administrative violations with criminal offenses. If the competent department of natural resources discovers that illegal mining activities are suspected of constituting a crime, it must promptly refer the case to the judicial authorities. At the same time, clarify that verification opinions issued by administrative agencies and ecological damage assessment reports can be used as evidence in criminal proceedings, thereby enhancing the standardization of evidence admissibility in practice.

Article 2 of the “Interpretation of 2016” clearly defines the four scenarios constituting “failure to obtain a mining permit.” These scenarios form the core basis for determining the crime of illegal mining. Based on numerous cases handled by our firm, we provide an analysis below of the key practical considerations for each scenario:

This type of conduct represents the most typical form of illegal mining—namely, when a perpetrator engages in mining activities without obtaining any mining permit issued by the competent authorities. In the Shandong region, such activities frequently occur in small-scale mines, individual mining operations, and the development of mineral resources in remote areas, making their identification relatively straightforward. However, it is important to distinguish clearly between criminal offenses and administrative violations: For minor, sporadic mining activities conducted for personal use that have not caused damage to mineral resources, administrative penalties are typically imposed in accordance with relevant provisions of the Mineral Resources Law; such cases should generally not be directly classified as criminal offenses. This distinction is precisely the key focus of our law firm’s defense work.

Once a mining permit is canceled, revoked, or withdrawn, its legal validity ceases to exist. If the actor continues mining after such an event, it constitutes a situation of "mining without obtaining a mining permit." From a practical standpoint, although the legal consequences of these three actions are similar, their underlying causes differ: Cancellation often results from legitimate or neutral reasons, such as the expiration of the permit’s validity period without renewal or the rights holder’s voluntary application to terminate the permit; revocation is an administrative penalty imposed by an administrative authority for serious violations, commonly seen in cases of over-extraction or ecological damage; and withdrawal stems from defects inherent in the licensing process itself, such as false application materials or illegal approval procedures. When handling such cases, investigators will focus on verifying the cause of the permit’s invalidation and the actor’s subjective awareness, providing a basis for determining the nature of the case.

Overstepping mining boundaries can be categorized into two types: planar overstepping and vertical-depth overstepping. Planar overstepping refers to the situation where the mining area exceeds the planar coordinates specified in the mining license, while vertical-depth overstepping occurs when the mining depth surpasses the approved elevation. The determination of such violations requires a comprehensive analysis of professional survey data, mining design plans, and other relevant materials. Typically, law firms assist judicial authorities by commissioning qualified institutions to provide expert opinions, thereby precisely defining the extent of overstepped boundaries and the degree of resource damage.

A Classic Case of Illegal Mining Crimes in Shandong Province and Practical Analysis—The Case of Wang et al. in Linyi as an Example.

In November 2014, Wang purchased a stone quarry in Wen Shui Town, Pingyi County, Shandong Province. The quarry’s mining license was valid until May 4, 2015. Despite demands from the safety committees at both the Linyi City and Pingyi County levels for local mines to suspend operations and undergo rectification, Wang still instructed others to carry out unauthorized mining activities. Moreover, the mining area exceeded the planar coordinates specified in the mining license, constituting a typical case of “mining beyond the licensed boundaries combined with mining after the license has expired.” According to an expert assessment, between December 2014 and December 2015, the quarry illegally mined more than 340,000 tons of limestone ore used for construction materials, with a value exceeding 4 million yuan. Meanwhile, this illegal mining activity triggered a series of secondary hazards: excessive use of explosives during blasting operations caused damage to over 130 households’ homes; vehicles operating in the mining area damaged village roads; some villagers’ land was illegally occupied, and their labor compensation was withheld; village officials who attempted to negotiate for redress were threatened—severely disrupting the local economic and social order.

The Pinyi County Procuratorate has brought public prosecution against Wang and others on multiple charges, including the crime of organizing and leading a triad-like organization and the crime of illegal mining. After reviewing the case in the first instance, the court found that Wang, fully aware that his mining license was about to expire and that mining operations had been suspended for rectification, still organized personnel to cross boundaries and mine mineral resources without a license. The circumstances were particularly serious, and his actions constituted the crime of illegal mining. Furthermore, Wang had organized and formed a triad-like organization and engaged in numerous illegal and criminal activities. As a result, he was sentenced to 25 years’ imprisonment, stripped of his political rights for five years, and ordered to forfeit all his personal property. After Wang and others appealed, the Intermediate People’s Court of Linyi City dismissed their appeal in the second instance, upholding the original sentence.

Based on our firm’s experience handling cases, we analyze this case as follows:

(1) Qualification rules for superimposed illegal mining activities: In this case, Wang committed three separate violations: “mining after the expiration of his mining license,” “mining beyond the designated boundary,” and “mining in violation of requirements for suspension and rectification.” The judicial authorities determined that the core illegality lay in “unauthorized mining without a legitimate mining permit,” and these cumulative circumstances were treated as aggravating factors warranting a particularly severe sentence. This highlights that when handling similar cases, law firms must thoroughly examine the interplay among the various illegal acts committed by the offender and precisely distinguish between the elements used for characterizing the offense and those used for determining the sentence.

(2) A Dual Consideration of Mineral Product Value and Derived Hazards: The case took as its core basis for conviction the value of over 340,000 tons of mineral products—determined by the expert appraisal report—at over 4 million yuan. At the same time, the court considered the secondary harms caused by illegal mining, such as damage to houses and disruption of public order, in determining the sentence, thus aligning with the legislative orientation of "giving equal weight to both personal and property damages and ecological harm." In practice, law firms can assist judicial authorities in obtaining evidence such as ecological damage assessment reports and victim statements, thereby strengthening the chain of evidence used in sentencing.

(3) Judicial determination of subjective intent: Based on Wang’s actions—including “disregarding the requirement to halt production for rectification,” “instructing others to forcibly carry out mining operations,” and “resisting villagers’ efforts to protect their rights”—the court inferred that he had direct intent to engage in illegal mining. When handling defense cases, law firms can focus on verifying whether the defendant had a reasonable misunderstanding regarding the validity of the mining permit or the scope of the mining activities. If circumstances such as unclear boundary markings by administrative authorities or defects in the approval process are identified, these could serve as key arguments in asserting the defendant’s lack of subjective intent.

The court’s reasoning in this case not only reflects Shandong Province’s judicial stance of “strict crackdown” on the crime of illegal mining, but also clarifies the rules for handling key issues such as cumulative violations, valuation determination, and subjective intent, providing important practical guidance for law firms handling similar cases.

Mineral rights are characterized by strict specificity; the scope of mineral types explicitly approved in the mining permit constitutes the statutory boundary within which operators are authorized to mine. Even within the licensed mining area, mining beyond the approved mineral type range still constitutes illegal mining. However, the exceptional circumstances stipulated in the “2016 Interpretation” deserve particular attention: For coexisting or associated mineral types, if the mining right holder legally and comprehensively utilizes them while extracting the primary mineral type, and such utilization complies with the mineral resource planning, mining plan, and terms of the transfer contract, it shall not be deemed a criminal offense. This provision reflects the policy orientation toward the comprehensive utilization of mineral resources and also introduces greater complexity into practical determinations. In the Shandong region, some coal mines and iron mines exhibit... Syndicating mineral species The law firm will assist enterprises in avoiding such compliance risks by reviewing the filing documents from the competent authorities for mineral resources and the mining design plans.

There is ongoing debate over how to characterize the behavior of individuals who continue mining activities during the "gap period"—the time between the expiration of a mining license and the completion of its renewal registration. In practice, two opposing views have emerged: The strict formalist approach holds that once a license expires, it automatically becomes invalid, and any mining activity conducted during this period is considered unlicensed mining. By contrast, the reasonable expectation theory argues that if the mining rights holder has duly submitted an application for renewal as required, bears no subjective fault, and the administrative authority has not explicitly rejected the application, the enterprise’s reasonable expectation of obtaining a renewed license should be respected, and such conduct should not be readily characterized as a criminal offense.

Based on relevant precedents from the Supreme People's Court and the firm’s practical experience, the characterization of such conduct should adhere to the principle of “consistency between subjective intent and objective actions”: If a company actively pursues renewal procedures but encounters a gap in mining activities due to reasons beyond its control—such as delays in the administrative approval process—and this does not result in serious damage to mineral resources, the company may seek to avoid criminal prosecution, though it would still be required to bear administrative liability in accordance with the law. However, if a company knowingly allows its mining license to expire without applying for renewal, or if it has repeatedly failed to renew its license on time or has concealed its mining activities, such conduct should be legally classified as illegal mining.

Exploration rights and mining rights belong to different legal systems. An exploration right holder enjoys only the right to explore mineral resources but does not have the right to mine them. In practice, in the Shandong region, some enterprises, after discovering extractable resources during the exploration phase, have commenced mining operations ahead of time without obtaining a mining permit. The characterization of such conduct has been subject to controversy. Some argue that if an enterprise subsequently succeeds in obtaining a mining permit, its earlier mining activities could be treated leniently. However, the mainstream stance of criminal justice authorities as well as practical experience from law firms both indicate that the subsequent acquisition of a mining permit cannot retroactively negate the illegality of earlier unlicensed mining activities. As long as the mining activity took place without a mining permit and meets the constitutive elements of the crime of illegal mining, the offender should be convicted and punished according to law; the later issuance of a permit can only be considered as a mitigating factor in sentencing. This approach underscores the seriousness of mining rights licensing and the core principle of state ownership of mineral resources.

In infrastructure construction, land reclamation, road building, and other projects, activities such as mountain excavation and quarrying are often involved. These “mining-and-extraction combined” practices blur the line between lawful and illegal mining, making them prone to criminal risks. Drawing on engineering construction and mining regulatory practices in Shandong Province, the key distinctions between legal and illegal activities lie in three main aspects: First, whether the mining activity is absolutely necessary for the construction project; second, whether the extracted mineral products are used exclusively for the current construction project; and third, whether the relevant approval procedures have been duly completed in accordance with the law.

If an enterprise, under the guise of engineering construction, mines mineral resources beyond the actual needs of the project, or unilaterally sells the mined minerals to third parties for profit, this constitutes “using a legal form to conceal an illegal purpose” and should be identified as illegal mining.

The proceeds from illegal activities and the value of mineral products serve as the core basis for determining whether the crime of illegal mining constitutes “serious circumstances” or “particularly serious circumstances,” and are also key factors in sentencing. The 2016 Interpretation clarified the fundamental principles for calculating these values; however, in practice in Shandong Province, numerous disputes still persist. Drawing on our firm’s case-handling experience, the key points are as follows:

(1) The value choice between raw ore and concentrate. Illegally mined mineral products may be sold directly in their raw form or processed and sold as concentrates; the value difference between these two forms can be substantial. Judicial interpretations stipulate that the amount obtained from selling stolen goods should serve as the primary basis for determining value. However, whether to deduct processing costs must be determined by considering the specific factual circumstances: If the processing activity is a natural continuation of the illegal mining activity and is carried out by the same perpetrator, the entire operation should be treated as a single illegal mining act, and the value should be calculated based on the sales price of the concentrates without separately deducting processing costs. This approach is intended to precisely target the economic incentives behind illegal mining. On the other hand, if the processing activity is performed by a third party and the perpetrator sells only the raw ore, the value should be determined based on the amount obtained from selling the raw ore.

(2) Applicable scenarios for the sales price and the appraised value. The amount of proceeds from the sale of stolen goods is the primary basis for determining their value. However, in practice in Shandong Province, some cases involve sales prices that are significantly lower than market prices. Fair value In cases where mineral products have not been sold or sales records have been lost, the value must be determined through a professional appraisal. The appraisal should be conducted as of the time when the criminal act occurred, and the appraisal methodology should take into account the reasonable prices prevailing in the local mineral trading market as well as transaction data for similar types of mineral products. For mineral products such as coal and iron ore, which experience significant price fluctuations, the law firm will assist the judicial authorities in obtaining long-term market price trends and industry reports to ensure the objectivity of the appraisal results and prevent perpetrators from evading legal liability by selling at low prices or concealing transaction records.

Overstepping mining boundaries, as the primary type of illegal mining case in Shandong Province, has seen its identification criteria continuously refined through judicial practice. The differentiated treatment of planar boundary violations and vertical depth boundary violations is particularly crucial; these two types exhibit significant differences in terms of evidentiary difficulty and the basis for determination.

(1) Planar overstepping refers to mining operations that extend beyond the planar coordinate boundaries specified in the mining permit. Such overstepping can be detected through professional surveying, and technical disputes primarily center on issues such as measurement accuracy, coordinate system transformations, and the clarity of boundary markings. In practice in Shandong Province, judicial authorities typically take the survey reports issued by the competent authority for mineral resources as the core basis for their determinations. If the survey results clearly show that the mining area exceeds the permitted coordinates and there is no evidence to suggest exceptions such as measurement errors or unclear boundary markings, the mining operation can be deemed an overstep. When handling such cases, law firms will focus on verifying the qualifications of the surveying agencies and ensuring the compliance of the survey methods, thereby guaranteeing the legality of the basis for their findings.

(2) Vertical depth overstepping refers to mining operations that exceed the elevation range approved in the mining license. This type of overstepping is more concealed and significantly harder to detect and gather evidence for than horizontal boundary violations. When determining whether vertical depth overstepping has occurred, it is necessary to comprehensively examine documents such as the mining license, the mineral resource development and utilization plan, safety regulations, and the mining rights transfer contract, in order to clearly define the permitted mining depth. It should be noted that for certain mineral types in Shandong Province, the mining licenses do not explicitly specify a maximum vertical depth. In such cases, the reasonable mining depth should be determined through a comprehensive assessment that takes into account the mining design plan, industry safety standards, and the overall resource planning. If an operator unilaterally exceeds the safe or designed mining depth—even when the license does not explicitly state such limits—and the overstepping poses a threat to mine safety or undermines the overall mineral resource planning, the conduct may still be deemed illegal mining.

The “Interpretation of 2016” includes both types of boundary violations within the category of “conducting mining activities without obtaining a mining permit.” However, determining vertical boundary violations relies more heavily on industry technical standards and professional opinions from the competent administrative authorities. When handling such cases, I often collaborate with experts in the field of mineral resources and forensic appraisal institutions to meticulously review and analyze evidence—including administrative permits, mining records, and technical reports—in order to assist judicial authorities in accurately defining boundary-violating acts. At the same time, we pay close attention to the seamless transition between administrative violations and criminal offenses, ensuring that case handling is both lawful and reasonable.