(Henan Xinxiangrong Co., Ltd.)
The requirements for the discussion of "mining right management" are: first, to find out the outstanding problems and weak links in the management of exploration right and mining right that are not suitable for the reform and development of geological prospecting and the development of mining economy; The second is to study ways to further standardize the management of exploration rights and strengthen the management of exploration rights of scarce minerals; The third is to study and demonstrate and improve the management measures for bidding, auction and listing of exploration and mining rights.
First, the establishment of mining rights market in China
1 997 65438+1October1the implementation of the amendment to the mineral resources law of People's Republic of China (PRC) has restored the property attribute of mining rights, and stipulated that they can be acquired with compensation and transferred conditionally. This marks the establishment of the circulation system of exploration and mining rights and the rapid development of the market construction and evaluation of exploration and mining rights in China. 1February 1998, the State Council promulgated 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. China's mining right system began to enter the implementation stage, and the mining right market also started. The mining right market is the sum total of economic relations in the process of mining right transaction and value realization. In China, the mining right market is divided into primary market and secondary market. The primary transfer market of mining rights in China is monopolized by the state. According to the needs and actual conditions, the state mining administrative department shall transfer the mining right by administrative gift, agreement, entrustment, bidding, auction and listing according to law. (Individuals, social organizations and government agencies cannot be used as applicants for exploration and mining rights; However, the secondary transfer market is conditional competition, which is a mining right transaction between the transferor and the transferee for their own business purposes, and is conducted between two or more equal civil subjects.
The establishment of two markets provides a carrier for the circulation of mining right, a special commodity, and fully embodies the commodity attribute of mining right.
Two, mining rights management, promote the process of "marketization"
The primary market of mining rights is paid by the state, and the exploration rights and mining rights are sold within a limited time. Its characteristic is that mineral resources are owned by the state, monopolized by the state, and exploration and mining rights are directly sold to mining rights holders by the competent departments of exploration and mining rights according to law. At present, China lacks the non-exclusive right of ordinary exploration right and the priority right of mining right, which may be the main reason for the weak basic geological work of ordinary exploration right in some provinces of China, excessive speculation and even the sale of false exploration right for commercial fraud, because the law should stipulate that the granting of exploration right shall not be approved until the ordinary exploration right reaches a certain level. It should be stipulated that only the prospecting right holder can obtain the mining right from the state.
In China, the power to examine and approve major minerals is concentrated in the relevant competent departments of the State Council and the competent departments of Geology and Mineral Resources of the provincial people's government. The Mineral Resources Law of People's Republic of China (PRC) defines the examination and approval authority of the State Council and relevant provincial departments. The primary transfer market of mining rights refers to the following exploration rights and mining rights transferred by the state as the owner of mineral resources by non-market means such as administrative grant, agreement and entrustment and market means such as public bidding, auction and listing: ① virgin land without any geological work; (two) the exploration area that has done geological work, but the original exploration license has expired and has not been extended or retained; (3) exploration blocks where the prospecting right holder applies for cancellation or the exploration license is revoked; (four) the original mineral exploration rights to give up the priority of the mineral; (5) The original mining right license has expired without applying for renewal, and the mining license has been cancelled or revoked.
According to Article 3 of the Mineral Resources Law of People's Republic of China (PRC), "exploration and exploitation of mineral resources must be applied separately according to law, and exploration and mining rights must be obtained after approval and registered." It can be seen that the acquisition of exploration and mining rights must follow the way of application-approval-registration. In the past, most of the mining rights in China were granted by way of free administration, which caused the long-term situation that the mining rights holders used mineral resources for free, indefinitely and without circulation, and caused the phenomenon that the mining rights holders occupied land in exploration and registration.
On June 1 1, 2003, the Ministry of Land and Resources issued the Measures for the Administration of Bidding, Auction and Listing of Prospecting and Mining Rights to regulate the mining rights transfer market. Mineral resources management departments began to pay attention to improving access conditions through price leverage and competition mechanism in the market economy. According to different minerals, different metallogenic prospects and different working levels, various transfer methods such as agreement transfer, bidding, auction and listing are adopted accordingly. At the same time, it also promoted the process of marketization of mining rights.
According to the provisions of Articles 7 to 10 of the Measures for the Administration of Bidding, Auction and Listing of Exploration and Mining Rights, the transfer of mining rights shall be treated differently according to the following different situations:
(1) The exploration right and mining right are sold by bidding, auction and listing. (a) the state funded exploration and proved to be further exploration of mineral land and the state funded exploration and proved to be mining mineral land. (two) the loss of exploration or mining rights. (3) exploration blocks designated by the national and provincial special plans for mineral resources exploration and minerals that can be directly mined without exploration as stipulated by the competent department. Other circumstances stipulated by the Ministry of Land and Resources and the provincial competent department.
(two) it is specially stipulated that the exploration right and mining right shall be transferred by tender. (1) Exploration projects funded by the state. ② The reserves of mineral resources are large-scale energy and metal mines. (3) Mining areas with many associated components and high technical requirements are comprehensively utilized. ④ Mining areas of great value to the national economy. ⑤ According to laws, regulations and national policies, environmentally sensitive areas with new exploration and mining rights can be established, as well as areas that do not meet the national environmental quality standards.
(three) it is forbidden to transfer the prospecting and mining rights by bidding, auction and listing. The prospecting right holder shall apply for the mining right in the exploration block according to law. (two) the continuous mining area of mining enterprises and the upper and lower parts of mining rights mining areas that meet the mineral resources planning or the overall planning of mining areas need to be mined in a unified way. (three) to provide construction mines for national key infrastructure construction projects. ④ The ownership of exploration right and mining right is disputed. (five) laws, regulations and other provisions of the competent authorities, due to special circumstances, it is not appropriate to take the way of bidding, auction and listing.
According to the relevant laws and regulations of our country, there are five ways to transfer mining rights at present: approval of application, agreement transfer, bidding, auction and listing.
(1) Approving the application for transfer of mining rights is the way for the competent department to approve the application for transfer of mining rights according to law. It is the process that the competent department examines and approves the application of the mining right applicant, collects the mining right price according to the evaluation and confirmation results, and grants the mining right applicant the mining right. This method is applicable to blank land, that is, mining rights that have not been put into the general survey, have not been set up in history, are non-nature reserves and planning areas, and mining rights that are not suitable for transfer by agreement, bidding, auction or listing due to special circumstances stipulated by the competent authorities. Approving the application for implementation is a way of paid transfer system of mining rights. Its characteristics: non-market transfer, application priority.
(2) Transfer of mining rights by agreement is another way for the competent department to approve the application for transfer of mining rights according to law. It is a process of negotiation between the applicant for mining right and the competent department on mining right price, service life, mining area, payment method and time, development and utilization requirements, etc. After the application is approved, the transfer contract shall be signed on the premise that both parties reach an agreement. Unless otherwise stipulated by laws and regulations, these Measures shall apply to the mining rights that are not suitable to be sold by means of bidding, auction or listing due to special circumstances. Agreement transfer is a special transfer method, which has the elements of administrative examination and approval and market transaction, and is a form of implementing the paid acquisition system of mining rights. Its characteristics are: no market transfer, no competitors.
(3) Bidding for the transfer of mining rights is a way for the competent authorities to seek developers who are conducive to the realization of the government's development and utilization plan in the market after the government has a clear intention and planning conditions for the development and utilization of a mineral land. It is a process in which the competent department compiles the tender documents, issues the tender announcement or invitation letter of the mining right bidding project, and the bidder obtains the tender documents, conducts bidding, bid evaluation and selects the winning bidder. This method is suitable for large-scale complex mining areas, and requires developers not only to have enough funds to ensure the minimum investment in mining development, but also to have higher qualifications to meet the requirements of mining development, and to transfer mining rights in a priority manner. Its characteristics are: market transfer, multiple bidders, and selection of the winning bidder.
(4) Mining right auction. This is the way that after the government has a clear intention to develop and utilize a mineral land, the competent department organizes bidders to bid according to the relevant regulations, and determines the transferee of mining rights according to the bidding results. It is a process in which qualified interested bidders are organized by the competent department to be present at the designated time and place, and the mining right is sold by public bidding, and the transferee is determined according to the principle of the highest bidder. This method is suitable for the transfer of general mining rights with active mineral products market and many bidders. Its characteristics are: market transfer, more bidders, the highest bid.
(5) Mining rights are listed for sale. This is the way for the competent department to announce the trading conditions of the mining right to be transferred in the mining right trading place, accept the bidders' quotations during the publicity period, and determine the mining right transferee according to the transfer price results at the end of the listing period. It is a process that the competent authorities only need to announce the starting price of listed mining rights at the designated mining rights trading place within the time limit stipulated in the listing announcement, then they can wait for the bidders' quotations, then calmly accept and announce the latest quotations, and determine the transferee according to the bidding results within the deadline of the listing period. If there are still bidders asking for quotations 30 minutes before the deadline for listing, the competent department will conduct on-site bidding with the listing price at that time as the starting price, and the bidder with the highest bid and higher than the reserve price is the bidder. This method is suitable for the transfer of mining rights where the mineral products market is not active and the number of bidders is expected to be small. Its characteristics are: market transfer, bidders can be more or less, and the highest bidder wins.
In 2006, the Ministry of Land and Resources issued a notice to further standardize the management of mining rights transfer. According to the classified transfer method and the statutory authority of issuing exploration licenses and mining licenses, the transfer of mining rights shall be handled by the land and resources management department of the people's government at or above the county level according to law. Belonging to the first kind of mineral exploration stipulated in the Classified Catalogue of Mineral Exploration and Mining, in the blank areas of mineral exploration or areas where mineral exploration has been carried out but no further exploration has been carried out, the exploration right is transferred by applying first, that is, registering the applicant according to law. The application for transfer shall be handled separately by the land and resources management departments at the national, provincial, municipal and county levels according to the transfer area and investment scale. Under any of the following circumstances, the exploration right shall be transferred by means of bidding, auction and listing: the second kind of minerals specified in the Catalogue of Classification; The first type of minerals specified in the Catalogue of Classification have been explored, and mineral sites for further exploration have been obtained, or previous mining activities show that there are mineral sites for further exploration. In the following circumstances, the exploration right will no longer be established, and the mining right will be transferred directly by means of bidding, auction and listing: the third kind of minerals specified in the Catalogue of Classification; Mining areas where the first and second types of minerals specified in the Classification Catalogue have lost their exploration rights but the degree of mineral exploration has reached the level of detailed investigation (inclusive) and meet the requirements of mining design; The first and second types of minerals specified in the Classification Catalogue have lost their mining rights or have had mining activities in the past, and it has been verified that there are mineral deposits or mineral resources with economic value that can be exploited. Where the tender, auction, hanging listing exploration and mining rights, collected by the county land and resources management department where the mining right is located, reported to the municipal land and resources management department for summary; After the approval of the Provincial Department of Land and Resources, the transaction will be conducted in the Provincial Mining Rights Trading Center according to the bidding, auction and hanging procedures. The exploration and exploitation of petroleum, natural gas, coal-formed gas, uranium and thorium mineral resources shall be managed in accordance with the existing regulations and gradually improved. Key mineral resources development projects approved by the State Council and mineral sites that provide supporting resources for key construction projects approved by the State Council; The existing mining right needs to be integrated or the original production system is used to expand the exploration and exploitation of adjacent areas; Large-scale mineral resources development projects approved by the people's governments of provinces (autonomous regions and municipalities) and officially reported to the Ministry of Land and Resources; The state funded an exploration project to find alternative resources for crisis mines. Approve and allow agreed sales.
To sum up, it is not difficult to see that the competent department of geology and mineral resources plays a dual role in the process of marketization of mining rights. First, it is the main body of civil legal relationship participating in market activities, and its main task is to transfer mining rights to the transferee on the basis of equality and voluntariness in accordance with the provisions of relevant national laws and regulations, through bidding, auction and listing. The other is market managers who regulate market behavior. The main task of the undergraduate course is to be responsible for the registration of mining rights, solve disputes within the block, and be responsible for the change registration and cancellation registration of mining rights. Through the rational use of the dual identity of government departments, the benign operation of the primary market of mining rights can be realized, thus ensuring the normal realization of the rights and interests of national mineral resources owners.
Third, standardize the "secondary market" management of mining rights and speed up the marketization of mining rights.
The mature sign of mining right market should be that the secondary market transactions are active and orderly.
The transferor of the primary market is the state, and the transferor of the secondary market is the mining right holder. According to the transferor determined by the mining right registration authority, the scope of transferring mining rights 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 areas of mining rights.
With China's accession to the World Trade Organization and economic globalization, China will take measures to vigorously cultivate and standardize the market mechanism of exploration and mining rights, invigorate the secondary market, and promote the effective flow and rational utilization of mineral resources. Shou Jiahua, vice minister of the Ministry of Land and Resources, said that it is necessary to do everything possible to increase the proportion of exploration and mining rights allocated by the market, change the situation that the government led the administration to grant mining rights in the past, and only invested in mineral exploration without output, and establish a sustainable development mechanism for taking from and using mines. Who can enter the market configuration, in principle, stop the administrative examination and approval; By strengthening the regulation and control of the primary market of mining rights, controlling the market demand and adjusting the market space, the government should try its best to make paid transfer by means of bidding, auction or agreement entrustment. Efforts should be made to enliven the secondary market, and new ways should be explored for the rational circulation of legally paid exploration and mining rights, such as legal sale, market transaction, capital contribution at a fixed price, and equity transfer.
The transfer of exploration right requires that both the transferor and the transferee must have the qualification certificate of exploration unit, or form an exploration partner with the unit with the qualification certificate of exploration unit, before they are eligible to enter the exploration right market for exploration right trading, so as to ensure that the winner of exploration right aims at exploration and mining. For example, the Notice of Henan Provincial Department of Land and Resources on Further Regulating the Management of Mining Rights Transfer issued by Henan Provincial Department of Land and Resources stipulates that the transfer of exploration rights can only be carried out after the legal minimum investment in exploration is completed. The production quality of mineral rights has been significantly improved, and irregular behaviors such as speculation, wild speculations and false information have been controlled.
The transfer of mining rights requires that the transferor must issue a reserve report and a price evaluation report verified by an institution with the qualification of reserve examination and approval. The transferee shall have sufficient capital, technology and management ability to operate the mine. The transfer of mining rights in large and medium-sized mines must also submit an evaluation report issued by an intermediary agency with mining rights evaluation qualifications.
According to the provisions of Article 6 of the Mineral Resources Law of People's Republic of China (PRC) and Articles 3, 5 and 6 of the Administrative Measures for the Transfer of Exploration and Mining Rights, the transfer of exploration and mining rights must comply with the following provisions:
(1) The prospecting right holder may transfer the prospecting right to others with the approval of the law after completing the prescribed minimum investment in exploration. Specifically, the transfer of exploration rights needs to meet the following conditions: ① 2 years from the date of issuing the exploration license, or mineral resources that can be further explored or mined are found in the exploration operation area. ② The prospecting right holder has completed the minimum exploration investment stipulated by laws and regulations. ③ The exploration right is not disputed. ④ The exploration right holder has paid the exploration right use fee and exploration right price in accordance with the relevant provisions of the state. ⑤ The transferee of exploration right shall meet the requirements of the applicant for exploration right stipulated in the Measures for the Administration of Registration of Mineral Resources Exploration Blocks or the Measures for the Administration of Registration of Mineral Resources Exploitation. ⑥ Meet other conditions stipulated by the competent department of Geology and Mineral Resources of the State Council.
(2) If a mining enterprise that has obtained the mining right needs to change the subject of the mining right due to the merger or division of the enterprise, joint venture or cooperative operation with others, or the change of the property right of the enterprise assets due to the sale of the enterprise assets, it may transfer the mining right to others for mining upon approval according to law. Generally speaking, the conditions for the transfer of mining rights are basically the same as those for the transfer of exploration rights, specifically including the following items: ① Mining enterprises are engaged in mining production 1 year. (2) The mining right is undisputed. (3) paid the mining right use fee, mining right price, mineral resources compensation fee and resource tax in accordance with the relevant provisions of the state. (4) State-owned mining enterprises shall obtain the consent of the competent department of mining enterprises before applying for the transfer of mining rights. ⑤ The transferee of mining right transfer shall meet the requirements of mining right applicant stipulated in the Measures for the Administration of Registration of Mineral Resources Exploration Blocks or the Measures for the Administration of Registration of Mineral Resources Exploitation. ⑥ Meet other conditions stipulated by the competent department of Geology and Mineral Resources of the State Council.
In the actual secondary market, the circulation of mining rights mainly takes the following forms:
(1) Transfer the mining right through bidding or auction. In this way, the mining right owner takes the mining right trading market as a platform and entrusts an intermediary agency to issue an announcement. Invite specific or unspecified bidders to participate in the bidding, and determine the activities of the winning bidder of exploration and mining rights according to the bidding results. Auction refers to the activities that an intermediary agency is entrusted to issue an auction announcement, and bidders conduct public bidding at a specified time and place, and determine the bidders for exploration and mining rights according to the bidding results. Bidding, auction and auction can maximize the market value of mining rights and bring higher profits to the parties.
(2) Agreement transfer, that is, an enterprise transfers the mining right of one enterprise to another enterprise by signing a purchase transfer agreement, and obtains the corresponding transfer income.
(3) Joint venture, that is, two or more enterprises form a new legal entity with mining rights as the main body to operate mining rights.
(four) joint operation, that is, two or more enterprises jointly operate geological exploration or mining projects.
(5) merger, that is, one or several legal persons with mining rights are absorbed by another legal person and merged into one legal person. The creditor's rights and debts of multiple original legal persons with mining rights shall be handled by the merged legal persons.
4. How do geological prospecting units participate in market competition?
Geology and mineral exploration is the source of mining right and the upstream terminal industry of mining industry. The core competitive advantage of geological prospecting units is geological and mineral exploration, and mining rights are the material basis for the survival and development of geological prospecting units; The production, operation and management of mining rights run through all aspects of mining industry; Science and technology is the primary productive force in the production, operation and management of mining rights, which directly affects the technical content of mineral resources exploration results closely related to mining rights and the market value of mining rights commodities; The market transaction of mining right commodities is essentially the transaction of mineral resources exploration results; The production, operation and management of mining rights are the process of investment and reinvestment of mining rights holders, and their purpose is to obtain the maximum return through the mining rights market in the best operation stage and in the best operation form.
In order to increase the added value of mining right commodities and obtain the maximum economic return, geological prospecting units must regard science and technology as the primary productive force in mining right production and management. In the mining rights market, mineral resources exploration results are the carrier of mining rights circulation and operation, and mining rights market transactions are essentially the transactions of mineral resources exploration results. The results of geological and mineral exploration are products formed after a lot of living labor and materialized labor consumption, which are valuable, can produce benefits after use and have use value. The market value of geological and mineral exploration results directly affects the market value of mining rights commodities. We should give full play to and strengthen the role of science and technology as the primary productive force in the production and operation of mining rights. Although the same exploration investment has been made in the same exploration block, due to the differences of workers' technical and professional levels, different understandings of problems and working methods, geological and mineral exploration achievements with different market values will inevitably be produced, which will lead to differences in their mining rights. Therefore, geological prospecting units should constantly improve the professional level of scientific, technological and managerial personnel, mobilize their enthusiasm and give full play to their intelligence in all aspects of prediction, screening, mining right acquisition, exploration implementation and management of mineral resources exploration target areas. Innovative thinking of scientific and technical personnel and managers, creative application of new theories, new technologies and new means in geological and mineral exploration and market management, study of regional metallogenic regularity and local mineral resources planning, and analysis and judgment in combination with wider regional mineral resources allocation and raw material market demand are the keys to continuously form and accumulate new mining rights assets, revitalize existing mining rights assets and improve the added value of mining rights commodities.
Geological prospecting units should continue to maintain their traditional comparative advantages, give play to their core competitiveness, establish a modern enterprise system, improve their visibility and create a corporate culture. Use "culture" to build a brand, use "culture" to improve the competitiveness of enterprises and use "culture" to enter the international market. It is necessary to cultivate and bring up a large number of compound talents who adapt to the socialist market economic system and are proficient in the rules of the mining rights market game.
Verb (abbreviation of verb) abstract
The system of paid use of mining rights in China was implemented late, with the primary (transfer) market as the mainstay and the secondary (transfer) market relatively backward. In the process of transferring mining rights, mineral resources management departments at all levels, on behalf of the country, take the purpose of safeguarding the rights and interests of national mineral resources as the transaction price, which includes political and social stability factors and the government's expectation for the reform of mining rights use system. Therefore, the transaction price of most mining rights in China may not be the result of pure market action to a considerable extent. The transfer of mining rights funded by the state is essentially the transfer of mining rights, that is, the state transfers a specific mining right to the applicant (or transferee) as a special civil subject by collecting the price of mining rights. At present, the relevant state departments have explicitly proposed to stop the administrative granting of mining rights, actively explore the allocation of mineral resources by market means, and gradually implement the public transfer of mining rights by means of bidding, auction and listing.