Shensheng: without approval of the transfer contract, you may not request to change the mining right on your own.

[introduction of the case]

Y Company obtained the mining right of An iron ore in 2003. On October 16, 2007, Y Company and J Company reached a "Mining right transfer contract", which agreed that Y Company would transfer all its An iron ore mining rights to J Company, and J Company would pay a transfer fee of 200000 yuan to Y Company. After the contract was signed, J Company paid a transfer fee of 200000 yuan to Y Company, and Y Company delivered the mine to J Company. J Company invested a lot of money to restore the construction and production of the mine, and handled all the certificates and examinations needed for the production of the mine. After that, Company J repeatedly asked Company Y to complete the transfer of mining rights, but Company Y has been delaying the registration of changes in the transfer of mining rights, so Company J sued the court on March 17, 2009. request to order Company Y to perform the transfer contract and go through the registration procedures for the change of mining rights in accordance with the law.

[court decision]

The court of first instance ruled that Y Company continued to perform the "transfer contract" signed with J Company, and Y Company went through the registration procedures for the change of An iron ore mining right. Company Y refused to accept the judgment of first instance and filed an appeal. The court of second instance decided that the appeal should be dismissed and the original judgment should be upheld. Company Y refused to accept the judgment of the second instance and applied to a provincial high court for a retrial. A provincial high court retrial judgment: revoke the judgment of the first and second instance; reject the litigation request of J Company. Company J refused to accept the retrial judgment of a provincial higher people's court and applied to the Supreme people's Court for a retrial. The retrial judgment of the Supreme people's Court: the retrial judgment of the higher people's Court of a certain province shall be upheld.

[case study]

This case mainly deals with the question of whether the change of mining rights can be requested on the basis of an unapproved transfer contract.

In accordance with Article 44 of the contract Law, Article 10 of the measures for the Administration of the transfer of Exploration Rights and Mining Rights of the State Council and Article 46 of the interim provisions on the Administration of the transfer of Mining Rights of the Ministry of Land and Resources, in order to realize the interests of the state in regulating the order of mineral resources development, the transfer contract shall take effect from the date on which the application for the transfer of mining rights is approved. Article 9 of the Judicial interpretation of the contract Law of the people's Republic of China stipulates: "laws and administrative regulations stipulate that a contract shall go through the formalities of approval or registration before it becomes effective. If the party concerned has not gone through the formalities of approval, or has not gone through the formalities of approval or registration before the end of the debate in the court of first instance. The people's court shall determine that the contract is not effective. " Therefore, the contract for the transfer of mining rights without the approval of the examination and approval authorities is not effective.

If the contract is not in force, the contract has been established but has not entered into force. For the non-effective contract, we should pay attention to the following aspects: first, the non-effective contract is an independent type of contract effectiveness, there is a possibility of entry into force, which is different from the invalid contract can not take effect from the beginning to the end. Second, the entry into force of the contract only after approval must be stipulated by laws and administrative regulations. Third, most of the approved contracts are related to administrative license, such as the transfer, mortgage and lease of mining rights. Fourth, the relevant liability for breach of contract and the agreement on dispute handling take effect independently. Because examination and approval is a statutory special effective element, not a special establishment element, so the non-examination and approval does not affect the establishment of the contract, but only affects the entry into force of the contract. As far as the validity of the contract is concerned, the unapproved contract is similar to the contract with conditions for entry into force, except that the "conditions" in the conditions for entry into force are agreed conditions, while the conditions here are legal conditions. The unapproved contract as an established but not effective contract is not completely invalid, and its effectiveness is shown in the following aspects: first, the contract has been established, resulting in formal binding force between the parties. Secondly, although the contract does not have substantial binding force because it has not entered into force, both parties have the right of expectation at this time. According to the principle of good faith, the parties have the obligation to actively promote the transformation from the expectant right to the vested right, which is the origin of the obligation to apply for approval of the contract. Finally, the non-effective contract is in a state of intermediate effectiveness. according to the principle of good faith, both parties have the obligation to actively promote the entry into force of the contract, which is the obligation to apply for approval. In other words, although the whole contract has not entered into force, the obligation to apply for approval has come into effect independently.

Mineral resources are an important material basis for human survival and sustainable economic and social development. The examination and approval of the transfer of mining rights is an important system for the state to standardize the orderly circulation of mining rights and to realize the scientific protection and rational development of mineral resources. Before the application for the transfer of mining rights is approved, the contract for the transfer of mining rights is a contract that has not entered into force and is not substantially binding on both the transferor and the assignee of the mining right because the contract is not in force. Neither party to the contract shall require the other party to perform the agreed obligations in accordance with the contract. In the process of hearing such cases, the relevant judicial organs shall, in strict accordance with the provisions of the law, determine that the transfer contract has not come into effect because it has not been examined and approved, and order both parties to the transfer of mining rights to go through the formalities for approval of the transfer of mining rights in accordance with their respective obligations. actively promote the entry into force of the contract, maintain the trading order of the mining rights market, and also comply with the principle of encouraging transactions and creating wealth in the contract law.

In this case, the license issuing organ of the "mining license" of the iron ore involved in the case is the provincial department of land and resources, according to the provisions of Article 4, paragraph 3, of the measures for the Administration of the transfer of Exploration Rights and Mining Rights, the administrative organ for examining and approving the transfer of mining rights of iron ore involved in the case should also be a provincial department of land and resources. However, J Company has not submitted evidence to prove that the transfer has been approved by the above-mentioned examination and approval authority. Therefore, the "transfer contract" does not meet the legal conditions for entry into force. The validity of the contract is the basis for the parties to the contract to fulfill their contractual obligations. The transfer contract has not yet entered into force, and there is no legal basis for company J to request Company Y to continue to perform the contract. The litigation request of Company J is to register the change of mining rights, but if the transferor and assignee apply for the transfer of mining rights in accordance with the provisions of paragraph 2 of Article 10 of the measures for the Administration of the transfer of Mining Rights, the assignor and the assignee shall, within 60 days from the date of receiving the notice of approval of the transfer, go through the formalities of change registration with the original license issuing authority. In other words, the approval of the transfer is the pre-procedure for the registration of the change of mining rights, and whether the transfer can be approved or not needs to be examined by the examination and approval authority, which belongs to the scope of administrative authority. Therefore, in the case that the transfer has not been approved, J Company directly requests for the registration of mining right change without legal basis and should not be supported. Company J may settle the part it has performed through separate legal channels, or company J may sue again after the transfer has been approved. (end)