In actual cases, there is often a sole proprietorship enterprise after obtaining the mining right license, its investors sign a transfer contract with other natural persons to transfer all the assets of the mining enterprise to other investors and register the industrial and commercial change of the investors. Can this change registration have the legal effect of the change of real right? The current view of the Supreme Court is: no.
Case: (2017) Supreme Dharma Minzai No. 265
In this case, Liu Xiaojun, the former investor of Jingzhang Quartz Mine, the owner of mining rights, signed an agreement with the transferee to transfer all the assets of the mining enterprise, and registered the change of the investor for industry and commerce, and then went through five more transfers and changes, but did not go through the formalities of examination and approval and registration with the mining license issuing authority, Sanmenxia Municipal Bureau of Land and Resources (now the Bureau of Natural Resources and Planning). The focus of the dispute in this case is the legal effect of Jingzhang Quartz Mine as a sole proprietorship enterprise to change whether the investor has the transfer of mining rights involved in the case.
I. on the nature of Jingzhang Quartz Mine as a sole proprietorship enterprise to change its investor.
Article 2 of the Law of the people's Republic of China on sole proprietorship Enterprises stipulates that a sole proprietorship enterprise is an operating entity invested by a natural person, the property is owned by the investor, and the investor bears unlimited liability for the debts of the enterprise with his personal property; article 17 stipulates: "the sole proprietorship investor shall have ownership of the property of the enterprise in accordance with the law, and its relevant rights may be transferred or inherited in accordance with the law." Accordingly, the sole proprietorship enterprise does not have an independent legal personality, the nature is an unincorporated enterprise, and the actual owner of all the property of the enterprise is the investor. In this case, Jingzhang Quartz Mine, as a sole proprietorship enterprise, has changed its investors for many times and has been registered for industrial and commercial change. In terms of form, the name of Jingzhang quartz mine remains unchanged, but in view of the fact that the property of the sole proprietorship enterprise is owned by the investor, the change of the investor will inevitably lead to the transfer of the property rights under the name of the enterprise. The mining right involved in the case is registered in the name of Jingzhang Quartz Mine and is obtained by the original investor as the investor of the sole proprietorship enterprise, and the original investor is the right holder of the mining right. As mining rights are the core assets of mining enterprises, the overall transfer of mining enterprise assets and the change of investors will inevitably lead to the change of the main body of mining rights. Therefore, the previous Enterprise assets transfer Agreement or the sole proprietorship Enterprise Equity transfer Agreement stipulate the transfer of all the assets or 100% of the property rights of the mining enterprise. it should be recognized as the overall transfer of enterprise assets, including the transfer of mining rights.
On the question of whether there is a right transfer of the mining right involved in the case
Article 6, paragraph 1, paragraph 2, of the Mineral Resources Law of the people's Republic of China stipulates: "A mining enterprise that has obtained the mining right may transfer the mining right to another person for mining because of merger or division of the enterprise, joint venture or cooperative operation with others, or if the subject of the mining right needs to be changed due to the sale of the enterprise assets or other circumstances of changing the property rights of the enterprise assets." Article 4 of the measures for the Administration of the transfer of Exploration and Mining Rights stipulates: "the competent department of geology and mineral resources under the State Council and the competent departments of geology and mineral resources of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are the administrative organs for examining and approving the transfer of exploration rights and mining rights. The competent department of geology and mineral resources under the State Council shall be responsible for the examination and approval of the transfer of exploration rights and mining rights issued by them. The competent departments of geology and mineral resources of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the examination and approval of the transfer of exploration rights and mining rights other than those provided for in the second paragraph of this Article; paragraphs 1 and 2 of Article 10 stipulate: "where an application is made for the transfer of exploration and mining rights, the administrative authority for examination and approval shall, within 40 days from the date of receipt of the application for transfer, make a decision to grant or not to transfer, and notify the transferor and assignee. If the transfer is granted, 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; after paying the relevant fees in accordance with the provisions of the State, the assignee shall obtain an exploration license or a mining license and become an exploration right holder or a mining right holder. " To sum up, it is necessary to apply for the transfer of mining rights in accordance with the law, and only with the approval of the department in charge of natural resources and the registration of the change of mining rights can the legal effect of the change of real rights occur and the assignee can obtain the mining rights in accordance with the law.
Specifically in this case, although several changes of investors in Jingzhang Quartz Mine have been registered for industry and commerce, and the mining rights involved in the case have been registered under the name of Jingzhang Quartz Mine in accordance with the law, the subject of mining rights has not changed at the same time, and the right holder is still Liu Xiaojun. Although "the mining right involved in the case" needs to provide the latest business license during the annual inspection, the Sanmenxia Municipal Bureau of Land and Resources has affixed a special seal for administrative examination and approval on the back of the certificate and recorded the payment of the mining right royalty in that year. "however, it does not mean that Sanmenxia Land and Resources Bureau has approved the transfer of mining rights in procedure and in fact. First, Sanmenxia Land and Resources Bureau affixed a special seal for administrative examination and approval on the copy of the mining license, but from the point of view of the record, it is the confirmation of the mine's payment of the annual mining right royalty, not the confirmation of the transfer of mining rights; second, there is no evidence to prove that the annual inspection of mining rights in Sanmenxia Land and Resources Bureau is the examination and approval of the transfer of mining rights stipulated by law. It can not prove that the mining right of Jingzhang Quartz Mine has been changed. Therefore, the mining right in this case can not produce the effect of the change of the real right of the mining right in accordance with the law.
Mining right has the legal characteristic of administrative empowerment, and the transfer of mining right needs to be examined and approved by the department in charge of natural resources, and only with the approval of the department in charge of natural resources, the transferor 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 order to have the effect of the change of real right; only when the assignee obtains the changed mining license can he become the mining right holder.
(Beijing Yuren Law firm: Wang Nannan, Liu Si)
![Market Risk Appetite Weakened, the Most-Traded BC Copper Contract Closed Down 0.84% [SMM BC Copper Commentary]](https://imgqn.smm.cn/usercenter/grvgR20251217171710.jpg)
