On December 30, 2015, the Supreme People’s Court issued (2015) Zh. F. Zi No. 37 reconsideration decision to uphold (2015) J. Zh. Zi No. 5 penalty decision that was made by Hebei Higher People’s Court on the act of Inner Mongolia Autonomous Region Department of Land and Resources of failing to fulfill its execution assistance duty without any good reason. What was demonstrated in the case is the problem that the right of mining is hard to be executed in practice. While providing services for the department of land and resources, we have also encountered the problem of assisting in the transfer of the right of mining many times. The current laws have complete provisions on land and real estate, and have developed uniform operational procedures. However there is no specific provision on how to execute the right of mining. The point is that the right of mining is both usufructuary right and administrative licensing in itself, liable to cause conflicts between the judicial power and executive power.

 On December 29, 2017, the Ministry of Land and Resources issued Notice of the Ministry of Land and Resources on Matters Regarding the Registration of Examination and Approval of Mining Resources Exploitation (G. T. Z. G. [2017] No. 16) (hereinafter referred to as “Doc. No. 16”) and Notice of the Ministry of Land and Resources on Matters Regarding Further Improvement of the Registration Administration of the Right of Mining (G. T. Z. F. [2011] No. 14) (hereinafter referred to as “Doc. No. 14”) were annulled. Although being departmental normative documents, the above two notices are the only practical regulations referred to by the administrative organs on assisting the People’s Court in changing the registration information of the right of mining at the present stage. This paper will make an analysis of the key points in the practice of handling registration change after the right of mining has been obtained through judicial judgement by comparing the changes of the two differences and in light of our experience.

Comparison of the old and the new Articles

Article 19, Doc. No. 16:

Where the People’s Court auctions or renders the right of mining to another party, the transferee shall apply to the registration administration organ for registration change in accordance with the law. The transferee applying for change in registration shall meet the conditions set in Article (7) hereof, and the registration administration department shall, with the applicant’s application for change of the right of mining and the notice, issued by the People’s Court, on its assisting the execution, handle the right of mining change registration formalities. 

Article 24, Doc. No. 14:

Where the People’s Court auctions or declares the right of mining to another party, the transferee shall apply for registration change in accordance with the law. The transferee applying for change in registration shall meet the qualification conditions set in Article 13 hereof, and the registration administration department shall, with effective judgment documents, handle the right of mining change registration formalities in accordance with the law.

I. Application for Registration Information Change

In practice, many transferees think that, with a judgment and after having applied to the People’s Court for enforcement of the judgement, all that is needed is to wait for the People’s Court takes mandatory executive measures. However, according to Doc. No. 16, after the People’s Court auctions or declares the right of mining to another party, the transferee shall apply for registration change in accordance with the law, which actually provides the transferee’s application duty. Pursuant to the provision in Doc. No. 14 that the transferee shall hold an effective judgment document to handle registration information change, Doc. No. 16 explicitly requires that the application materials shall involve the notice of the People’s Court to assist in enforcement, and the notice to assist in enforcement exists only in the execution procedure of the People’s Court.

 We therefore suggest the transferees apply for enforcement of judicial judgment documents in a timely way to urge the People’s Court to serve the notice to assist in enforcement to the administrative organ and submit, with initiative, an application for change in registration information to the administrative organ.

II. Transferee Qualifications

Paragraph 1 of Article 7 of Doc. No. 16 provides, “The right of mining applicant shall be a profitable legal person in principle. Where a foreign-funded enterprise applies for the right of mining constrained category, it shall present the project approval document from competent department. To apply for the right of mining radioactive mineral resources, the applicant shall issue the project approval document issued by the competent department of the industry. ”

According to the provision of Paragraph 1 of Article 13 of Doc. No. 14, Doc. No. 16 revises the requirement to “possess the qualification as an independent enterprise legal person” to “be a profitable legal person in principle” while canceling the requirement on registered capital. It is believed that such change, on the one hand, complies with the classification of legal persons after the general principles of the Civil Law are put into practice, while on the other, leaving space for the circumstance that the People’s Court declares the right of mining to a non-profitable legal person which may possibly appear in actual execution.
In addition the above changes, Doc. No. 16, while maintaining the requirement that foreign-funded enterprises to apply for the right of mining the constrained category shall submit the project approval document that is issued by competent departments, adds a new provision on the applicant’s submitting a project approval document that is issued by the competent department of the industry in order to apply for the right of mining radioactive mineral materials.

Comprehensively, except for the requirement that the approval documents of relevant departments have to be obtained under special circumstances, Doc. No. 16 is less stringent than Doc. No. 14 on transferee’s qualifications.

It is noteworthy that, according to Article 7 of Measures on the Management of the Transfer of Exploration Right and Mining Right, the transferee of the right of mining shall meet the provision of Measures on the Management of the Transfer of Exploration Right and Mining Right on the mining right applicant’s qualifications. Although Measures on the Management of the Transfer of Exploration Right and Mining Right does not have any explicit provision on the applicant’s qualifications, its Article 24 provides, “Where the license of a mining right owner is revoked, the same mining right owner is not allowed to apply for the right of mining within two years from the day its license of mining right is revoked,” which continues to be  a requirement on the applicant’s qualifications. In case a transferee falls into the circumstance provided in such article, such transferee may face the risk of the administrative organ’s decision that one does not meet the legally provided mining right applicant qualifications.

III. Materials to Be Submitted in order to apply for Registration Information Change

Doc. No. 14 provides only effective judgment documents, while Doc. No. 16 provides the applicant’s application materials for changing the right of mining and the notice to assist in enforcement issued by the People’s Court.

With regard to what specific contents the mining right change application documents include, they are not specified in Doc. No. 16. Although Measures on the Management of the Transfer of Exploration Right and Mining Right contain a provision on the materials to be submitted to the examination and approval organ in order to transfer the right of mining and each and every competent department also makes public their respective lists of materials to be submitted when handling the registration change formalities of mining right transfer on their official websites, the above provisions are about the materials that shall be submitted when handling the change registration formalities of mining right transfer in normal circumstances, and the subjects of such materials include both the transferor and the transferee. Under the circumstance where the right of mining is obtained through judicial judgment, it is obviously unrealistic to expect the transferor to cooperate with the transferee to prepare relevant materials. The provision of Doc. No. 16 that the transferee may apply for registration change independently also demonstrates that the requirement on the materials submitted by the transferee is inevitably different from that in normal situations.

Therefore, we suggest that transferees may refer to the list—announced by the competent administrative department—of the materials to be submitted for handling the registration change formalities under normal circumstance that corresponds to the right of mining that is to be transferred. For those which cannot be provided (such as the mining right transfer contract signed by both parties and the relevant commitments made by the transferors), they should actively communicate with the administrative department and strive to deal with or seek exemption through alternative methods.

IV. Examination and Approval Right of the Administrative Organ in Assistance in the Execution of Registration Change

According to relevant provisions of the civil procedure law, after receiving the notice to assist in enforcement from the People’s Court, the administrative organ shall handle relevant formalities according to the items clearly indicated in such notice. However, in judicial practice, the circumstances under which the judicial power and the administrative power are in conflict are common. The implementation of Doc. No. 14 is to resolve such conflicts, and it actually stresses the principle that judicial power precedes administrative power by requiring the administrative organ to handle registration change formalities according to the People’s Court judgement which has already become effective. However, the statement in Doc. No. 14 “handle the right of mining change registration formalities in accordance with the law” makes some administrative organs believe that, when they assist in enforcement, examination shall be done first in accordance with the law. In case of a circumstance which they believe does not meet the conditions for transfer, they usually choose to not cooperate in the execution in order to avoid administrative responsibilities.

In Doc. No. 16, the statement has been changed to “handle the right of mining change registration formalities,” which is more specific and operable. That is, after receiving the applicant’s application documents for change in registration and the notice to assist in enforcement from the People’s Court, the administrative organ does not have to conduct any substantive examination of the contents of the notice to assist in enforcement, but shall handle the registration change formalities. However that does not mean that the administrative organ no longer or cannot examine the legality of such transfer. In case the administrative organ believes that the transfer of the right of mining, which it assists in enforcement, does not meet legal provisions in some places, it may still make the examination suggestion to the People’s Court.

We suggest when the transferee finds itself in a situation where the administrative organ does not cooperate, in addition to applying to the People’s Court for penalizing the same administrative organ’s act for being uncooperative, it actively communicate with the administrative organ to determine the reasons why the administrative organ refuses to handle the registration formalities. After such information, the transferee may take targeted countermeasures to prevent the execution from being stuck in a deadlock.

V. Extension of the Right of Mining in the Process of Assistance in Enforcement

 According to Article 21 of Doc. No. 16, “When applying for registration change within six months before the expiration of the mining right license, the applicant may apply to the registration administration organ for extending the registration.” We suggest that the transferee applies for extending the registration while applying for change in registration due to transfer in order to avoid disputes over the term of validity of the mining right license.

The above are key points in practice in light of the regulations of the Ministry of Land and Resources and our experience. As for other complicated issues emerging in practice, they will be discussed in another paper.