矿权的法律定位及立法选择

在物权法制定中,矿权是否应当纳入物权法引发了争议。矿权是民事主体经由行政授权而取得的私权,应当定位为准物权。作为受私法保护的权利,矿权应当纳入物权法体系予以调整。同时矿权具有权利的特殊性,体现着浓厚的公法和程序法的色彩,很多内容需要通过特别法予以规定。公私法的融合可以对各种矿权社会关系进行更为周全的法律保护。将矿权纳入物权法调整不但有助于完善物权法律规范体系和矿权法律规范体系,也是现有法律法规体系和实践经验传承性的体现。在对矿权法律体系构建几种立法模式进行分析的基础上,认为合理的立法选择应是物权法的原则规定与特别法的具体规定相结合的模式。

Legal Positioning and Legislative Selection of Mining Rights

In the enactment of property rights law, Whether or not bringi ng mining rights into line with it aroused a lot of controversy. The paper argue s that mining rights should be defined as pro- property rights, in light of the fact that mining rights is personal rights acquired by administrative authorizat ion of civil dominant position. As the rights protected by private law, mining r ights should be fitted into system of property rights, and then offers restructu ring. Furthermore, many contents with regard to mining rights should be provided for by special law according to its speciality and strong public and procedural law color. The integration of public and private law can provide a perfect lega l protection for various mining social relations. Bringing mining rights into th e restructuring of property rights is not only conducive to perfecting the stand ard system of property rights law and mining rights law, but also the embodiment continuity of available law and regulation system and practice experiences. The paper points out that rational legislative selection should combine the princip le formulation of property rights with the specific stipulation of special law.